In Re: Curtis Antonio Davis--Appeal from County Court at Law No 3 of Smith County

NO. 12-06-00302-CV

NO. 12-06-00303-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: CURTIS ANTONIO DAVIS, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

In this original mandamus proceeding, Curtis Antonio Davis seeks an order requiring the trial court to file his two misdemeanor applications for writ of habeas corpus and dispose of them. Because Davis s applications have been filed, we construe his mandamus petition as a request for an order requiring the trial court to rule on the applications.

In a criminal case, mandamus relief is authorized only if the relator establishes that (1) he has no other adequate legal remedy and (2) under the facts and the law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). A trial court has a ministerial duty to consider and rule on a motion within a reasonable time. In re Thomas, No. 12-05-00261-CV, 2005 WL 2155244, at *1 (Tex. App. Tyler Sept. 7, 2005, orig. proceeding). If a court unnecessarily delays ruling, mandamus will lie in appropriate situations. In re Mendoza, 131 S.W.3d 167, 167 (Tex. App. San Antonio 2004, orig. proceeding). Along with his mandamus petition, Davis furnished us a copy of a letter dated October 7, 2005 transmitting the habeas applications to the County Clerk of Smith County. Additional materials indicate that the applications were originally filed in County Court at Law No. 2, Smith County, but were sent to the County Court at Law after the presiding judge of County Court at Law No. 2 discovered he had previously represented Davis. On July 13, 2006, both applications were transferred to County Court at Law No. 3, with the Honorable Floyd T. Getz presiding. Although the applications have been pending for approximately ten months, they have been assigned to County Court at Law No. 3 for only one month. We cannot conclude that the passage of one month constitutes an unreasonable time period to delay ruling on the applications, and we have not been furnished with any evidence that the respondent trial judge has overtly refused to rule. Therefore, Davis has not shown that he is entitled to the relief sought. The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

SAM GRIFFITH

Justice

Opinion delivered August 31, 2006.

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

(PUBLISH)