In re Z.Q.
| Decision Date | 28 January 2021 |
| Docket Number | NO. 14-21-00044-CV,14-21-00044-CV |
| Parties | IN RE Z.Q., Relator |
| Court | Texas Court of Appeals |
315th District Court Harris County, Texas
On January 19, 2021, relator Z.Q. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Leah Shapiro, presiding judge of the 315th District Court of Harris County, to rule on relator's application for writ of habeas corpus.
Ordinarily, to be entitled to a writ of mandamus, a relator must show that the trial court clearly abused its discretion, and that the relator lacks an adequate remedy by appeal. In re Turner, 591 S.W.3d 121, 124 (Tex. 2019) (orig. proceeding). A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding). To be entitled to mandamus relief for failure to rule on a motion, the record must show that the trial court (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so. In re Dimas, 88 S.W.3d 349, 351 (Tex. App.—San Antonio 2002, orig. proceeding).
As the party seeking mandamus relief, relator has the burden of providing this court with a sufficient record to establish his right to mandamus relief. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Relator has not met his burden. To establish that the motion was filed, the relator must provide either a file-stamped copy of the motion or other proof that the motion in fact was filed and is pending before the trial court. In re Gomez, 602 S.W.3d 71, 74 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding); In re Flanigan, 578 S.W.3d 634, 636 (Tex. App.—Houston [14th Dist.] 2019, orig. proceeding); In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).
In his petition, relator states that he sent an application for writ of habeas corpus to the trial court via certified mail return receipt requested on November 18, 2020, with a cover letter addressed to the Harris County District Clerk asking to "have his aforementioned documents brought to the attention of the court to be considered and ruled upon as soon as the business of the court permits." Relatoralso requested that the clerk stamp the application and the cover letter and return the file-stamped copies to him in the enclosed self-addressed stamped envelope. The record contains a copy of a green card addressed to the Harris County District Clerk, which was signed on November 23, 2020, but it does not identify what was mailed to the district clerk. The copies of the application and the cover letter in the record do not bear a file stamp and relator has not otherwise provide any proof that they were filed and are pending in the trial court. Therefore, relator has not demonstrated that his application is pending in the trial court. See Gomez, 602 S.W.3d at 74; Flanigan, 578 S.W.3d 636; Henry, 525 S.W.3d 381, 382.
Even if relator were able to show that his application has been filed and is pending in the trial court, he has not shown that his application has been presented to the trial court. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [...
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