### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

_________________________ No. 06

- 12

- 00068

- CV

______________________________

IN RE: TOMMY PERKINS

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley2 MEMORANDUM OPINION Tommy Perkins has filed a petition for writ of mandamus requesting this Court order the Honorable Eric Clifford, presiding judge of the 6th J udicial D istrict Court , to rule on his petition for expunction of records. 1 P erkins alleges he was convicted on July 29, 1993, of c apital m urder of Phill ip Kinslow and filed a petition in Ju ne 2008 for expunction of the charge of murder of Phillip Kinslow , a charge which had been abandoned by the State at the capital murder trial. Perkins has attached a copy o f the petition for expunction 2 and a copy of a docket sheet indicating the late Honorable Jim D. Lovett, who was formerly the presiding judge of the 6th
J udicial D istrict Court , “ passed ” on the petition on June 22, 2008. Mandamus issues only when the mand amus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992); see In re Columbia Med. Ctr. of Las Colinas Su bsidiary, L.P ., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). The Texas Supreme Court has adopted a balancing test to determine whether a party has an adequate remedy by appeal. See In re Prudential Ins. Co. of Am ., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding); In re AIU Ins. Co ., 148 S.W.3d 109, 115 (Tex. 2004) (orig. proceeding). Relator
must e stablish that the trial court ( 1) had a ministerial duty to perform the act, ( 2) was asked to

1 The Texas Code of Criminal Procedure provides a right to an expunction of criminal records under certain circumstances such as an acquittal or pardon. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 55.01 (West Supp. 201 2 ).

2 We dismissed a prior petition for writ of mandamus based on failure to provide an adequate record. See In r e Perkins , No. 06

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- 00097

- CR (Tex. App.

— Texarkana June 13, 2012, orig. proceeding) (not designated for publication).3

perform the act , and ( 3) failed or refused to do so. I n re Molina , 94 S.W.3d 885, 886 (Tex. App.

— San Antonio 2003, orig. proceeding). Perkins has received the relief requested. We note a trial court has a ministerial duty to consider and rule on a properly filed and pending motion within a reasonable time. See In re Shaw , 175 S.W.3d 901, 904 (Tex. App.

— Texarkana 2005, orig. proceeding). In general, we have mandamus jurisdiction to direct the trial court to make a decision, but we may not tell the trial court what that decision should be. In re Blakeney , 2 54 S.W.3d 659, 661 (Tex. App.

— Texarkana 2008, orig. proceeding); cf. State ex rel. Rosenthal v. Poe , 98 S.W.3d 194, 198 n.3 (Tex. Crim. App. 2003) (orig. proceeding) (mandamus may lie to compel trial court “ to rule a certain way ” when “ nothing is left to ” the discretion of trial court). Pursuant to Rule 7.2(b) of the Texas Rules of Appellate Procedure, we abated this case for the Honorable Eric Clifford, presiding judge of the 6th J udicial D istrict Court , to reconsider the refusal to rule of the late Honorable Jim D. Lovett. See T EX
. R. A PP
. P. 7.2. On July 31, 2012, the Honorable Eric Clifford denied Perkins ’ petition for expunction. Perkins has now received the relief requested

— h is pe tition for expunction of records has been ruled on. For the rea sons stated, we deny mandamus relief.

Bailey C. Moseley Justice Date Submitted: September 4 , 2012 Date Decided: September 5 , 2012