Allen, Martin Luther

CourtCourt of Appeals of Texas
DecidedApril 8, 2015
DocketWR-83,116-01
StatusPublished

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Bluebook
Allen, Martin Luther, (Tex. Ct. App. 2015).

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF- TEXAS IN AUSTIN, TEXAS

Clerk's Office:

Dear clerk. Can you please bring to the court's attention

the enclosed notice for leave to file a Writ of Mandamus with

Brief in support. I thank you for your cooperation on this

matter and hope that I have not been of any incpnvenience today.

This document contains some pages that are of poor quality at the time of imaging.

RECEIVED IN Respectfully Submitted, COURT OF GRIMINP:l APPEAlS APR 08 2015 Ab84 Acosta, Clerk 8 KENEDY, TEXAS 78119 Relator #689468

Date Filed:"{/~ /201.5

(COVER LETTER) IN THE COURT OF CRIMINAL APPEALS

OF TEXAS IN AUSTIN, TEXAS

MARTIN LUTHER ALLEN § Relator § v. § HON. KEVIN POE, l 1 ·:'.·

CFCU OPEN RECORDS COORDINATOR § Respondent §

RELATOR'S NOTICE FOR LEAVE TO FILE A WRIT OF MANDAMUS

CERTIFICATE OF INTERESTED PERSONS -

The relator certifies that the following listed persons

have an interest in the outcome of this cause. these repre-

sentations are made in order that the Judge of this Court may evaluate possible disqualifications or recusal.

1. Martin Luther Allen, Relator May be served at the John B.Connally Unit, 899 FM 632 Kenedy, Texas 78119.

2. Hon. Kevin Poe, Respondent Is the CFCU Open Records Coordinator: P~role Division, 8610 Shoal Creek, Austin, Texas 78757.

3. Hon. Brad Livingston, real party interest is Executive, . ;_,,. Director of the Parole Divisions open records section; 8610 Shoal Creekt Austin, Texas 78757.

I. TABLE OF CONTENTS

Page{s)

Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I.

Tables of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II.

Index of Au thor i t i e s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III .

Address to the Court(Relator's Brief) . . . . . . . . . . . . . . . . . . . . . . . . . 1.

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.

Sole Point of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.

Law and Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5.

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.

Relief Requested .. ~ ... 7.

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.

Unsworn Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.

II. INDEX OF AUTHORITIES

STATE CASES Page(s)

Buntion v. Harmon, 827 s.w. 2d 945, 947(Tex.crim.App.l992) . . . . . . . . . . . . . . . . . . . . . . . 4.

State ex rel. Healey v. McMeans, 884 s.w. 2d 772, 774(Tex.crim.App.l994) . . . . . . . . . . . . . . . . . . . . . . . 4.

State ex rel. Holmes v. Third Court of Appeals, 885 s.w. 2d .389, 392, n. 6(Tex.Crim.App.l994) . . . . . . . . . . . . . . . . . 4.

Stearnes v. Clinton, 780 s.w. 2d 216, 225(Tex.Crim.App.l989) . . . . . . . . . . . . . . . . . . . . . . . 4.

STATE CONSTITUTION, STATE STATUTES AND CODES

T e x a s Go v e r n men t Cod e S e c t i o n 5 5 2 . 0 2 8 ( a ) _( l ) . . . . . . . . . . . . . . . . : 1', 3_ .

Texas Government Code Section 552.028 (b) . . • . . . . . . . . . . . . . . . l,3,4.

III. No. F~~02J1

IN THE COURT OF CRIMINAL APPEALS OF TEXAS IN AUS:J'IN, TEXAS

MARTIN LUTHER ALLEN Relator

v. HON. KEVIN POE, CFCU OPEN RECORDS COORDINATOR 'PAROLE DIVISION, AUSTIN TEXAS Respondent

RELATOR'S BREIF

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW, Martin Luther Allen, Relator herein, complaining

of the actions of the Hon. Kevin Poe, Respondent herein,

Coordinator for the Parole Divisions Open Records Section,

filing notice of complaint pertaining to Relator's unanswered

petitions pursuant to Texas Government Code§ 552.028(a)(l)-

(b).(i.e, Request for information from Incarcerated Persons).

l . PRELIMINARY STATEMENT.

This mandamus action arises from relator's many unanswered

petition(s) to the Open Records Section/Parole Division for

the Texas Department of Criminal Justice System. Relator's

reason for writting and submitting this complaint is to have

the Open Records Section [furnish] relator with the. opp~r­

tunity to receive a copy of the parole certificate that he

received at the Walls. unit on 9/18/1989, which clearly stip-

ulated the conditions surrounding his release and mandatory

supervision. The color of relator's parole certificate is

very significant, because the color of the certificate expresses

facially that the condtions of realator's realease were to

[expire] lawfully on the same date that the certificate was

issued, which was also the same day that relator was released

from prison. In good faith relator reported the following day

(9/19/1989) to the parole office on second ave in so~thern

Dallas to discuss the terms specified on the front and back

of his parole certificate. Sandra Hi~l(Relator's Parole Off-

icer) reveiewed the certificate with her supervisor and informed

relator that as of that momment according to the language of

certificate he was not on parole and had legally discharged

his sentence. Months later however, a blue warrant was issued

by the Parole Division in Dallas for relator's arrest, in which,

relator now complains was the product of an illegal/unlawful

arrest, which the document in question [facially] shows.

2. SOLE POINT OF ERROR

Resp9ndant has a ministerial duty to adhere to the rul~(s)

in section 552.028 (b) of the Texas Government Code.

Respondent has abused it's discretion by failing to adhere

to a duty which is fixed and required by law, by disclosing

to either the relator or his [active] agent as described in

subsection 552.028 (a)(l) information pertaining to that

individual.

3. LAW AND ARGUMENT

A mandamus is an extraordinary remedy that is to be in-

voked sparingly.· First, there must be no adequate remedy at

law to redress the alleged harm, and second they must show

a clear right to the relief sought. [see] Buntion v. Harmon,

827 s.w. 2d 945, 947(Tex.Crim.App.l992).

In the event that a remedy at law exist, it will not defeat

an applicant's entitlement to the Writ when the remedy is so

"uncertain, tedious, burdensome, slow·, inconvenient, inappro-

priate or ineffective" as to be deemed "inadequate". Stearnes

v. Clinton, 780 s.w. 2d 216, 225(Tex.crim.App.l989). Although

the second prong has been formulated as requiring that the

[act] sought to be compelled is "ministerial", the two state-

ment s. are the "functional equivalent" of each other. [see]

State ex rel. Holmes v. Third Court of Appeals, 885 s.w. 2d

389, 392, n.6(Tex.Crim.App~l994) Under either formulation,

mandamus is available to "correct judicial action that ignores

clear, binding precedent" because administrative entities do

not enjoy the freedom to ignore the law. State ex rel. Healey

v. McMeans, 884 s.w. 2d 772, 774(Tex.Crim.App.l994).

ARGUME.INIT

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§ 552.028
Texas GV § 552.028(a)(l)

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