OPINION
BUTTS, Justice.
This is an appeal from dismissal of appellant’s petition for writ of mandamus.
It is necessary to set out the previous history in this case. Charges arising from the same transaction which resulted in appellant’s conviction for capital murder in Bexar County had been filed in Medina County. The Medina County charges against appellant were dismissed after his conviction in the Bexar County. The question whether the records of the dismissed cases then in the possession of the district attorney and sheriff of Medina County were “open records” which were required to be available for inspection or copying by appellant was addressed in an opinion by [629]*629this Court. Creel v. Sheriff of Medina County and Creel v. District Attorney for Medina County, 751 S.W.2d 645 (Tex.App.—San Antonio 1988, no writ) (J. Cantu dissenting). Appellant brought that petition for writ of mandamus under the authority of TEX.REV.CIV.STAT.ANN. art. 6252-17a (Vernon Supp.1991). Section 8 of the Open Records Act provides that if a governmental body refuses to request an attorney general’s opinion [that the material is not subject to disclosure under this Act] or to supply public information, the person requesting the information may seek a writ of mandamus compelling the governmental body to make the information available for public inspection. Appellant brought that mandamus action to compel the two officials to make certain records available for inspection or copying. He also requested that he be present at the hearing on the mandamus.
This court held that the records sought in the two dismissed Medina County cases were public records open to inspection and duplication, and the writ of mandamus could be utilized to compel the two officials to make the information available. The appellant then filed his motion for enforcement of judgment. On October 3, 1988, a hearing was conducted by the district court of Medina County to determine whether there had been compliance with the order of this court in Creel. The trial court heard evidence from the district attorney, who stated:
We never did make any effort to keep Mr. Creel from seeing the file, except he’s in the penitentiary and he can’t come down here and look at the files. We are telling the Court that we have complied and we are willing to comply in every way with the ruling of the Court of Appeals.
The district attorney also stated that the files on Creel’s cases were available to his properly identified agent. The trial court made the following finding of fact: Lynn Murphy Creel has been advised that the records in Cause Numbers 3572 and 3573 are public records, and are available for inspection or duplication in the offices of the District Attorney and Sheriff of Medina County, Texas.
Thereafter, appellant filed his appeal from the order of the district court which found that there had been compliance. This court issued its opinion affirming the trial court’s order in Nos. 04-88-00612 and 04-88-00613, Creel v. District Attorney and County Sheriff of Medina County, Texas, finding there had been compliance and the records were available for inspection or duplication by appellant’s designated agent [since he was incarcerated].
Appellant now has filed this second petition for mandamus in the district court requesting a copy of a specific instrument (a motion to take hair samples from appellant) in the record of these Medina County cases.
Mandamus is governed by equitable principles and is an extraordinary remedy which is not appropriate when other relief would be effective. Salgo v. Matthews, 497 S.W.2d 620, 625 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.). The requirement of inadequacy of other remedies as a condition of extraordinary mandatory relief rests on sound policy rather than tradition or technicality. Id. Appellant seeks to invoke the remedy of mandamus when he has previously obtained the very relief sought by his first mandamus. The effect of both the published opinion and unpublished opinion, ante, is that the records in those cases filed in Medina County, in the possession of the district attorney and the sheriff, are available for inspection and duplication pursuant to the Open Records Act.1 Under the Act, appellant, who is presently incarcerated, may designate his agent to obtain a copy of any instrument which he requests in those records. It is not necessary to petition for mandamus for each instrument or document requested. The district attorney has previously been ordered to make the records available for inspection or duplication.
[630]*630The terms of the Open Records Act apply also, however, to limit the duties of the officials. They are not required to furnish free copies. We note further that the Act makes no provision for compelling governmental officials by mandamus action to send a cost list for a copy of a single instrument. The Act does mandate a reasonable cost. We note the amount of fees for copies of records made by the district clerk are set by statute. See TEX. GOVT. CODE ANN. § 51.318. These fees are reasonable for the district clerk’s duplication services and would be suitable for the same services provided by a governmental agency’s office such as the district attorney.
Austin v. City of San Antonio, 630 S.W.2d 391 (Tex.App.—San Antonio 1982, writ ref’d n.r.e.) was an appeal, after an evidentiary hearing, from the denial of a petition for writ of mandamus pursuant to the Open Records Act, which was a ruling on the merits. The present case, on the other hand, is not such an appeal. The trial judge declined to hear this second petition for writ of mandamus, dismissing the action. While a mandamus action may be a legal remedy bestowed by section 8 of the Open Records Act, it is still governed by the same principles as any other mandamus action in the district court. Mandamus is governed by equitable principles and is an extraordinary remedy, which is not appropriate when other relief would be effective and complete. Salgo v. Matthews, 497 S.W.2d at 625. When appellant in this case filed his second petition for mandamus, he already had his remedy which was full, adequate, and complete.
We hold the trial court was correct in exercising its discretion not to try again the same controversy which had already been determined and for which complaint, by previous mandamus, a remedy had been provided. The record discloses that the objective sought by appellant has been obtained. The purpose of the Open Records Act is to make public records available for inspection or duplication. That has been done in this case, and the records are available.
A case becomes moot when it appears that one seeks to obtain a judgment upon some alleged controversy when in reality none exists. Kolsti v. Guest, 576 S.W.2d 892, 893 (Tex.Civ.App.—Tyler 1979, no writ); Swank v. Sharp, 358 S.W.2d 950, 951 (Tex.Civ.App.—Dallas 1962, no writ) (citations omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BUTTS, Justice.
This is an appeal from dismissal of appellant’s petition for writ of mandamus.
It is necessary to set out the previous history in this case. Charges arising from the same transaction which resulted in appellant’s conviction for capital murder in Bexar County had been filed in Medina County. The Medina County charges against appellant were dismissed after his conviction in the Bexar County. The question whether the records of the dismissed cases then in the possession of the district attorney and sheriff of Medina County were “open records” which were required to be available for inspection or copying by appellant was addressed in an opinion by [629]*629this Court. Creel v. Sheriff of Medina County and Creel v. District Attorney for Medina County, 751 S.W.2d 645 (Tex.App.—San Antonio 1988, no writ) (J. Cantu dissenting). Appellant brought that petition for writ of mandamus under the authority of TEX.REV.CIV.STAT.ANN. art. 6252-17a (Vernon Supp.1991). Section 8 of the Open Records Act provides that if a governmental body refuses to request an attorney general’s opinion [that the material is not subject to disclosure under this Act] or to supply public information, the person requesting the information may seek a writ of mandamus compelling the governmental body to make the information available for public inspection. Appellant brought that mandamus action to compel the two officials to make certain records available for inspection or copying. He also requested that he be present at the hearing on the mandamus.
This court held that the records sought in the two dismissed Medina County cases were public records open to inspection and duplication, and the writ of mandamus could be utilized to compel the two officials to make the information available. The appellant then filed his motion for enforcement of judgment. On October 3, 1988, a hearing was conducted by the district court of Medina County to determine whether there had been compliance with the order of this court in Creel. The trial court heard evidence from the district attorney, who stated:
We never did make any effort to keep Mr. Creel from seeing the file, except he’s in the penitentiary and he can’t come down here and look at the files. We are telling the Court that we have complied and we are willing to comply in every way with the ruling of the Court of Appeals.
The district attorney also stated that the files on Creel’s cases were available to his properly identified agent. The trial court made the following finding of fact: Lynn Murphy Creel has been advised that the records in Cause Numbers 3572 and 3573 are public records, and are available for inspection or duplication in the offices of the District Attorney and Sheriff of Medina County, Texas.
Thereafter, appellant filed his appeal from the order of the district court which found that there had been compliance. This court issued its opinion affirming the trial court’s order in Nos. 04-88-00612 and 04-88-00613, Creel v. District Attorney and County Sheriff of Medina County, Texas, finding there had been compliance and the records were available for inspection or duplication by appellant’s designated agent [since he was incarcerated].
Appellant now has filed this second petition for mandamus in the district court requesting a copy of a specific instrument (a motion to take hair samples from appellant) in the record of these Medina County cases.
Mandamus is governed by equitable principles and is an extraordinary remedy which is not appropriate when other relief would be effective. Salgo v. Matthews, 497 S.W.2d 620, 625 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.). The requirement of inadequacy of other remedies as a condition of extraordinary mandatory relief rests on sound policy rather than tradition or technicality. Id. Appellant seeks to invoke the remedy of mandamus when he has previously obtained the very relief sought by his first mandamus. The effect of both the published opinion and unpublished opinion, ante, is that the records in those cases filed in Medina County, in the possession of the district attorney and the sheriff, are available for inspection and duplication pursuant to the Open Records Act.1 Under the Act, appellant, who is presently incarcerated, may designate his agent to obtain a copy of any instrument which he requests in those records. It is not necessary to petition for mandamus for each instrument or document requested. The district attorney has previously been ordered to make the records available for inspection or duplication.
[630]*630The terms of the Open Records Act apply also, however, to limit the duties of the officials. They are not required to furnish free copies. We note further that the Act makes no provision for compelling governmental officials by mandamus action to send a cost list for a copy of a single instrument. The Act does mandate a reasonable cost. We note the amount of fees for copies of records made by the district clerk are set by statute. See TEX. GOVT. CODE ANN. § 51.318. These fees are reasonable for the district clerk’s duplication services and would be suitable for the same services provided by a governmental agency’s office such as the district attorney.
Austin v. City of San Antonio, 630 S.W.2d 391 (Tex.App.—San Antonio 1982, writ ref’d n.r.e.) was an appeal, after an evidentiary hearing, from the denial of a petition for writ of mandamus pursuant to the Open Records Act, which was a ruling on the merits. The present case, on the other hand, is not such an appeal. The trial judge declined to hear this second petition for writ of mandamus, dismissing the action. While a mandamus action may be a legal remedy bestowed by section 8 of the Open Records Act, it is still governed by the same principles as any other mandamus action in the district court. Mandamus is governed by equitable principles and is an extraordinary remedy, which is not appropriate when other relief would be effective and complete. Salgo v. Matthews, 497 S.W.2d at 625. When appellant in this case filed his second petition for mandamus, he already had his remedy which was full, adequate, and complete.
We hold the trial court was correct in exercising its discretion not to try again the same controversy which had already been determined and for which complaint, by previous mandamus, a remedy had been provided. The record discloses that the objective sought by appellant has been obtained. The purpose of the Open Records Act is to make public records available for inspection or duplication. That has been done in this case, and the records are available.
A case becomes moot when it appears that one seeks to obtain a judgment upon some alleged controversy when in reality none exists. Kolsti v. Guest, 576 S.W.2d 892, 893 (Tex.Civ.App.—Tyler 1979, no writ); Swank v. Sharp, 358 S.W.2d 950, 951 (Tex.Civ.App.—Dallas 1962, no writ) (citations omitted). It is settled law of this State that its courts will not continue to litigate a controversy that has ceased to exist, and the appellate courts will not review judgments if the controversy between the parties has terminated. Such cases are moot. Kolsti, 576 S.W.2d at 894. (citations omitted). When a case becomes moot, the only proper judgment is one dismissing the cause. Id. (citations omitted). Knowing that the controversy had previously been determined and a remedy provided, and thus refusing to continue to litigate a controversy that no longer existed, the present trial court correctly dismissed this cause as moot.
Since there was no necessity for a “trial” to enable the trial court to make this determination in his discretion, as a matter of law, there was also no reason to give appellant “notice” of a trial setting. The Order of Dismissal includes these words:
... said Motion for Mandamus should be dismissed as being moot as respondent [district attorney] has either furnished or made available copies of all documents requested by petitioner.
... Motion for Mandamus is in all things dismissed as being moot ...
******
Appellant’s first point of error is that the order is not supported by any evidence and thus the trial court abused its discretion. The point is without merit, since the trial court in its discretion could decide this as a matter of law, without hearing evidence. In his second point of error appellant urges that the dismissal order should be treated as a default judgment, and that the trial court abused its discretion by denying his motion for new trial. This argument is presented for the first time on appeal and therefore cannot be considered by the appellate court. See TEX.R.APP.P. 52. In [631]*631addition, a judgment of dismissal is not a judgment on the merits like a default judgment.
In the third point of error appellant alleges that the trial court erred by denying his motion for new trial, which was overruled by operation of law, because notice of the trial setting was not given to him. This argument has been addressed in the discussion above regarding the trial court’s discretion not to hear the petition. Under these circumstances there was no necessity for a “trial,” a “trial setting,” or notice of a “trial setting.” The argument is without merit. No abuse of discretion has been shown.
The judgment is affirmed.