in Re: Tommy Perkins ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00097-CR
______________________________
IN RE: TOMMY PERKINS
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Tommy Perkins has filed a petition for writ of mandamus requesting this Court order the
Honorable Eric Clifford, presiding judge of the 6th Judicial District,1 to rule on his petition for
expunction of records and requesting this Court to order Marvin Ann Patterson, clerk of the 6th
Judicial District in Lamar County, Texas, to respond to his requests concerning the status of the
expunction petition. Perkins alleges he was convicted of capital murder July 29, 1993, and filed
a petition for expunction in June 2008.
To be entitled to mandamus relief, a relator must show that he has no adequate remedy at
law to redress the alleged harm and that he seeks to compel a ministerial act, not involving a
discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). An act is
ministerial if it constitutes a duty clearly fixed and required by law. State ex rel. Curry v. Gray,
726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding). Relator must establish that the
trial court (1) had a ministerial duty to perform the act, (2) was asked to perform the act, and
(3) failed or refused to do so. In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003,
orig. proceeding) (per curiam).
To the extent Perkins’ petition seeks relief against the district clerk, we lack jurisdiction
to grant his request. This Court does not have mandamus jurisdiction over district clerks. In re
Coronado, 980 S.W.2d 691, 692–93 (Tex. App.—San Antonio 1998, orig. proceeding) (per
1
We note that Perkins requested relief against the Honorable Jim D. Lovett, who was formerly the presiding judge of
the 6th Judicial District. As the current presiding judge, the Honorable Eric Clifford is automatically substituted as a
party. See TEX. R. APP. P. 7.2(a).
2
curiam) (for district clerk to fall within jurisdictional reach of court of appeals, must establish
that mandamus is necessary to enforce court of appeals’ jurisdiction). This Court’s mandamus
jurisdiction, except when necessary to enforce our jurisdiction, is limited to district courts or
county courts. TEX. GOV’T CODE ANN. § 22.221 (West 2004). To the extent Perkins seeks relief
against the district clerk, we deny his request for lack of jurisdiction.
To the extent that Perkins complains about the district court refusing to rule on his
expunction, Perkins has failed to provide this Court with an adequate record. Although a trial
court has a ministerial duty to consider and rule on a properly filed and pending motion within a
reasonable time,2 it is the relator’s burden to provide this Court with a sufficient record to
establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); see
TEX. R. APP. P. 52.3; In re Mendoza, 131 S.W.3d 167 (Tex. App.—San Antonio 2004, orig.
proceeding). While the petition does contain an appendix, the appendix does not include “a
certified or sworn copy of any order complained of, or any other document showing the matter
complained of.” See TEX. R. APP. P. 52.3(k)(1)(A). We note that Perkins has attached a copy of
a denial of a bench warrant. Perkins, though, has failed to provide this Court with a copy of the
motion complained of—the expunction petition. See TEX. R. APP. P. 52.3(k). We cannot
evaluate the petition for writ of mandamus without a copy of the expunction petition.
2
In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.––Texarkana 2008, orig. proceeding).
3
For the reasons stated, we deny the petition for writ of mandamus.
Bailey C. Moseley
Justice
Date Submitted: June 12, 2012
Date Decided: June 13, 2012
Do Not Publish
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