in Re Quinn McGary, 06-15-00141-CR

Background

Relator Quinn (Jerrard) McGary was placed on 10-year community supervision in 1993 for delivery of a controlled substance (cause no. 93F204).
The State filed a Motion to Revoke probation in 1996, an alias capias issued, and a revocation proceeding appears in the record (transcript dated May 22, 1997) in which Judge Jack Carter stated he revoked probation and imposed a concurrent 10-year sentence.
The Cass County District Attorney later filed (July 8, 1997) a motion to dismiss the revocation and release McGary from probation, and the court’s docket/records are unclear whether probation was finally revoked or dismissed.
McGary filed multiple writs of habeas corpus with the Texas Court of Criminal Appeals (2011, 2012, 2015) that were dismissed on the ground "community supervision had not been revoked."
On June 9, 2015 McGary filed in the 5th District Court (Cass County) a Motion for Speedy Revocation Hearing under Tex. Code Crim. Proc. art. 42.12 §21(b), requesting bench warrant/return for a hearing within 20 days; the district court has not ruled.
McGary petitions the Sixth Court of Appeals for a writ of mandamus directing the presiding judge to rule on the pending Motion for Speedy Revocation Hearing, arguing he has no adequate remedy by appeal and the lower court has clearly abused its duty by failing to act.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether mandamus is appropriate to compel a ruling on a motion to set a speedy revocation hearing under Art. 42.12 §21(b)	McGary: He has a clear legal right to an order granting or denying his motion; court must act; mandamus is proper because no adequate remedy by appeal	Respondent (implied): Court busy or internal procedures; no explicit ruling yet; may argue discretion over docketing	Relief sought by McGary; no appellate ruling in record (pending)
Whether McGary has a justiciable liberty interest requiring the hearing	McGary: Ongoing community supervision/detainer affects liberty and ability to obtain relief on habeas/out-of-time appeal	State/Clerk responses noted Probation not revoked; Court of Criminal Appeals dismissed writs for that reason	Disputed factual posture; McGary asserts justiciable interest; no court resolution in the petition record
Whether failure to rule constitutes clear abuse of discretion or violation of ministerial duty	McGary: Entering an order granting or denying the motion is a ministerial duty or, at minimum, mandamus-worthy abuse of discretion under Walker v. Packer	Respondent (implied): No written refusal shown; administrative delay not shown to be intentional	Relief requested; no ruling in record (pending)
Whether mandamus is the only adequate remedy	McGary: Cannot appeal without a ruling; habeas relief repeatedly dismissed because of unresolved revocation status, so mandamus is necessary	Respondent (implied): Availability of internal remedies or eventual ruling might make mandamus premature	McGary contends no adequate remedy at law; court has not yet ruled on mandamus (petition stage)

Key Cases Cited

Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation requires certain procedural protections)
Carney v. State, 573 S.W.2d 24 (Tex. Crim. App. 1978) (procedural issues in revocation/probation contexts)
Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991) (standing/justiciable interest principles)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus standard: clear abuse of discretion)
Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) (mandamus/right to relief analysis)
In re Perritt, 992 S.W.2d 444 (Tex. App. — Amarillo 1999) (demand-and-refusal requirement for mandamus)
Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003) (procedural guidance on filing mandamus in courts of appeals)
Burns v. Kelly, 658 S.W.2d 731 (Tex. App. — Fort Worth 1983) (limits on mandamus where material factual disputes exist)