in Re R. Wayne Johnson, Relator

• Court: Court of Appeals of Texas
• Decided: March 28, 2014
• Docket: 07-13-00259-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00259-CV

IN RE R. WAYNE JOHNSON, RELATOR

ORIGINAL PROCEEDING

March 28, 2014

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ

Relator R. Wayne Johnson is an inmate housed at a facility of the Texas

Department of Criminal Justice (“TDCJ”). He is also a vexatious litigant subject to a

prefiling order requirement.1 In this original proceeding, he seeks a writ of mandamus

directing respondent, the Honorable Ana E. Estevez, judge of the 251st District Court of

Potter County, to set a hearing in a suit relator filed, seeking judicial review of an

administrative decision by real party in interest, TDCJ. Relator also sought declaratory

relief. For several reasons, we will deny the petition.

The writ of mandamus will issue to correct a clear abuse of discretion or the

violation of a duty imposed by law when there is no adequate remedy available by 1 See TEX. CIV. PRAC. & REM. CODE § 11.101 (West Supp. 2013). appeal. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.

proceeding). Relator’s petition asserts Judge Estevez had a ministerial duty to set the

hearing he requested.

Relator did not initiate his suit against TDCJ by filing suit papers with the district

clerk. Instead, relator indicates he merely mailed his suit papers directly to Judge

Estevez with a cover letter demanding she set a hearing. Nothing in the mandamus

record shows relator served his original petition on TDCJ, or provided TDCJ a copy of

his hearing demand. Moreover, the record provided contains a copy of a document

from the Potter County District Clerk indicating relator did not obtain the permission of

the local administrative judge to file his lawsuit. See TEX. CIV. PRAC. & REM. CODE §

11.102(a) (West Supp. 2013).2 It appears Judge Estevez took no action on relator’s

demand for a hearing during the approximately twenty-five days between the date

relator mailed his suit papers to Judge Estevez and the date he sought mandamus from

this court. These facts do not show Judge Estevez clearly abused her discretion by

failing to set the hearing relator demanded. Cf. In re Layton, 257 S.W.3d 794, 795 (Tex.

App.—Amarillo 2008, orig. proceeding) (“A trial court has a ministerial duty to consider

and rule on motions properly filed and pending before the court and mandamus may

2 With this requirement, relator is fully familiar. See, e.g., Johnson v. Peeples, 349-50 (Tex. App.—Waco 2013, no pet.) (citing Johnson v. Hughey, No. 06-12-00079- CV, 2012 Tex. App. Lexis 8406, at *1 n.2 (Tex. App.—Texarkana Oct. 6, 2012, no pet.) (mem. op.) (“By October 5, 2012, the Texarkana Court of Appeals documented 13 appellate court proceedings since 2004 in which the courts of appeals have dealt with [relator] just in his capacity as a vexatious litigant”).

2 issue to compel the judge to act” (emphasis supplied)). For that reason alone, relator’s

petition must be denied.

Other procedural shortcomings also require denial of relator’s petition. A relator

must generally bring forward all that is necessary to establish a claim for relief. See

TEX. R. APP. P. 52.7; Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655,

658 (Tex. 1992) (orig. proceeding). This includes providing an adequate record to

substantiate the allegations contained in the petition for writ of mandamus. Dallas

Morning News, 842 S.W.2d at 658; Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)

(orig. proceeding). Absent a sufficient record, mandamus will not issue. Id. Relator

has not supplied us with a record substantiating he was entitled to the hearing on the

merits of his suit that he demanded of Judge Estevez. For that reason also, his petition

for mandamus must be denied.

Further, in one of the documents mailed to Judge Estevez, relator indicated his

intention to comply with the requirements of Chapter 14 of the Civil Practice and

Remedies Code, but the mandamus record does not indicate he even attempted

compliance with those requirements. It appears relator submitted neither an affidavit of

court actions previously filed, TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West

Supp. 2013), nor a certified inmate trust account statement, TEX. CIV. PRAC. & REM.

CODE ANN. § 14.004(c) (West Supp. 2013) & § 14.006(f) (West 2002). The absence of

either of those items entitled the trial court to consider relator’s suit against TDCJ to be

frivolous. Amir-Sharif v. Mason, 243 S.W.3d 854, 857 (Tex. App.—Dallas 2008, no

pet.).

3 We further note relator has not complied with the requirements of Chapter 14

with respect to his mandamus petition filed in this court. See Act of June 29, 2011,

82nd Leg., 1st C.S., ch. 3, § 12.01(a), 2011 Tex. Gen. Laws 116, 161 (amending

Chapter 14 effective January 1, 2012, to make it applicable to actions, including appeals

and original proceedings, brought by indigent inmates in appellate courts) (current

version at TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West Supp. 2013)); Douglas v.

Moffett, 418 S.W.3d 336, 338-39 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(discussing amendment and prior law). His failure to comply with Chapter 14’s

requirements in this court make his mandamus petition subject to dismissal.

For all the reasons noted, we deny all relief requested in relator’s petition for writ

of mandamus. All pending motions filed in this original proceeding also are denied.

James T. Campbell Justice