in Re Darrell R. Haney

• Court: Court of Appeals of Texas
• Decided: September 6, 2013
• Docket: 13-13-00483-CR
• Status: Published

Opinion

NUMBER 13-13-00483-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DARRELL R. HANEY

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam1

Relator, Darrell R. Haney, pro se, filed a document entitled “Notice of Appeal” in

the above cause on September 3, 2013. Relator states that he is seeking to appeal a

“response” from the “Aransas County, Texas Chief Deputy, Aransas County District

Clerk, Melissa Rogers” regarding an inquiry he made regarding a “time dispute” for

information to “prove a way and means to reduce the amount of time [relator] is now

servicing in TDCJ-CID.” According to the pleading, relator requests us to: (1) declare

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 section 552.028 of the Texas Government Code unconstitutional, and (2) order the

Aransas County District Clerk to respond to relator’s inquiry. See TEX. GOV'T CODE ANN.

§ 552.028 (West 2004) (giving a governmental body the discretion to accept or deny a

request for information from an incarcerated individual); see, e.g., Nabelek v. Bradford,

228 S.W.3d 715, 717–19 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (rejecting

constitutional due process, equal protection, and “access to the courts” challenges to

section 552.028). Because the document does not reference an order or judgment

subject to appeal and relator asks us to command a public officer to perform an act, we

construe this document as a petition for writ of mandamus. See generally TEX. R. APP.

P. 25.1(a), (d); In re Castle Texas Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex. App.—

Tyler 2006, orig. proceeding) (“The function of the writ of mandamus is to compel action

by those who by virtue of their official or quasi-official positions are charged with a

positive duty to act.”) (citing Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70

(1953)).

I. STANDARD OF REVIEW

To be entitled to mandamus relief, relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a ministerial act not involving a discretionary or judicial decision. State ex rel. Young

v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). If relator fails to meet both of these requirements, then the petition for writ

of mandamus should be denied. See id.

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

relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re

2 Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see

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, the

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

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

appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must also file an

appendix and 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); see also Walker, 827 S.W.2d at 837; In re Blakeney,

254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).

II. JURISDICTION

Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction

of the courts of appeals, and states that the courts of appeals "shall have such other

jurisdiction, original and appellate, as may be prescribed by law." TEX. CONST. art. V, §

6. As an appellate court, this Court's original jurisdiction is governed by section 22.221

of the Texas Government Code. See TEX. GOV'T CODE ANN. § 22.221 (West 2004); see

also In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012, orig. proceeding). In

pertinent part, this section provides that we may issue writs of mandamus and "all other

writs necessary to enforce the jurisdiction of the court." See id. § 22.221(a). This

section also provides that we may issue writs of mandamus against "a judge of a district

or county court in the court of appeals' district" or against a "judge of a district court who

3 is acting as a magistrate at a court of inquiry . . . in the court of appeals district." See id.

§ 22.221(b).

In addition to requesting that we declare part of the government code

unconstitutional, relator's petition seeks mandamus relief against a district clerk.

However, we do not have original jurisdiction against a district clerk unless necessary to

enforce our jurisdiction, and relator has not demonstrated that the requested relief is

necessary for this purpose. See generally id. § 22.221; In re Richardson, 327 S.W.3d

848, 851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296 S.W.3d

682, 684 (Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7 S.W.3d 181,

182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).

III. CONCLUSION

The Court, having examined and fully considered the petition for writ of

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.

Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 6th day of September, 2013.