in Re: Alfred Lee Stone

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 05-14-01275-CV
• Status: Published

Opinion

Deny Writ and Opinion Filed October 16, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01275-CV

IN RE ALFRED LEE STONE, Relator

Original Proceeding from Dallas County, Texas

MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Evans Opinion by Justice Francis In this petition for writ of mandamus, relator requests that the Court grant a writ of

mandamus compelling each of the civil district judges in Dallas County to compel the district

clerk to accept and file his “equitable bill of discovery” and other related pleadings not included

in this record. He contends, without supporting evidence, that he mailed his pleadings to the

district clerk, the pleadings were returned to him unfiled and that he requested that each district

judge accept his pleading. As proof of this request for performance, he attaches a “demand for

performance” dated the same date as the petition for writ of mandamus.

Relator’s petition does not comply with the Texas Rules of Appellate Procedure. On

appeal, as at trial, the pro se appellant must properly present its case. Strange v. Cont'l Cas. Co.,

126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied). Although the claims pleaded in pro

se inmate petitions should be liberally construed, the same procedural standards apply to inmates

at to other litigants. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, no writ). If a pro se litigant is not required to comply with the applicable rules of

procedure, he would be given an unfair advantage over a litigant who is represented by counsel.

Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.—Amarillo 1998, pet. denied).

The Texas Rules of Appellate Procedure have specific requirements for the form and

contents of a petition for writ of mandamus. TEX. R. APP. P. 52.3. Relator’s petition is not

properly certified and his appendix is not authenticated. TEX. R. APP. P. 52.3(k). To be a sworn

copy, documents must be attached to a proper affidavit. Republic Nat'l Leasing Corp. v.

Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam). Because the appendix is deficient

under rule 52.3(k), the mandamus record is also deficient under rule 52.7. TEX. R. APP. P. 52.7

Mandamus is an extraordinary remedy that is available only in limited circumstances.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Ordinarily, to obtain

mandamus relief, a relator must show both that the trial court has clearly abused its discretion

and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124,

135–36 (Tex. 2004) (orig. proceeding). Relator has not met these requirements.

When a district clerk refuses to accept a pleading presented for filing, the party may file

an application for writ of mandamus in the district court, or may attempt to file the pleading

directly with a district judge, explaining in a verified motion that the clerk refused to accept the

pleading for filing. In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig.

proceeding). Here the unauthenticated mandamus record does not reflect that the relator has

followed this procedure. We DENY the petition.

141275F.P05

/Molly Francis/ MOLLY FRANCIS JUSTICE

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