Opinion
No. 04-05-00375-CV
Delivered and Filed: June 15, 2005.
This proceeding arises out of Cause No. 2000-CRN-00681-D3, styled State of Texas v. Arturo Gabino-Rodriguez, pending in the 341st Judicial District Court, Webb County, Texas, the Honorable Elma T. Salinas Ender presiding.
Petition for Writ of Mandamus Denied.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Arturo Gabino-Rodriguez filed a petition for a writ of mandamus, seeking an order compelling the trial court judge to rule on a motion to dismiss. We deny the petition.
Gabino-Rodriguez alleges that on June 6, 2003, he filed with the Webb County District Clerk a motion to dismiss the charges against him pursuant to the Interstate Agreement on Detainers Act, and the trial court has failed to rule on the motion. The motion does not contain a request for hearing and the certificate of service does not reflect that a copy of the motion was served on the trial court judge. Documentation attached to the petition for a writ of mandamus reflects that the Webb County District Clerk's office and the Webb County Sheriff's office have been asked about the status of the case and responded that the motion to dismiss has not been ruled on and that the case is still open. However, nothing in the record provided by relator reflects that the motion to dismiss has been brought to the attention of the trial court judge or that the judge has been asked to rule on the motion.
Tex. Code Crim. Proc. Ann. art. 51.14 (Vernon 1979).
A trial court has a legal, nondiscretionary duty to consider and rule on properly filed motions within a reasonable time. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio 1998, orig. proceeding). However, a trial judge abuses her discretion only if the motion has been brought to her attention and she refuses to rule on it within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding). The mere filing of a motion with the district clerk "is insufficient basis from which to reasonably infer that the trial court had notice of [the motion] and the need to act on it." In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001, orig. proceeding); see In re Flores, No. 04-03-00449-CV, 2003 WL 21480964, *1 (Tex.App.-San Antonio, June 25, 2003, orig. proceeding) (holding that "[m]erely filing the matter with the district clerk does not impute knowledge of the pleading to the trial court.").
Gabino-Rodriguez has not provided us with a record showing that he has asked the trial court to rule on his motion and the judge has refused to rule and thus has not shown an abuse of discretion. See Barnes, 832 S.W.2d at 426; Chavez, 62 S.W.3d at 228. Accordingly, relator's petition for a writ of mandamus is denied.
No costs shall be assessed against relator because he is indigent.
The clerk of this court is directed to transmit a copy of this opinion to relator, the attorneys of record, the trial court judge, and the trial court clerk.