in Re Juan M. Albarado

• Court: Court of Appeals of Texas
• Decided: November 15, 2018
• Docket: 13-18-00629-CV
• Status: Published

Opinion

NUMBER 13-18-00629-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JUAN M. ALBARADO

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Justice Hinojosa 1

Relator Juan M. Albarado, proceeding pro se, filed a petition for writ of mandamus

in the above cause seeking to compel the District Clerk of Cameron County to file a civil

case. 2 Relator asserts that he filed the “Isabel Estate” documents with the District Clerk

1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in any other case,” but 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).

2 In addition to the petition for writ of mandamus, relator also filed a “Motion for Leave” and a “Motion

to Proceed In Forma Pauperis.” Relator’s motion for leave to file his petition for writ of mandamus is dismissed as moot. The Texas Rules of Appellate Procedure no longer require the relator to file a motion for leave to file an original proceeding. See generally TEX. R. APP. P. 52 & cmt. The motion for leave to proceed in forma pauperis is likewise dismissed as moot. in December of 2017; however, no action has been taken on this filing. We dismiss the

petition for writ of mandamus for lack of jurisdiction.

I. STANDARD OF REVIEW

To obtain relief by writ of mandamus, a relator must establish that an underlying

order is void or a clear abuse of discretion and that no adequate appellate remedy exists.

In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). An abuse of

discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made

without regard for guiding legal principles or supporting evidence. In re Nationwide, 494

S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We

determine the adequacy of an appellate remedy by balancing the benefits of mandamus

review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014)

(orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. In deciding

whether the benefits of mandamus outweigh the detriments, we weigh the public and

private interests involved, and we look to the facts in each case to determine the

adequacy of an appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 313 (Tex. 2010)

(orig. proceeding); In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136–37.

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) (“Even a pro se applicant for a writ of mandamus must show himself entitled

to the extraordinary relief he seeks.”). In addition to other requirements, the relator must

2 include a statement of facts supported by citations to “competent evidence included in the

appendix or record,” and must also provide “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the appendix or record.”

See generally TEX. R. APP. P. 52.3. The relator must furnish an appendix or record

sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the

required contents for the appendix); id. R. 52.7(a) (specifying the required contents for

the record).

II. JURISDICTION

Article V, Section 6 of the Texas Constitution specifies 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.

This Court’s original jurisdiction is governed by section 22.221 of the Texas Government

Code. See TEX. GOV’T CODE ANN. § 22.221 (West, Westlaw through 2017 1st C.S.); 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 and “all other

writs necessary to enforce the jurisdiction of the court.” Id. § 22.221(a). This section also

provides that we may issue writs of mandamus against “a judge of a district or county

court in the court of appeals’ district” or against a “judge of a district court who is acting

as a magistrate at a court of inquiry . . . in the court of appeals district.” See id. §

22.221(b).

Relator’s petition seeks mandamus relief against the District Clerk of Cameron

County. However, we do not have original jurisdiction against a district clerk unless

necessary to enforce our jurisdiction, and relator has not demonstrated that the requested

3 relief is necessary for this purpose. See generally id. § 22.221; In re Richardson, 327

S.W.3d 848, 851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296

S.W.3d 682, 684 (Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7

S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding). We note that,

in general, when a district clerk refuses to accept a pleading for filing, the party should

attempt to file the pleading directly with the district judge, explaining in a verified motion

that the clerk refused to accept the pleading for filing. See In re Simmonds, 271 S.W.3d

874, 879 (Tex. App.—Waco 2008, orig. proceeding); In re Bernard, 993 S.W.2d 453, 455

(Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (O’Connor, J., concurring); see

also In re Rowe, No. 05-16-00031-CV, 2016 WL 228840, at *1 (Tex. App.—Dallas Jan.

19, 2016, orig. proceeding) (mem. op.); In re Amir-Sharif, No. 13-15-00612-CV, 2015 WL

9611920, at *1 (Tex. App.—Corpus Christi Dec. 30, 2015, orig. proceeding) (mem. op.)

(per curiam).

III. CONCLUSION

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 established this Court’s

jurisdiction over the relief sought. Accordingly, the petition for writ of mandamus is

dismissed for want of jurisdiction.

LETICIA HINOJOSA Justice

Delivered and filed the 15th day of November, 2018.