in Re Mark Ramirez

IN THE TENTH COURT OF APPEALS

No. 10-12-00277-CR

IN RE MARK RAMIREZ

Original Proceeding

OPINION

Mark Ramirez, an inmate, seeks a writ of mandamus from this Court directing Respondent, the Honorable Erwin Ernst, as Judge of the 12th Judicial District Court of Walker County, to rule on Ramirez’s Motion for Judgment Nunc Pro Tunc and to grant Ramirez’s requested additional jail time credit. The Honorable Donald Kraemer is the elected judge of the 12th Judicial District Court. We abated this proceeding to give Ramirez the opportunity to clarify the record for us, and to amend his petition, if necessary. He clarified the record but did not amend his petition.

Based on the clarification, Judge Ernst presided over Ramirez’s trial court proceeding as an assigned judge and signed the judgment revoking his community supervision for the offense of robbery on April 23, 2008. Ramirez’ clarification also shows that Judge Kraemer was presented with Ramirez’s motion nunc pro tunc and “declined” to rule on the motion.

Because the motion was presented to Judge Kraemer who then declined to rule on it, Ramirez’ petition should have alleged Judge Kraemer as the party against whom relief is sought. See TEX. R. APP. P. 7.2(b); In re Whitfield, 134 S.W.3d 314 (Tex. App.— Waco 2003, order); see also In re McDaniel, No. 10-04-00166-CV (Tex. App.—Waco Oct. 5, 2005, order) (not designated for publication). Alternatively, had Ramirez determined Judge Ernst was the proper judge to rule on his motion nunc pro tunc, Judge Ernst should have been presented with the motion and provided an opportunity to rule on it. See In re Hearn, 137 S.W.3d 681 (Tex. App.—San Antonio 2004, orig. proceeding).

Because the conditions of either alternative have not been met, Ramirez’ petition is denied.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition denied Opinion delivered and filed September 27, 2012 Publish [OT06]

In re Ramirez Page 2