in Re Wayne Ernest Barker

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00452-CV

IN RE WAYNE ERNEST BARKER

Original Proceeding

MEMORANDUM OPINION

Wayne Ernest Barker, a prison inmate, has presented a petition for writ of

mandamus requesting a mandamus to issue against Brad Livingston, the director of the

Texas Department of Criminal Justice.

In another proceeding currently pending before us, Barker has conceded that he

has been determined to be a vexatious litigant. In re Barker, 10-11-00444-CV, filed

November 29, 2011. However, he does not state whether the trial court rendered an

11.101 prefiling order against him. See TEX. CIV. PRAC. & REM. CODE § 11.101 (West

Supp. 2011). Further, we note that his name does not appear on the Office of Court

Administration’s list of vexatious litigants with prefiling orders rendered against them.1

1 See http://www.courts.state.tx.us/oca/vexatiouslitigants.asp. Because there is no confirmation of a prefiling order rendered against Barker, our Clerk

was not prohibited from filing this petition for writ of mandamus. See id. § 11.103(a).

There are numerous procedural problems with Barker’s petition. We use Rule 2,

however, to look beyond these procedural problems to reach the merits of the petition.

TEX. R. APP. P. 2.

This Court has jurisdiction to issue writs of mandamus only against a judge of a

district or county court in our appellate district or in order to protect our jurisdiction.

TEX. GOV’T CODE ANN. § 22.221 (a), (b) (West 2004). Brad Livingston is not a district or

county court judge. Barker does not allege the mandamus is necessary to protect our

jurisdiction. Thus, we have no jurisdiction to issue a writ of mandamus against Brad

Livingston.

Accordingly, Barker’s petition for writ of mandamus is dismissed.

Barker also presented for filing with this Court a declaration of indigence with

his petition for writ of mandamus. Under the circumstance of this case, we again use

Rule 2 and grant Barker‘s request to proceed without the advance payment of cost. TEX.

R. APP. P. 2.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition dismissed Opinion delivered and filed December 21, 2011 [OT06]

In re Barker Page 2