Opinion
No. 10-10-00107-CV
Opinion delivered and filed April 7, 2010.
Original Proceeding.
Petition denied.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
MEMORANDUM OPINION
Trent Alvon Smith seeks a writ of mandamus compelling Respondent, the Honorable Robyn Flowers, District Clerk of Walker County, to file his "Petition for Texas Torts Claim." We will deny Smith's request for mandamus relief.
We apply Rule of Appellate Procedure 2 to disregard numerous deficiencies in Smith's mandamus pleadings, including his failure to serve copies on Respondent Flowers. See TEX. R. APP. P. 2, 9.5.
When a district clerk refuses to accept a pleading for filing, the party should attempt to file the pleading directly with the district judge, explaining in a verified motion that the clerk refused to accept the pleading for filing. Should the district judge refuse to accept the pleading for filing, this Court would have jurisdiction under our mandamus power to direct the district judge to file the pleading.
In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.-Waco 2008, orig. proceeding) (citation and footnote omitted) (quoting In re Bernard, 993 S.W.2d 453, 455 (Tex. App. [1st Dist.] 1999, orig. proceeding) (O'Connor, J., concurring)).
Here, there is no indication that Smith followed this procedure. Accordingly, we deny his mandamus petition.
Smith also filed a motion for leave to file his mandamus petition. That motion is dismissed as moot. See TEX. R. APP. P. 52 cmt. ("The requirement of a motion for leave in original proceedings is repealed."); In re McGee, 213 S.W.3d 405, 406 n. 2 (Tex. App. [1st Dist.] 2006, orig. proceeding) (per curiam).