Petition for Writ of Mandamus Denied and Majority and Concurring Opinions

filed April 14, 2020.

In The

Fourteenth Court of Appeals

NO. 14-20-00204-CR

NO. 14-20-00205-CR

IN RE FRANKLIN HURTADO GOMEZ, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

240th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 38751 & 38752

MAJORITY OPINION

On March 13, 2020, relator Franklin Hurtado Gomez 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 presiding judge of 

the 240th District Court of Fort Bend County to rule on relator’s motion for nunc 
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pro tunc order. Relator has not submitted a copy of any motion. In his mandamus 

petition, relator refers to a “Motion for Judgment Nunc Pro Tunc Order,” using the 

singular. Yet, relator references two trial court cause numbers, so it is possible that 

he seeks relief as to two motions. We presume for the sake of our analysis that 

relator seeks mandamus relief as to a motion for nunc pro tunc order filed in each 

trial-court case.

To be entitled to mandamus relief, a relator must show (1) that the relator has 

no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the 

relator seeks to compel involves a ministerial act rather than a discretionary act. In 

re Powell, 516 S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). If 

a party properly files a motion with the trial court in a criminal case, the court has a 

ministerial duty to rule on the motion within a reasonable time after the motion has 

been submitted to the court for a ruling or after the party has requested a ruling. See 

In re Flanigan, 578 S.W.3d 634, 635–36 (Tex. App.—Houston [14th Dist.] 2019, 

orig. proceeding). If a trial court fails to do so, mandamus may issue to compel the 

trial court to act. See id. For mandamus relief to be granted in the context of this 

case, the record must show (1) the motion was filed and brought to the attention of 

the respondent-judge for a ruling, and (2) the respondent-judge has not ruled on the 

motion within a reasonable time after the motion has been submitted to the court for 

a ruling or after the party requested a ruling. See id. This legal standard is based on 

criminal mandamus precedent from this court. See In re Ramos, No. 14-20-00045-

CR, — S.W.3d —, —, 2020 WL 1469552, at *1 (Tex. App.—Houston [14th Dist.] 

Mar. 26, 2020, orig. proceeding). In this line of cases, our court has not applied rules 

of civil procedure to a criminal case; instead, this court has concluded that an 

appellate court should not grant mandamus relief compelling a trial court in a 
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criminal case to rule on a motion unless (1) the motion was filed and brought to the 

attention of the respondent-judge for a ruling, and (2) the respondent-judge has not 

ruled on the motion within a reasonable time after the motion has been submitted to 

the court for a ruling or after the party requested a ruling. See id.; Flanigan, 578 

S.W.3d at 635–36. In doing so, this court properly has exercised its mandamus 

jurisdiction over trial-court judges in criminal cases. See Padilla v. McDaniel, 122 

S.W.3d 805, 807–08 (Tex. Crim. App. 2003) (orig. proceeding).

This line of cases applies to all relators, whether incarcerated or not. See, e.g., 

In re Ramos, 2020 WL 1469552, at *1. This precedent does not effectively bar an 

incarcerated person from access to mandamus relief. See id. Under this precedent, 

an incarcerated person may obtain mandamus relief by satisfying the applicable 

requirements. See, e.g., In re Ramos, 2020 WL 1469552, at *1–2 (granting 

mandamus relief in favor of incarcerated person and ordering trial-court judge in 

criminal case to rule on the relator’s motion for judgment nunc pro tunc). The Court 

of Criminal Appeals has recognized no exception for incarcerated persons seeking 

mandamus relief. Nor has the high court prescribed a different legal standard for 

courts of appeals considering the petitions of incarcerated persons for mandamus 

relief.

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 id.; Tex. 

R. App. P. 52.7(a)(1) (relator must file with the mandamus petition “a certified or 

sworn copy of every document that is material to the relator’s claim for relief and 

that was filed in any underlying proceeding”). To establish that the motion was filed, 

the relator must provide either a file-stamped copy of the motion or other proof that 
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the motion in fact was filed and is pending before the trial court. See Flanigan, 578 

S.W.3d at 636. Merely filing a motion with a court clerk does not show that the 

motion was brought to the trial court’s attention for a ruling because the clerk’s 

knowledge is not imputed to the trial court. Ramos, 2020 WL 1469552, at *1.

Relator has not attached a file-stamped copy of either of the motions as to 

which he seeks mandamus relief. In the absence of a file-stamped copy of the motion 

or other proof that the motion in fact was filed and is pending before the trial court, 

relator has not established that either of his motions is actually pending in the trial 

court. See Flanigan, 578 S.W.3d at 636. 

Even if relator had shown that his motions are properly pending, he has not 

demonstrated that (1) either motion was filed and brought to the attention of the 

respondent-judge for a ruling, and (2) the respondent-judge has not ruled on either 

motion within a reasonable time after the motion has been submitted to the court for 

a ruling or after relator requested a ruling. See id. at 635–36. 

Relator has not established that he is entitled to mandamus relief. 

Accordingly, we deny relator’s petition for writ of mandamus.

PER CURIAM

Panel consists of Chief Justice Frost and Justices Jewell and Spain. (Spain, J., 

concurring).

Publish — Tex. R. App. P. 47.2(b).