Barry Dwayne Minnfee v. Mr. David Sweetin, Asst. Warden Richard Gunnels, Chief Division Counsel (Fbi) and Mr. William D. Haman ( 2011 )

NUMBERS 13-11-00382-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE RANDALL BOLIVAR
On Writ of Prohibition
Emergency Motion to Stay Court Proceedings.
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion Per Curiam1
On June 17, 2011, Randall Bolivar filed a “Writ of Prohibition Emergency Motion
to Stay Court Proceedings.” The Court has requested and received a response from
the State of Texas, acting by and through the Honorable Armando R. Villalobos,
Cameron County District Attorney.
1
See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is
not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
1
The traditional test for determining whether mandamus or prohibition relief is
appropriate requires the relator to establish (1) that he has no adequate remedy at law
to redress the harm that he alleges will ensue if the act he wishes to prohibit is carried
out, and (2) that that the act he seeks to compel or prohibit does not involve a
discretionary or judicial decision. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim.
App. 2009). If the relator fails to satisfy either aspect of this two-part test, then relief
should be denied. See id. The latter requirement is satisfied if the relator can show he
has “a clear right to the relief sought”—that is to say, “when the facts and circumstances
dictate but one rational decision” under unequivocal, well-settled (i.e., from extant
statutory, constitutional, or case law sources), and clearly controlling legal principles.
State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007). The “essential difference” between a writ of prohibition and a
writ of mandamus is that the former issues to prevent the commission of a future act
whereas the latter operates to undo or nullify an act already performed; the former will
not be granted when the act sought to be prevented is already done, but will lie when
such an act is not a full, complete and accomplished judicial act. Wade v. Mays, 689
S.W.2d 893, 897 (Tex. Crim. App. 1985).
It is relator’s burden to properly request and show entitlement to mandamus
relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself
entitled to the extraordinary relief he seeks.”). In addition to other requirements, relator
must include a statement of facts supported by citations to “competent evidence
included in the appendix or record,” and must also provide “a clear and concise
2
argument for the contentions made, with appropriate citations to authorities and to the
appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that
relator must furnish an appendix or record sufficient to support the claim for mandamus
relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a)
(specifying the required contents for the record).
The Court, having examined and fully considered the Writ of Prohibition
Emergency Motion to Stay Court Proceedings and the response thereto, is of the
opinion that relator has not met his burden to obtain the requested relief. See State ex
rel. Young, 236 S.W.3d at 210. Accordingly, relator’s petition for writ of prohibition and
emergency motion to stay is denied. See TEX. R. APP. P. 52.8(a).
PER CURIAM
J. Benavides, dissenting without a separate opinion, would conclude that the record
provided is sufficient to examine relator’s claims on the merits.
Do not publish. TEX. R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 24th day of June, 2011.
3