Opinion
No. 05-16-00031-CV
01-19-2016
IN RE JAMES L. ROWE, Relator
Original Proceeding from the 304th Judicial District Court Dallas County, Texas
Trial Court Cause No. JD-35928-W
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Whitehill
Opinion by Justice Evans
In this petition for writ of mandamus, relator requests that the Court order the trial judge to file relator's petition for bill of review, issue notice and citation to his intended defendant, provide relator with proof of service and provide relator with the docket number of his suit. We deny the petition for writ of mandamus.
In 1998, relator pleaded true in juvenile court to an allegation that he committed capital murder. The juvenile court adjudicated relator a child who had engaged in delinquent conduct and, pursuant to a plea agreement, assessed a forty-year determinate sentence. See Ex parte J.L.R., No. 05-12-01289-CV, 2013 WL 4041554, at *1 (Tex. App.—Dallas Aug. 9, 2013, no pet.). In July 2014, relator filed a petition for writ of habeas corpus in the juvenile court alleging he had received ineffective assistance of counsel. The trial court denied his petition for writ of habeas corpus on November 6, 2014 and relator now alleges that he did not receive timely notice of the denial of the petition. He seeks to challenge the denial of the petition for writ of habeas corpus by filing a bill of review. Relator's petition for writ of mandamus alleges that he has presented his petition for bill of review both to the district clerk and to the judge of the juvenile court and both have failed to file the petition for bill of review. He contends he is entitled to mandamus relief ordering the juvenile court judge to file his petition for bill of review.
This opinion should not be read to conclude that relator is entitled to any relief either by way of bill of review or petition for writ of habeas corpus. Neither the bill of review nor the petition for writ of habeas corpus are presently before the Court.
Relator's petition does not comply with rule 52. His rule 52.3(j) certification states that he "verif[ies] that the matters presented are true and correct" and that he "certif[ies] under penalty of perjury that the foregoing is true and correct." Rule 52.3(j) requires that an applicant for a petition for writ of mandamus certify that he has read the petition and concluded that every factual statement is supported by competent evidence included in the appendix or record. TEX. R. APP. P. 52.3(j). The documents attached to the petition, while fairly extensive, are not certified or sworn copies as required by the rules of appellate procedure. TEX. R. APP. P. 52.3(k), 52.7(a). Although these deficiencies alone constitute sufficient reason to deny mandamus relief, in the interest of judicial economy, we address the petition. --------
Ordinarily the Court lacks jurisdiction to grant mandamus relief in cases raising complaints about failure to file pleadings because we possess mandamus jurisdiction over the district clerk only if it is necessary to enforce our appellate jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a) (West 2004); In re Simpson, 997 S.W.2d 939, 939 (Tex. App.—Waco 1999, orig. proceeding) ("The Government Code does not confer mandamus jurisdiction over District Clerks upon the courts of appeals."). When a district clerk improperly refuses to file a party's pleadings, however, and the party has sought appropriate relief directly from the trial judge, we may grant mandamus relief against the trial judge if the trial judge also improperly refuses to order the clerk to file the pleading or improperly refuses to personally file the pleading. See In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding); In re Bernard, 993 S.W.2d 453, 454-55 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (O'Connor, J. concurring); see also In re Long, No. 10-06-00235-CV, 2007 WL 765284, at *3 (Tex. App.—Waco Mar. 14, 2007) (granting mandamus relief against district judge who ordered clerk not to accept inmate petition for filing). Based on the record before us, we cannot conclude the relator has sought appropriate relief from the trial judge.
When a court clerk refuses to accept a pleading for filing, the party should file a petition for writ of mandamus in the trial court seeking an order from the court directing the clerk to file the pleading or attempt to file the pleading directly with the judge, explaining in a verified motion that the clerk refused to accept the pleading for filing. In re Bernard, 993 S.W.2d at 454-55 (O'Connor, J. concurring). Although relator's petition for writ of mandamus sets forth in great detail the efforts he has made to file the petition for bill of review and although he attaches copies of his voluminous correspondence with the clerk of court and the juvenile court judge to his petition for writ of mandamus, none of the correspondence he attaches definitively demonstrates that he has taken either measure.
Relator's September 24, 2015 letter to the trial judges states in pertinent part that on September 3, 2015, the trial court received relator's rule 74 motion requesting to file pleadings directly with the court; his affidavit/oath of pauperis, his request for issuance of citation, his petition for bill of review, and the appendix to the bill of review. The mandamus record does not, however, include a copy of the letter the trial court purportedly received on September 3, 2015 or any of the pleadings enclosed with the letter received on September 3, 2015.
Moreover, the September 24, 2015 letter seems to be inconsistent with relator's earlier letter dated September 11, 2015 to the court coordinator of the juvenile court which states that on September 1, 2015, relator sent the trial judge his affidavit/pauper's oath, an order on the pauper's oath, an appendix to the bill of review, and a letter requesting that citation be issued. Notably, the September 11, 2015 letter to the court coordinator does not state that relator sent the judge a verified motion requesting to file pleadings directly with the judge or a copy of the petition for bill of review that he wished to file.
Relator also sent a letter addressed to the judge on November 19, 2015, in which "pursuant to Rule 74 of the Texas Rules of Civil Procedure," he submitted a motion for leave to proceed in forma pauperis, an affidavit of pauper's oath, an order for in forma pauperis status, and a check for $200 payable to the district clerk. He requested that the judge "file these documents and make a ruling in writing on the In Forma Pauperis Motion." He further requested that the judge, "instruct the district [clerk] to file this cause of action, issue and serve the notice of suit & citation on Felicia Pitre at her official office and provide me with the docket number and proof of notice and citation service." The mandamus record does not include copies of the pleadings that were included with this letter and absent from the description of pleadings included with the letter is any reference to the petition for bill of review and a verified motion explaining that the clerk has refused to accept his petition for bill of review for filing.
It is relator's burden to bring forth a record showing that he is entitled to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). He has not done so in this case. We deny the petition.
/David W. Evans/
DAVID EVANS
JUSTICE 160031F.P05