                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-12-00277-CR

                             IN RE MARK RAMIREZ


                                Original Proceeding


                                    OPINION

      Mark Ramirez, an inmate, seeks a writ of mandamus from this Court directing

Respondent, the Honorable Erwin Ernst, as Judge of the 12th Judicial District Court of

Walker County, to rule on Ramirez’s Motion for Judgment Nunc Pro Tunc and to grant

Ramirez’s requested additional jail time credit. The Honorable Donald Kraemer is the

elected judge of the 12th Judicial District Court. We abated this proceeding to give

Ramirez the opportunity to clarify the record for us, and to amend his petition, if

necessary. He clarified the record but did not amend his petition.

      Based on the clarification, Judge Ernst presided over Ramirez’s trial court

proceeding as an assigned judge and signed the judgment revoking his community

supervision for the offense of robbery on April 23, 2008. Ramirez’ clarification also
shows that Judge Kraemer was presented with Ramirez’s motion nunc pro tunc and

“declined” to rule on the motion.

       Because the motion was presented to Judge Kraemer who then declined to rule

on it, Ramirez’ petition should have alleged Judge Kraemer as the party against whom

relief is sought. See TEX. R. APP. P. 7.2(b); In re Whitfield, 134 S.W.3d 314 (Tex. App.—

Waco 2003, order); see also In re McDaniel, No. 10-04-00166-CV (Tex. App.—Waco Oct. 5,

2005, order) (not designated for publication). Alternatively, had Ramirez determined

Judge Ernst was the proper judge to rule on his motion nunc pro tunc, Judge Ernst

should have been presented with the motion and provided an opportunity to rule on it.

See In re Hearn, 137 S.W.3d 681 (Tex. App.—San Antonio 2004, orig. proceeding).

       Because the conditions of either alternative have not been met, Ramirez’ petition

is denied.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Petition denied
Opinion delivered and filed September 27, 2012
Publish
[OT06]




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