in Re: Roger Bollinger, Relator

Opinion

NO. 07-04-0112-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

APRIL 1, 2004

______________________________

IN RE: ROGER BOLLINGER, RELATOR

_________________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

MEMORANDUM OPINION

Relator Roger Bollinger seeks issuance of a writ of mandamus against the

Honorable Abe Lopez, Judge of the 108th District Court of Potter County. We dismiss in

part and deny in part.

On March 22, 2004, relator filed with the clerk of this court a pleading entitled

Petition for Writ of Mandamus. Relator makes numerous allegations in his petition, but the

underlying basis for his seeking issuance of mandamus is that he filed a suit in the 108th

District Court and that the suit was dismissed pursuant to Chapter 14 of the Texas Civil

Practice and Remedies Code (“TCPRC”). We are requested to (1) order respondent and

the District Clerk, Caroline Woodburn, to adhere to their oaths of office, (2) adhere to

certain canons of the Code of Judicial Conduct and obey the law and U.S. Constitution, (3) hold the trial court’s order of dismissal unconstitutional and an abuse of discretion, and (4)

issue a writ of prohibition prohibiting respondent from enforcing the provisions of TCPRC

Chapter 14 because enforcement of such law would violate respondent’s oath of office,

canons of the Code of Judicial Conduct, and “Supreme Ct. Precedents.”

In support of the petition for writ of mandamus, relator attached a copy of what he

asserts he filed as a petition in the trial court, a notice from the district clerk’s office that his

suit had been dismissed pursuant to TCPRC Chapter 14, and a letter from the district clerk

advising relator that if he wished to receive a file-marked copy of his petition, relator should

furnish the clerk a stamped, self-addressed envelope. No other document or record of

proceedings is attached to or furnished in support of the petition.

Pursuant to TEX . GOV’T . CODE ANN . § 22.221 (Vernon 1988 & Supp. 2000)

(“TGCA”), a court of appeals has jurisdiction to issue writs of mandamus (1) to enforce its

jurisdiction, or (2) against certain judges of or acting within the district of the court of

appeals. TGCA § 22.221(a),(b). A writ of mandamus is an extraordinary remedy that will

issue (1) only to correct a clear abuse of discretion or the violation of a duty imposed by

law, when (2) there is no other adequate remedy by law. See Canadian Helicopters Ltd.

v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994).

To establish the first requirement for mandamus relief, an abuse of discretion, the

complaining party must demonstrate that the trial court acted unreasonably, arbitrarily, or

without reference to guiding rules and principles. Downer v. Aquamarine Operators, 701

S.W.2d 238, 241-42 (Tex. 1985). An abuse of discretion may also be established by proof

-2- that (1) the trial court had a legal duty to perform a non-discretionary act, (2) a demand for

performance was made, and (3) the trial court refused to act. O'Connor v. First Court of

Appeals, 837 S.W.2d 94, 97(Tex. 1992); Doctors Hosp. Facilities v. Fifth Court of Appeals,

750 S.W.2d 177, 178 (Tex.1988).

When petition for writ of mandamus is made, it is the relator’s burden to show

entitlement to the relief being requested. See generally Johnson v. Fourth District Court

of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).

To the extent relator requests issuance of mandamus directed to the district clerk,

we do not have jurisdiction to issue mandamus directed to the clerk. Such claims are

dismissed for want of jurisdiction.

To the extent relator requests issuance of mandamus directed to respondent, he

has not provided a copy of the order dismissing his suit nor any other document or

transcript of testimony related to the trial court proceedings other than the documents

noted above. He simply alleges, without evidentiary support via affidavits, testimony or

documents, that respondent violated the Judicial Code of Conduct, the United States

Constitution, and “the Law”, and that the order of dismissal which is not before us was

unconstitutional in some manner. Mere allegations do not fulfil relator’s burden to show

he is entitled to the extraordinary relief of mandamus.

In sum, relator has not presented a record which shows entitlement to the relief

sought, or upon which we are authorized to act. The relief sought against the district clerk

-3- is dismissed for want of jurisdiction. The claims and relief sought against respondent are

denied.

Phil Johnson Chief Justice

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