Opinion
No. 07-17-00305-CV
08-31-2017
IN RE ANTWAIN JAMAR TUTSON, RELATOR
Original Proceeding Arising From Proceedings Before the 108th District Court Potter County;
Trial Court Cause No. 66,888-E; Honorable Douglas R. Woodburn, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On August 14, 2017, Antwain Jamar Tutson, an inmate proceeding pro se, filed a petition for writ of mandamus seeking to compel the Honorable Douglas R. Woodburn, Judge of the 108th District Court, to rule on his post-conviction motion for judgment nunc pro tunc. By letter dated August 15, 2017, this court advised Tutson that the required filing fee of $155 did not accompany the filing of his petition. We directed him to pay the required filing fee or, in lieu thereof, to comply with chapter 14 of the Texas Civil Practice and Remedies Code by filing a statement of inability to afford payment of court costs, a separate affidavit relating to previous filings, and a certified copy of his inmate trust account statement. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.002(a), 14.004 (West 2017). We further advised that if he did not comply by August 25, 2017, this proceeding was subject to dismissal without further notice.
On August 28, 2017, Tutson filed a declaration of inability to pay costs and a statement of his Texas Department of Criminal Justice inmate account showing de minimis assets. Tutson did not, however, file an affidavit or declaration describing his previous filings. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a), (b) (requiring an affidavit or declaration stating the operative facts, case name, cause number, court, parties named, and the result of each action previously brought).
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). An inmate who files an affidavit or declaration of inability to pay costs in an appeal or original proceeding must also comply with chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a). An inmate's failure to comply with chapter 14 is grounds for dismissal of the appeal or original proceeding. See 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).
Because Tutson has failed to pay the filing fee or comply with chapter 14 of the Texas Civil Practice and Remedies Code within the time provided by this court for compliance, his original proceeding is dismissed without prejudice to its refiling.
Per Curiam