Opinion
No. 14-09-00675-CR
Opinion filed August 5, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
Original Proceeding. Writ of Mandamus.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
MEMORANDUM OPINION
On August 4, 2009, relator, Ena Jane Draycott, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the petition, relator requests that we quash two orders signed by the Honorable Susan Brown, presiding judge of the 185th District Court of Harris County, on July 29, 2009, and July 31, 2009, directing that relator be taken into custody for the purpose of obtaining handwriting exemplars and samples. Relator is employed as a firefighter with the Houston Fire Department. On July 7, 2009, racist and sexist graffiti was found on relator's personal property and on the walls of the women's dormitory at Houston Fire Department Station 54. The Houston Police Department Office of Inspector General is investigating the incident. On July 29, 2009, the State filed an application for an order compelling relator to provide a handwriting exemplar for use in the investigation. On July 29, 2009, the respondent signed an order directing that any peace officer take relator into temporary custody for the limited purpose of taking handwriting exemplars and samples. Relator is to be released once the exemplars and samples are taken. On July 31, 2009, relator moved to quash the order. The trial court has not yet ruled on relator's motion. Also, on July 31, 2009, the respondent signed a second order that is almost identical to the first order. The record does not reflect relator's response to the second order. On this record, we are unable to grant mandamus relief because the trial court has neither ruled on, nor explicitly refused to rule on, relator's motion to quash that seeks to produce the same relief as requested here. Mandamus is not available to compel an action which has not first been demanded and refused. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding). Relator asserts that the respondent is not available to hear her motion to quash. However, to the extent the respondent is not available to hear relator's motion to quash, the Local Rules of the Harris County District Courts for trying criminal cases provide a procedure for relator to seek relief. See Harris (Tex.) Dist. Ct. Loc. R. 10.B.1 ("The responsibility for emergencies and special matters will become the function of a Judge on Duty . . . where the preassigned Court Judge is unavailable."). In addition, relator's petition does not comply with the Texas Rules of Appellate Procedure because the documents attached to her petition are not sworn or certified. See Tex. R. App. P. 52.3(k)(1)(A) (requiring appendix to include certified or sworn copy of any order complained of, or any other document showing matter complained of); Tex. R. App. P. 52.7(a)(1) (requiring relator to file certified or sworn copy of every document that is material to her claim for relief and was filed in any underlying proceeding). For the reasons set forth above, we are compelled to deny mandamus relief on the record before us. See Terrazas, 829 S.W.2d at 723.
Relator refers to the first order as being dated July 30, 2009, but the order shows that the respondent signed the first order on July 29, 2009.