Opinion
No. 07-17-00204-CV
07-12-2017
IN RE SAMMY SALAZ, RELATOR
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pending before the court is the petition for writ of mandamus filed by Sammy Salaz. He appears to ask us to direct (1) the district clerk of Lubbock County to provide him documents he purportedly needs to prosecute an application for writ of habeas corpus attacking his prior conviction, and (2) the trial court to rule upon a purported motion for the appointment of counsel. We deny the petition.
Regarding the documentation from the district clerk, we lack the authority to issue a writ of mandamus against a district clerk unless the writ is necessary to protect our jurisdiction. See In re James, No. 07-16-00113-CV, 2016 Tex. App. LEXIS 3026, at *2 (Tex. App.—Amarillo Mar. 23, 2017, orig. proceeding) (per curiam) (mem. op.). Reviewing the allegations of Salaz, we see that the information sought does not relate to an appeal or other matter properly pending before this court but, rather, a matter allegedly pending in a district court. Nor does Salaz attempt to explain why mandamus directed at the district clerk is necessary to protect our jurisdiction. Thus, we are barred from acting upon this aspect of his request.
Regarding the district court's alleged delay in acting upon the pending motion to appoint counsel, Salaz failed to include the motion in an appendix to his petition. Nor did he attempt to illustrate that the motion was presented to the trial court or that the trial court otherwise knew of it. A relator must include in an appendix the document or documents showing the matter complained of. TEX. R. APP. P. 52.3(k)(1)(A); In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). At the very least, the motion for the appointment of counsel would be a document showing the matter about which Salaz complains. His failure to include it not only illustrates that he failed to comply with applicable rules of procedure but also denied us a sufficient basis to act upon his request. See In re Villarreal, 96 S.W.3d at 710.
Furthermore, nothing of record indicates that the motion was brought to the trial court's attention. Such was his burden. See id. We cannot fault a trial court for failing to act upon a motion about which it has no knowledge. See In re Castilleja, No. 07-14-00225-CV, 2014 Tex. App. LEXIS 6696, at *5 (Tex. App.—Amarillo June 18, 2014, orig. proceeding) (per curiam) (mem. op.). It is not enough to simply show that the motion was filed with the trial court clerk. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); accord In re Castilleja, 2014 Tex. App. LEXIS 6696, at *5
Accordingly, we deny the petition for a writ of mandamus.
Per Curiam