in Re Robert B. Cruz

• Court: Court of Appeals of Texas
• Decided: January 3, 2018
• Docket: 13-17-00707-CR
• Status: Published

Opinion

NUMBER 13-17-00707-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ROBERT B. CRUZ

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Longoria, and Hinojosa Memorandum Opinion by Justice Rodriguez1

On December 20, 2017, Robert B. Cruz, proceeding pro se, filed a pleading in this

Court requesting that we order the County Clerk of Live Oak County, Texas to process

his article 11.07 application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN.

art. 11.07 (West, Westlaw through 2017 1st C.S.). Because this pleading does not

reference an order or judgment subject to appeal and Cruz asks us to command a public

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. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). officer to perform an act, we construe this 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.”). We dismiss this original proceeding

for lack of jurisdiction.

I. STANDARD OF REVIEW

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 of these 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. 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) (“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

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

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

required contents for the appendix); 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.

As an appellate court, 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 County Clerk of Live Oak

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

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

requested 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).

3 Additionally, relator references the clerk’s duties to handle and process his

application for writ of habeas corpus pursuant to Article 11.07. However, we have no

jurisdiction to grant the relief requested by relator with respect to a pending Article 11.07

writ. See Padieu v. Ct. of Apps. of Tex., Fifth Dist., 392 S.W.3d 115, 117–18 (Tex. Crim.

App. 2013) (orig. proceeding) (delineating the limited jurisdiction possessed by

intermediate appellate courts with regard to article 11.07 applications for writs of habeas

corpus); see also TEX. CODE CRIM. PROC. ANN. art. 11.07; In re Madrigal, No. 11–17–

00093–CR, 2017 WL 1453807, at *1 (Tex. App.—Eastland Apr. 20, 2017, orig.

proceeding) (per curiam) (mem. op., not designated for publication). If an applicant finds

it necessary to complain about the processing of an article 11.07 application for writ of

habeas corpus, the applicant may seek mandamus relief directly from the Texas Court of

Criminal Appeals. See, e.g., Benson v. Dist. Clerk, 331 S.W.3d 431, 432–33 (Tex. Crim.

App. 2011) (per curiam); Gibson v. Dallas Cty. Dist. Clerk, 275 S.W.3d 491, 491–92 (Tex.

Crim. App. 2009) (per curiam); see also In re Watson, 253 S.W.3d 319, 320 (Tex. App.—

Amarillo 2008, orig. proceeding).

III. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus,

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.

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 3rd day of January, 2018.