Petition for Writ of Mandamus Denied and Majority and Concurring Opinions
filed April 14, 2020.




                                      In The

                     Fourteenth Court of Appeals

                                NO. 14-20-00204-CR

                                NO. 14-20-00205-CR



               IN RE FRANKLIN HURTADO GOMEZ, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                              240th District Court
                            Fort Bend County, Texas
                     Trial Court Cause Nos. 38751 & 38752

                            MAJORITY OPINION

      On March 13, 2020, relator Franklin Hurtado Gomez filed a petition for writ
of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R.
App. P. 52. In the petition, relator asks this court to compel the presiding judge of
the 240th District Court of Fort Bend County to rule on relator’s motion for nunc
pro tunc order. Relator has not submitted a copy of any motion. In his mandamus
petition, relator refers to a “Motion for Judgment Nunc Pro Tunc Order,” using the
singular. Yet, relator references two trial court cause numbers, so it is possible that
he seeks relief as to two motions. We presume for the sake of our analysis that
relator seeks mandamus relief as to a motion for nunc pro tunc order filed in each
trial-court case.

       To be entitled to mandamus relief, a relator must show (1) that the relator has
no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the
relator seeks to compel involves a ministerial act rather than a discretionary act. In
re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). If
a party properly files a motion with the trial court in a criminal case, the court has a
ministerial duty to rule on the motion within a reasonable time after the motion has
been submitted to the court for a ruling or after the party has requested a ruling. See
In re Flanigan, 578 S.W.3d 634, 635–36 (Tex. App.—Houston [14th Dist.] 2019,
orig. proceeding). If a trial court fails to do so, mandamus may issue to compel the
trial court to act. See id. For mandamus relief to be granted in the context of this
case, the record must show (1) the motion was filed and brought to the attention of
the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the
motion within a reasonable time after the motion has been submitted to the court for
a ruling or after the party requested a ruling. See id. This legal standard is based on
criminal mandamus precedent from this court. See In re Ramos, No. 14-20-00045-
CR, — S.W.3d —, —, 2020 WL 1469552, at *1 (Tex. App.—Houston [14th Dist.]
Mar. 26, 2020, orig. proceeding). In this line of cases, our court has not applied rules
of civil procedure to a criminal case; instead, this court has concluded that an
appellate court should not grant mandamus relief compelling a trial court in a
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criminal case to rule on a motion unless (1) the motion was filed and brought to the
attention of the respondent-judge for a ruling, and (2) the respondent-judge has not
ruled on the motion within a reasonable time after the motion has been submitted to
the court for a ruling or after the party requested a ruling. See id.; Flanigan, 578
S.W.3d at 635–36. In doing so, this court properly has exercised its mandamus
jurisdiction over trial-court judges in criminal cases. See Padilla v. McDaniel, 122
S.W.3d 805, 807–08 (Tex. Crim. App. 2003) (orig. proceeding).

          This line of cases applies to all relators, whether incarcerated or not. See, e.g.,
In re Ramos, 2020 WL 1469552, at *1. This precedent does not effectively bar an
incarcerated person from access to mandamus relief. See id. Under this precedent,
an incarcerated person may obtain mandamus relief by satisfying the applicable
requirements.       See, e.g., In re Ramos, 2020 WL 1469552, at *1–2 (granting
mandamus relief in favor of incarcerated person and ordering trial-court judge in
criminal case to rule on the relator’s motion for judgment nunc pro tunc). The Court
of Criminal Appeals has recognized no exception for incarcerated persons seeking
mandamus relief. Nor has the high court prescribed a different legal standard for
courts of appeals considering the petitions of incarcerated persons for mandamus
relief.

          As the party seeking mandamus relief, relator has the burden of providing this
court with a sufficient record to establish his right to mandamus relief. See id.; Tex.
R. App. P. 52.7(a)(1) (relator must file with the mandamus petition “a certified or
sworn copy of every document that is material to the relator’s claim for relief and
that was filed in any underlying proceeding”). To establish that the motion was filed,
the relator must provide either a file-stamped copy of the motion or other proof that

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the motion in fact was filed and is pending before the trial court. See Flanigan, 578
S.W.3d at 636. Merely filing a motion with a court clerk does not show that the
motion was brought to the trial court’s attention for a ruling because the clerk’s
knowledge is not imputed to the trial court. Ramos, 2020 WL 1469552, at *1.

      Relator has not attached a file-stamped copy of either of the motions as to
which he seeks mandamus relief. In the absence of a file-stamped copy of the motion
or other proof that the motion in fact was filed and is pending before the trial court,
relator has not established that either of his motions is actually pending in the trial
court. See Flanigan, 578 S.W.3d at 636.

      Even if relator had shown that his motions are properly pending, he has not
demonstrated that (1) either motion was filed and brought to the attention of the
respondent-judge for a ruling, and (2) the respondent-judge has not ruled on either
motion within a reasonable time after the motion has been submitted to the court for
a ruling or after relator requested a ruling. See id. at 635–36.

      Relator has not established that he is entitled to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.




                                   PER CURIAM

Panel consists of Chief Justice Frost and Justices Jewell and Spain. (Spain, J.,
concurring).

Publish — Tex. R. App. P. 47.2(b).



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