in Re Gary R. Ince, Relator

• Court: Court of Appeals of Texas
• Decided: December 5, 2011
• Docket: 07-11-00445-CV
• Status: Published

Opinion

NO. 07-11-00445-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 5, 2011

IN RE GARY R. INCE, RELATOR

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relator, Gary R. Ince, has filed a petition for writ of mandamus seeking issuance

of a writ of mandamus to compel the “CLERK for the 47th District [Court], to present

Relator’s Motions to the Court, and also that the Honorable Judge Hal Miner will

‘consider and rule’ on said Motions . . . .”1 We deny the petition.

Texas Rule of Appellate Procedure 52.32 identifies the requirements of a petition

for writ of mandamus filed in this Court. Ince has failed to comply with these

requirements. Rule 52.3(a) requires that a petition must include a complete list of all

parties and the names and addresses of all counsel. Ince does not include any such

1 We note that the Honorable Dan Schaap is the current judge of the 47th District Court of Potter County. 2 Further citation of Texas Rules of Appellate Procedure will be by reference to ARule __.@ list.3 Rule 52.3(b) requires that the petition include a table of contents with references

to the pages of the petition and an indication of the subject matter of each issue or point

raised in the petition. Ince’s petition includes no table of contents. Rule 52.3(c)

requires that a petition include an index of authorities in which all authorities cited in the

petition are arranged alphabetically and the page(s) upon which the authorities are cited

is indicated. Ince=s petition includes no index of authorities. Rule 52.3(d) requires a

statement of the case that includes a concise description of the nature of the underlying

proceeding. Ince=s petition does not contain a statement of the case, and does not

include a concise description of the nature of the underlying proceeding. Rule 52.3(e)

requires the petition include a statement regarding the basis of this Court’s jurisdiction.

Ince’s petition does not include a jurisdictional statement. Rule 52.3(f) requires the

petition include a concise statement of all issues or points presented for relief. Ince’s

petition includes no such statement. Rule 52.3(g) requires the petition include a

statement of facts supported by citation to competent evidence included in the appendix

or record. Ince’s petition does not include a statement of facts. Rule 52.3(h) requires a

clear and concise argument for the contentions made, with appropriate citations to

authorities. Ince does cite to authority, however, his arguments are scattered to such

an extent that they are unclear. Rule 52.3(i) requires the petition include a short

conclusion that clearly states the nature of the relief sought. Ince’s petition seems to 3 Ince’s petition reveals that he is requesting this Court issue a writ of mandamus against Cindy Spencer, whom he identifies as Clerk of the 47th District Court. A court of appeals has authority to issue writs of mandamus against district and county court judges within the court of appeals=s district and all writs necessary to enforce its jurisdiction. TEX. GOV=T CODE ANN. ' 22.221(a), (b) (West 2004). As such, there is no statutory authority authorizing this Court to issue a writ of mandamus against a court clerk, and Ince makes no effort to identify how the issuance of the writ would be necessary for this Court to enforce its jurisdiction. 2 request that the trial court consider and rule on certain motions that Ince claims are

pending in the trial court. However, these motions are referenced only by title and are

not included in a record or appendix for this Court to review. Rule 52.3(j) requires that

Ince certify that he has reviewed the petition and concluded that every factual statement

in the petition is supported by competent evidence included in the appendix or record.

Ince does not so certify. Finally, Rule 52.3(k)(1)(A) requires that the appendix to the

petition include a certified or sworn copy of any order complained of, or other document

showing the matter complained of. Ince has not included an appendix to his petition.

As each of these items is required in a petition for writ of mandamus and Ince has failed

to comply with these requirements, we may not grant the relief that he requests.

Additionally, Texas Rule of Appellate Procedure 9.5 requires that, at or before

the time that a document is filed with this Court, a copy of the document must be served

on all parties to the proceeding. Ince’s petition does not include a certificate of service

or otherwise establish that any purported parties to this proceeding were served with

Ince’s petition.

For the foregoing reasons, we deny Ince’s petition.

Mackey K. Hancock Justice