in Re Christopher K. Schmotzer

• Court: Court of Appeals of Texas
• Decided: July 13, 2011
• Docket: 10-11-00246-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00246-CV

IN RE CHRISTOPHER K. SCHMOTZER

Original Proceeding

MEMORANDUM OPINION

Christopher K. Schmotzer has both a criminal and a civil appeal pending in this

Court. He has now presented an application for a writ of mandamus requesting us to

compel prison officials and employees to consistently adhere to the laws and policies of

TDCJ. Specifically, Schmotzer complains that he is not being given enough legal

supplies to address both his criminal and civil appeals. He contends that he used his 25

page allotment of paper in his criminal appeal and was denied additional supplies to

meet the deadlines for his civil appeal.1

1We note that Schmotzer has been presenting many unnecessary documents for filing in his criminal appeal, namely various motions and a brief on his own behalf, when he is represented by counsel. Further there are no deadlines looming in the civil appeal that would require immediate legal supplies. Schmotzer has been filing unnecessary documents in the civil appeal as well. There are procedural problems with Schmotzer’s application. However, we use

Rule 2 to look beyond those problems and expedite a decision on the merits of the

application. See TEX. R. APP. P. 2.

We do not have jurisdiction to issue a writ of mandamus against prison officials

and employees unless it is to protect our jurisdiction and the application filed does not

raise an issue regarding the need to protect, or danger to, our jurisdiction. See TEX.

GOV'T CODE ANN. § 22.221 (West 2004).

Further, the complaints of Schmotzer arise from the actions of personnel at the

McConnell Unit of the Texas Department of Criminal Justice – Institutional Division

located in Bee County. Bee County is not within this Court’s jurisdiction. See TEX.

GOV'T CODE ANN. § 22.201(k) (West 2004).

Further still, it does not appear that Schmotzer has exhausted the administrative

process within the Unit prior to attempting to proceed in this forum. See TEX. CIV. PRAC.

& REM. CODE ANN. § 14.005 (West 2002). Nor has Schmotzer filed an affidavit of

indigence necessary to proceed without the advance payment of cost, TEX. R. APP. P.

20.1, or the required affidavit relating to previous filings. TEX. CIV. PRAC. & REM. CODE

ANN. § 14.004 (West 2002).

Because this proceeding lacks any legal basis, we determine that it is frivolous

and filed for no proper purpose but only for harassment. Accordingly, Schmotzer’s

application for writ of mandamus is dismissed.

Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.

In re Schmotzer Page 2 P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. § 51.207(b); §

51.941(a) (West 2005); and § 51.208 (West Supp. 2010). Under these circumstances, we

suspend the rule and order the Clerk to write off all unpaid filing fees in this case. TEX.

R. APP. P. 2. The write-off of the fees from the accounts receivable of the Court in no

way eliminates or reduces the fees owed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Writ dismissed Opinion delivered and filed July 13, 2011 [OT06]

In re Schmotzer Page 3