### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00718- CV

In re Whalon Patt erson

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

M E M O R A N D U M O PI N I O N
Relator Whalon P at t er s o n , an inmate, has filed a petition for writ of mandamus complaining of the trial court’s alleg ed failure to rule o n h i s m o t i on for judgme nt nunc pro tunc, which asser

ts that Patterson is entitled to jail-time cre dit of 33 day s. Acc ording to Patterson, he first filed his motion on October 10, 2011, but, afte r rec eiving no response from the district court, re- filed his moti on on November

8, 2011. Mandamus may issue to compel a trial court to rule o n a motion for judgme nt
nunc pro tunc addre ssing jail-time cre dit which has been pending befor e the court for a rea sonable period of time. See Ex parte Y barra , 149 S.W .3d 147, 149 (Tex. Crim. App. 2004); In re Sarkissian , 2 4 3 S. W. 3 d 860, 860-61 (Tex. App.—Waco 2008, orig
. proce eding ). Howeve r, to obtain mandamu s relief for the tr ial court’s r efusa l to rule on such a motion, a r elator must establish: (1) the motion
was proper ly filed and has been pending for a re as o nable time; (2) the rela tor reque sted a ruling on the motion; and (3) the trial court ref used to rule. See In re Hearn , 137 S.W .3d 681, 685 (Tex. App.—San Antonio 2004, orig
. proce eding ). The relator has the b urd en of providing a
rec ord establishing that his motion has awa ited dispositi on for an unrea sonable time. In re Mendoza ,131 S.W .3d 167, 168 (Tex. App.—San Antonio 2004, orig
. proce eding ). Additionally , mere ly filing

a motion with a district or trial co u rt cl erk does not equate to a reque st that the trial court rule on the motion. See H

earn , 137 S.W .3d at 685. Moreove r, whether a rea so n ab l e am o u nt of time has lapsed is depende nt on the circ umstances of eac h case ; “no bright-line demar cate s the boundarie s of a rea sonable time period.” Ex parte Bates , 65 S.W .3d 133, 135 (Tex. App.—Amar illo 2001, orig
. proce eding ). Courts consider
sever al fac tors in de termining whether the trial court has unnece ssarily delayed a ruling , including the trial court’s actua l knowledg e of the motion, its overt re fu s al t o act on it, the state of the court’s doc ket, the court’s inhere nt power to control i ts docket, and the exist ence of other judicia l and administrative matter s which must be addr essed. See id
.

Although Patt er s o n h as p rovi ded this Court with what he claims is a copy of his
m o t ion, he has otherwise failed to provide us with any corr espondenc e to the district court

1 reque sting a ruling on the motion or any thing indicating that the district cou rt h as ref used to rule
on the motion. See Tex. R. App. P. 52.7(a) (re lator must file with petition “a cer tified or sworn copy of ever y document that is materia l to the relator’s claim for relief and that was filed in any underlying proce eding ”). O n this recor d, we c annot deter mine whether the m otion was properly filed or, if it was, the date on which it was re ceive d by either the cler

k’s offic e or the judge , much less whethe r the motion has been pe nding f or an unr easona

ble amount of time.

We note that the copy of the motion Patterson provided to this Court is dated November 17, 1 2011, the same date that he serve d his petition for writ of mandamus. Thus, it appea rs that Patterson has not provided us with a copy of the actua l motion that he asser ts was filed with the district court on October

10 and Nove mber 8. 2The pe tition for writ of mandamus is denied w ithout prejudice.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief Justice Jones, J ustices Pemberton a nd Henson Filed: De cembe r 8, 2011

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