in Re Lisa Marie Searcy

Petition for Writ of Mandamus Denied and Memorandum Majority and Dissenting Opinions filed November 18, 2021.

In The

Fourteenth Court of Appeals

NO. 14-21-00554-CR NO. 14-21-00555-CR

IN RE LISA MARIE SEARCY, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS 178th District Court Harris County, Texas Trial Court Cause Nos. 942126 & 941349

MEMORANDUM MAJORITY OPINION

On October 6, 2021, relator Lisa Marie Searcy 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 Honorable Kelli Johnson, presiding judge of the 178th District Court of Harris County, to “rule on pending pro se motions” and order the turnover of certain records “used for 942126/941349.”1

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 a trial court, the trial 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 requested a ruling. In re Ramos, 598 S.W.3d 472, 473 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (citing In re Flanigan, 578 S.W.3d 634, 635–36 (Tex. App.— Houston [14th Dist.] 2019, orig. proceeding)). Thereafter, if a trial court fails to rule, mandamus may issue to compel the trial court to act. Ramos, 598 S.W.3d at 473.

As the party seeking relief, it is relator’s burden to provide a sufficient record to establish that relator is entitled to mandamus relief. In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). For mandamus relief to be granted, 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. In a criminal mandamus proceeding, to establish that a motion was filed, a relator must provide the appellate court with either a file-stamped copy of the motion or other proof that the motion is, in fact, filed and pending in the trial court. Id. at 74 (citing Flanigan, 578 S.W.3d at 636); In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding).

Here, relator neither identifies in her petition a pending motion in the trial court nor attaches a file-stamped copy of a motion or any other proof that a motion in fact was filed and is pending before the trial court. See Gomez, 602 S.W.3d at 73–74. As such, relator has not met her burden of providing this court with a sufficient record to establish her right to mandamus relief. See id.

Relator has not established that she is entitled to mandamus relief. Accordingly, we deny relator’s petition for writ of mandamus.

/s/ Randy Wilson

Justice Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., dissenting). Do Not Publish — Tex. R. App. P. 47.2(b).