                                    NO. 07-04-0466-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   OCTOBER 29, 2004

                          ______________________________


                    IN RE RUBEN NARANJO BALDIVIA, RELATOR

                          _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       By his petition for writ of mandamus, relator Ruben Naranjo Baldivia, an indigent

inmate, requests we compel the Honorable Robert W. Kincaid, Jr., Judge of the 64th

District Court of Castro County, to act on his petition for expunction of criminal records.

Under applicable principles of law, relator’s petition is denied.


       Mandamus is an extraordinary remedy available only in limited circumstances

involving manifest and urgent necessity and not for grievances that may be addressed by

other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To establish his

entitlement to relief, relator must satisfy three requirements:, to-wit: (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).


       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

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

(Tex.App.–Houston [1st Dist.] 1992, orig. proceeding). Other factors are influential such

as the trial court’s actual knowledge of the motion, its overt refusal to act, the state of its

docket, and other judicial and administrative duties which must be addressed. In re

Villarreal, 96 S.W.3d 708, 711 (Tex.App.–Amarillo 2003, orig. proceeding). Further, the

party requesting relief must provide a sufficient record to establish his entitlement to

mandamus relief. Walker, 827 S.W.2d at 837; see also In re Bates, 65 S.W.3d 133, 135

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


       According to his petition, relator was acquitted (offense unspecified) on April 14,

1986, and on August 7, 2000, he filed a document pursuant to article 55.02 of the Texas

Code of Criminal Procedure requesting expunction of his criminal record. Attached to his

petition for mandamus are two exhibits both entitled “Inmate Correspondence Form” dated

April 12, 2002, and July 28, 2004, from the District Clerk indicating the expunction is still


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pending. Relator alleges that following the July 28 notice, on August 6, 2004, he filed a

motion requesting a hearing on his petition for expunction and complains that no action has

been taken. A certified or sworn copy of the motion complained of is not included in an

appendix to relator’s petition as required by Rule 52.3(j)(1)(A) of the Texas Rules of

Appellate Procedure.


       Relator has not met his burden to provide a sufficient record demonstrating that a

properly filed document has awaited disposition for an unreasonable length of time. We

decline to hold that the trial court’s inaction on a motion pending almost three months

constitutes an unreasonable delay. Additionally, since the filing of the August 6 motion,

relator has not established he demanded performance nor that the trial court refused to act.

Stoner, 586 S.W.2d at 846.


       Accordingly, relator’s petition for writ of mandamus is denied.


                                          Don H. Reavis
                                            Justice




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