Charles L. Meyer, Relator v. the Honorable Wilford Flowers and His Trial Court Clerk, 147th Judicial District, Travis County, Texas

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-613-CV





CHARLES L. MEYER,

RELATOR

vs.





HONORABLE WILFORD FLOWERS AND HIS TRIAL COURT CLERK, DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT,

RESPONDENTS

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

PER CURIAM

Relator Charles L. Meyer ⁽¹⁾ has filed a motion for leave to file petition for writ of mandamus and tendered a petition to this Court. See Tex. Gov't Code Ann. § 22.221(a),(b) (West 1988); Tex. R. App. P. 121. Meyer requests this Court to order respondents, the Honorable Wilford Flowers and the Travis County District Clerk (the trial court clerk), to prepare and submit to this Court "three requested live court hearings." We will overrule Meyer's motion for leave to file petition for writ of mandamus.

On May 26, 1992, Meyer perfected an appeal to this Court from an order of dismissal rendered by the district court of Travis County. Tex. R. App. P. 41(a)(1), 140(e); see Meyer v. State Bar of Texas, No. 3-92-327-CV (Tex. App.--Austin Aug. 26, 1992) (order on motion to file transcript) (not designated for publication). The Clerk of this Court filed a transcript on July 1st. Tex. R. App. P. 54(a); see Meyer, slip op. at 2. To date, Meyer has not filed a statement of facts in this cause.

Meyer now seeks to compel respondents to prepare "transcripts of the live court hearings which were held on January 14, 1991, August 7, 1991 and October 1, 1991," citing Tex. R. App. P. 51(a). Meyer has, however, confused the terms "transcript" and "statement of facts." The record on appeal consists of the transcript and, when necessary, a statement of facts. Tex. R. App. P. 50(a). The transcript, prepared by the district clerk, includes pleadings and other documents filed with the clerk. Tex. R. App. P. 51(a),(c). The statement of facts is the transcription of the evidence and other proceedings before the trial court. See Tex. R. App. P. 53. Meyer has requested the district clerk of Travis County to prepare and submit the statement of facts.

An appellate court may issue a writ of mandamus only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. Strake v. First Court of Appeals, 704 S.W.2d 746, 747 (Tex. 1986, orig. proceeding); see Walker v. Packer, 827 S.W.2d 833 (Tex. 1992, orig. proceeding). Mandamus is a proper means to compel the preparation of a statement of facts when necessary to review evidentiary points. Wolters v. Wright, 623 S.W.2d 301, 305 (Tex. 1981, orig. proceeding); see Foreman v. Jarrett, 796 S.W.2d 316, 317 (Tex. App.--Austin 1990, orig. proceeding). When properly requested to do so, a court reporter has a duty to transcribe a statement of facts promptly. Tex. R. App. P. 11; Foreman, 796 S.W.2d at 317; O'Neal v. Stovall, 580 S.W.2d 130, 132 (Tex. Civ. App.--Austin 1979, orig. proceeding).

Here, no duty has arisen because Meyer has not properly requested the court reporter to prepare a statement of facts. Tex. R. App. P. 53(a). ⁽²⁾ He has, instead, requested the district clerk to include the statement of facts in the transcript. The district clerk has no duty to do so. See Tex. R. App. P. 51(c). Accordingly, Meyer has presented no basis on which this Court may grant his motion for leave to file petition for writ of mandamus. See Tex. R. App. P. 121(c).

The Court notes that the record, including the statement of facts, was due to be filed in the appeal underlying this proceeding no later than July 31, 1992. Tex. R. App. P. 54(a), 140(e); Meyer, slip op. at 2. A motion for extension of time was due on or before August 17, 1992. Tex. R. App. P. 54(c).

The motion for leave to file petition for writ of mandamus is overruled.

[Before Chief Justice Carroll, Justices Jones and Kidd]

Motion for Leave to File Petition for Writ of Mandamus Overruled

Filed: December 23, 1992

[Do Not Publish]

1. The real party in interest in this proceeding is the State Bar of Texas. Tex. R. App. P. 121(a)(2)(B).

2. Although not a part of the record in this proceeding, we have reviewed the transcript in the appeal underlying this proceeding and do not find the necessary request in the transcript.