in Re Gary Whiddon

• Court: Court of Appeals of Texas
• Decided: July 3, 2012
• Docket: 03-12-00361-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00361-CV

In re Gary Whiddon

ORIGINAL PROCEEDING FROM TOM GREEN COUNTY

MEMORANDUM OPINION

Gary Whiddon, an inmate proceeding pro se, has filed a petition for writ of mandamus

asking us to order the district court to reform what Whiddon characterizes as an illegal restitution

order. He further asks us to order the Texas Board of Pardons and Paroles to return the full amount

of restitution that he has already paid.

Whiddon filed a similar petition for writ of mandamus with the district court. In a

December 2011 order denying the petition, the district court noted that Whiddon was requesting

relief from a judgment of conviction entered in 1994, that Whiddon had previously made a similar

request that was denied by the district court in 2000, and that Whiddon was not entitled to the

relief requested.

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 (Tex. Crim.

App. 2002). Whiddon has failed to do so. Also, Whiddon 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 if Whiddon’s complaint was properly before us, he has failed to provide us with a sufficient record showing that he is entitled to the extraordinary relief he seeks.

See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Barnes v. State, 832 S.W.2d 424, 426

(Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); see also Tex. R. App. P. 52.7(a) (relator

must file with petition “a certified or sworn copy of every document that is material to the relator’s

claim for relief and that was filed in any underlying proceeding”).

Moreover, to the extent that Whiddon is asking us order the Board of Pardons

and Paroles to return the amount of restitution that he has already paid, a court of appeals is not

authorized to issue writs of mandamus against the Board of Pardons and Paroles unless it is

necessary to enforce the appellate court’s jurisdiction. See Tex. Gov’t Code Ann. § 22.221(a);

see also In re Vineyard, No. 04-07-00666-CV, 2007 Tex. App. LEXIS 8624, at *2-3

(Tex. App.—San Antonio Oct. 31, 2007, orig. proceeding) (per curiam). Whiddon has not shown

that the issuance of a writ against the Board of Pardons and Paroles is necessary to enforce this

Court’s jurisdiction.

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Filed: July 3, 2012