Opinion
NUMBER 13-18-00647-CR
11-28-2018
IN RE JUAN GILBERTO HERNANDEZ GARCIA
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Benavides
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Juan Gilberto Hernandez Garcia, proceeding pro se, filed a "motion to compel" in this Court. Through this pleading, Garcia seeks to compel the Honorable Eric Garza, the District Clerk for Cameron County, Texas, to provide him with information regarding the "outcome" of Garcia's "motion for time cut." Garcia asserts that he filed the "motion for time cut" on October 20, 2017 and sent requests to the district clerk for information about that motion on July 23, 2018 and September 18, 2018; however, the district clerk has not responded to his requests.
Because Garcia's motion to compel does not reference an order or judgment subject to appeal and he asks us to command a public officer to perform an act, we construe this pleading as a petition for writ of mandamus. See generally TEX. R. APP. P. 25.1(a), (d); In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler 2006, orig. proceeding) ("The function of the writ of mandamus is to compel action by those who by virtue of their official or quasi-official positions are charged with a positive duty to act.") (citing Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70 (1953)).
I. STANDARD OF REVIEW
To be entitled to mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a purely ministerial act not involving a discretionary or judicial decision. In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).
It is the relator's burden to properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). In addition to other requirements, the relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. The relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); id. R. 52.7(a) (specifying the required contents for the record). In this case, relator has furnished neither an appendix nor a record in support of his claim for relief.
II. JURISDICTION
Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction of the courts of appeals, and states that the courts of appeals "shall have such other jurisdiction, original and appellate, as may be prescribed by law." TEX. CONST. art. V, § 6. This Court's original jurisdiction is governed by section 22.221 of the Texas Government Code. See TEX. GOV'T CODE ANN. § 22.221 (West, Westlaw through 2017 1st C.S.); see also In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012, orig. proceeding). In pertinent part, this section provides that we may issue writs of mandamus and "all other writs necessary to enforce the jurisdiction of the court." Id. § 22.221(a). This section also provides that we may issue writs of mandamus against "a judge of a district or county court in the court of appeals' district" or against a "judge of a district court who is acting as a magistrate at a court of inquiry . . . in the court of appeals district." See id. § 22.221(b).
Relator's petition seeks mandamus relief against the District Clerk of Cameron County. However, we do not have original jurisdiction against a district clerk unless necessary to enforce our jurisdiction, and relator has not demonstrated that the requested relief is necessary for this purpose. See generally id. § 22.221; In re Richardson, 327 S.W.3d 848, 851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296 S.W.3d 682, 684 (Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).
III. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relator has not established this Court's jurisdiction over the relief sought. Accordingly, the petition for writ of mandamus is DISMISSED FOR WANT OF JURISDICTION.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 28th day of November, 2018.