Opinion
NUMBER 13-13-00483-CR
2013-09-06
IN RE DARRELL R. HANEY
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam
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."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator, Darrell R. Haney, pro se, filed a document entitled "Notice of Appeal" in the above cause on September 3, 2013. Relator states that he is seeking to appeal a "response" from the "Aransas County, Texas Chief Deputy, Aransas County District Clerk, Melissa Rogers" regarding an inquiry he made regarding a "time dispute" for information to "prove a way and means to reduce the amount of time [relator] is now servicing in TDCJ-CID." According to the pleading, relator requests us to: (1) declare section 552.028 of the Texas Government Code unconstitutional, and (2) order the Aransas County District Clerk to respond to relator's inquiry. See TEX. GOV'T CODE ANN. § 552.028 (West 2004) (giving a governmental body the discretion to accept or deny a request for information from an incarcerated individual); see, e.g., Nabelek v. Bradford, 228 S.W.3d 715, 717-19 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (rejecting constitutional due process, equal protection, and "access to the courts" challenges to section 552.028). Because the document does not reference an order or judgment subject to appeal and relator asks us to command a public officer to perform an act, we construe this document as a petition for writ of mandamus. See generally TEX. R. APP. P. 25.1(a), (d); In re Castle Texas 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, 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 ministerial act not 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). If relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. See id.
It is the relator's burden to properly request and show entitlement to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see 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 also file an appendix and record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record); see also Walker, 827 S.W.2d at 837; In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).
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. As an appellate court, 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 2004); 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." See 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).
In addition to requesting that we declare part of the government code unconstitutional, relator's petition seeks mandamus relief against a district clerk. 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 met his burden to obtain mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36. Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b).