Opinion
No. 07-18-00102-CV
04-18-2018
IN RE DARIN WILLIAM MCQUITTY, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
On April 3, 2018, Darin William McQuitty, an inmate proceeding pro se, filed a petition for writ of mandamus seeking to compel the Honorable John B. Board, Judge of the 181st District Court, to rule on his post-conviction motion for a free appellate record. By letter dated April 4, 2018, this Court advised McQuitty that the required filing fee of $155 did not accompany the filing of his petition. We directed him to pay the required filing fee or, in lieu thereof, to comply with chapter 14 of the Texas Civil Practice and Remedies Code by filing a statement of inability to afford payment of court costs, a separate affidavit relating to previous filings, and a certified copy of his inmate trust account statement. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.002(a), 14.004 (West 2017). We further advised that if he did not comply by April 16, 2018, this proceeding was subject to dismissal without further notice.
With his petition, McQuitty also filed a "Notice of Appeal," appealing the trial court's refusal to consider and rule on his motion for a free appellate record. We have construed his filings as a single petition for writ of mandamus.
On April 17, 2018, McQuitty filed a declaration of inability to pay costs and a certified copy of his inmate trust account statement. However, McQuitty did not file an affidavit or declaration describing his previous filings. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a), (b) (requiring an affidavit or declaration stating the operative facts, case name, cause number, court, parties named, and the result of each action previously brought).
Unless a party is excused from paying a filing fee, the Clerk of this Court is required to collect filing fees set by statute or the Supreme Court when an item is presented for filing. See TEX. R. APP. P. 5, 12.1(b). An inmate who files an affidavit or declaration of inability to pay costs in an appeal or original proceeding must also comply with chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a). An inmate's failure to comply with chapter 14 is grounds for dismissal of the appeal or original proceeding. See In re Johnson, No. 07-16-00354-CV, 2016 Tex. App. LEXIS 11841, at *2 (Tex. App.—Amarillo Nov. 1, 2016, orig. proceeding) (per curiam) (mem. op.) (dismissing inmate's petition for writ of mandamus for failure to pay the filing fee or submit the materials required to proceed under chapter 14); In re Hereford, No. 07-14-00348-CV, 2014 Tex. App. LEXIS 11521, at *1-2 (Tex. App.—Amarillo Oct. 17, 2014, orig. proceeding) (per curiam) (mem. op.) (holding that inmate's failure to file affidavit of previous filings warranted dismissal of mandamus proceeding).
Because McQuitty has failed to pay the filing fee or comply with chapter 14 of the Texas Civil Practice and Remedies Code within the time provided by this Court for compliance, his original proceeding is dismissed.
McQuitty's motion to suspend Appellate Rule 9.3(a)(1) filed on April 3, 2018, is rendered moot. See TEX. R. APP. P. 9.3(a)(1) (requiring additional copy of paper filing).
Per Curiam