in Re David Greg Gonzales

• Court: Court of Appeals of Texas
• Decided: January 5, 2022
• Docket: 13-21-00469-CV
• Status: Published

Opinion

NUMBERS 13-21-00468-CR & 13-21-00469-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE DAVID GREG GONZALES

On Petition for Writ of Mandamus.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides1

David Greg Gonzales, proceeding pro se, has filed a pleading entitled “Motion of

Writ in [Argument].” Gonzales does not reference an appealable order or judgment, and

accordingly, we construe this pleading as a petition for writ of mandamus. See generally

TEX. R. APP. P. 25.1, 25.2 (governing the perfection of appeal); In re Castle Tex. Prod.

Ltd. P’ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler 2006, orig. proceeding) (“The function

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. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). 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,

256 S.W.2d 67, 70 (Tex. 1953)); see also Surgitek, Bristol-Myers Corp. v. Abel, 997

S.W.2d 598, 601 (Tex. 1999) (directing courts to examine the substance of a pleading

rather than its form or caption to determine its nature). Gonzales’s petition is unclear, but

he appears to request relief regarding criminal cause number 2020-CR-0108-A in the

197th District Court of Willacy County, Texas, docketed in our cause number 13-21-

00468-CR, and civil cause number 2020-CV-0440-A in the 197th District Court of Willacy

County, Texas, docketed in our cause number 13-21-00469-CV. Gonzales references the

right to bail, a conflict with his attorney, the right to terminate representation by counsel,

and “unethical” and politically motivated behavior by the State and the trial court.

Gonzales also alleges that the trial court has refused bail to “restrict” relator’s “diligence”

in his civil case. Gonzales has not filed a record or appendix in support of his claims. The

district clerk has informed this Court that both causes remain pending in the trial court.

In a criminal case, to be entitled to mandamus relief, the relator must establish

both that the act sought to be compelled is a ministerial act not involving a discretionary

or judicial decision and that there is no adequate remedy at law to redress the alleged

harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding);

In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam);

In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the

relator fails to meet both requirements, then the petition for writ of mandamus should be

denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207,

2 210 (Tex. Crim. App. 2007) (orig. proceeding).

In a civil case, to be entitled to mandamus relief, the relator must show that (1) the

trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal.

In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two

requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.

proceeding) (per curiam); Walker, 827 S.W.2d at 840.

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 relief

in either the civil or criminal case. Accordingly, we deny the petition for writ of mandamus

in both causes.

GINA M. BENAVIDES Justice

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

Delivered and filed on the 5th day of January, 2022.