in Re David Smotherman ( 2009 )

Memorandum Opinion Issued September 1, 2009 Withdrawn; Motion for Rehearing Overruled; Petition for Writ of Mandamus Denied; and Memorandum Opinion filed December 3, 2009

In The

Fourteenth Court of Appeals

NO. 14-09-00692-CV

In Re David Smotherman, Relator

  ORIGINAL PROCEEDING

  WRIT OF MANDAMUS

MEMORANDUM OPINION  ON  REHEARING

Relator’s motion for rehearing is overruled.  The memorandum opinion issued on September 1, 2009, is withdrawn.  This memorandum opinion is substituted in its place.

On August 12, 2009, relator David Smotherman filed a petition for writ of mandamus in this Court.  See Tex. Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, relator asks this Court to compel the Honorable Robert H. Shoemake, presiding judge of the 434th Judicial District Court of Fort Bend County, to rule on his pending motion for appointment of counsel and motion for photocopying.  On September 1, 2009, this Court denied relator’s petition because it did not comply with the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 20.1; 52.3(a); 52.3(j); 52.7(a)(1). 

On September 10, 2009, relator filed a motion for rehearing.  While relator has cured the other defects in his petition, he has not provided this Court with file-stamped copies of his motion for appointment of counsel and motion for photocopying.  Relator states that he does not have copies of all documents material to his claim for relief because he receives only five carbon sheets per week.  At this Court’s request, the Office of the Attorney General filed a response to relator’s petition. 

In its response, the Attorney General asserts that it was error to deny relator’s petition for procedural defects without first giving him an opportunity to cure those defects.  With respect to relator’s failure to file an affidavit of indigence, the Attorney General relies on Rule 20.1(c)(3) of the Texas Rules of Appellate Procedure, which provides: 

Extension of Time.  The appellate court may extend the time to file an affidavit of indigence if, within 15 days after the deadline for filing the affidavit, the party files in the appellate court a motion complying with Rule 10.5(b).  But the court may not dismiss the appeal . . . on the ground that the appellant has failed to file an affidavit or a sufficient affidavit of indigence unless the court has first provided the appellant notice of the deficiency and a reasonable time to remedy it.

Tex. R. App. P. 20.1(c)(3) (emphasis added).  However, the language of Rule 20.1(c)(3) is applicable to appeals, not original proceedings.  This is further demonstrated by the language used in Rule 20.1(c)(1) and (2).  Id. 20.1(c)(1), (2). Rule 20.1(c)(1) also applies to appeals:

Appeals.  An appellant must file the affidavit of indigence in the trial court with or before the notice of appeal. . . . . 

Id. 20.1(c)(1) (emphasis added).  However, Rule 20.1(c)(2) specifically applies to original proceedings: 

Other Proceedings.  In any other appellate court proceeding, a petitioner must file the affidavit of indigence in the court in which the proceeding is filed, with or before the document seeking relief. 

Id. 20.1(c)(2) (emphasis added). 

The Attorney General further opines that, if Rule 20.1(c)(3) stood alone, the error would be harmless because this Court relied on three other grounds for denying the petition, i.e., failure to provide a list of parties and counsel, failure to include certification that factual statements are supported by competent evidence, and failure to provide sworn or certified copies of all documents material to  relator’s claim for relief, without allowing a reasonable time to correct such defects or irregularities. However, the Attorney General argues that it was error to summarily deny the petition for writ of mandamus under Rule 44.3 of the Texas Rules of Appellate Procedure on any formal or procedural ground.  Tex. R. App. P. 44.3.  Rule 44.3 provides:

A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. 

Id. (emphasis added).[1] The Attorney General asserts that Rule 44.3 is applicable to original proceedings. However, by the wording of Rule 44.3—that the court of appeals must “not affirm or reverse a judgment or dismiss an appeal”—it is apparent that it only applies to appeals, not original proceedings.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal.  In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding).  A mandamus may be issued to compel the trial court to act on a motion that is properly filed and pending before it.  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding).  To establish that the trial court abused its discretion by failing to rule, the relator must show that the trial court (1) had a legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and (3) failed or refused to do so.  In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding). While we have jurisdiction to direct the trial court to rule on a motion, we may not tell the trial court how to rule on such motion.  In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding).  Moreover, the trial court has a reasonable time in which to act on the pending motions.  Ex parte Bates, 65 S.W.3d 133, 134–35 (Tex. App.—Amarillo 2001, orig. proceeding). 

            Relator has not submitted file-stamped copies of any pending motions with his petition for mandamus.  Relator complains that he is unable to provide copies of his pending motions because he receives only five sheets of carbon paper per week.  This argument does not address the failure to submit file-stamped copies of the pending motions.  Without file-stamped copies, relator cannot demonstrate that he actually filed those motions in the trial court or the date(s) the motions were filed in order to demonstrate that the trial court has not acted on those motions within a reasonable time. 

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny relator’s petition for writ of mandamus.

                                                                                    PER CURIAM

Panel consists of Justices Yates, Frost, and Brown.

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[1] See also Springer v. Springer, 240 S.W.3d 871 (Tex. 2007) (per curiam) (“Failure to file an affidavit of indigence ‘with or before’ a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.”) (emphasis added); Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829, 830 (Tex. 2007) (per curiam) (holding court of appeals erred by dismissing pro se appellant’s appeal for want of prosecution for failure to file timely affidavit of indigence without first allowing him reasonable time to cure error); Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899 (Tex. 2006) (per curiam) (reversing court of appeals’ dismissal of pro se appellant’s appeal for failure to file affidavit of indigence with or before notice of appeal because Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing appellant reasonable time to correct error).