in Re Tandy W. Wilkerson ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00226-CR
IN RE TANDY W. WILKERSON
Original Proceeding
MEMORANDUM OPINION
In this mandamus proceeding, Tandy W. Wilkerson requests this Court to order
1) Barbara W. Axtell, the Robertson County District Clerk, to supply him with a “low
cost” summary or index of the Clerk’s Record; and 2) the Honorable Robert Stem, judge
of the 82nd District Court, to rule on Wilkerson’s motion to rescind the court’s order
withdrawing funds from Wilkerson’s inmate account. There are procedural problems
with this petition, including that it has not been served on the district clerk or the trial
court judge as the respondents or the State as the real party in interest, TEX. R. APP. P.
9.5; 52.2, and no record is included with the petition, TEX. R. APP. P. 52.7. However, we
use Rule 2 and look beyond these deficiencies to expedite the disposition of Wilkerson's
petition. TEX. R. APP. P. 2.
As a Court of Appeals, we have no jurisdiction to compel a district clerk to act
except to enforce our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a), (b) (West
2004). Wilkerson has not alleged any need for this Court to protect that jurisdiction.
Accordingly, Wilkerson’s petition as to the district clerk is dismissed for want of
jurisdiction.
Further, the need to consider and rule on a properly filed and presented
document is not a discretionary act but a ministerial one, and a trial court is allowed a
reasonable time within which to perform that act. In re Chavez, 62 S.W.3d 225, 228-229
(Tex. App.—Amarillo 2001, orig. proceeding). Wilkerson bears the burden of providing
this Court with a sufficient record to establish his right to mandamus relief. See In re
Blackwell, No. 10-13-00111-CV, 2013 Tex. App. LEXIS 4936, 3-4 (Tex. App.—Waco Apr.
18, 2013, orig. proceeding) (mem. op.); In re Douthit, No. 10-12-00121-CV, 2012 Tex. App.
LEXIS 3542 (Tex. App.—Waco May 2, 2012, orig. proceeding) (mem. op.); In re Blakeney,
254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). A proper record
would contain the motion to rescind the court’s order withdrawing funds from
Wilkerson’s inmate account and all documentary evidence like letters, if any, through
which Wilkerson attempted to obtain a ruling, and responses, if any by the clerk or trial
court. Because no record was included with Wilkerson's petition, we have no way of
knowing whether the motion has been pending for an unreasonable length of time and
whether the trial court failed or refused to rule on the motion.
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Accordingly, Wilkerson’s petition as to the trial court is denied.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition dismissed in part and denied in part
Opinion delivered and filed July 2, 2015
Do not publish
[OT06]
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