in Re David Harvey Bauman

• Court: Court of Appeals of Texas
• Decided: October 4, 2013
• Docket: 13-13-00530-CR
• Status: Published

Opinion

NUMBER 13-13-00530-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE DAVID HARVEY BAUMAN

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria Memorandum Opinion Per Curiam1

Relator, David Harvey Bauman, proceeding pro se, filed a document entitled

“Motion for Reimbursement of Funds” in the above cause on September 27, 2013.

Relator states that he paid $29,000 in restitution to Hidalgo County in criminal case CR-

2219-01-H and $28,500 in restitution to Starr County in criminal case 02-CR-22, and the

attorney general froze $4,000 in Medicaid funds owed to Bauman in March of 2002.

Relator states that he is “petitioning the court to order the return of all funds” from

Hidalgo and Starr Counties and the Texas Health and Human Services Commission. 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). Because the document does not reference an order or judgment subject to appeal and

relator essentially 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)).

To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

the relator fails to meet both of these requirements, then the petition for writ of

mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at

Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

A remedy at law, though it technically exists, "may nevertheless be so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate." Greenwell v. Ct. of App. for the Thirteenth Jud. Dist., 159 S.W.3d 645,

648–49 (Tex. Crim. App. 2005) (orig. proceeding). The act sought to be compelled

must be a ministerial act that does not involve a discretionary or judicial decision. State

ex rel. Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the

relator can show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d

at 122. A clear right to relief is shown when the facts and circumstances dictate but one

rational decision "under unequivocal, well-settled (i.e., from extant statutory,

2 constitutional, or case law sources), and clearly controlling legal principles." Bowen v.

Carnes, 343 S.W.3d 805, 810 n.6 (Tex. Crim. App. 2011); see In re State ex rel. Weeks,

391 S.W.3d at 122.

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

relief. 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, 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. In this regard, it is clear that

relator must furnish an appendix or 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).

A complaint relating to a restitution order must be made at the time it was

imposed or on direct appeal from the judgment of conviction. See Ex parte Pena, 71

S.W.3d 336, 338 (Tex.Crim.App.2002); see also In re Whiddon, No. 03-12-00361-CV,

2012 WL 2742285, at *1 (Tex. App.—July 3, 2012, orig. proceeding) (mem. op.) Based

on the record presented, relator did not raise his current complaint at the time the

restitution order was imposed or on direct appeal. Thus, relator has failed to show that

he lacks an adequate remedy by appeal. See In re State ex rel. Weeks, 391 S.W.3d at

122. Further, relator has failed to provide us with a copy of the restitution order or any

documentation showing the amount of restitution that he has allegedly paid. Thus, even

3 if relator’s complaint were properly before us, he has failed to provide us with a

sufficient appendix or record showing that he is entitled to the extraordinary relief he

seeks. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig. proceeding);

Barnes, 832 S.W.2d at 426; see also TEX. R. APP. P. 52.3(k), 52.7(a).

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 State ex rel. Young, 236 S.W.3d at 210. Accordingly,

relator’s 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 4th day of October, 2013.