Opinion
NO. 01-20-00625-CV
10-29-2020
IN RE MAURICE MITCHELL, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, incarcerated and acting pro se, seeks mandamus relief to compel the district clerk "to perform his/her '[m]inisterial [d]uty'" and to compel the district court judge "to perform his/her '[n]on-discretionary [a]cts' and or duties impose[d] by law.", Relator alleges that he is entitled to mandamus relief against (1) the current and former Harris County district clerks for their purported failure to serve certain defendants with a civil suit that relator filed, and (2) the current and former 133rd district court judges in connection with their failure to rule on several motions.
The underlying case is Maurice Mitchell v. Texas Department of Criminal Justice, Institutional Division, Cause No. 2016-85575, pending in the 133rd District Court of Harris County, Texas, the Honorable Jaclanel McFarland presiding.
Relator incorrectly identifies R.K. Sandill, presiding judge of the 127th Harris County district court, as judge of the 133rd Harris County district court and Judge McFarland, the presiding judge of the 133rd Harris County district court, as the predecessor judge in that court.
We deny the petition.
First, this Court does not have the authority to issue a writ of mandamus against the district clerk, other than to protect our jurisdiction. See TEX. GOV'T CODE § 22.221. Relator has not shown that the writ is necessary to enforce our jurisdiction. See In re Foster, No. 09-03-330 CV, 2003 WL 21733008, at *1 (Tex. App.—Beaumont July 24, 2003, orig. proceeding) (mem. op.).
Second, relator has the burden to provide this Court "with a sufficient record to establish his or her right to mandamus relief." In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (citing In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198-99 (Tex. App.—Texarkana 2006, orig. proceeding)). The record contains some documents that are file-stamped, but some are not. Moreover, there is no sworn declaration or, in the alternative, an unsworn declaration that complies with section 132.001(e) of the Texas Civil Practice and Remedies Code. Accordingly, relator has not provided this Court with a record that establishes his right to compel respondent to hear and rule on his motions.
Neither relator's "notary equivalent stamp" nor the "verification/notary equivalent" paragraph contains the information or form required by section 132.001(e) of the Texas Civil Practice and Remedies Code.
Third, we lack jurisdiction over Judge Sandill, as the petition does not reflect any live controversy involving relator in his court. See, e.g., In re Timar, No. 01-18-00722-CV, 2019 WL 3484213, at *1 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, orig. proceeding) (mem. op.) (referring to requirement for "live controversy" to be resolved for mandamus relief to issue).
Even if relator had correctly identified the predecessor judge in the 133rd district court, the proceeding against him or her would be moot. See In re Magid Glove & Safety Mfg. Co., L.L.C., No. 01-03-00061-CV, 2003 WL 859259, at *1 (Tex. App.—Houston [1st Dist.] Mar. 6, 2003, orig. proceeding) (mem. op.).
Finally, there is no showing that relator's motions have been brought to the attention of the trial court. "Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling." Blakeney, 254 S.W.3d at 662 (citing In re Davidson, 153 S.W.3d 490, 491 (Tex. App.— Amarillo 2004, orig. proceeding)); In re Dong Sheng Huang, 491 S.W.3d 383, 385 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) ("Filing a request for a ruling is insufficient to call the matter to the judge's attention because a judge may be unaware of the request. Instead, the party demanding a ruling must set its request either for submission or a hearing.").
Accordingly, we deny relator's petition for writ of mandamus as to the relief sought concerning the district clerk and Judge McFarland. We dismiss as moot the petition for writ of mandamus for relief sought concerning Judge Sandill. All pending motions are denied as moot.
PER CURIAM Panel consists of Justices Keyes, Lloyd, and Landau.