      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00550-CV



                                       In re Vincent Salazar


                   ORIGINAL PROCEEDING FROM CALDWELL COUNTY



                             MEMORANDUM OPINION


               On September 9, 2010, relator Vincent Salazar filed a petition for writ of mandamus

complaining of the trial court’s alleged failure to rule on his motion for judgment nunc pro tunc,

which claims that Salazar is entitled to jail-time credit of 180 days for time spent in a residential

treatment center. According to Salazar, he filed his motion “on or about” August 18.

               Mandamus may issue to compel a trial court to rule on a motion for judgment

nunc pro tunc addressing jail-time credit which has been pending before the court for a reasonable

period of time. See Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004); In re Sarkissian,

243 S.W.3d 860, 860-61 (Tex. App.—Waco 2008, orig. proceeding). However, to obtain mandamus

relief for the trial court’s refusal to rule on such a motion, a relator must establish: (1) the motion

was properly filed and has been pending for a reasonable time; (2) the relator requested a ruling

on the motion; and (3) the trial court refused to rule. See In re Hearn, 137 S.W.3d 681, 685

(Tex. App.—San Antonio 2004, orig. proceeding). The relator has the burden of providing a record

establishing that his motion has awaited disposition for an unreasonable time. In re Mendoza,

131 S.W.3d 167, 168 (Tex. App.—San Antonio 2004, orig. proceeding). Moreover, merely filing
a motion with a district or trial court clerk does not equate to a request that the trial court rule on the

motion. See Hearn, 137 S.W.3d at 685.

                Salazar has failed to provide us with a copy of the motion, any correspondence to the

district court requesting a ruling on the motion, or anything indicating that the district court has

refused to rule on the motion. See Tex. R. App. P. 52.7(a) (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”). As a result, there is no way for us to determine whether the motion

was properly filed or, if it was, the date on which it was received by either the clerk’s office or the

judge, much less whether the motion has been pending for an unreasonable amount of time.

                The petition for writ of mandamus is denied without prejudice.




                                                 __________________________________________

                                                 Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Filed: September 30, 2011




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