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in Re RWayne Johnson, Relator ( 2006 )


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  •                                   NO. 07-06-00445-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    DECEMBER 8, 2006
    ______________________________
    IN RE R. WAYNE JOHNSON, RELATOR
    _________________________________
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    ON PETITION FOR WRIT OF MANDAMUS
    Relator R. Wayne Johnson, a Texas prison inmate acting pro se, seeks a writ of
    mandamus directing respondent, the Honorable Don Emerson, Judge of the 320th District
    Court of Potter County to enter an order granting him permission to file suit against prison
    officials.1 Relator is required to obtain permission to file civil suits because he has been
    declared to be a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.101
    (Vernon 2002). We deny the petition.
    A writ of mandamus is an extraordinary remedy that will issue only to correct a clear
    abuse of discretion when there is no other adequate remedy by law. See In re D. Wilson
    Const. Co., 
    196 S.W.3d 774
    , 780 (Tex. 2006). It is the relator’s burden to show entitlement
    1
    Relator's petition was accompanied by a “motion to proceed in forma pauperis.“
    We have determined the motion meets the requirements of Rule of Appellate Procedure
    20.1(b) and grant the motion.
    to the relief being requested. See Johnson v. Fourth District Court of Appeals, 
    700 S.W.2d 916
    , 917 (Tex. 1985) (orig. proceeding). Merely showing reversible error will not satisfy the
    requirement that the relator show a remedy by appeal would be inadequate, In re Masonite
    Corp., 
    997 S.W.2d 194
    , 198 (Tex. 1999) (orig. proceeding), nor will merely showing that
    appeal will involve more expense or delay than obtaining a writ of mandamus, Canadian
    Helicopters Ltd. v. Wittig, 
    876 S.W.2d 304
    306 (Tex. 1994) (orig. proceeding).
    Relator’s mandamus petition contends he has shown the claims he seeks to assert
    against prison officials are meritorious and not filed for the purposes of harassment or
    delay. From that he argues the trial court had a mandatory duty to grant his request for
    permission to file suit. See Tex. Civ. Prac. & Rem. Code Ann. § 11.102 (Vernon 2002).
    Relator’s mandamus petition, however, fails to present any argument showing he does not
    have an adequate remedy by appeal. We have denied mandamus relief to this relator in
    a previous case because of the absence of a showing his remedy by appeal would be
    inadequate. See In re R. Wayne Johnson, No. 07-04-0416-CV (Tex.App.–Amarillo August
    23, 2004, orig. proceeding). There relator sought mandamus relief when the trial court
    dismissed a pending action because relator did not obtain permission to file the suit. 
    Id., Tex. Civ.
    Prac. & Rem. Code Ann. §11.103 (b) (Vernon 2002). So far as the finality of the
    trial court’s action is concerned, we see no distinction between denial of permission before
    suit is filed and dismissal of a suit filed without permission. Other appellate courts have
    reviewed on direct appeal complaints by vexatious litigants concerning pre-filing orders.
    See, e.g., Brown v. Texas Bd. of Nurse Examiners, 
    194 S.W.3d 721
    , 722 (Tex.App.--Dallas
    2006, no pet.) (affirming dismissal of suit dismissed for noncompliance with terms of pre-
    2
    filing order); see also Leonard v. Abbott, 
    171 S.W.3d 451
    , 458-59 (Tex.App.–Austin 2005,
    pet. denied) (discussing appeal of actions taken under Chapter 11 of Civil Practice &
    Remedies Code). Nor do we see any other reason why review of the actions of a local
    administrative judge under section 11.102 by mandamus is preferable to review by direct
    appeal. See In re Prudential Ins. Co. of America, 
    148 S.W.3d 124
    , 136-40 (Tex. 2004)
    (orig. proceeding) (discussing adequacy of appellate remedy precluding mandamus). Like
    in number 07-04-0416-CV, we conclude in this case that relator has failed to show he has
    no adequate remedy by appeal.
    Moreover, we note that, in lieu of certified or sworn copies of documents showing
    the matter complained of in the petition, as required by Rule of Appellate Procedure
    52.3(j)(1)(A), relator’s mandamus petition asks that we take judicial notice of the contents
    of our file in another mandamus proceeding relator filed, our number 07-06-0359-CV.
    From an examination of our file in number 07-06-0359-CV, we find that we would be
    unable to determine whether the pleading relator submitted with his petition in that
    proceeding was the same as the pleading the trial court denied him permission to file in this
    instance. For that reason, the record presented here would not permit us to find the trial
    court action involved a clear abuse of discretion.
    For these reasons, we must, and do, deny relator’s petition for writ of mandamus.
    James T. Campbell
    Justice
    3