in Re: John Cloud ( 2011 )

NO. 12-11-00163-CV

IN THE COURT OF APPEALS         

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE:                                                            §                     

JOHN CLOUD,                                             §                      ORIGINAL PROCEEDING

RELATOR                                                     §                     

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MEMORANDUM OPINION

            Relator John Cloud petitioned the trial court for permission to appear before the Anderson County grand jury to present a complaint.  The trial court denied the petition, and Relator filed a motion for reconsideration.  The trial court has not ruled on the motion, and Relator seeks a writ of mandamus requiring the court to rule. 

            To obtain a writ of mandamus compelling the trial court to consider and rule on a motion, a relator must establish that the trial court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so.  In re Molina, 94 S.W.3d 885, 886 (Tex. App.–San Antonio 2003, orig. proceeding).  Generally, a trial court has a nondiscretionary duty to consider and rule on a motion within a reasonable time.  In re Thomas, No. 12-05-00261-CV, 2005 WL 2155244, at *4 (Tex. App.–Tyler Sept. 7, 2005, orig. proceeding) (mem. op.).

            Here, Relator’s motion for reconsideration is, in essence, a motion for new trial.  A trial court has no duty to rule on a motion for new trial.  See Tex. R. Civ. P. 329b(c) (motion for new trial not determined by written order signed within seventy-five days after judgment signed to be considered overruled by operation of law).  Because the trial court has no duty to rule on a motion for new trial, and Relator’s motion for reconsideration is, in essence, a motion for new trial, Relator has not shown that he is entitled to mandamus relief.  Accordingly, Relator’s petition for writ of mandamus is denied.

                                                                                    Sam Griffith

Justice

Opinion delivered June 22, 2011.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)