### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00836
- CV

In re Ray Salazar

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

M E M O R A N D U M O P I N I O N

Relator Ray Salazar, an inmate in the T exas Department of Criminal Ju stice, has
filed a pro se petition for writ of mandamus , asserting that the trial court has refused to rule on his pending post

- conviction motion s. Salazar seeks mandamus reli ef from this Court concerning
the following motions filed with the Travis County District C le rk : “Motion for Bench Warrant , ” filed on August 8, 2019 ; “ Motion R eques t for Evidentiary Hearing , ” filed on Au gust 14, 2019 ; and “ Motion for Leave to R equest Trial Court to Issue Order of Default Judgme nt Against Trial
Counsel ’ s Non

- Compliance of Order t o Produc e Affidavit Pursuant to Art. 11.07 Sec. 3(d) Tex.
Code Crim. Procedure ” and “ Defendant ’ s Motion t o R e quest S etti ng Hearing , ” both filed on September 3, 2019

. 1 In his petition for writ of mandamus, he asserts that the trial co urt has a

1 These motions ap pear to relate to a post

- convictio n a ppli cation for writ o f habeas cor pus
. See Texas C ode of C rim

. P roc
. a rt

. 11.07 § 5

. However, no application for writ of habeas corpus is included in the mandamus record provided by S alaza r. I f an A rticle 11.0 7 writ app lication has been filed and is p end ing in the trial court , we lack jurisdiction over this mandamus proceeding

. See Padieu v. Court of Appeals of T ex. , Fifth Dist. , 392 S.W.3d 115, 11 7

- 1 8 (Tex. Crim. App. 2013) (orig. proceeding)

. O nly the Tex as C ourt of C riminal A ppeals hasministerial duty to rule on his motion s and that it has r e fused to rule on the motions within a

reasonable period of time

.

Al though a trial court has a duty to consid er and rule up on pending motions that have been brought to its attention within a reasonable time, wh e ther that period has lap sed is dependent upon the circumstances of the particular case. See In re Villarreal , 96 S.W.3d 708, 711 (Tex. App.

— Amarillo 2003, or ig. p roceeding ) ( explaining that court s consider “the trial

co urt ’ s actual knowledge of the [ pend i ng ] motion, its overt refusal to act on same, the state of the

court ’ s docket, and the existence of other judicial and administrative matters which must be
addressed first , ” as well as trial court ’ s inherent power to contr ol its own docket when
considerin g whether reasonable tim e period has passed). Salazar has the obligation to pr ovide this Court with a record establishing that his motions have awa ited disposition for an unreasonable length of time. See id. (citing Ex parte Bates, 65 S.W.3d 133, 13 5 (Te x. A pp.

— Amarillo 2001, orig. proceeding); Walker v. Packer , 827 S.W.2d 833 (Tex. 1992) (orig. proceeding ) )

. The most recently filed motions have been pending for less than 90 days. Given
the trial court ’ s inherent power to control its own docket, absent any in dicia in the record of an
overt refusal to rule or the state of the trial court ’ s docket, we do not hold that the trial court ’ s failure to act wi thin approximately three m onth s constitutes unreaso na ble delay per se. See id.

T he petition for writ of man d amus is denied. See Tex. R. App. P. 52.8(a).

jurisdiction ov er p ost

- conviction w rits of habeas corpus in fel ony cases. Ater v. Eighth Court of Appeals , 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding)

. W e alternatively dismiss the petition for writ of mandamus for lack of jurisdiction._______________________ ___________________ Edward Smith , Justice
Before Chief Justice Rose, Justices Triana and Smith
Filed: November 26, 2019