Opinion
No. 07-17-00086-CV
04-07-2017
IN RE JORGE CABALLERO HINOJOS, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On March 15, 2017, Jorge Caballero Hinojos, an inmate proceeding pro se, filed a petition for writ of mandamus seeking to compel the trial court judge to rule on his motion for speedy trial and motion for a bench warrant filed in his criminal case. By letter dated March 20, 2017, this court advised Hinojos that the required filing fee of $155 did not accompany the filing of his petition. Said letter directed him to pay the required filing fee or, in lieu thereof, file a statement of inability to afford payment of court costs. The letter further advised Hinojos that chapter 14 of the Texas Civil Practice and Remedies Code requires an inmate who files a statement of inability to afford payment of costs to also file a separate affidavit relating to previous filings and a certified copy of his inmate trust account statement. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (West 2017). Said letter directed payment of the fee or the filing of the required documents by March 30, 2017, and advised Hinojos that non-compliance would subject this proceeding to dismissal without further notice.
We have liberally construed the letter Hinojos filed on March 15, 2017, as a petition for writ of mandamus despite his failure to provide the contents required by appellate rule 52.3, including the name of the respondent judge, the designation of the court in which the judge was sitting, and the county in which the court is located. TEX. R. APP. P. 52.3. Hinojos has provided this court with no information to identify the trial court in which his motions are purportedly pending other than to recite that his prior requests for relief have been addressed to the Potter County District Clerk.
On March 29, 2017, Hinojos filed with this court a declaration of inability to pay costs. The declaration was accompanied by a statement of his Texas Department of Criminal Justice inmate account showing de minimus assets. Accordingly, the declaration and statement set forth sufficient information to establish his indigence.
However, the letter of March 20 had advised Hinojos that an inmate who files a statement of inability to pay costs must also file a separate affidavit or declaration relating to previous filings. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (West 2017). Said letter also directed compliance with this requirement on or before March 30, 2017. To date, Hinojos has not complied with this requirement.
Unless a party is excused from paying a filing fee, the clerk of this court is required to collect filing fees set by statute or the Supreme Court when an item is presented for filing. See TEX. R. APP. P. 5, 12.1(b). Although the filing of a request for mandamus relief invokes this court's jurisdiction, if a party fails to follow the prescribed rules of appellate procedure, the application may be dismissed. TEX. R. APP. P. 52.1. Furthermore, the provisions of chapter 14 of the Texas Civil Practice and Remedies Code apply to original proceedings, such as the mandamus proceeding pending before this court. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West 2017). See also In re Johnson, No. 07-16-00354-CV, 2016 Tex. App. LEXIS 11841, at *2 (Tex. App.—Amarillo Nov. 1, 2016, orig. proceeding) (mem. op) (per curiam) (dismissing inmate's petition for writ of mandamus for failure to pay the filing fee or submit the materials required to proceed under chapter 14); In re Hereford, No. 07-14-00348-CV, 2014 Tex. App. LEXIS 11521, at *1-2 (Tex. App.—Amarillo Oct. 17, 2014, orig. proceeding) (mem. op.) (per curiam) (holding that inmate's failure to file affidavit of previous filings warranted dismissal of mandamus proceeding). This means that Hinojos's petition for writ of mandamus is subject to dismissal for failure to comply with a directive from this court requiring that he comply with section 14.004 within a specified time. TEX. R. APP. P. 42.3(c).
Because Hinojos has failed to file an affidavit or declaration relating to his previous filings within the time provided by this court for compliance, his original proceeding is dismissed.
Per Curiam