in Re Tommie L. Jones

• Court: Court of Appeals of Texas
• Decided: December 8, 2010
• Docket: 10-10-00423-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00423-CV

IN RE TOMMIE L. JONES

Original Proceeding

MEMORANDUM OPINION

In this proceeding, Tommie Leon Jones seeks a writ of mandamus in connection

with an expunction of a criminal proceeding. His complaints are against the District

Clerk of Brazos County, the Honorable Marc Hamlin, and the 361st District Court

coordinator, Tiffany Jakubik. Based on the petition for writ of mandamus as filed, Jones

wants Hamlin to file the expunction proceeding and Jakubik to present it to the

Honorable Steve Smith, District Judge of the 361st District Court of Texas which sits in

Brazos County, so that it can be properly processed. However, in a motion buried

within his petition for writ of mandamus he also asks this Court to require the recusal

of the trial court judge. Beyond this, we are unable to understand what it is that Jones seeks. This is in

large part because Jones has failed to comply with the requirements for the form and

content of the mandamus petition. TEX. R. APP. P. 52.3. The most problematic failure is

the failure to attach sworn copies of the documents he relies upon for mandamus relief

and the total failure to provide a record of any type. Id. (k)(1)(A); 52.7. If Jones had

attached a record that included a sworn copy of the petition for expunction that he

asserts he has tendered for filing or to be acted upon on at least ten separate occasions,

that would have helped us understand what his ultimate objective is and more to the

point, would have allowed us to see if he was entitled to mandamus relief. He did not.

Further, in the petition for writ of mandamus filed with us, Jones did not refer to a case

number or offense or provide any other information that would help us identify the

particular proceeding he seeks to expunge.

We note that we are processing a direct appeal from an expunction proceeding

regarding a terroristic threat charge out of Robertson County and initially thought that

these two proceedings were related. See Ex parte Jones, 10-10-00376-CV. Upon further

review, they appear to not be related.

Notwithstanding a number of procedural irregularities, which we use Rule 2 to

look past and proceed to a more expeditious result, Jones has failed to show that he is

entitled to relief by mandamus. TEX. R. APP. P. 2. Specifically, we do not have

jurisdiction by petition for writ of mandamus over the Clerk or the Court Coordinator

unless it is to protect our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221 (Vernon 2004);

In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding). The

In re Jones Page 2 petition filed does not raise an issue regarding the need to protect, or danger to, our

jurisdiction. Additionally, Jones presents no suggestion that he followed the procedure

in the trial court to have Judge Steve Smith recused and we do not have jurisdiction to

entertain a motion to recuse a trial court judge without the issue having been first

presented to the presiding judge of the judicial region. See TEX. R. CIV. P. 18a. For these

reasons, we dismiss Jones’s petition.

Further, Jones did not pay the filing fee with his petition. Absent a specific

exemption, the Clerk of the Court must collect filing fees at the time a document is

presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP. P., Order

Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R. APP. P. 5;

10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. § 51.207(b); § 51.941(a) (Vernon

2005); and § 51.208 (Vernon Supp. 2009). Under the circumstances, we suspend the rule

and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The

write-off of the fees from the accounts receivable of the Court in no way eliminates or

reduces the fees owed by Jones.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition dismissed Opinion delivered and filed December 8, 2010 [OT06]

In re Jones Page 3