in Re Herman Slaughter, Jr. ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00122-CV
IN RE HERMAN SLAUGHTER, JR. RELATOR
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION 1
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Pro se relator Herman Slaughter, Jr. has filed a petition for a writ of
mandamus. As we construe relator’s petition, he asks us to require respondent,
the Honorable Mike Thomas, who is the presiding judge of Criminal District Court
Number Four of Tarrant County, to rule on relator’s “Amended Objections to
Reporter’s Record Fees” and to deliver a complete copy of the reporter’s record
from relator’s criminal proceedings so that relator may prepare an application for
1
See Tex. R. App. P. 47.4, 52.8(d).
a writ of habeas corpus. We conditionally grant relief in part and deny relief in
part. 2
Background Facts
In December 2010, pursuant to a plea bargain agreement, the trial court
convicted relator of possessing between two hundred and four hundred grams of
cocaine 3 and sentenced him to seventeen years’ confinement. A term of relator’s
plea-bargain agreement precluded him from appealing his conviction, and he did
not do so.
Almost a year later, in November 2011, relator began seeking copies of the
clerk’s and reporter’s records from his criminal case for the purpose of preparing
an application for a writ of habeas corpus. In January 2012, relator filed his
original “Objections to Clerk and Reporter’s Fees,” stating, in part, that although
he had requested a cost summary of preparing a reporter’s record from the court
reporter who had transcribed his criminal proceedings, the court reporter had not
responded. In conjunction with filing the original objections, relator filed a
statement in which he attested his inability to pay costs because he owns no real
estate, has no cash or income, and has debts and monthly expenses. Relator
eventually paid $55.65 to receive a copy of the 159-page clerk’s record from his
criminal case.
2
See Tex. R. App. P. 52.8(a), (c).
3
See Tex. Health & Safety Code Ann. § 481.115(e) (West 2010).
2
In February 2012, the court reporter sent relator a letter informing him that
the estimated cost of the transcript from his criminal proceedings was $1,065 and
that the transcript would be delivered upon payment of that amount. After
receiving a letter from relator, the court reporter amended the estimate to $1,165.
In July 2012, relator filed his amended objections pursuant to section
52.047(b) of the government code, 4 contending that the $1,165 fee was “well
beyond his means of payment” and asking the trial court to determine a
reasonable fee. Relator contended in the amended objections that section
52.047(b) invoked a ministerial duty upon respondent. He proposed to pay ten
cents per page for the record, to borrow the record for ninety days and then
return it, or to be allowed to view the record while confined in Tarrant County
upon being transferred there through a bench warrant.
Months after relator filed his amended objections, the Tarrant County
District Clerk sent a letter to him that stated, “In reference to your
correspondence regarding the [amended objections], please find enclosed a file-
marked copy. In reference to your inquiry, the Court is taking the motion/request
under advisement.” Our record does not reflect that respondent has ever ruled
on relator’s July 2012 amended objections.
Relator filed a petition for a writ of mandamus in this court, arguing in part
that respondent has violated his due process rights by taking no action on his
4
See Tex. Gov’t Code Ann. § 52.047(b) (West 2013).
3
amended objections. Relator also asked us to require respondent to deliver a
complete copy of the reporter’s record to him. The real party in interest, the
State of Texas, responded by arguing that we lack jurisdiction and that
respondent has not abused his discretion.
Relator’s Entitlement to Partial Relief
Mandamus relief is proper only to correct a clear abuse of discretion when
there is no adequate remedy by appeal. In re State, 355 S.W.3d 611, 613 (Tex.
2011) (orig. proceeding). A trial court clearly abuses its discretion when it
reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or when it clearly fails to correctly analyze or apply the
law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding).
A court reporter must, on written request, furnish a transcript of reported
evidence or other proceedings. Tex. Gov’t Code Ann. §§ 52.046–.047 (West
2013); see Browning v. Alexander, 843 S.W.2d 703, 704 (Tex. App.—Corpus
Christi 1992, orig. proceeding); see also In re Ledbetter, No. 07-03-00389-CV,
2003 WL 22061180, at *1 (Tex. App.—Amarillo Sept. 4, 2003, orig. proceeding)
(not designated for publication) (“[T]he official court reporter . . . is burdened with
the duty to transcribe court proceedings and furnish transcripts of those
proceedings to others.”). The court reporter may charge a fee for preparing the
4
transcript, but if “an objection is made to the amount of the transcript fee, the
judge shall determine a reasonable fee, taking into consideration the difficulty
and technicality of the material to be transcribed and any time constraints
imposed by the person requesting the transcript.” Tex. Gov’t Code Ann.
§ 52.047(b) (emphasis added). The term “shall” as used in a statute is generally
recognized as mandatory, creating a duty or obligation. In re Salazar, 315
S.W.3d 279, 283–84 (Tex. App.—Fort Worth 2010, orig. proceeding) (citing
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)).
A trial court “commits a clear abuse of discretion when it refuses to
exercise its discretion to hear and rule on pending motions,” and a court of
appeals may compel a trial court to rule. Grant v. Wood, 916 S.W.2d 42, 45
(Tex. App.—Houston [1st Dist.] 1995, orig. proceeding); see In re Am. Media
Consol., 121 S.W.3d 70, 72 (Tex. App.—San Antonio 2003, orig. proceeding).
The trial court’s duty to act on a pending motion arises when the movant has
brought the motion to the court’s attention and the court has had a reasonable
time to rule. In re Layton, 257 S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig.
proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.
proceeding).
Applying the unambiguous and plain meaning of section 52.047(b) of the
government code, as we generally must, 5 we conclude that the section requires
5
See Wood v. Tex. Dep’t of Pub. Safety, 331 S.W.3d 78, 80 (Tex. App.—
Fort Worth 2010, no pet.).
5
respondent to rule on relator’s amended objections and to “determine a
reasonable fee, taking into consideration the difficulty and technicality of the
material to be transcribed and any time constraints imposed by” relator. Tex.
Gov’t Code Ann. § 52.047(b). Our record in this original proceeding does not
contain a ruling on relator’s July 2012 amended objections. Respondent appears
to have known about the filing of the amended objections at least since October
2012 because in that month, the Tarrant County District Clerk informed relator
that respondent had taken the amended objections under advisement. Thus, we
hold that respondent has clearly abused his discretion by not ruling on relator’s
amended objections; that because respondent has not ruled, relator has no
adequate remedy by appeal; and that relator is therefore entitled to relief. See
State, 355 S.W.3d at 613; Grant, 916 S.W.2d at 45; see also In re Mitchell, No.
10-07-00250-CV, 2008 WL 191477, at *1–2 (Tex. App.—Waco Jan. 23, 2008,
orig. proceeding) (mem. op.).
We reject the State’s arguments with respect to respondent’s refusal to
rule. First, although the State argues that we lack jurisdiction to issue a writ of
mandamus against respondent under the circumstances of this case, we
generally have the authority to issue writs of mandamus against district court
judges within our geographic jurisdiction. See Tex. Gov’t Code Ann.
§ 22.221(b)(1) (West 2004); Padieu v. Court of Appeals of Tex., Fifth Dist., 392
S.W.3d 115, 116 (Tex. Crim. App. 2013) (orig. proceeding). And more
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specifically, the court of criminal appeals has recently held that a court of appeals
has jurisdiction in a mandamus proceeding relating to a trial court’s refusal to rule
on a request for records that are intended to be used in the preparation of a not-
yet-filed habeas corpus application. Padieu, 392 S.W.3d at 117–18; see In re
McGoldrick, No. 03-12-00094-CV, 2013 WL 499477, at *1 (Tex. App.—Austin
Jan. 29, 2013, orig. proceeding) (mem. op.) (holding that in light of Padieu, a
court of appeals had jurisdiction to consider a relator’s request for mandamus
relief “requiring the trial court to rule on his motion for a copy of the clerk’s record
and reporter’s record from his trial”).
Also, to the extent that the State argues that the trial court did not have
jurisdiction to consider relator’s request for records because relator’s conviction
is final, we conclude that section 52.047(b)’s unambiguous language not only
gave the trial court the authority to rule on relator’s amended objections but
required it to do so. See Tex. Gov’t Code Ann. § 52.047(b) (“If an objection is
made to the amount of the transcript fee, the judge shall determine a reasonable
fee, taking into consideration the difficulty and technicality of the material to be
transcribed and any time constraints imposed by the person requesting the
transcript.”); see also State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App.
2002) (stating that upon a criminal defendant’s final conviction, the trial court “has
special or limited jurisdiction to ensure that a higher court’s mandate is carried
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out and to perform other functions specified by statute”) (emphasis added)
(footnote omitted).
The State also argues that respondent has not abused his discretion by
declining to rule on relator’s objections because relator did not appeal his
conviction and expressly waived his right of appeal. But the State has not
contended that in his plea bargain, relator expressly waived a right to retrieve
records related to his conviction under section 52.047, for use in whatever
purpose, 6 or that he expressly waived a right to seek postconviction relief through
applying for a writ of habeas corpus. See Ex parte Reedy, 282 S.W.3d 492,
494–96 (Tex. Crim. App. 2009) (distinguishing between a defendant’s waiver of
appellate remedies and a defendant’s waiver of postconviction habeas corpus
relief and explaining that an “express waiver” of seeking habeas corpus relief
must be made voluntarily, knowingly, and intelligently). 7
Finally, the State argues that relator will not ultimately be entitled to a free
record “to explore possible grounds for collateral attack upon [his] conviction.”
But in relator’s amended objections that he expressly predicated on section
52.047(b), he did not principally request free access to the record; rather, he
6
Section 52.047 states that a “person” may apply for transcripts; the
section does not expressly limit its applicability to proper litigants. See Tex. Gov’t
Code Ann. § 52.047(a).
7
The State has not cited authority establishing that a waiver of appellate
rights also waives the right to file an application for a postconviction writ of
habeas corpus.
8
objected to the court reporter’s quoted fee and asked respondent to set a
reasonable fee.
Finally, relator asks us to require respondent to provide the reporter’s
record to him. However, because respondent has not yet ruled on relator’s
amended objections and because a ruling on the amended objections could
make it possible for relator to obtain the reporter’s record, we deny that part of
relator’s mandamus petition because it is premature. See In re Hearn, 137
S.W.3d 681, 686 (Tex. App.—San Antonio 2004, orig. proceeding) (“Hearn seeks
an order from this court transferring the case back to Galveston County. The
issue is premature because the trial court has not yet ruled on the motion to
transfer the case.”); In re Sensitive Care Inc., 28 S.W.3d 35, 42 (Tex. App.—Fort
Worth 2000, orig. proceeding); see also In re Gullatt, No. 05-08-00639-CV, 2008
WL 2266288, at *1 (Tex. App.—Dallas June 4, 2008, orig. proceeding) (mem.
op.) (denying a petition for writ of mandamus because it was not ripe for
adjudication); In re Weesner, No. 05-01-00024-CV, 2001 WL 15959, at *1 (Tex.
App.—Dallas Jan. 9, 2001, orig. proceeding) (not designated for publication)
(disposing of an issue in an original proceeding based on ripeness when a trial
court had not ruled on a pending motion).
Conclusion
For the reasons expressed above, having held that respondent abused his
discretion by not ruling on relator’s amended objections to the court reporter’s
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transcript cost estimate and that relator does not have an adequate remedy by
appeal from the trial court’s refusal to rule, we conditionally grant relator’s petition
for a writ of mandamus to the extent that we order respondent to rule on relator’s
amended objections. See Tex. Gov’t Code Ann. § 52.047(b). We deny all other
relief requested by relator. A writ of mandamus will issue only in the event that
respondent fails to comply with our instructions within thirty days of the date of
this opinion.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: May 14, 2013
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