Opinion
NUMBER 13-17-00654-CR
12-01-2017
IN RE ROBERT TOVAR
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Contreras
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
On November 17, 2017 Robert Tovar filed a pleading in this Court requesting assistance in obtaining a response from the "sheriff, the judge, and the district attorney" regarding the filing and execution of Tovar's "time cut forms." See TEX. ADMIN. CODE ANN. § 143.52 (West, Westlaw through 2017 1st C.S.) (stating that the board of pardons and paroles "will consider" recommending to the governor "a commutation of sentence upon a request accompanied by the written recommendation of a majority of the trial officials"). Because Tovar's pleading does not reference an order or judgment subject to appeal and he appears to be asking this Court to command a public officer to perform an act, we construe this document as a petition for writ of mandamus. See generally TEX. R. APP. P. 25.1(a), (d); In re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler 2006, orig. proceeding) ("The function of the writ of mandamus is to compel action by those who by virtue of their official or quasi-official positions are charged with a positive duty to act.") (citing Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70 (1953)).
To be entitled to mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a purely ministerial act not involving a discretionary or judicial decision. In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).
It is the relator's burden to properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). In addition to other requirements, the relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. The relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record).
A court of appeals may issue writs of mandamus against: (1) a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district; (2) a judge of a district court who is acting as a magistrate at a court of inquiry under the code of criminal procedure in the court of appeals district; or (3) an associate judge of a district or county court appointed by a judge under the family code in the court of appeals district for the judge who appointed the associate judge. See TEX. GOV'T CODE ANN. § 22.221(b) (West, Westlaw through 2017 1st C.S.). Further, a court of appeals may issue a writ of mandamus that is "necessary to enforce the jurisdiction of the court." Id. § 22.221(a).
The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that it should be denied in part and dismissed in part. We deny relator's claims against the judge because relator's pleading fails to comply with the appellate rules and relator has failed to meet his burden to establish entitlement to mandamus relief for his alleged harm. See In re Harris, 491 S.W.3d at 334; In re McCann, 422 S.W.3d at 704). We dismiss relator's claims against the sheriff and district attorney because we do not have jurisdiction to issue a writ of mandamus against these individuals under the circumstances present here. See TEX. GOV'T CODE ANN. § 22.221(a), (b); see also In re Mason, No. 05-16-01450-CV, 2017 WL 2464688, at *1 (Tex. App.—Dallas June 7, 2017, orig. proceeding) (mem. op.); In re Cornett, No. 10-16-00023-CR, 2016 WL 454996, at *1 (Tex. App.—Waco Feb. 4, 2016, orig. proceeding). Accordingly, the petition for writ of mandamus is denied in part and dismissed in part.
DORI CONTRERAS
JUSTICE Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this the 1st day of December, 2017.