in Re Dennis Davis and Gail Davis ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00134-CV

In re Dennis Davis and Gail Davis

Original Proceeding

MEMORANDUM  Opinion

            The petition for writ of mandamus is denied.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Petition denied

Opinion delivered and filed May 7, 2009

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upon on at least ten separate occasions, that would have helped us understand what his ultimate objective is and more to the point, would have allowed us to see if he was entitled to mandamus relief.  He did not.  Further, in the petition for writ of mandamus filed with us, Jones did not refer to a case number or offense or provide any other information that would help us identify the particular proceeding he seeks to expunge.

            We note that we are processing a direct appeal from an expunction proceeding regarding a terroristic threat charge out of Robertson County and initially thought that these two proceedings were related.  See Ex parte Jones, 10-10-00376-CV.  Upon further review, they appear to not be related.

            Notwithstanding a number of procedural irregularities, which we use Rule 2 to look past and proceed to a more expeditious result, Jones has failed to show that he is entitled to relief by mandamus.  Tex. R. App. P. 2. Specifically, we do not have jurisdiction by petition for writ of mandamus over the Clerk or the Court Coordinator unless it is to protect our jurisdiction.  See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding).  The petition filed does not raise an issue regarding the need to protect, or danger to, our jurisdiction.  Additionally, Jones presents no suggestion that he followed the procedure in the trial court to have Judge Steve Smith recused and we do not have jurisdiction to entertain a motion to recuse a trial court judge without the issue having been first presented to the presiding judge of the judicial region.  See Tex. R. Civ. P. 18a.  For these reasons, we dismiss Jones’s petition.

            Further, Jones did not pay the filing fee with his petition.  Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007).  See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5; Tex. Gov’t Code Ann. § 51.207(b); § 51.941(a) (Vernon 2005); and § 51.208 (Vernon Supp. 2009).  Under the circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2.  The write-off of the fees from the accounts receivable of the Court in no way eliminates or reduces the fees owed by Jones.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Petition dismissed

Opinion delivered and filed December 8, 2010

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