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holding that movant had not shown he had brought expunction petition to trial judge's attention
Summary of this case from In re DavisOpinion
No. 04-04-00659-CV
Delivered and Filed: October 6, 2004.
This proceeding arises out of Cause No. 1993-CR-2633, styled Ex parte Anthony Jerome Ford, pending in the 175th Judicial District Court, Bexar County, Texas, the Honorable Mary Román presiding.
Petition for Writ of Mandamus Denied.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice
MEMORANDUM OPINION
Anthony Jerome Ford has filed a petition for writ of mandamus seeking to compel the trial court judge to rule on his petition for expunction of records pursuant to Chapter 55 of the Texas Code of Criminal Procedure.
A trial judge has a duty to consider and rule on motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio 1998, orig. proceeding). To invoke this duty, however, the movant must show that he brought the motion to the trial judge's attention, and the trial judge failed or refused to rule. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). The cover letter attached to Ford's petition requesting that the petition be filed and that a hearing be set is addressed to the district clerk. Neither the mandamus petition nor the attachments show that Ford brought the expunction petition to the trial judge's attention. Merely filing the matter with the district clerk does not impute knowledge of the pleading to the trial court. In re Flores, No. 04-03-00449-CV, 2003 WL 21480964 (Tex.App.-San Antonio June 25, 2003, orig. proceeding) (not designated for publication).
In addition, the cover letter to Ford's petition is dated July 24, 2004. "Whether a reasonable time has lapsed is dependent upon the circumstances in each case because no bright-line rule exists. Ex parte Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig. proceeding). "Many indicia are influential, not the least of which are the trial court's actual knowledge of the motion, its overt refusal to act on same, the state of the court's docket, and the existence of other judicial and administrative matters which must be addressed first." Id. In addition, "the trial court's inherent power to control its own docket" must also be considered. Id. In this case, only two months have lapsed since the filing of Ford's expunction petition, and the record contains no evidence that the trial judge has actual knowledge of the petition. Accordingly, Ford has failed to show that he is entitled to mandamus relief, and Ford's petition is denied.