in Re: Robert Hernandez Miller, Relator ( 2003 )

NO. 07-03-0166-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 11, 2003

______________________________



IN RE ROBERT H. MILLER, RELATOR

_________________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Robert H. Miller has filed a pleading denominated as Appellant's Motion to Compel the State to File, Process and Respond to Appellant's Application for Writ of Habeas Corpus, to Stop Denying Appellant Access to the Courts and Justice. He seeks an order directing the district clerk of Lynn County to file and process an application for writ of habeas corpus which Miller allegedly filed with the clerk on January 25, 2003. Miller does not urge in his motion that he is appealing from an order or other action of a trial court. Thus, we consider his motion as an original proceeding seeking a writ of mandamus directing the district clerk of Lynn County to perform certain actions.

Miller's motion does not comply with Tex. R. App. P. 52.2, 52.3 or 52.7. Moreover, the motion does not seek to invoke this court's appellate jurisdiction or to protect this court's jurisdiction. We do not have authority to issue mandamus directed to the clerk under the facts and circumstances alleged. See Tex. Gov't. Code Ann. § 22.221.

We deny the motion. Tex. R. App. P. 42.3.

Phil Johnson

Chief Justice

he would try to complete the record by September 1, 2004. The record has not been filed and we have had no further contact by the court reporter.

The trial court and an appellate court are jointly responsible for ensuring that an appellate record is filed. Tex. R. App. P. 35.3(c). Among other duties, the trial court must "help ensure that the reporter's work is timely accomplished by setting work priorities," and may appoint a deputy reporter when the official court reporter is unable to perform the duties. Tex. R. App. P. 13.3 and 13.5.

Accordingly, we abate the appeal and remand the cause to the 99th District Court of Lubbock County for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine:

• whether Deborah Reeves is unable to prepare and file the reporter's record within 30 days from the date of hearing; or
• whether the trial court should appoint a deputy reporter to prepare and file the reporter's record within 30 days from the date of hearing.

The trial court shall cause the hearing to be transcribed. The trial court also shall enter any and all orders necessary to assure the timely completion of the reporter's record in this appeal. So too shall it prepare and file its findings and orders and cause them to be included in a supplemental clerk's record. In addition, the trial court shall cause the transcription of the hearing to be included in a supplemental reporter's record. Both the supplemental clerk's record and supplemental reporter's record shall be submitted to the Clerk of this Court by September 28, 2004.

It is so ordered.

Per Curiam