in Re: Transito Jose Rodriguez

• Court: Court of Appeals of Texas
• Decided: October 22, 2008
• Docket: 06-08-00122-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00122-CV ______________________________

IN RE: TRANSITO JOSE RODRIGUEZ

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Transito Jose Rodriguez filed a petition for writ of mandamus complaining of the Gregg

County District Clerk's alleged failure to issue "any legal notices" regarding an application for habeas

corpus relief filed by Rodriguez on September 4, 2008. Rodriguez has presented nothing in the way

of a record to this Court.

Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion

or violation of a duty imposed by law when no other adequate remedy by law is available. State v.

Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding). This Court has the authority to issue

a writ of mandamus in two instances, the first being when it is necessary to enforce this Court's

jurisdiction. TEX . GOV 'T CODE ANN . § 22.221(a) (Vernon 2004). It is Rodriguez's burden to

properly request and show entitlement to the mandamus relief he requests. See generally Johnson

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

The second instance in which we have authority to issue a writ of mandamus occurs where

it is "against a . . . judge of a district or county court in the court of appeals district; or . . . a judge

of a district court who is acting as a magistrate at a court of inquiry . . . in the court of appeals

district." TEX . GOV 'T CODE ANN . § 22.221(b) (Vernon 2004). Rodriguez seeks a writ of mandamus

against a district clerk. Because the clerk is not a proper party to which mandamus relief may be

brought, we dismiss Rodriguez's petition for writ of mandamus against the Gregg County District

Clerk for lack of jurisdiction. In re James, No. 06-08-00111-CV, 2008 Tex. App. LEXIS 7689 (Tex.

2 App.—Texarkana Oct. 10, 2008, orig. proceeding) (mem. op.); In re Phillips, No. 06-07-00057-CV,

2007 Tex. App. LEXIS 3128 (Tex. App.—Texarkana Apr. 25, 2007, orig. proceeding) (mem. op.).

We deny the petition.

Bailey C. Moseley Justice

Date Submitted: October 21, 2008 Date Decided: October 22, 2008