In Re: Robert Paul Stewart--Appeal from 1st District Court of Sabine County

NO. 12-04-00193-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: ROBERT PAUL STEWART, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Robert Paul Stewart filed a petition for writ of mandamus seeking to compel the trial judge to rule on his motion for speedy trial. We deny the requested relief.

A trial judge has a duty to consider and rule on motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex. App. San Antonio 1998, orig. proceeding). To invoke this duty, however, the movant must show that he brought the motion to the trial judge s attention and the trial judge failed or refused to rule. In re Chavez, 62 S.W.3d 225, 228 (Tex. App. Amarillo 2001, orig. proceeding). Moreover, no bright-line rule exists for determining whether a reasonable time has lapsed. Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App. Amarillo 2001, orig. proceeding). Therefore, what is a reasonable time depends upon the circumstances in each case. Id.

In a mandamus proceeding, the burden lies with the relator to provide a record showing that he is entitled to the relief requested. Id. Therefore, in this proceeding, Stewart was required to provide a record with his petition that shows (1) a properly filed motion has awaited disposition for an unreasonable period of time and that (2) he requested a ruling on his motion, but the trial court has failed or refused to act. Id. Additionally, the record provided must be free of factual questions. Id. at 136.

Along with his mandamus petition, Stewart provided (1) a file-marked copy of a Motion to Dismiss For Violation of Speedy Trial, (2) a copy of a proposed order on the motion, and (3) a copy of a letter addressed to the trial judge requesting that the judge rule on his motion to dismiss or appoint another judge to rule. // Stewart did not furnish proof of mailing this letter or of receipt by the trial judge. This record does not show any grounds for our interference with the trial court s inherent authority to control its own docket. See id. Accordingly, Stewart s petition for writ of mandamus is denied.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)