in Re Wayne Ernest Barker ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00452-CV
IN RE WAYNE ERNEST BARKER
Original Proceeding
MEMORANDUM OPINION
Wayne Ernest Barker, a prison inmate, has presented a petition for writ of
mandamus requesting a mandamus to issue against Brad Livingston, the director of the
Texas Department of Criminal Justice.
In another proceeding currently pending before us, Barker has conceded that he
has been determined to be a vexatious litigant. In re Barker, 10-11-00444-CV, filed
November 29, 2011. However, he does not state whether the trial court rendered an
11.101 prefiling order against him. See TEX. CIV. PRAC. & REM. CODE § 11.101 (West
Supp. 2011). Further, we note that his name does not appear on the Office of Court
Administration’s list of vexatious litigants with prefiling orders rendered against them.1
1 See http://www.courts.state.tx.us/oca/vexatiouslitigants.asp.
Because there is no confirmation of a prefiling order rendered against Barker, our Clerk
was not prohibited from filing this petition for writ of mandamus. See id. § 11.103(a).
There are numerous procedural problems with Barker’s petition. We use Rule 2,
however, to look beyond these procedural problems to reach the merits of the petition.
TEX. R. APP. P. 2.
This Court has jurisdiction to issue writs of mandamus only against a judge of a
district or county court in our appellate district or in order to protect our jurisdiction.
TEX. GOV’T CODE ANN. § 22.221 (a), (b) (West 2004). Brad Livingston is not a district or
county court judge. Barker does not allege the mandamus is necessary to protect our
jurisdiction. Thus, we have no jurisdiction to issue a writ of mandamus against Brad
Livingston.
Accordingly, Barker’s petition for writ of mandamus is dismissed.
Barker also presented for filing with this Court a declaration of indigence with
his petition for writ of mandamus. Under the circumstance of this case, we again use
Rule 2 and grant Barker‘s request to proceed without the advance payment of cost. TEX.
R. APP. P. 2.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition dismissed
Opinion delivered and filed December 21, 2011
[OT06]
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