In Re: Joe Marlin Gilmer v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 15, 2023
• Docket: 12-23-00055-CV
• Status: Published

Opinion

NO. 12-23-00055-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE: § JOE MARLIN GILMER, § ORIGINAL PROCEEDING RELATOR § MEMORANDUM OPINION PER CURIAM On February 23, 2023, Joe Marlin Gilmer, acting pro se, filed this original proceeding in which he complains of Respondent’s failure to dispose of the underlying proceeding in a timely manner. 1 That same day, the Clerk of this Court informed Relator that his petition fails to comply with appellate Rules 52.2, 52.3(a)-(c), (g), and (k) and 52.7. See TEX. R. APP. P. 52.2 (designation of parties); TEX. R. APP. P. 52.3 (form and contents of petition); TEX. R. APP. P. 52.7 (record). The notice warned that the petition would be referred to this Court for dismissal unless Relator provided an amended petition and the record on or before March 6. This deadline expired without a response from Relator. Generally, a party seeking mandamus relief must bring forward all that is necessary to establish his claim for mandamus relief. See TEX. R. APP. P. 52. The petition must contain certain items, including an appendix. See TEX. R. APP. P. 52.3. Texas Rule of Appellate Procedure 52.7 requires the relator to file a record as part of his petition in an original proceeding. TEX. R. APP. P. 52.7. Specifically, a relator must file (1) a certified or sworn copy of every document that is material to his claim for relief and that was filed in any underlying proceeding; and (2) “a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.” TEX. R. APP. P. 52.7(a).

1 Respondent is the Honorable Joshua Z. Wintters, Judge of the County Court at Law in Van Zandt County, Texas. Donna Jacks and Charles Lindy Lawler are the Real Parties in Interest. It is a relator’s burden to provide this Court with a record sufficient to establish the right to mandamus relief. See In re Mack, No. 12-19-00238-CV, 2019 WL 3024757, at *1 (Tex. App.–Tyler July 10, 2019, orig. proceeding) (mem op.). In this case, Relator did not provide a record in accordance with Rule 52.7. Absent a record, we cannot determine whether Relator is entitled to mandamus relief. See id. Because Relator’s petition fails to comply with the appellate rules, nothing is presented for this Court to review. Therefore, we deny the petition for writ of mandamus. Opinion delivered March 15, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT

MARCH 15, 2023

NO. 12-23-00055-CV

JOE MARLIN GILMER, Relator V.

HON. JOSHUA Z. WINTTERS, Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by Joe Marlin Gilmer; who is the relator in appellate cause number 12-23-00055-CV and a party to trial court cause number 15425, pending on the docket of the County Court at Law of Van Zandt County, Texas. Said petition for writ of mandamus having been filed herein on February 23, 2023, and the same having been duly considered, because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby denied. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.