in Re Jason Omar Moreno

• Court: Court of Appeals of Texas
• Decided: July 30, 2021
• Docket: 13-21-00226-CR
• Status: Published

Opinion

NUMBER 13-21-00226-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE JASON OMAR MORENO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Silva Memorandum Opinion by Chief Justice Contreras1

Jason Omar Moreno, proceeding pro se, filed a pleading in the above-referenced

cause in which he requests that we direct the trial court and district clerk to provide him

with the name of the court reporter who transcribed hearings held on August 20, 1996,

and September 9, 1996, in trial court cause number CR-2486-94-A in the 92nd District

Court of Hidalgo County, Texas. Because Moreno’s pleading does not reference an order

or judgment subject to appeal and he is, in essence, asking us to command public officers

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.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). to perform an act, we construe his pleading as a petition for writ of mandamus. See

generally TEX. R. APP. P. 25.1(a), (d); In re Castle Tex. 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, 256 S.W.2d 67, 70 (Tex.

1953)); see also In re Guthrie, No. 13-20-00134-CR, 2020 WL 1181261, at *1 (Tex.

App.—Corpus Christi–Edinburg Mar. 12, 2020, orig. proceeding) (mem. op., not

designated for publication). We note that Moreno has previously filed a direct appeal and

a separate original proceeding from the underlying cause. See Moreno v. State, 987

S.W.2d 195, 198 (Tex. App.–Corpus Christi–Edinburg 1999, pet. ref’d) (affirming relator’s

conviction for aggravated kidnapping, aggravated sexual assault, and aggravated

robbery); In re Moreno, No. 13-16-00262-CR, 2016 WL 2967990, at *1 (Tex. App.—

Corpus Christi–Edinburg May 13, 2016, orig. proceeding) (mem. op.) (denying relator’s

petition for writ of mandamus seeking to compel the trial court to conduct a hearing on

relator’s motion for post-conviction DNA testing and motion for appointment of counsel).

To be entitled to mandamus relief, the relator must establish both that he has no

adequate remedy at law to redress his alleged harm, and that what he seeks to compel

is a purely ministerial act not involving a discretionary or judicial decision. In re Harris,

491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); 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.

2 App. 2007). It is the 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) (per curiam) (“Even a pro se applicant for a writ of mandamus

must show himself entitled to the extraordinary relief he seeks.”); see generally TEX. R.

APP. P. 52.3; Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.

proceeding) (Alcala, J. concurring); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)

(orig. proceeding).

Article V, Section 6 of the Texas Constitution delineates the appellate jurisdiction

of the courts of appeals, and states that the courts of appeals “shall have such other

jurisdiction, original and appellate, as may be prescribed by law.” TEX. CONST. art. V, §

6(a); see In re Bayview Loan Servicing, LLC, 532 S.W.3d 510, 511 (Tex. App.—

Texarkana 2017, orig. proceeding). This Court’s original jurisdiction is governed by

§ 22.221 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 22.221; see also

In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012, orig. proceeding). In pertinent

part, this section provides that we may issue writs of mandamus against district and

county judges within our district and “all other writs necessary to enforce the jurisdiction

of the court.” See TEX. GOV’T CODE ANN. § 22.221(a), (b). Thus, we lack power to review

the actions of a district clerk by mandamus “absent a showing that the district clerk’s

actions have interfered with our jurisdiction.” In re State, 599 S.W.3d 577, 593 (Tex.

App.—El Paso 2020, orig. proceeding); see In re Shugart, 528 S.W.3d 794, 796 (Tex.

App.—Texarkana 2017, orig. proceeding) (stating that “this Court lacks jurisdiction over

district clerks, unless necessary to enforce our jurisdiction”); In re Potts, 357 S.W.3d 766,

3 768 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (stating that the court lacked

mandamus jurisdiction against the district clerk). Here, the relator has neither pleaded nor

shown that mandamus is necessary to enforce this Court’s jurisdiction. See TEX. GOV’T

CODE ANN. § 22.221(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 relief

as against the trial judge and that we lack jurisdiction over relator’s claims against the

district clerk. Accordingly, we deny the petition for writ of mandamus in part and dismiss

it in part for want of jurisdiction. See In re Harris, 491 S.W.3d at 334; In re McCann, 422

S.W.3d at 704.

DORI CONTRERAS Chief Justice

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

Delivered and filed on the 30th day of July, 2021.