in Re William M. Windsor ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00207-CR
IN RE WILLIAM M. WINDSOR
Original Proceeding
CONCURRING OPINION
While I concur with the Court’s disposition of this original proceeding, I write
separately to discuss Relator William M. Windsor’s issues for the benefit of the parties.
Windsor seeks mandamus relief against the Respondent trial-court judge, the
Honorable Cindy Ermatinger, Presiding Judge of the 443rd District Court in Ellis County,
and against the Ellis County District Clerk, Melanie Reed. The underlying action is a
concluded extradition proceeding against Windsor that this Court is quite familiar with.
See generally Ex parte Windsor, No. 10-14-00401-CR, 2016 WL 192303 (Tex. App.—Waco
Jan. 14, 2016, pet. ref’d) (mem. op., not designated for publication).
The extradition proceeding arose out of an arrest warrant for Windsor from
Missoula County, Montana. Id., 2016 WL 192303, at *1. Windsor was jailed in Ellis
County, and in the extradition proceeding, on Windsor’s application for writ of habeas
corpus, Judge Ermatinger granted Windsor a personal-recognizance (PR) bond in the
amount of $100,000. Id., 2016 WL 192303, at *4. The order of release and the PR bond had
the following conditions: (1) Windsor must turn over his passport; (2) Windsor must
reside at a designated hotel in Richardson, Texas; and (3) Windsor must inform the court
immediately if he changes his residence. Id.
Thereafter, a Texas Governor’s warrant issued for Windsor’s arrest and extradition
to Montana, but Windsor had already left Texas, ostensibly to turn himself in to Montana
authorities. Id., 2016 WL 192303, at *4-6. When Windsor failed to appear at the hearing
on the State’s motion for an emergency hearing and order of surrender, Judge Ermatinger
forfeited Windsor’s PR bond in a December 30, 2014 judgment nisi.1 Id., 2016 WL 192303,
at *6. While his habeas appeal was pending before us, Windsor filed a notice stating that
he had been incarcerated in Idaho and then in Montana, having been arrested in Idaho
and then extradited from Idaho to Montana.2 Id.
Despite the conclusion of both the underlying extradition proceeding and the
Montana criminal case against Windsor, Windsor has continued to file or allegedly
1
From a companion original proceeding, this Court is aware that there is a pending bond-forfeiture case.
See In re Windsor, No. 10-16-00206-CR, 2016 WL ----- (Tex. App.—Waco Aug. 31, 2016, orig. proceeding)
(mem. op., not designated for publication). And from yet another companion original proceeding, this
Court is aware that Windsor was indicted for the offense of bail jumping and that that case was dismissed
without prejudice. See In re Windsor, No. 10-16-00202-CR, 2016 WL ----- (Tex. App.—Waco Aug. 31, 2016,
orig. proceeding) (mem. op., not designated for publication).
2
From communications and filings from Windsor in his many pending appellate proceedings in this court,
see Windsor v. Round, --- S.W.3d ---, 2014 WL 7235538 (Tex. App.—Waco 2014, order), this Court is aware
that Windsor was tried in Montana.
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attempt to file documents in the underlying action, which brings us to the instant original
proceeding against the Respondent trial-court judge and the Respondent district clerk.
Windsor’s petition asserts three issues. The second issue is Windsor’s request for
mandamus relief against the district clerk.3 Windsor alleges that the district clerk is not
filing and docketing all of the documents that he has tendered for filing, and he petitions
us to order the district clerk to file and docket all of Windsor’s tendered documents. A
district clerk has a ministerial duty to accept and file all pleadings presented for filing. In
re Bernard, 993 S.W.2d 453, 454 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding)
(O’Connor, J., concurring); see also DeLeon v. District Clerk, 187 S.W.3d 473, 474 (Tex. Crim.
App. 2006) (orig. proceeding).
A court of appeals has no jurisdiction to issue a writ of mandamus against a clerk
except to protect or enforce its jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(b) (West
2004); In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding);
Bernard, 993 S.W.2d at 454; see also id. (O’Connor, J., concurring) (“When a district clerk
refuses to accept a pleading presented for filing, the party presenting the document may
seek relief by filing an application for writ of mandamus in the district court.”). Given
Windsor’s allegations, this exception is not applicable, and this Court lacks jurisdiction
over issue two.
Windsor’s first issue seeks mandamus relief against Judge Ermatinger because she
has not ruled on the following motions allegedly filed by Windsor: (1) “motion to cancel
3
Windsor’s petition lacks proof of service on the district clerk. A copy of all documents presented to the
Court must be served on all parties to the proceeding and must contain proof of service. TEX. R. APP. P. 9.5;
52.2.
In re Windsor Page 3
hearing or motion for continuance,” “sent for filing on December 30, 2014;” (2) “request
for return of passport,” “sent for filing on January 2, 2015;” and (3) “petition for writ of
habeas corpus,” “sent for filing on June 1, 2015.”4 All of these documents are included in
Windsor’s Appendix, along with a “demand for orders on pending motions,” allegedly
sent for filing on March 25, 2016.5
“A court with mandamus authority ‘will grant mandamus relief if relator can
demonstrate that the act sought to be compelled is purely ‘ministerial’ and that relator
has no other adequate legal remedy.’” In re Piper, 105 S.W.3d 107, 109 (Tex. App.—Waco
2003, orig. proceeding) (quoting State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 197-99 (Tex.
Crim. App. 2003) (orig. proceeding)). Consideration of a motion properly filed and before
the court is ministerial. State ex rel. Hill v. Ct. of Apps. for the 5th Dist., 34 S.W.3d 924, 927
(Tex. Crim. App. 2001) (orig. proceeding).
Mandamus may issue to compel a trial court to rule on a motion
which has been pending before the court for a reasonable period of time.
See In re Hearn, 137 S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig.
proceeding); In re Keeter, 134 S.W.3d 250, 252-53 (Tex. App.—Waco 2003,
orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo
2001, orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—
Houston [1st Dist.] 1992, orig. proceeding); see also In re Shredder Co., 225
S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). To obtain
mandamus relief for such refusal, a relator must establish: (1) the motion
was properly filed and has been pending for a reasonable time; (2) the
relator requested a ruling on the motion; and (3) the trial court refused to
rule. See Hearn, 137 S.W.3d at 685; Keeter, 134 S.W.3d at 252; Chavez, 62
S.W.3d at 228; Barnes, 832 S.W.2d at 426; see also Shredder Co., 225 S.W.3d at
4
Windsor’s petition does not explain why he is not seeking the relief that he is requesting in these motions
in the active and pending bond-forfeiture case.
5
None of these four documents is file-marked. Furthermore, Windsor’s appendix, which I would treat as
his record, is not certified or sworn, as required by Rules 52.3(k) and 52.7(a)(1). See TEX. R. APP. P. 52.3(k),
52.7(a)(1).
In re Windsor Page 4
679. The mere filing of a motion with a trial court clerk does not equate to
a request that the trial court rule on the motion. See Hearn, 137 S.W.3d at
685; Chavez, 62 S.W.3d at 228; Barnes, 832 S.W.2d at 426; cf. Shredder Co., 225
S.W.3d at 680 (“Relator has made repeated requests for a ruling on its
motion.”).
In re Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding).
Windsor bears the burden of providing a sufficient record to establish his right to
mandamus relief. See In re Mullins, 10-09-00143-CV, 2009 WL 2959716, at *1, n.1 (Tex.
App.—Waco Sept. 16, 2009, orig. proceeding) (mem. op.); In re Blakeney, 254 S.W.3d 659,
661 (Tex. App.—Texarkana 2008, orig. proceeding). I believe that Windsor has not met
his burden.
First, Windsor has not shown that the motions at issue have been properly filed;
none is file-marked and either certified or sworn to. Second, Windsor has not shown that
he has brought the motions to the trial judge’s attention; a trial judge’s ministerial duty
of considering and ruling on a motion properly filed and before the judge generally does
not arise until the movant has brought the motion to the trial judge’s attention, and
mandamus will not lie unless the movant makes such a showing and the trial judge then
fails or refuses to rule within a reasonable time. Chavez, 62 S.W.3d at 228. Also, the mere
filing of a pleading or letter with the clerk does not impute knowledge to the trial judge. See
In re Comeaux, No. 10-10-00243-CV, 2010 WL 3703662, at *2 (Tex. App.—Waco Sept. 22,
2010, orig. proceeding) (mem. op.) (citing In re Flores, No. 04-03-00449-CV, 2003 WL
21480964 (Tex. App.—San Antonio June 25, 2003, orig. proceeding) (mem. op.)). For these
reasons, I would deny Windsor’s first issue.
In his third issue, Windsor complains that Judge Ermatinger has failed to return
In re Windsor Page 5
his passport to him. Because Windsor’s “request for return of passport” is one of the
motions involved in issue one and has not been ruled on by Judge Ermatinger, I believe
that it is not properly before us in this original proceeding, and I would deny issue three
on that basis.
REX D. DAVIS
Justice
Concurring opinion delivered and filed August 31, 2016
Do not publish
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