Opinion
No. 05-16-00129-CV
02-11-2016
IN RE STEPHEN HOWARD TIMMS, Relator
On Appeal from the 204th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-0600155
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Whitehill
Opinion by Justice Bridges
Relator filed this petition for writ of mandamus requesting that the Court order the trial court to rule on his motion for forensic DNA testing. The petition does not include the certification required by rule 52.3(j) of the Texas Rules of Appellate Procedure or a copy of the motion for forensic DNA testing. Although these deficiencies alone constitute sufficient reason to deny mandamus relief, in the interest of judicial economy we consider the petition.
Mandamus relief is appropriate in a criminal case only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision. In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (orig. proceeding). A trial court has a ministerial duty to rule upon a properly filed and timely presented motion. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). To be properly filed and timely presented, a motion must be presented to a trial court at a time when the court has authority to act on the motion. See In re Hogg-Bey, No. 05-15-01421-CV, 2015 WL 9591997, at *1-2 (Tex. App.-Dallas Dec. 30, 2015, orig. proceeding) (mem. op., not designated for publication).
The trial court's general jurisdiction over relator's underlying criminal case expired long ago. See State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002) (consolidated appeal and orig. proceeding) (plurality opinion) (when conviction has been affirmed on appeal and mandate issued, general jurisdiction is not restored in trial court). After its general jurisdiction expires, a trial court has special or limited jurisdiction to ensure that a higher court's mandate is carried out and to perform other functions specified by statute such as finding facts in a habeas corpus setting or determining entitlement to DNA testing. Patrick, 86 S.W.3d at 594. Because relator is seeking forensic DNA testing, the trial court has special jurisdiction to rule on a post-conviction motion. It has both the power and the duty to rule on such motions. .See In re Hogg-Bey, 2015 WL 9591997, at *2.
No litigant is entitled to a hearing at whatever time he may choose, however. In re Chavez, 62 S.W.3d 225, 229 (Tex. App.—Amarillo 2001, orig. proceeding). A trial court has a reasonable time within which to consider a motion and to rule. In re Craig, 426 S.W.3d 106, 107 (Tex. App.-Houston [1st Dist.] 2012, orig. proceeding); In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.-Waco 2008, orig. proceeding). The circumstances of the case dictate whether the trial court has ruled within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). According to the transmittal letter included in the appendix to relator's petition for writ of mandamus, relator mailed his petition for forensic DNA testing to the trial court on November 14, 2015. Relator sent another letter to the trial court inquiring about the status of his motion on January 23, 2016. We cannot conclude on the facts of this case that the trial court has not ruled on the motion for forensic DNA testing within a reasonable time. Accordingly, mandamus relief is not appropriate at this time.
We deny the petition for writ of mandamus.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE 160129F.P05