Opinion
03-24-00364-CV
06-12-2024
In re Douglas Craig Ford
ORIGINAL PROCEEDING FROM BELL COUNTY
Before Byrne, Chief Justice Smith and Theofanis, Justices.
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
Relator Douglas Craig Ford has filed a petition for writ of mandamus complaining of the trial court's failure to rule on his motion for a free post-conviction clerk's and reporter's record. Ford contends that he needs the record for pursuing post-conviction habeas relief.
The trial court has a ministerial duty to rule upon a properly and timely presented motion. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). But that ministerial duty does not extend, and mandamus will not lie, to compel the trial court to "rule a certain way on that motion." See id. (quoting State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding)). Although Ford frames his request for mandamus relief as seeking a ruling on his motion, he later concedes that his actual challenge is to the trial court allegedly "incorrectly dismissed for lack of subject matter jurisdiction." A dismissal is a ruling by the trial court, cf. Robbins v. State, 20 S.W. 359, 359 (Tex. Crim. App. 1892) (explaining court had jurisdiction to consider "ruling of the court below in dismissing an appeal"), and we therefore cannot grant mandamus to direct the trial court to rule a different way on Relator's motion, see State ex rel. Young, 236 S.W.3d at 210.
Even assuming the trial court had failed to rule on a properly and timely pending motion, an indigent defendant is only entitled to obtain a free copy of a record by showing (1) the habeas corpus proceeding is not frivolous and (2) a particularized need for the record being sought. See, e.g., In re Kotara, No. 07-22-00147-CR, 2022 WL 1750647, at *2 (Tex. App.-Amarillo May 31, 2022, orig. proceeding); In re Alvarez, No. 13-20-00525-CR, 2020 WL 7233625, at *2 (Tex. App.-Corpus Christi-Edinburg Dec. 8, 2020, orig. proceeding); In re Olvera, No. 14-18-00786-CR, 2018 WL 4495062, at *1 (Tex. App.-Houston [14th Dist.] Sept. 20, 2018, orig. proceeding). That is, "a relator must show that the habeas action is not frivolous by making a specific showing of the issues to be raised in the habeas proceeding and a specific need for the record to demonstrate the right to habeas relief, including demonstrating the petitioner's inability to pay for a record." In re Olvera, 2018 WL 4495062, at *1. Ford explains that the basis for seeking habeas relief was the trial court's denial of his constitutional right to self-representation, but based on the petition and record before us, he has failed to show that either his raised issue is non-frivolous or that he has a particularized need for the record being sought in support of such a challenge.
Ford sought mandamus relief less than two months after filing his motion with the district court, and generally, a two-month delay in considering a motion does not constitute an unreasonable delay in performing a ministerial duty. See In re Kotara, No. 07-22-00147-CR, 2022 WL 1750647, at *2 (Tex. App.-Amarillo May 31, 2022, orig. proceeding) ("However, the trial court has a reasonable time within which to perform that ministerial duty."); see also In re Whitfield, No. 03-18-00564-CV, 2018 WL 4140735, at *1 (Tex. App.-Austin Aug. 29, 2018, orig. proceeding) (stating that three-month delay ordinarily not unreasonable length of time for pending motion).
We therefore deny the petition for writ of mandamus. See Tex. R. App. P. 52.8(a).