in Re: Jason Zeno ( 2018 )

DISMISS; and Opinion Filed February 13, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00078-CV
IN RE JASON ZENO, Relator
Original Proceeding from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-5136707
MEMORANDUM OPINION
Before Justices Francis, Evans, and Schenck
Opinion by Justice Schenck
In this original proceeding, relator asks this Court to issue a writ directing the district clerk
to file a motion for child support modification and a request to proceed in forma pauperis that
relator purportedly sent to the district clerk for filing.
This Court derives its writ powers from section 22.221 of the Texas Government Code,
which states in pertinent part:
(a) Each court of appeals or a justice of a court of appeals may issue a writ of
mandamus and all other writs necessary to enforce the jurisdiction of the court.
(b) Each court of appeals for a court of appeals district may issue all writs of
mandamus, agreeable to the principles of law regulating those writs, 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 Chapter 52, 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 Chapter 201, Family Code, in the court of appeals district for the
judge who appointed the associate judge.
TEX. GOV’T CODE ANN. §§ 22.221(a),(b) (West Supp. 2017). The government code does not,
however, permit an intermediate appellate court to issue a writ of mandamus directing a district
clerk to act unless such a writ is necessary to enforce or protect the appellate court’s jurisdiction.
See, e.g., In re Simpson, 997 S.W.2d 939, 939 (Tex. App.—Waco 1999, orig. proceeding)
(dismissing petition for writ of mandamus that sought a writ compelling district clerk to accept a
motion for filing). Relator has no appeal pending in this Court and does not offer any explanation
for our need to act to protect our prospective jurisdiction. We, therefore, lack writ jurisdiction to
direct the conduct of the district clerk. See, e.g., In re Reese, No. 05-17-00607-CV, 2017 WL
2610039, at *1 (Tex. App.—Dallas June 16, 2017, orig. proceeding) (dismissing proceeding
seeking writ against district clerk for refusing to file documents).
Relator also complains that the district clerk blocked relator’s attempt to seek relief from
the district court judge. Mandamus relief is available against a trial judge if, after a district clerk
improperly refuses to file a party’s pleadings, the party seeks appropriate relief from the trial judge
and “the trial judge also improperly refuses to order the clerk to file the pleading or improperly
refuses to personally file the pleading.” In re Rowe, No. 05-16-00031-CV, 2016 WL 228840, at
*1 (Tex. App.—Dallas Jan. 19, 2016, orig. proceeding) (citing cases). For example, when a court
clerk refuses to accept a pleading for filing, the party may file an application for writ of mandamus
in the trial court seeking an order from the court directing the clerk to file the pleading or file the
pleading directly with the judge through a verified motion explaining that the clerk refused to
accept the pleading for filing. Id. at *2 (citing In re Bernard, 993 S.W.2d 453, 454–55 (Tex.
App.—Houston [1st Dist.] 1999, orig. proceeding) (O’Connor, J. concurring)). Here, relator has
not requested a writ against the district court judge, nor has relator shown that he has sought
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appropriate relief directly from the judge prior to his filing here. Although relator states that the
district clerk refused to file an application for writ of mandamus in the trial court, relator has not
provided this Court with proof of that attempted filing or proof of the district clerk’s refusal to file
the application. It is relator’s burden to bring forth a record showing that he is entitled to
mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). He has
not done so in this case.
Accordingly, we dismiss relator’s petition for writ of mandamus for want of jurisdiction.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
180078F.P05
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