In Re Francisco Perez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 11, 2023
• Docket: 13-23-00394-CR
• Status: Published

Opinion

NUMBER 13-23-00394-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE FRANCISCO PEREZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Tijerina1

Francisco Perez filed a pro se “Motion to Compel District Clerk to File Notice of

Appeal” in this Court. Although this pleading is unclear, Perez appears to request that we

compel Laura Hinojosa, the District Clerk of Hidalgo County, Texas, “to perform her

duties.” Because Perez does not have a pending appeal2 in this Court and he requests

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).

2 Perez recently filed a notice of appeal arising from the same trial court cause number that is at us to command a public officer to perform an act, we liberally construe Perez’s motion as

a petition for writ of mandamus. See generally TEX. R. APP. P. 25.1 (governing the

perfection of appeal); Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex. Crim. App. 2000)

(stating that “it is the substance of the motion that governs, not the title”), superseded by

statute on other grounds as recognized by Druery v. State, 412 S.W.3d 523, 534 (Tex.

Crim. App. 2013).

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,

210 (Tex. Crim. App. 2007) (orig. proceeding). However, our jurisdiction to issue

mandamus relief is limited by statute. See generally TEX. GOV’T CODE ANN. § 22.221. In

short, we have no authority to issue a writ of mandamus to a district clerk unless they are

interfering with our appellate jurisdiction. See id.; In re Shugart, 528 S.W.3d 794, 796

(Tex. App.—Texarkana 2017, orig. proceeding); In re Potts, 357 S.W.3d 766, 768 (Tex.

issue in this proceeding: trial court cause number CR-5243-19-L in the 464th District Court of Hidalgo County, Texas. However, that appeal has been resolved and is no longer pending. See Perez v. State, No. 13-23-00079-CR, 2023 WL 3116760, at *1 (Tex. App.—Corpus Christi–Edinburg Apr. 27, 2023, no pet.) (mem. op., not designated for publication) (dismissing the appeal because the trial court’s certification failed to show that Perez possessed the right to appeal).

2 App.—Houston [14th Dist.] 2011, orig. proceeding); In re Revels, 420 S.W.3d 42, 43 (Tex.

App.—El Paso 2011, orig. proceeding).

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

and the applicable law, is of the opinion that Perez has not met his burden to show that

we have jurisdiction to entertain his request for mandamus relief. Accordingly, we dismiss

the petition for writ of mandamus for lack of jurisdiction.

JAIME TIJERINA Justice

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

Delivered and filed on the 11th day of September, 2023.