                                       IN THE
                               TENTH COURT OF APPEALS



                                       No. 10-17-00008-CR
                                       No. 10-17-00009-CR

                       IN RE GRETCHON WINDELL POWELL


                                      Original Proceedings



                                MEMORANDUM OPINION

        In these original proceedings,1 Relator Gretchon Windell Powell seeks mandamus

relief in the form of compelling the Respondent trial court judge to rule on Powell’s

motion for production of documents and motion to compel. Powell alleges that the

motion for production of documents was filed on or about September 21, 2016, and that

the motion to compel was filed on November 28, 2016.



1 The applications (petitions) for writ of mandamus lack proof of service. A copy of all documents
presented to the Court must be served on all parties (i.e., the trial court judge and the State through the
district attorney in these proceedings) and must contain proof of service. TEX. R. APP. P. 9.5, 52.2. The
petitions also lack most of the contents required by Rule of Appellate Procedure 52. Id. 52.3, 52.7. They do
not include the certification required by Rule of Appellate Procedure 52.3(j). Id. 52.3(j). They also lack a
record. Id. 52.7. To expedite these matters, we invoke Rule of Appellate Procedure 2 to suspend these
requirements. Id. 2.
        “A court with mandamus authority ‘will grant mandamus relief if relator can

demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator

has no other adequate legal remedy.’” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—Waco

2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99 (Tex.

Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed and before

the court is ministerial. State ex rel. Hill v. Ct. of App. for Fifth Dist., 34 S.W.3d 924, 927

(Tex. Crim. App. 2001) (orig. proceeding).

                Mandamus may issue to compel a trial court to rule on a motion
        which has been pending before the court for a reasonable period of time.
        See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
        proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003,
        orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo
        2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—
        Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225
        S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain
        mandamus relief for such refusal, a relator must establish: (1) the motion
        was properly filed and has been pending for a reasonable time; (2) the
        relator requested a ruling on the motion; and (3) the trial court refused to
        rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62
        S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
        679. The mere filing of a motion with a trial court clerk does not equate to a request
        that the trial court rule on the motion. See Hearn, 137 S.W.3d at 685; Chavez, 62
        S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225 S.W.3d at 680
        (“Relator has made repeated requests for a ruling on its motion.”).

In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding) (emphasis

added).

        A trial judge has a reasonable time to perform the ministerial duty of considering

and ruling on a motion properly filed and before the judge. Chavez, 62 S.W.3d at 228. But

that duty generally does not arise until the movant has brought the motion to the trial

judge’s attention, and mandamus will not lie unless the movant makes such a showing and the


In re Powell                                                                                     Page 2
trial judge then fails or refuses to rule within a reasonable time. See id. Also, the mere

filing of a pleading or letter with the clerk does not impute knowledge to the trial judge. See

In re Flores, No. 04-03-00449-CV, 2003 WL 21480964, at *1 (Tex. App.—San Antonio Jun.

25, 2003, orig. proceeding) (mem. op.).

        Powell bears the burden of providing a sufficient record to establish his right to

mandamus relief. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008,

orig. proceeding); see also In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1 n.1 (Tex.

App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.). There is no record showing that

Powell has brought these matters to the attention of the trial judge and that the trial judge

has then failed or refused to rule within a reasonable time.

        We deny the petitions for writ of mandamus.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs with a note)*
Petitions denied
Opinion delivered and filed February 1, 2017
Do not publish
[OT06]

       *(Chief Justice Gray concurs in the decision to deny the petitions for writ of
mandamus filed by Powell but for reasons different than those expressed by the Court.
A separate opinion will not issue. The Court’s opinion implies that if a proper record is
filed by Powell, the trial court will have a ministerial duty to rule on Powell’s motions. I
disagree. Powell is an inmate. His convictions, which occurred in October of 2009, were
affirmed in 2011. He now seeks discovery he claims was not produced eight years ago.


In re Powell                                                                             Page 3
The basis of his motion is the passage of the Michael Morton Act which was passed in
2013 and became effective on January 1, 2014, more than four years after his trial. The act
does not provide for the procedure Powell is trying to utilize to obtain records allegedly
in the possession of the State of Texas. I question whether the trial court has the authority
to rule on the merits of Powell’s post-trial motions. Powell certainly has not shown the
trial court’s authority, much less duty, to do so. Accordingly, I would deny the petitions
for a writ of mandamus to compel the trial court to rule on the merits of Powell’s motions,
rather than suggest the trial court could be compelled to rule on them if Powell presented
a proper record of his efforts to obtain a ruling on the subject motions from the trial court.)




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