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

No. 06

- 21

- 00070

- CR

IN RE JERRARD MCGARY

Original Mandamus Proceeding

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINIO N
Jerrard McGary, proceeding pro se, petitioned for mandamus relief asking this Court to direct the Fifth Judicial District Court of Bowie County to make a ruling on his petition for habeas corpus relief

. McGary filed his application for habe as corpus re lief in the trial court in early February 2021

. Now, about five months later, McGary complains that the t rial cou rt has not yet made a ruling. We find that McGary has failed to show he (1) presented his application to the trial cou rt and (2) requested a ruling. Thus , McGary has not provide d a record sufficient to entitle him to his requested mandamus relief. As a result, we deny h is petition for extraordinary mandamus relief.
To be entitled to mandamus relief, the relat or must show (1) that he has no adequate remedy at law and (2) that the action he s eeks to compel is ministerial, not one involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The relator is obligated to p rovide this Court with a record sufficient to establish his right to mandamus relief. Walker v. Packer , 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding) ; In re Pilgrim ’ s Pride Corp. , 187 S.W.3d 197, 198

– 99 (Tex. App.

— Texarka na 2006, orig. proceeding); s ee T EX
. R.
A PP
. P. 52.3. Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a minis terial act, was asked to do so, and failed or refused to act. In re Villa rreal , 96 S.W.3d 708, 710 (Tex. App.

— Amarillo 2003, orig. proceeding); see also In re Blakeney , 254 S.W.3d 659, 662 (Tex. App.

— Texarkana 2008, orig. proceeding) ( “ Showing that3

a moti on was filed with the court clerk does not constitute proof that the motio n was brought to the t rial court ’ s attention or pre sented to the trial court with a request for a ruling. ” ). The trial court is required to consider and rule on a properly filed moti on within a reasonable time once a ruling has been requested. In re Green well , 160 S. W.3d 286, 288 (Tex. App.

— Texa rkana 2005, orig. proceeding). To obtain mandamus relief here, McGary must establish that (1) the motion was properl y filed and had been pending for a reasona ble time , (2) he requested a ruling on the motion , and ( 3) the tri al court has either refused to rule or failed to rule within a reasonable time. See In re Blakeney , 254 S.W.3d at 661. But “ if a reasonable
t ime has not yet passed, the trial court’s fail ure to rule may not be a clear abuse of discretion.”
In re Greenw ell , 160 S.W.3d at 288. As we have stated previously,

Any such mandamus relief, however, must be predicated on an adequate showing that a r eque st for a ruling has been properly and adequately presented to the trial cou rt and that the court has de clined to rule. Mandamus relief requi res existence of a legal duty to perform a nondiscretionary act, a demand for performance of that act, and a ref usa l to so act.
In re Blakeney , 254 S.W.3d at 661 ( citing Foreman v. Jarret t , 796 S.W.2d 316, 317 (Tex. App.

— Austin 1990, orig. proceeding) (p er curiam) )

. McGary has attached to h is mand amus petition a file

- stamped copy showing that h is
ap plication for habeas corpus was filed in the tri al court on February 5, 2021. “A tri al court is required to consider and rule on a motion within a reas onable time.” In re Shaw , 175 S.W.3d 901, 904 ( Tex. App.

— Texarkana 2005 , orig. proceeding )

. “While [an appellate court] ha[s] jurisdiction to direct the trial court to rule on a motion, w e may not tell the trial court h ow to rule on such motion.” In re Ramos , 598 S.W.3d 472, 474 (Tex. App.

— Houston [14th Dist.] 2020 ,4

orig. proceeding )

. Moreover , “a trial court cannot be found to have abused its discretion until the complainant establishes that the court 1) had a legal d uty to perform a non

- discretionary act, 2) was asked to perform the act, and 3) failed or refused to do so.” In re Chavez , 62 S.W .3d 225, 228 (Tex. App.

— Amarillo 2001 , orig. proceeding ) ( citing O ’ Connor v. First Court of Ap peals , 837 S.W.2d 94, 97 (Tex. 1 992) (orig. proceeding) (“Mandamus w ill issue when there is a legal duty to perform a non

- discretionary act, a demand for performance, and a refusal

. ”) )

. There is nothing in the r ecord establishing that McGary presented his application to the trial court and demanded that the trial court ru le on the application. McGary has produced a letter addressed to the trial court demanding a ruling on his application for habeas relief. Even so, the letter is not file

- stamped . And whi le it includes a certified mail receipt and a United
States Postal S ervice tracking number, there is no proof that the trial court ever received or saw the letter , such as a certified

- mai l green card. In In re Taylor , No. 06

- 16

- 00016

- CV , 2016 WL 143538 6 , at *1 ( Tex. App.

— Texarkana Apr. 12, 2016 , orig. proceeding) (mem. op.) , Tayl or claimed he sent letters to the trial court requesting the matter be set for a heari ng. Although Taylor has provided this Court with copies of his motions and letters, none of them contain a file

- stamp mark indicating they were filed. Further, neither the motions nor the letters are accompanied by envelopes or other evidence in the rec ord th at indicate the trial court actually received the motions and requests for hearing. Id. This failure was fatal to Tay lor’s petition for a writ of mandamus, and we denied re lief. Id.5

We come to the same conclusion here. McGary has not carried hi s burden of demonstrating that he has presented his application for habeas relief to the trial c ourt and requested a ruling. As a result, w e deny McGary’s request for mandamus re lief

. 1

Scott E. Stevens Justice Date Submitted: August 5 , 2021 Da te Decided: August 6 , 2021 Do Not Publish

1 Additionally, even if the letter reached the trial court , the letter is dated Ju ne 10, 2021. McGary’s application for mandamus relief with this Court was received and filed July 2, 2021. Such a span is not a n unreasonable amount of time for a trial court to make a ruling. See In re Mission Consol. Indep. Sch

. Dist

. , 990 S.W.2d 45 9, 460

– 61 (Tex. App.

— Corpus Christi 1999, orig. proceeding) (m andamus relief not available when only thirty days had passed); Ex pa rte Bates , 65 S.W.3d 133, 135 (Tex. App.

— Amarillo 200 1, orig. proceeding)

.