Derek M. Bailey v. Larry Morawietz--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-07-00593-CV
Derek M. BAILEY,
Appellant
v.
Larry MORAWIETZ,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 94-0857-CR
Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 14, 2008

 

AFFIRMED

Derek M. Bailey appeals the trial court's order denying his request for a writ of mandamus. In his brief, Bailey contends that he filed a motion with the justice of the peace, Larry Morawietz, to reopen an inquest pursuant to article 49.041 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 49.041 (Vernon 2006). Bailey allegedly filed the motion on March 9, 2007. On June 13, 2007, Bailey sought a writ of mandamus asserting that Morawietz was refusing to rule on his motion. The trial court denied the writ of mandamus on July 9, 2007, and Bailey appealed. District courts have the power to issue writs of mandamus when necessary to enforce their jurisdiction, including the authority to issue a writ of mandamus requiring a municipal judge to take action on pending motions. Tex. Const. art. V, 8; In re Marshall, No. 04-02-00819-CV, 2002 WL 31662743, at *1 (Tex. App.--San Antonio Nov. 27, 2002, orig. proceeding). The party requesting a writ of mandamus has the burden of establishing that a legal right to such relief exists, and that there is a clear legal duty on the part of the respondent to perform the requested action. Scott v. Clark, 696 S.W.2d 34, 36 (Tex. App.--Houston [1st Dist.] 1984, writ dism'd).

Similar to a trial court, a municipal judge is required to consider and rule upon a motion within a reasonable time. Cf. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.--San Antonio 1997, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.--Houston [1st Dist.] 1992, orig. proceeding); see also Mestiza v. De Leon, 8 S.W.3d 770, 772-73 (Tex. App.--Corpus Christi 1999, no pet.) (noting municipal judge's ruling on request to reopen inquest is subject to review). To be entitled to mandamus relief, however, Bailey was required to establish that he filed a proper motion, the motion was pending before Morawietz for more than a reasonable time, and Bailey took action to alert Morawietz that he had failed to make a ruling. In re Molina, 94 S.W.3d 885, 886 (Tex. App.--San Antonio 2003, orig. proceeding); Barnes, 832 S.W.2d at 426. In this case, the record contains no evidence that Bailey's motion was ever filed in the appropriate court or that Bailey brought the motion to Morawietz's attention. Accordingly, the trial court did not err in denying the writ of mandamus.

The trial court's order is affirmed.

Alma L. L pez, Chief Justice