                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS
                                                   §
 IN RE: CHESTER D. MILLER,
                                                   §
                    Relator.                                       No. 08-10-00296-CR
                                                   §
                                                           AN ORIGINAL PROCEEDING IN
                                                   §
                                                                       MANDAMUS
                                                   §

                                                   §


        MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS

        Chester D. Miller seeks a writ of mandamus to compel the trial court to rule on his motion

to set aside and vacate a void judgment. For the reasons that follow, the petition for a writ of

mandamus will be denied.

        In the motion to set aside and vacate a void judgment, Miller asserts that the June 27, 2008

judgment sentencing him to ninety days in the county jail is void because of defects in the complaint

supporting the information. See TEX . CODE CRIM . PROC. ANN . art. 21.22 (Vernon 2009). Miller

claims that he filed the motion to set aside on May 20, 2010. On August 15, he sent a letter to the

trial court, complaining about the court’s failure to rule on the motion and stating his intention to

seek mandamus relief if the court did not rule within twenty days.

        To obtain mandamus relief, Miller must demonstrate that he does not have an adequate

remedy at law and that the act he seeks to compel is ministerial. State ex rel. Young v. Sixth Judicial

Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). In his mandamus petition,

Miller contends that the trial court has a ministerial duty to rule on his motion to set aside. He cites

three Texarkana cases, each of which holds that trial courts have a ministerial duty to rule on motions
that are properly filed and pending before them. See, e.g., In re Shaw, 175 S.W.3d 901, 904 (Tex.

App. – Texarkana 2005, orig. proceeding). However, the Texarkana court has also held that a trial

court “does not have a duty to rule on free-floating motions unrelated to currently pending actions.

In fact, it has no jurisdiction to rule on a motion when it has no plenary jurisdiction coming from an

associated case.” In re Cash, No. 06-04-00045-CV, 2004 WL 769473, at *1 (Tex. App. – Texarkana

Apr. 13, 2004, orig. proceeding) (mem. op.).

       Miller is attacking a judgment that was entered more than two years ago. Therefore, the case

is no longer pending before the trial court. It is true that a judgment that is void for lack of

jurisdiction is a nullity that can be attacked at any time. See Nix v. State, 65 S.W.3d 664, 667-68

(Tex. Crim. App. 2001). But a defect in a complaint is not jurisdictional and does not render the

information or the resulting judgment void. See Ramirez v. State, 105 S.W.3d 628, 629 (Tex. Crim.

App. 2003) (“[T]he mere presentment of an information to a trial court invests that court with

jurisdiction over the person of the defendant, regardless of any defect that might exist in the

underlying complaint.”).

       Because Miller’s conviction is final and the issues raised in his motion are not jurisdictional,

the trial court did not violate a ministerial duty by failing to rule on the motion. Accordingly, the

petition for a writ of mandamus is denied.



                                               GUADALUPE RIVERA, Justice
November 10, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
