Petition for Writ of Mandamus Denied and Opinion and Concurring Opinions
filed November 5, 2019.




                                        In the

                     Fourteenth Court of Appeals

                               NO. 14-19-00710-CR

                        IN RE ANDREW PETE, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               179th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1535047

                            CONCURRING OPINION

      Because the court can deny the petition based on Texas Rule of Appellate
Procedure 52.3(k)(1)(A)—the lack of a proper appendix containing a certified or
sworn copy of the documents showing the matter complained of, i.e., the motions on
which the respondent district judge has allegedly not ruled—I concur in the denial
of relator’s petition for writ of mandamus.

      It is, therefore, unnecessary for the court to cite to In re Henry and In re Craig
in order to deny the petition. Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston
[14th Dist.] 2017, orig. proceeding) (corrected op., per curiam) (“Relator also has
not shown that his motion has been presented to the trial court nor has he shown how
long the motion has been pending since presentment. The trial court is not required
to consider a motion that has not been called to its attention by proper means.”);
Craig, 426 S.W.3d 106, 107 (Tex. App.—Houston [1st Dist.] 2012, orig.
proceeding) (per curiam) (“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.”). Henry is a mandamus
proceeding against a trial judge who allegedly had not ruled in the underlying
criminal case on a criminal defendant’s motion to compel a ruling on a motion to
reduce sentence. Craig is a mandamus proceeding to compel the trial judge to rule
in the underlying criminal case on a motion for judgment nunc pro tunc.

      These opinions are part of a line of cases from the courts of appeals that
purports to set out the procedure for motion practice in criminal courts. And it seems
the foundation for those lines of cases is either civil cases or the presentment practice
for motions for new trials in criminal cases. The problem with these cases is that
(1) the legislature, not the judiciary, generally makes the rules of procedure in
criminal cases and (2) the underlying motion in this original proceeding is not a
motion for new trial. See Tex. Code Crim. Proc. Ann. art. 1.03 (setting out objects
of the Code of Criminal Procedure); see generally 40 George E. Dix & John M.
Schmolesky, Texas Practice: Criminal Practice and Procedure §§ 1:4-1:10 (3d ed.
2011). The Code of Criminal Procedure does provide that “the rules of the common
law shall be applied and govern” if the Code “fails to provide a rule of procedure in
any particular state of case which may arise,” but I have found no cases which use
article 1.27 to fashion a general requirement that motions be presented or that



                                           2
incarcerated defendants be required to request that the court rule on filed motions.1
Tex. Code. Crim. Proc. Ann. art. 1.27. I certainly have found no cogent explanation
of how an incarcerated person, who presumably cannot get a bench warrant to appear
in court, can bring a motion to the trial court’s attention other than by filing a request
for a hearing. And if the trial court is not responsible for knowing what motions have
been filed, then how will filing a request for a hearing help unless there is a
procedural rule that requires such a request?

       Henry relies on civil cases. In re J.B.H., No. 14-15-00114-CV, 2015 WL
732665, at *1 (Tex. App.—Houston [14th Dist.] Feb. 19, 2015, orig. proceeding)
(mem. op., per curiam) (relator requested mandamus to compel trial judge to rule on
motion to inspect and/or purchase certified copy of certification record in his
juvenile case); In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig.
proceeding) (relator requested mandamus to compel trial judge to “hold a hearing
on said Motion on Interlocutory appeals (sic)”). Craig relies on criminal and civil
cases for the cited proposition, “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 In re
Sarkissian, 243 S.W.3d 860, 860–61 (Tex. App.—Waco 2008, orig. proceeding)
(mem. op.) (relator requested mandamus to compel trial judge to rule on motion for
judgment nunc pro tunc in underlying criminal case); In re Hearn, 137 S.W.3d 681,
685 (Tex. App.—San Antonio 2004, orig. proceeding) (relator inmate requested
mandamus to compel trial judge to rule on various pretrial motions in underlying

       1
          See generally 40 George E. Dix & John M. Schmolesky, Texas Practice: Criminal
Practice and Procedure § 1:11 (3d ed. 2011). The origin of current article 1.27 goes all the way
back to the Old Code 1856 Code of Criminal Procedure article 27: “Whenever it is found that this
Code fails to provide a rule of procedure in any particular state of case which may arise, and is
therefore defective, the rules of the Common Law shall be applied and govern when they are not
inconsistent with the general principles on which this system of procedure is founded.” 1856 Code
of Criminal Procedure § 1, art. 27, 1856 Tex. Crim. Stat. 4, 9, repealed by 1879 Penal Code and
Code of Criminal Procedure, 16th Leg., R.S., § 3, 1879 Tex. Crim. Stat. n.p., 157.

                                               3
civil case). Sarkissian relies on In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—
Amarillo 2001, orig. proceeding). Chavez arises out of a civil matter. It cites Texas
Rule of Civil Procedure 74 regarding filing of papers with the clerk, without citing
any portion of the Code of Criminal Procedure regarding motion practice.2

       Civil courts expect litigants either to set motions for a hearing or to set them
for submission without a hearing, and civil courts have local rules governing this
process. See Tex. R. Civ. P. 3a (authority to make local rules for civil cases in trial
courts and requirement that those local rules be approved by Supreme Court of
Texas). To the extent that criminal courts have inherent authority to adopt procedural
rules, this court is not considering those rules. See Harris (Tex.) Crim. Dist. Ct. Loc.
R. 6.23 (rule regarding Motions/Pre-Trial Hearings/Pre-Trial Matters). Even if the
court did consider the Harris County local rules, rule 6.233 gives no guidance in this
situation, and this court has not addressed any common-law procedure in light of
article 1.27. Finally, I note that the Court of Criminal Appeals has used its
rulemaking power in posttrial, appellate, and review procedure in criminal cases
under Government Code section 22.108 to promulgate a specific presentment rule
for motions for new trial, but Texas Rule of Appellate Procedure 21.6 is inapplicable


       2
        I do not know of an equivalent procedural provision for motion practice in the Code of
Criminal Procedure, in which case article 1.27 may apply.
       3
           Rule 6.23 states:
                          This setting is for the purpose of hearing all pre-trial
                 motions. All motions must be filed in accordance with the statute,
                 and motions not timely filed may be filed only with permission of
                 the Court. Failure to comply with this rule will result in a trial setting
                 if the case is not otherwise disposed of.
                          All applications for subpoenas must be filed at least ten days
                 prior to trial. Failure to comply will be cause for the Court to find a
                 failure to exercise due diligence.
Harris (Tex.) Crim. Dist. Ct. Loc. R. 6.23.

                                                     4
to the kinds of motions relator claims he has filed. Tex. Gov’t Code Ann. § 22.108;
Tex. R. App. P. 21.6. To the extent that the procedure for motions for new trials was
statutory until the promulgation of the Texas Rules of Appellate Procedure,4
applying the presentment practice to other motions would not seem to be authorized
by the Code of Criminal Procedure.

       I acknowledge that this court has precedent in which civil procedure and
motion-for-new-trial criminal procedure have been engrafted on criminal cases, with
particular emphasis on denying original proceedings filed by incarcerated criminal
defendants who seemingly cannot get rulings on motions from trial judges in
criminal proceedings. If this is the law, then it is law seemingly built on little or
nothing. And whether it be in a civil or a criminal case, I believe that the basis for
the appellate writings on this issue should be the underlying procedural statute or
rule, not a mere pronouncement of procedure. Due process and due course of law
require notice, an opportunity to be heard, and a ruling. A procedure that sets forth
no clear path to a ruling seems to me to be a poor use of judicial resources.

       The other reality is that many of the motions filed in criminal cases by
incarcerated persons are filed after the trial court no longer has jurisdiction or are
filed during a period of time when that person is represented by a lawyer. Trial
judges should dismiss those motions promptly, and rule on the remaining motions
properly before the court. The Code of Judicial Conduct states, “[a] judge shall hear


       4
          Act of June 6, 1951, 52d Leg., R.S., ch. 464, § 1, 1951 Tex. Gen. Laws 818, 818 (1925
Code of Criminal Procedure art. 755), recodified and repealed by Code of Criminal Procedure of
the State of Texas, 59th Leg., R.S., ch. 722, § 1, arts. 40.05 (codification), 54.02, § 1(a) (repealer),
[2] 1965 Tex. Gen. Laws 317, 477 (recodification), 563 (repealer), repealed by Tex. R. App. P.
31(c), 11 Tex. Reg. 1939, 1944, 49 Tex. B.J. 558, 564 (Tex. Crim. App. Apr. 10, 1986, eff. Sept.
1, 1986) (see Act of May 27, 1985, 69th Leg., R.S., ch. 685, § 4, 1985 Tex. Gen. Laws 2472, 2472–
73 (authorizing promulgation of Texas Rules of Appellate Procedure and repeal of portions of
Code of Criminal Procedure)) (current version at Tex. R. App. P. 21.6).

                                                   5
and decide matters assigned to the judge” and “should dispose of all judicial matters
promptly, efficiently and fairly.” Tex. Code Jud. Conduct, Canon 3(B)(1), (9),
reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G, app. B. If procedural rules need
to be adopted to establish a process so the judge can discharge these duties, then trial
courts should adopt such rules and the Supreme Court of Texas should consider
appropriate amendments to the Rules of Judicial Administration. See Tex. Gov’t
Code Ann. § 74.024.

      Because there is a simple reason to deny the petition—Texas Rule of
Appellate Procedure 52.3(k)(1)(A)—and it serves no point to keep repeating our
existing case law that seemingly leads nowhere except the denial of original
proceedings, I concur.




                                        /s/       Charles A. Spain
                                                  Justice


Panel consists of Justices Christopher, Spain, and Poissant. (Spain, J., concurring).
(Poissant, J., joining both the Opinion and Concurring Opinion).
Publish—Tex. R. App. P. 47.2(b).




                                              6
