Opinion
No. 06-17-00049-CR
04-18-2017
IN RE: FREDRICK LUJUAN BROWN
Original Mandamus Proceeding Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
This petition for mandamus relief is brought by Frederick Lujuan Brown, currently incarcerated in a Louisiana penitentiary. Brown complains that the trial court has failed to rule on motions to quash and for discovery.
Brown's petition claims that he was indicted for theft of a firearm in late August 2000. He says he was arrested December 19, 2003, and released on his own recognizance on January 10, 2004. He claims he filed a motion for discovery on October 4, 2016, and a motion to quash the indictment on October 5, 2016. The trial court has failed to rule on these motions, according to Brown, and he would have this Court issue a writ of mandamus to compel the trial court to rule.
Brown's briefing suggests this was his first or only arrest on this charge.
There are three problems with Brown's petition, each of which dictates that we deny the relief he seeks.
I. Identity of Respondent
The first issue raised by Brown's petition is the identity of the officers he names as respondents and whom he wishes to have us compel to act. His petition names Judge Terry Bailey as judge of the 123rd Judicial District Court and the Clerk of the Court for the 123rd Judicial District Court as respondents. His petition alleges that he seeks a "Writ of Mandamus to the Honorable Judge TERRY BAILEY . . . commanding the district Court," (emphasis added), to rule on his motions for discovery and to quash the indictment.
To commence, the petition asks that our Court mandamus the respondents to "render a speedy decision" on certain requests concerning motions for discovery that Brown has requested. Rendition of a decision is not an action which the clerk of any court is empowered to perform. "[M]andamus relief is unavailable to compel non-ministerial judicial acts." In re Tennison, 502 S.W.3d 821, 822 n.2 (Tex. Crim. App. 2016) (orig. proceeding) (Richardson, J., concurring). Further, this Court's mandamus jurisdiction is governed by Section 22.221 of the Texas Government Code. Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs against a district court judge or a county court judge in the court of appeals' district; and (2) all writs necessary to enforce the court of appeals' jurisdiction. TEX. GOV'T CODE ANN. § 22.221 (West 2004). The district clerk is not a district court or county court judge in this court's district, and relator has not shown that the issuance of a writ compelling the requested relief is necessary to enforce this Court's appellate jurisdiction. Therefore, we do not have jurisdiction to issue a writ of mandamus against the district clerk of Panola County as requested by Brown. In re Simpson, 997 S.W.2d 939 (Tex. App.—Waco 1999, orig. proceeding) (per curiam) ("The Government Code does not confer mandamus jurisdiction over District Clerks upon the courts of appeals."). Accordingly, we deny the petition as it relates to the District Clerk of the 123rd Judicial District Court.
Second, we take judicial notice that Lee Ann Rafferty (not Terry Bailey) is the judge of the 123rd Judicial District Court of Texas; rather, Terry Bailey is the judge of the County Court at Law of Panola County. It is true that the County Court at Law of Panola County has concurrent jurisdiction with the 123rd Judicial District Court of Texas. TEX. GOV'T CODE ANN. § 25.1852(a) (West Supp. 2016). However, that concurrent jurisdiction does not make Terry Bailey the presiding judge of the 123rd Judicial District Court. Therefore, it is not made plain by his petition whether Brown seeks to compel action be taken by Judge Terry Bailey or by Judge Lee Ann Rafferty.
We note that we do not possess jurisdiction to issue a writ of mandamus to a judge of a statutory county court at law who is acting solely in that capacity. In re Meyer, 482 S.W.3d 706 (Tex. App.—Texarkana 2016, orig. proceeding).
II. Defect in Pleading
The Rules of Appellate Procedure under which we operate require that the person seeking relief "certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record." TEX. R. APP. P. 52.3(j); see In re Butler, 270 S.W.3d 757, 758-59 (Tex. App.—Dallas 2008, orig. proceeding). Relator's petition has no such certification. Pro se litigants are held to the same standard as licensed attorneys. See Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677-78 (Tex. App.—Dallas 2004, pet. denied).
III. Mandamus Standard
To be entitled to mandamus relief, the relator must show (1) that he has no adequate remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The relator is obligated to provide this Court with a record sufficient to establish his right to be granted mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198-99 (Tex. App.—Texarkana 2006, orig. proceeding); see TEX. R. APP. P. 52.3. Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding); see also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) ("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.").
The trial court is required to consider and enter a ruling on a properly-filed motion within a reasonable period of time, once a ruling has been requested. In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.—Texarkana 2005, orig. proceeding). To obtain mandamus relief here, Brown must establish that (1) the motion was properly filed and had been pending for a reasonable time; (2) he requested a ruling on the motion; and (3) the trial court has either refused to rule or failed to rule within a reasonable time. See Blakeney, 254 S.W.3d at 661. "However, if a reasonable time has not yet passed, the trial court's failure to rule may not be a clear abuse of discretion." Greenwell, 160 S.W.3d at 288.
A reviewing court may order a trial court to rule on a motion within a reasonable time, but the reviewing court can not instruct the trial court how to rule. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).
IV. Documents Necessary for Consideration
Attached to his petition, Brown included a copy of a file-stamped motion to quash, dated October 5, 2016. He did not provide a copy of the motion for discovery he claims to have filed. There is, though, attached to Brown's petition, correspondence from the district clerk; the form letters states, in pertinent part, "WE RECEIVED YOUR LETTER OF REQUEST INTO THE DISPOSITION OF YOUR MOTION FOR DISCOVERY. I AM ENCLOSING A COPY OF THE DOCKET SHEET REGARDNG THE HEARING HELD ON DECEMBER 2, 2016." Further, among Brown's documents attached to his petition, is an order, signed by the trial court and file-stamped October 7, 2016, which orders the prosecutor's office to comply with Brown's motion for discovery. Accordingly, Brown has already received a part of the relief requested. This issue is moot, and we need not address it.
A two-page docket sheet, presumably this one referenced by the district clerk, is among Brown's attachments. The entry for December 2, 2016 says, "Mr. Brown not present, case passed."
V. Presentation
As for Brown's motion to quash the indictment, although it bears a file-stamp of October 5, 2016, Brown provided us with nothing to establish that this motion was presented to the trial court. Even if we presume from the notes of the clerk of the 123rd Judicial District Court that the motion to quash was received along with the motion for discovery, nothing in the docket sheet suggests that the trial court was presented the motion to quash or was even made aware of its existence. As cited above, presentation or delivery of a motion to the clerk of a court is not sufficient to show "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.
Brown has not demonstrated that his motion to quash has been properly presented to the trial court and, thus, has failed to show himself entitled to the extraordinary relief of mandamus on that ground. As for his complaint about his motion for discovery, the record indicates the trial court granted that motion.
VI. Conclusion
Brown has not shown himself entitled to mandamus relief. We deny his petition.
Bailey C. Moseley
Justice Date Submitted: April 17, 2017
Date Decided: April 18, 2017 Do Not Publish