                                    NO. 07-09-0117-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                      APRIL 30, 2009

                          ______________________________


                    IN RE GREGORY DEAN BANISTER, RELATOR

                          _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Relator, Gregory Dean Banister, proceeding pro se and in forma pauperis, seeks

a writ of mandamus to compel the Honorable Felix Klein, Judge of the 154th District Court

of Lamb County, to rule on various motions and requests which relate to the resolution of

a writ of habeas corpus.1 We deny Relator’s petition for writ of mandamus.


       According to Relator’s petition and documents, on September 23, 2008, he filed a

writ of habeas corpus in the trial court pursuant to article 11.07 of the Texas Code of

Criminal Procedure relating to his September 16, 2004 conviction for aggravated assault.



       1
        Copies of the documents complained of are included in appendices to Relator’s petition
as required by Rule 52.3(k) of the Texas Rules of Appellate Procedure.
                             Mandamus Standard of Review


       “Mandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).


       When a petition for writ of mandamus is filed, the relator has the burden to show

entitlement to the relief sought. Johnson, 700 S.W.2d at 917. A relator must satisfy three

requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979). A court is not required to consider a motion not called to its attention. Metzger v.

Sebek, 892 S.W.2d 20, 49 (Tex.App.–Houston [1st Dist.] 1994, writ denied). Showing that

a motion was filed with the clerk does not constitute proof that the motion was presented

or brought to the trial court’s attention with a request for a ruling. In re Chavez, 62 S.W.3d

225, 228 (Tex.App.–Amarillo 2001, orig. proceeding).


       When a motion is properly pending before a trial court, the act of considering and

ruling upon it is a ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.

1992). However, the trial court has a reasonable time within which to perform that

ministerial duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.–San

Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is



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dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426

(Tex.App.–Houston [1st Dist.] 1992, orig. proceeding).


                              Article 11.07 - Habeas Corpus


       A post-conviction application for writ of habeas corpus in a felony case, other than

a case in which the death penalty is imposed, must be filed with the clerk of the court in

which the conviction being challenged was obtained. Tex. Code Crim. Proc. Ann. art.

11.07, § 3(b) (Vernon Supp. 2008).2 Upon receipt of the application, the clerk is required

to forward a copy thereof to the attorney representing the state. Id. The attorney

representing the state has 15 days after the date the copy of the application is received to

file an answer. Id.; See Gibson v. Dallas County Dist. Clerk, 275 S.W.3d 491 (Tex.Crim.

App. 2009) (impliedly holding the date on which the clerk receives the application as the

date on which the 15-day answer period begins); But see Op. Tex. Atty. Gen., No. JM-608

(1986) (finding the date on which the state’s attorney receives the application is the date

on which the 15-day answer period begins). Within 20 days of the expiration of the time

in which the state is allowed to answer, the convicting court shall decide whether there are

controverted, previously unresolved facts material to the legality of the applicant’s

confinement. Article 11.07, § 3(c). If the convicting court finds that there are no such

issues, or if it fails to act within the 20 days allowed, the clerk of the convicting court shall



       2
         For convenience, articles of the Texas Code of Criminal Procedure will subsequently be
cited as “article ___” or “Article ___”.

                                               3
immediately transmit a copy of the application to the Court of Criminal Appeals. Id. If the

convicting court finds that there are such issues, within that same period of time, it must

enter an order designating the issues of fact to be resolved. Article 11.07, § 3(d). The

convicting court, within the exercise of its sound discretion, must then act to resolve the

controverted, previously unresolved fact issues, and issue findings of fact. Id. The

convicting court is not, however, required to hold a hearing before entering findings of fact.

Ex parte Davila, 530 S.W.2d 543, 545 (Tex.Crim.App. 1975). Furthermore, the trial judge

has no ministerial duty under article 11.07 to enter findings within a specified period of

time. Rodriguez v. 208th Judicial Dist. Court, No. WR 66224-01, 2007 WL 171975, at *1

(Tex.Crim.App. Jan. 24, 2007) (not designated for publication). That decision lies within

the trial judge’s sound discretion. Id. Upon issuance of the findings of fact, the clerk of the

convicting court shall immediately transmit to the Court of Criminal Appeals, the

application, any answers filed, any motions filed, transcripts of any depositions or hearings,

any affidavits, and any other matters such as official records used by the convicting court

in resolving issues of fact. Article 11.07, § 3(d).


                                          Analysis


       Relator alleges he has numerous motions and requests pending in the trial court

that relate to his application for an article 11.07 writ of habeas corpus. The documents

contained in his appendices reflect file stamp dates from September 23, 2008 through

November 19, 2008. However, nothing in the limited record before us demonstrates


                                              4
whether the convicting court ever entered an order designating the issues of fact to be

resolved.


       If the convicting court did not timely enter an order designating issues of fact to be

resolved, the clerk of that court was required to immediately transmit Relator’s application

to the Court of Criminal Appeals. In such case, the convicting court had no duty to perform

the acts which Relator seeks to compel. In the absence of a duty to perform, Relator is not

entitled to the relief sought.


       Furthermore, even assuming an order designating issues was timely filed, nothing

demonstrates that Relator presented his motions and requests to the trial court and that

it refused to act. Furthermore, Relator has not provided any authority that the delay, if any,

in ruling on his motions is an unreasonable time period as a matter of law. Accordingly,

we conclude that Relator has not satisfied his burden to provide a sufficient record

demonstrating that properly filed motions have awaited disposition for an unreasonable

length of time nor that the trial court has refused to perform a ministerial duty. Neither has

Relator demonstrated that the trial court has abused its discretion or violated a duty

imposed by law.


       Consequently, Relator’s petition for writ of mandamus is denied.


                                                  Patrick A. Pirtle
                                                      Justice



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