                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00176-CR




            IN RE WILLIAM ISAAC HOFF




             Original Mandamus Proceeding




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                      MEMORANDUM OPINION
       William Isaac Hoff filed a pro se petition for writ of mandamus complaining of the trial

court’s failure to rule on a motion to dismiss. We deny the requested relief.

       Hoff complains that the presiding judge of the County Court at Law of Cass County has

failed to rule on his motion to dismiss an assault charge involving family violence. Hoff attached

a copy of the motion to dismiss he allegedly filed in the trial court, and there is an unsworn

declaration dated July 3, 2015, appended to that motion. However, the motion to dismiss itself is

undated and bears no “filed” stamp or other notation demonstrating that it was actually filed in the

trial court. Hoff included in the appendix filed with his petition a copy of a letter dated July 14,

2015, from the Cass County Clerk addressed to a Mr. Bobby Hodge stating, “I have forwarded his

Motion to Dismiss to the County Court at Law for the Judge to review and make a determination

on the Dismissal that Mr. Hoff has filed.” Hoff contends that the respondent has had ample time

to rule on his motion but has failed to do so.

       We may grant a petition for a writ of mandamus when the relator shows that “‘there is no

adequate remedy at law’” to redress the alleged harm and “‘that the act . . . to be compelled is

purely ministerial.’” Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig.

proceeding) (per curiam) (quoting Winters v. Presiding Judge of Criminal Dist. Court No. Three,

118 S.W.3d 773, 775 (Tex. Crim. App. 2003) (orig. proceeding)).

       A trial court has a ministerial duty to consider and rule on a properly filed, pending motion

within a reasonable time. See In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana 2005,

orig. proceeding). While we have mandamus jurisdiction to direct the trial court to make a
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decision, we may not tell the trial court what that decision should be. In re Blakeney, 254 S.W.3d

659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). “Any such mandamus relief, however,

must be predicated on an adequate showing that a request for a ruling has been properly and

adequately presented to the trial court and that the court has declined to rule.” Id.

           Although the motion to dismiss bears no “filed” stamp, the appendix to Hoff’s petition

includes documentation establishing that the motion was transmitted to the County Court at Law

of Cass County by the Cass County Clerk. This documentation does not establish that the motion

was brought to the attention of the trial court with a request for a ruling. See id. at 661 (mandamus

relief must be predicated on adequate showing that request for ruling has been presented to trial

court).

           Here, the style of Hoff’s petition identifies the respondent as the County Court at Law of

Cass County. In the body of the petition, however, Hoff names “Becky Wilbanks, Judge of the

Cass County Court in Her capacity as Presiding Judge of the Cass County Court of Law” as the

respondent. This Court takes judicial notice1 of the fact that Donald W. Dowd is the judge of the

County Court at Law of Cass County and that Becky Wilbanks is the Cass County Judge. See

TEX. R. EVID. 201. Moreover, the Fifth Judicial District Court of Cass County and the County

Court at Law of Cass County have concurrent jurisdiction over misdemeanor cases not involving

official misconduct and over all felony cases except capital murder. See TEX. GOV’T CODE ANN.

§ 24.105(b) (West 2004) (giving the Fifth Judicial District Court the jurisdiction of a county court),




1
    See TEX. R. EVID. 201.
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§ 25.0362 (West Supp. 2014) (giving the Cass County Court at Law concurrent jurisdiction with

the Fifth Judicial District Court in certain misdemeanor and felony cases). Additionally, the

County Court for Cass County “has the general jurisdiction of a probate court but has no other

civil or criminal jurisdiction except juvenile jurisdiction as provided by Section 26.042(b) and

criminal jurisdiction to receive and enter guilty pleas in misdemeanor cases.” TEX. GOV’T CODE

ANN. § 26.134 (West Supp. 2014).

        The offense of assault family violence can be charged either as a misdemeanor or felony

offense, depending on the circumstances. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2014).

Thus, it is conceivable that Hoff’s case could be pending in either the County Court at Law of Cass

County or in the Fifth Judicial District Court of Cass County. Hoff’s petition does not clearly

identify the proper respondent, having variously named both the Cass County Judge and the

County Court at Law of Cass County.

        In order to satisfy the presentment requirement, Hoff was required to (1) bring his motion

to the attention of the proper trial court and (2) make a clear request for a ruling on that motion.

See Blakeney, 254 S.W.3d at 662.2 This he failed to do.




2
 Typically, presentment may be accomplished by means of a letter from the relator directed to the proper trial court
enclosing the motion on which a ruling is requested and clearly requesting a ruling.
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      Because Hoff has not established a right to mandamus relief, we deny his petition for a writ

of mandamus.




                                            Ralph K. Burgess
                                            Justice

Date Submitted:      October 27, 2015
Date Decided:        October 28 2015

Do Not Publish




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