Petition for Writ of Mandamus Conditionally Granted and Opinion filed
March 26, 2020.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-20-00045-CR



                       IN RE ROLAND RAMOS, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                              122nd District Court
                            Galveston County, Texas
                       Trial Court Cause No. 98-CR-0766

                                  OPINION

      Relator Roland Ramos has 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 Honorable John Ellisor, presiding judge of the
122nd District Court of Galveston County, to rule on relator’s “Motion for Judgment
Nunc Pro Tunc,” which relator filed in May 2019.
      To be entitled to mandamus relief, relator must show that (1) he lacks an
adequate remedy at law for obtaining the relief he seeks and (2) what 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). If a party properly files a motion with
a trial court, the trial 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 requested a ruling. See In re Flanigan, 578 S.W.3d 634, 635–36 (Tex.
App.—Houston [14th Dist.] 2019, orig. proceeding). Thereafter, if a trial court fails
to rule, mandamus may issue to compel the trial court to act. See id. at 635–36.

      As the party seeking 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 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”). For mandamus relief to be granted, 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. To establish that the motion was filed, the relator must
provide either a file-stamped copy of the motion or other proof that the motion, in
fact, was filed and is pending before the trial court. Id. 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. In re
Amaro, No. 14-14-00340-CV, 2014 WL 2157088, at *1–2 (Tex. App.—Houston
[14th Dist.] May 20, 2014, orig. proceeding) (per curiam) (mem. op.). See also In re

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Villarreal, 96 S.W.3d 708, 710 n.2 (Tex. App.—Amarillo 2003, orig. proceeding)
(stating that the relator must provide a record which shows that the respondent-judge
knew of the motion and was asked to rule on it because a judge cannot be faulted for
doing nothing when the judge was not aware of the need to act; the clerk’s
knowledge is not imputed to the judge). Today’s case does not present the failure-
to-rule-on-a-motion scenario in which the relator cannot show filing or presentment
of the motion. In this case, the record shows not only respondent’s awareness of the
motion but also his decision not to rule on it.

      The record includes a “Case Summary” with (1) an entry dated May 31, 2019,
showing the filing of relator’s “Motion for Judgment Nunc Pro Tunc,” and (2) an
entry dated October 10, 2019, stating “Court Coordinator’s Case Notes PER JUDGE
ELLISOR NO ACTION TO BE TAKEN ON NUNC PRO TUNC.” The record also
includes a letter from relator to the court clerk inquiring about the status of the
motion. The letter contains a stamp indicating that it was filed with the clerk on
November 8, 2019. The face of the letter also contains notations that appear to have
been made by the clerk noting the “Case Summary” with the coordinator’s no-
action-to-be-taken entry. These documents show that the “Motion for Judgment
Nunc Pro Tunc” was on file, that respondent has been aware of the motion since at least
October 10, 2019, that relator has asked respondent to rule on the motion, and that
respondent has decided not to rule on it. Because respondent has a ministerial duty to
rule on the motion, we conclude that respondent’s decision not to rule on the motion
constitutes an abuse of discretion warranting mandamus relief.

      We come to this decision without regard to the merits of the pending motion for
judgment nunc pro tunc. We note that the substance of relator’s “Motion for Judgment
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Nunc Pro Tunc” is what it purports to be, but in considering whether mandamus relief
is warranted we do not consider whether relator would be entitled to a judgment nunc
pro tunc. We do not address the merits of the motion for judgment nunc pro tunc pending
in the trial court; instead, we leave the ruling on the merits of that motion to the trial
court. While we have jurisdiction to direct the trial court to rule on a motion, we may
not tell the trial court how to rule on such motion. See In re Harris County Appraisal
Dist., No. 14-19-00078-CV, No. 2019 WL 1716274, at *4 (Tex. App.—Houston [14th
Dist.] Apr. 18, 2019, orig. proceeding) (mem. op.); In re Ramirez, 994 S.W.2d 682, 684
(Tex. App.—San Antonio 1988, orig. proceeding).

      At least one other court in this scenario has taken a different approach and
considered the merits of the motion for judgment nunc pro tunc as part of the
mandamus analysis. In In re Guzman, No. 05-16-01110-CV, 2017 WL 3393795, at
*1–2 (Tex. App.—Dallas Aug. 8, 2017, orig. proceeding) (mem. op.), the Fifth Court
of Appeals denied a petition for writ of mandamus in which the relator asked the
court to compel the trial court to rule on a motion for judgment nunc pro tunc,
reasoning that the relator did not seek correction of a clerical error in the motion for
judgment nunc pro tunc, so the trial court did not have jurisdiction to rule on the
motion. The Guzman court concluded that such a motion cannot be categorized as
properly filed and, on that basis, denied mandamus relief. Id. at *2. We respectfully
disagree with Guzman.

       After a trial court’s plenary power over a final judgment has expired, the trial
court generally lacks jurisdiction to sign an order in the same case in which the court
grants, sets aside, vacates, modifies, corrects, or reforms its judgment, and the law
generally deems void an order in which the trial court purports to do so. In re Smith,
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No. 14-19-00106-CV, 2020 WL 897452, at *3 (Tex. App.—Houston [14th Dist.]
Feb. 25, 2020, orig. proceeding) (per curiam) (mem. op.). But the law creates an
exception for rendition of a judgment nunc pro tunc to correct a clerical error. Id.;
see also Riner v. Briargrove Park Prop. Owners, Inc., 976 S.W.2d 680, 682 (Tex.
App.—Houston [1st Dist.] 1997, no writ) (noting that judgments nunc pro tunc are
used to correct clerical errors after trial court loses its plenary jurisdiction). Even
though a trial court lacks jurisdiction to grant a motion for judgment nunc pro tunc
that is based on a judicial error rather than a clerical error, the trial court holds
jurisdiction to rule on the motion. Were we to conclude at this juncture — before the
trial court has ruled—that the object of the motion nunc pro tunc amounts to a
judicial error rather than a clerical error, we would be ruling on the motion in the
first instance, effectively usurping the role of the trial court. The trial court has
jurisdiction to rule on a motion for judgment nunc pro tunc. It is not the role of this
court in a mandamus proceeding to reach the merits of a motion pending before the
trial court.

        In sum, relator filed a “Motion for Judgment Nunc Pro Tunc,” and brought
the motion to respondent’s attention for a ruling. Yet, respondent has not ruled on
the motion within a reasonable time after relator requested a ruling. Respondent
abused his discretion in deciding not to rule on the motion. So, mandamus relief is
warranted to compel respondent to rule on the motion.

       We conditionally grant relator’s petition for writ of mandamus and direct
Judge Ellisor to rule on the “Motion for Judgment Nunc Pro Tunc” no later than
April 17, 2020. We stand confident that he will act in accordance with this opinion.
The writ of mandamus shall issue only if he fails to do so.
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                                /s/    Kem Thompson Frost
                                       Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.


Publish — Tex. R. App. P. 47.2(b).




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