NO. 07-09-0265-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 1, 2009
______________________________
IN RE RANDY LACKEY, RELATOR
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
By this original proceeding, Relator, Randy Lackey, an inmate currently incarcerated in the Institutional Division of the Texas Department of Criminal Justice, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Gordon Green, Judge of the 287th District Court of Bailey County, to consider and rule on a brief and motions and proceed to trial or final judgment. For the reasons herein, Relator’s request for mandamus relief is denied.
Background Facts
According to exhibits attached to Relator’s petition, Real Party in Interest, Robert McCool, an attorney, was retained to represent Relator in a forfeiture proceeding pending in Bailey County and a criminal proceeding pending in Lubbock County. After McCool failed to appear for a hearing scheduled in the forfeiture proceeding, judgment was rendered against Relator resulting in loss of personal property in the amount of $12,256. Relator then sued McCool for legal malpractice in 2002. In 2003, the trial court ordered the suit abated due to the pendency of a similar malpractice suit in the 72nd District Court of Lubbock County. On April 5, 2004, the trial court ordered the parties to file briefs itemizing the issues to be litigated. Relator was given thirty-five days in which to file his brief and McCool was given thirty days after the date Relator’s brief was filed in which to respond.
Relator filed a brief distinguishing the two lawsuits. Although Relator’s brief is not file stamped, the certificate of service reflects that a copy was mailed to McCool on May 5, 2004. Relator explained that the malpractice suit pending in the 72nd District Court of Lubbock County was for McCool’s failure to appear in Relator’s criminal trial for theft, while the malpractice suit filed in the 287th District Court of Bailey County was for McCool’s failure to appear for Relator’s forfeiture proceeding. According to Relator, the issues to be resolved in his malpractice suit resulting from McCool’s failure to appear at the forfeiture proceeding are whether McCool was obligated to appear and whether he is liable for the damages resulting therefrom.
According to Relator’s petition for writ of mandamus, McCool failed to file his brief as ordered by the trial court. On February 23, 2009, Relator filed, among other documents, “Plaintiff’s Request for Jury Trial with Brief in Support” and “Plaintiff’s Motion for Leave of the Court to File His First Amended Petition.” By correspondence dated March 16, 2009, Relator reminded the Bailey County District Clerk of his earlier filings and noted that if he did not hear anything in fourteen days, he would be seeking mandamus relief in this Court.
Relator was notified by letter from the District Clerk on March 27, 2009, that all his correspondence had been made available to the judge. She advised him that the judge sets all hearing dates and at that time, she had no settings in the case.
Mandamus Standard of Review
“Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).
Relator asks this Court to compel Judge Green to rule on his brief and motions in which he requests to proceed to trial or final judgment. We recognize that an inmate has the constitutional right of access to the courts and may not be denied access simply because he is incarcerated. Hudson v. Palmer, 468, 517, 523, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). However, an inmate does not have an absolute right to appear in person in every court proceeding. Id. at 165. Therefore, before the trial court has a duty to schedule a trial, Relator has the burden to establish that he will be ready to prosecute his claim.
Nothing in the documents filed in this Court reflects that Relator would be able to appear for a trial setting. In the proceeding below he is appearing pro se. There is no indication that he has retained or intends to retain counsel to represent his interests; nor does he suggest that he will be released from incarceration in the near future and be able to represent himself; neither has he demonstrated that he requested and was denied a bench warrant ad prosequendam.
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephoen Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (original proceeding). We decline to compel Judge Green to set a trial date without Relator providing him the factual information necessary to do so. At this time, Relator has not demonstrated that Judge Green clearly abused his discretion or violated a duty imposed by law.
Consequently, Relator’s petition for writ of mandamus is denied.
Patrick A. Pirtle
Justice
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NO. 07-10-0257-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 11, 2010
______________________________
OLIVIA REYES TIENDA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422,182; HONORABLE BRADLEY UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER ON MOTION TO REINSTATE APPEAL
Following a plea of not guilty, Appellant, Olivia Reyes Tienda, was convicted of credit card or debit card abuse, a state jail felony.[1] Punishment was assessed at twenty-four months confinement. By opinion dated July 19, 2010, this Court dismissed Appellant's appeal because the limited documents before this Court reflected that the notice of appeal was untimely. Specifically, nothing in this Court's file reflected that a Motion for New Trial had been filed[2] which would have extended the time in which to file the notice of appeal. Having now confirmed that a Motion for New Trial was timely filed, we grant Appellant's motion and reinstate this appeal. In so doing, we withdraw our original opinion and judgment of July 19, 2010, and issue the following order explaining our rationale for reinstating the appeal.
Appellant's sentence was imposed on April 1, 2010, and a motion for new trial was filed on April 23, 2010, thereby extending the time in which to file a notice of appeal to June 30, 2010. See Tex. R. App. P. 26.2(a)(1). The notice filed on June 25, 2010 is timely to invoke this Court's jurisdiction. The clerk's record and reporter's record are due on September 10, 2010.
It is so ordered.
Per Curiam
Do not publish.
[1]Tex. Penal Code Ann. § 32.31 (Vernon Supp. 2009).
[2]The docketing statement does not reflect that a Motion for New Trial was filed and the Criminal Appeal Certificate filed by the Lubbock County District Clerk reflects that no Motion for New Trial was filed.