Barry Dwayne Minnfee v. Mr. David Sweetin, Asst. Warden Richard Gunnels, Chief Division Counsel (Fbi) and Mr. William D. Haman

• Court: Court of Appeals of Texas
• Decided: June 24, 2011
• Docket: 13-11-00152-CV
• Status: Published

Opinion

NUMBERS 13-11-00382-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE RANDALL BOLIVAR

On Writ of Prohibition Emergency Motion to Stay Court Proceedings.

MEMORANDUM OPINION Before Justices Benavides, Vela, and Perkes Memorandum Opinion Per Curiam1

On June 17, 2011, Randall Bolivar filed a “Writ of Prohibition Emergency Motion

to Stay Court Proceedings.” The Court has requested and received a response from

the State of Texas, acting by and through the Honorable Armando R. Villalobos,

Cameron County District Attorney.

1 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).

1 The traditional test for determining whether mandamus or prohibition relief is

appropriate requires the relator to establish (1) that he has no adequate remedy at law

to redress the harm that he alleges will ensue if the act he wishes to prohibit is carried

out, and (2) that that the act he seeks to compel or prohibit does not involve a

discretionary or judicial decision. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim.

App. 2009). If the relator fails to satisfy either aspect of this two-part test, then relief

should be denied. See id. The latter requirement is satisfied if the relator can show he

has “a clear right to the relief sought”—that is to say, “when the facts and circumstances

dictate but one rational decision” under unequivocal, well-settled (i.e., from extant

statutory, constitutional, or case law sources), and clearly controlling legal principles.

State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210

(Tex. Crim. App. 2007). The “essential difference” between a writ of prohibition and a

writ of mandamus is that the former issues to prevent the commission of a future act

whereas the latter operates to undo or nullify an act already performed; the former will

not be granted when the act sought to be prevented is already done, but will lie when

such an act is not a full, complete and accomplished judicial act. Wade v. Mays, 689

S.W.2d 893, 897 (Tex. Crim. App. 1985).

It is relator’s burden to properly request and show entitlement to mandamus

relief. 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, 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

2 argument for the contentions made, with appropriate citations to authorities and to the

appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that

relator must furnish an appendix or 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).

The Court, having examined and fully considered the Writ of Prohibition

Emergency Motion to Stay Court Proceedings and the response thereto, is of the

opinion that relator has not met his burden to obtain the requested relief. See State ex

rel. Young, 236 S.W.3d at 210. Accordingly, relator’s petition for writ of prohibition and

emergency motion to stay is denied. See TEX. R. APP. P. 52.8(a).

PER CURIAM

J. Benavides, dissenting without a separate opinion, would conclude that the record provided is sufficient to examine relator’s claims on the merits.

Do not publish. TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this the 24th day of June, 2011.