                                  NUMBER 13-09-00632-CV

                                  COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

                            IN RE: ROLANDO ALMENDAREZ


                            On Application for Leave to File
                           Petition for Writ of Mandamus and
                             Petition for Writ of Mandamus


                              MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Garza
                   Memorandum Opinion Per Curiam1
        Relator, Rolando Almendarez, filed an “Application for Leave to File Petition for Writ

of Mandamus,” as well as a petition for writ of mandamus, in which he requests that this

Court direct respondent, the Honorable Roberto “Bobby” Flores, presiding judge of the

139th Judicial District Court of Hidalgo County, Texas, to rule on relator’s petition for

expunction of records filed pursuant to chapter 55 of the Texas Code of Criminal

Procedure. See TEX . CODE CRIM . PROC . ANN . arts. 55.01-.06 (Vernon Supp. 2009). This

Court, having examined and fully considered relator’s application and petition, is of the

opinion that (1) relator’s application for leave to file petition for writ of mandamus should



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         See T E X . R. A PP . P. 47.4 (distinguishing opinions and m em orandum opinions), 52.8(d) (“W hen
denying relief, the court m ay hand down an opinion but is not required to do so.”).
be granted, but that (2) relator has not shown himself entitled to mandamus relief. See

TEX . R. APP. P. 52.8(a).

       Mandamus will issue to correct a clear abuse of discretion for which the remedy by

appeal is inadequate. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.

2004) (orig. proceeding). A trial court abuses its discretion when it acts in an unreasonable

or arbitrary manner; or, stated differently, when it acts without reference to guiding rules

and principles. See, e.g., Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.

1991). A trial judge has a “reasonable time” to perform the ministerial duty of considering

and ruling on a properly filed motion.         In re Chavez, 62 S.W.3d 225, 228 (Tex.

App.–Amarillo 2001, orig. proceeding). Whether the judge has acted within a reasonable

period of time depends on the circumstances of the case. In re Ramirez, 994 S.W.2d 682,

683-84 (Tex. App.–San Antonio 1998, orig. proceeding).

       In the expunction context, delays up to and including three months have been

determined by courts not to be unreasonable. See In re Burden, 2008 Tex. App. LEXIS

610, at *4-6 (Tex. App.–Texarkana Jan. 30, 2008, orig. proceeding) (mem. op.) (one

month); In re Davis, 2006 Tex. App. LEXIS 9263, at *4 (Tex. App.–Waco Oct. 25, 2006,

orig. proceeding) (mem. op.) (three months); In re Ford, 2004 Tex. App. LEXIS 8869, at

*3 (Tex. App.–San Antonio Oct. 6, 2004, orig. proceeding) (mem. op.) (two months).

       Here, the trial court has delayed ruling on relator’s expunction petition for, at most,

three months. We note additionally that relator has not attached any document to his

mandamus petition, such as his expunction petition or a clerk’s record, that would support

his contention that he properly filed his expunction petition or that the trial court has failed

to rule thereon. See In re Burden, 2008 Tex. App. LEXIS 610, at *3 (denying mandamus

relief in part because “there is nothing to support [relator’s] statement [that the trial court

refused to rule on relator’s motion to compel an expunction ruling] except for a certificate

of service which states only that the motion to compel was deposited in prison mail”).


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Accordingly, on the record before us, we cannot say that the trial court has clearly abused

its discretion by not yet ruling on relator’s expunction petition. See In re Prudential Ins. Co.

of Am., 148 S.W.3d at 135-36.

       For the foregoing reasons, relator’s application for leave to file writ of mandamus is

GRANTED, and relator’s petition for writ of mandamus is DENIED.


                                                           PER CURIAM

Delivered and filed the
24th day of November, 2009.




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