

NO. 12-11-00163-CV
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN RE:                                                            §                      
 
JOHN CLOUD,                                             §                      ORIGINAL
PROCEEDING
 
RELATOR                                                     §                      



MEMORANDUM
OPINION
            Relator
John Cloud petitioned the trial court for permission to appear before the
Anderson County grand jury to present a complaint.  The trial court denied the
petition, and Relator filed a motion for reconsideration.  The trial court has
not ruled on the motion, and Relator seeks a writ of mandamus requiring the
court to rule.  
            To
obtain a writ of mandamus compelling the trial court to consider and rule on a
motion, a relator must establish that the trial court (1) had a legal duty to
perform a nondiscretionary act, (2) was asked to perform the act, and (3)
failed or refused to do so.  In re Molina, 94 S.W.3d 885, 886
(Tex. App.–San Antonio 2003, orig. proceeding).  Generally, a trial court has a
nondiscretionary duty to consider and rule on a motion within a reasonable
time.  In re Thomas, No. 12-05-00261-CV, 2005 WL 2155244, at *4
(Tex. App.–Tyler Sept. 7, 2005, orig. proceeding) (mem. op.).
            Here,
Relator’s motion for reconsideration is, in essence, a motion for new trial.  A
trial court has no duty to rule on a motion for new trial.  See Tex. R. Civ. P. 329b(c) (motion for new
trial not determined by written order signed within seventy-five days after
judgment signed to be considered overruled by operation of law).  Because the
trial court has no duty to rule on a motion for new trial, and Relator’s motion
for reconsideration is, in essence, a motion for new trial, Relator has not
shown that he is entitled to mandamus relief.  Accordingly, Relator’s petition
for writ of mandamus is denied.
            
                                                                                    Sam Griffith
                                                                                         
    Justice
 
 
 
 
Opinion delivered June 22, 2011.
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(PUBLISH)


