in Re Wayne Ernest Barker

• Court: Court of Appeals of Texas
• Decided: January 4, 2012
• Docket: 10-11-00471-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00471-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 Frank J. Hoak, the director of the

Access to Courts Department.

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

has been determined to be a vexatious litigant. In re Barker, No. 10-11-00444-CV, 2011

Tex. App. LEXIS 10105 (Tex. App.—Waco Dec. 21, 2011, orig. proceeding) (mem. op.).

However, he did 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 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.2

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). Frank J. Hoak 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 Frank J.

Hoak.

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

1 See http://www.courts.state.tx.us/oca/vexatiouslitigants.asp

2 Barker’s petition for writ of mandamus complains that the librarian at Barker’s prison unit has not responded to his Open Records Act request. She is not required to respond because Barker is an inmate. TEX. GOV’T CODE ANN. § 552.028(a) (West 2004).

In re Barker Page 2 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition dismissed Opinion delivered and filed January 4, 2012 [OT06]

In re Barker Page 3