in Re: Alfred Lee Stone ( 2014 )

Deny Writ and Opinion Filed October 16, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01275-CV
IN RE ALFRED LEE STONE, Relator
Original Proceeding from Dallas County, Texas
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Evans
Opinion by Justice Francis
In this petition for writ of mandamus, relator requests that the Court grant a writ of
mandamus compelling each of the civil district judges in Dallas County to compel the district
clerk to accept and file his “equitable bill of discovery” and other related pleadings not included
in this record. He contends, without supporting evidence, that he mailed his pleadings to the
district clerk, the pleadings were returned to him unfiled and that he requested that each district
judge accept his pleading. As proof of this request for performance, he attaches a “demand for
performance” dated the same date as the petition for writ of mandamus.
Relator’s petition does not comply with the Texas Rules of Appellate Procedure. On
appeal, as at trial, the pro se appellant must properly present its case. Strange v. Cont'l Cas. Co.,
126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied). Although the claims pleaded in pro
se inmate petitions should be liberally construed, the same procedural standards apply to inmates
at to other litigants. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.]
1992, no writ). If a pro se litigant is not required to comply with the applicable rules of
procedure, he would be given an unfair advantage over a litigant who is represented by counsel.
Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.—Amarillo 1998, pet. denied).
The Texas Rules of Appellate Procedure have specific requirements for the form and
contents of a petition for writ of mandamus. TEX. R. APP. P. 52.3. Relator’s petition is not
properly certified and his appendix is not authenticated. TEX. R. APP. P. 52.3(k). To be a sworn
copy, documents must be attached to a proper affidavit. Republic Nat'l Leasing Corp. v.
Schindler, 717 S.W.2d 606, 607 (Tex. 1986) (per curiam). Because the appendix is deficient
under rule 52.3(k), the mandamus record is also deficient under rule 52.7. TEX. R. APP. P. 52.7
Mandamus is an extraordinary remedy that is available only in limited circumstances.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Ordinarily, to obtain
mandamus relief, a relator must show both that the trial court has clearly abused its discretion
and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124,
135–36 (Tex. 2004) (orig. proceeding). Relator has not met these requirements.
When a district clerk refuses to accept a pleading presented for filing, the party may file
an application for writ of mandamus in the district court, or may attempt to file the pleading
directly with a district judge, explaining in a verified motion that the clerk refused to accept the
pleading for filing. In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig.
proceeding). Here the unauthenticated mandamus record does not reflect that the relator has
followed this procedure. We DENY the petition.
141275F.P05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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