Opinion
No. 09-10-00412-CV
Opinion Delivered November 4, 2010.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Michael Bailey and Timothy Martin filed a petition for writ of mandamus against the District Clerk of Jefferson County and unnamed "District Judges." Martin is a vexatious litigant subject to pre-filing requirements. See Tex. Civ. Prac. Rem. Code Ann. §§ 11.102(a), 11.103 (West 2002). Bailey attempted to file a lawsuit in Jefferson County. The lawsuit names Bailey as the pro se plaintiff but the pleadings assert claims on behalf of Martin, with Bailey acting as "attorney in fact" under a durable power of attorney.
In this mandamus proceeding, Relators argue that Bailey had a right to pursue a lawsuit for Martin without meeting the pre-filing requirements that apply to Martin. Relators contend that the district clerk violated a mandatory duty by returning the petition to Martin unfiled.
Relators ask this Court to compel the District Clerk to accept the filing and issue citation. Other than to protect the jurisdiction of the Court of Appeals, this Court's mandamus jurisdiction does not extend to persons who are not judges of a district or county court in our district. See Tex. Gov't Code Ann. § 22.221 (West 2004). Relators are not entitled to mandamus relief from this Court to compel the District Clerk to file the petition.
Relators also seek to compel the District Court to rule on motions and proceed to trial. The Relators bear the burden of showing that the trial court failed to rule upon a properly filed motion within a reasonable time. See Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App.-Amarillo 2001, orig. proceeding). Here, Relators admit no suit has been filed; accordingly, the trial court has no duty to rule on motions and proceed to trial.
To the extent that Relators are arguing that the local administrative judge abused its discretion by failing to grant leave for Martin to file his petition, Relators have not shown that they are entitled to mandamus relief. A local administrative judge may grant a vexatious litigant permission to file suit only if it appears to the judge that the litigation has merit and has not been filed for the purposes of harassment or delay. Tex. Civ. Prac. Rem. Code Ann. § 11.102(a). The petition contained in the mandamus record seeks to vacate Martin's convictions out of Bee, Tarrant, and Dallas Counties that have resulted in Martin's incarceration. After final conviction in a State court, only the Court of Criminal Appeals may vacate a conviction. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2010); see also Board of Pardons Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995).
Relators contend the trial court must order Martin's release from prison because the time he has served exceeded his sentences. Relators evidently believe that the Corpus Christi Court of Appeals held that Martin's sentences were running concurrently. See Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226, 228 (Tex. App.-Corpus Christi 2001, no pet.). That case concerned whether the trial court correctly dismissed Martin's claims for lack of subject matter jurisdiction, not whether Martin was to serve his sentences concurrently or consecutively. Id. The court held that "Martin sought a form of relief that the trial court was powerless to grant." Id. at 231. Any statement regarding whether the sentences being served were concurrent was dicta unnecessary to the decision before the court and not stated deliberately. See Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870 (Tex. 2007) (explaining obiter dictum).
Bailey argues that Martin's power of attorney gives Bailey the right to file the lawsuit. To represent another individual in court, the representative must have a license to practice law; a power of attorney does not give the agent the power to represent the principal as an attorney. See Crain v. The Unauthorized Practice of Law Comm. of the Sup. Ct. of Tex., 11 S.W.3d 328, 332-34 (Tex. App.-Houston [1st] 1999, pet. denied); Tex. Gov't Code Ann. §§ 81.101, 81.102(a) (West 2005); Tex. Penal Code Ann. § 38.123 (West 2003). The trial court was not required to allow Bailey, a non-attorney, to represent Martin.
Relators have not shown that they are entitled to mandamus relief. Accordingly, we deny the petition for writ of mandamus.
PETITION DENIED.