IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 5, 2002
______________________________
IN RE MICHAEL SCOTT
_________________________________
Before REAVIS and JOHNSON, JJ, and BOYD, SJ. (1)
Relator Michael Scott, who is an indigent prisoner acting pro se, has filed a petition for writ of mandamus asking us to order respondent, the Potter County District Attorney, to file his application for a temporary restraining order, present it to a district judge and compel that judge to make a ruling on his application. Relator also refers in his application to a criminal complaint he sent to the district attorney's office in December, 2001, which he alleges the district attorney failed to act on.
Initially, we note that relator has not complied with the Rules of Appellate Procedure in that he has not included a table of contents, index of authorities, or a certified or sworn copy of any order complained of or any other document showing the matter complained of. Tex. R. App. P. 52.3. Relator has included a handwritten application for temporary restraining order, but there is nothing on it to certify that this is a copy of the document sent to the district attorney's office.
Even if relator had strictly complied with the procedural requirements, mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law where there is no other adequate remedy by law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A court of appeals may issue a writ of mandamus only against a judge of a district or county court or a judge of a district court who is acting as a magistrate of a court of inquiry under Chapter 52 of the Code of Criminal Procedure. Tex. Gov't. Code Ann. § 22.221(b) (Vernon Supp. 2002). There is no authority for us to issue a writ of mandamus against an official other than the ones prescribed by statute. See Casner v. Rosas, 943 S.W.2d 937, 938 (Tex.App.--El Paso 1997, no writ); Chandler v. O'Neal, 668 S.W.2d 914, 915 (Tex.App.--Houston [14th Dist.] 1984, no writ). Accordingly, we are without jurisdiction to consider relator's petition for writ of mandamus to issue against the district attorney. (2)
Further, even though relator requests that we compel a district judge to act on his application, the evidence before us shows the application for temporary restraining order has never been filed. To be entitled to mandamus relief, a relator must show that a lower court has a legal duty to perform a nondiscretionary act, relator has made a demand for performance, and the lower court refused that request. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). Without the application having been filed, there is no showing that the trial court has any current duty to act.
Finally, with respect to relator's criminal complaint which he alleges he previously tried to file with the district attorney, no certified or sworn copy has been provided. Respondent has provided a copy of the complaint and asserts it has been forwarded to the Office of the Inspector General, Chief of Administrative Support, Huntsville, Texas, and respondent has not yet received a criminal referral. Relator has requested no relief from this court regarding the complaint, and we will therefore not address it further. See Tex. R. App. P. 52.3(i).
In summary, we conclude that we are without jurisdiction to consider relator's petition for writ of mandamus against the Potter County District Attorney. The remainder of his petition must be and hereby is overruled.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2.
lined to do. Moore was not contacted at all by appellant after the last written report in May, 1998, except for the one telephone call in July.
Moore testified that during the months of June and July, 1998, which were two of the months during which the State alleged that appellant did not report as he should have, the probation department of the100th Judicial District had transferred appellant's probation to Terry County, Texas, for supervision, and appellant was to report to the Terry County probation office, as well as reporting in writing to the 100th Judicial District office. According to Moore, the Terry County office closed its supervision of appellant's probation and transferred supervision back to the 100th Judicial District probation office on July 21, 1998. After Terry County returned supervision of appellant's probation to the 100th Judicial District in July, appellant would not have been able to comply with his probation requirement by reporting to anyone in Terry County.
Appellant testified that he did not report to his Terry County probation supervisor during specific dates in June and July, 1998, when he was to report weekly as part of a rehabilitation program which he was undergoing. He claimed to have been hospitalized during part of August, 1998, but did not offer an explanation for the complete failure to call or report in writing to the probation office during that time. Appellant did not testify that he reported to the 100th Judicial District probation office either in person or in writing at any time after the Terry County probation office closed its supervision of his probation on July 21, 1998, and returned supervision to the 100th Judicial District office.
There is some evidence that appellant did not report to the trial court monthly, as he was required to do, in any manner, after the telephone call to Moore in July, 1998, even if such telephone call were to be considered as a "report." Viewing the evidence in the light most favorable to the trial court's determinations, as we must, we conclude that the trial court's decision that appellant failed to report in any manner, either in writing or in person, during one or more of the months of August, September and October, 1998, would be supported by some evidence. See Brumbalow, 933 S.W.2d at 300. Evidentiary support for a determination that appellant failed to report for any one of the months alleged by the State is sufficient evidentiary support for revocation. See Moses, 590 S.W.2d at 470. Accordingly, the trial court did not abuse its discretion in revoking appellant's probation. Id. We overrule appellant's first and second issues.
CONCLUSION
Having concluded that the trial court did not abuse its discretion in finding that appellant violated a term of his probation as alleged by the State, and having overruled both of appellant's issues, we affirm the judgment of the trial court.
Phil Johnson
Justice
Do not publish.