in Re Trent Alvon Smith

• Court: Court of Appeals of Texas
• Decided: April 7, 2010
• Docket: 10-10-00107-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00107-CV

IN RE TRENT ALVON SMITH

Original Proceeding

MEMORANDUM OPINION

Trent Alvon Smith seeks a writ of mandamus compelling Respondent, the

Honorable Robyn Flowers, District Clerk of Walker County, to file his “Petition for

Texas Torts Claim.”1 We will deny Smith’s request for mandamus relief.

When a district clerk refuses to accept a pleading for filing, the party should attempt to file the pleading directly with the district judge, explaining in a verified motion that the clerk refused to accept the pleading for filing. Should the district judge refuse to accept the pleading for filing, this Court would have jurisdiction under our mandamus power to direct the district judge to file the pleading.

1 We apply Rule of Appellate Procedure 2 to disregard numerous deficiencies in Smith’s mandamus pleadings, including his failure to serve copies on Respondent Flowers. See TEX. R. APP. P. 2, 9.5. In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding) (citation

and footnote omitted) (quoting In re Bernard, 993 S.W.2d 453, 455 (Tex. App.—Houston

[1st Dist.] 1999, orig. proceeding) (O’Connor, J., concurring)).

Here, there is no indication that Smith followed this procedure. Accordingly, we

deny his mandamus petition.2

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed April 7, 2010 [OT06]

2 Smith also filed a motion for leave to file his mandamus petition. That motion is dismissed as moot. See TEX. R. APP. P. 52 cmt. (“The requirement of a motion for leave in original proceedings is repealed.”); In re McGee, 213 S.W.3d 405, 406 n.2 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (per curiam).

In re Smith Page 2