in Re Jason Sanders, Relator

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00035-CV
IN RE JASON SANDERS, RELATOR
ORIGINAL PROCEEDING
February 27, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Relator Jason Sanders has filed a petition for writ of mandamus. In his petition,
relator asks us to direct respondent, the Honorable Pat Phelan, presiding judge of the
286th District Court of Hockley County, to provide relator a copy of the reporter’s record
from relator’s criminal prosecution in that court, and to return to relator papers from that
case that relator was required to leave at the jail when he was transferred to the
Institutional Division of the Texas Department of Criminal Justice. We will deny relator’s
petition.
Mandamus relief will issue to compel a trial court to perform a purely ministerial
act. Greenwall v. Court of Appeals of the Thirteenth Judicial Dist., 159 S.W.3d 645,
648-49 (Tex. Crim. App. 2005). A litigant seeking mandamus relief bears the burden to
provide the court from which such relief is requested with a sufficient record to establish
the right to mandamus. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992, orig.
proceeding); In re Villarreal, 96 S.W.3d 708, 711 (Tex. App.—Amarillo 2003, orig.
proceeding); see TEX. R. APP. P. 52.3, 52.7.
A trial court's act is ministerial if, under the facts of the case and the controlling
legal principles at issue, the relator has a clear right to the relief sought. In re State ex
rel. Weeks, 391 S.W.3d 117, 122-23 (Tex. Crim. App. 2013). "The requirement of a
clear legal right necessitates that the law plainly describes the duty to be performed
such that there is no room for the exercise of discretion." Winters v. Presiding Judge of
the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003). With
respect to relator’s request that we require the trial court to return papers he left at the
jail, from our review of his mandamus petition we cannot conclude he has demonstrated
the trial court had a ministerial duty to return the requested papers. Further, an
appellate court does not resolve factual issues in mandamus proceedings. In re
Thuesen, No. 14-13-00255-CV, 2013 Tex. App. LEXIS 4636, at *6 (Tex. App.—Houston
[14th Dist.] April 11, 2103, orig. proceeding), (citing Brady v. Fourteenth Court of
Appeals, 795 S.W.2d 712, 714 (Tex. 1990)). Relator’s petition necessarily raises factual
issues regarding, for instance, the current location and availability of relator’s papers.
Based on the scant information provided in relator’s petition, we also are unable
to conclude the trial court had a ministerial duty to order that relator be provided a copy
of the reporter’s record from his criminal proceeding. Relator appears to request the
record for the purpose of seeking relief under article 11.07 of the Code of Criminal
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Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (West 2012).1 Texas courts
have held a person is not entitled to a free record in habeas corpus actions. See In re
Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio 1998, orig. proceeding);
Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.—Houston [1st Dist.] 1993, no pet.)
(citing United States v. MacCollom, 426 U.S. 317, 327-28, 48 L. Ed. 2d 666, 96 S. Ct.
2086 (1976) (an indigent appellant is entitled to obtain a free record for purposes of
appeal but not for purposes of collateral attack, such as a writ of habeas corpus)).
Although the court in Escobar described limited circumstances in which a person might
demonstrate entitlement to a free record to support an application for habeas corpus, no
such circumstances are presented in relator’s petition. See Escobar, 880 S.W.2d at
784.
For these reasons, we deny relator’s petition for mandamus.
James T. Campbell
Justice
1
See Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex.
Crim. App. 2013) (per curiam) (addressing jurisdiction of court of appeals to rule on
petition for mandamus seeking record for such purpose, in absence of pending article
11.07 proceeding in Court of Criminal Appeals).
3