In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-330 CV
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IN RE DONALD FOSTER
Donald Foster, an inmate confined in the Institutional Division of the Texas Department of Criminal Justice, seeks mandamus relief in connection with civil litigation filed in Cause No. D-010,222-C.
First, Foster seeks a writ of mandamus to compel Vickie Edgerly, the Orange County District Clerk, to serve citation upon a defendant named Coy Nowell. The district clerk is not one of the persons against whom we may issue a writ of mandamus other than to protect our jurisdiction, and the relator has not shown that the writ is necessary to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221 (Vernon Supp. 2003). Therefore, Foster is not entitled to mandamus relief against Edgerly.
Next, Foster seeks a writ of mandamus to compel the Honorable Judge Buddie Hahn, Judge of the 260th District Court, to order substituted service on a defendant named C. W. Hodgkinson by leaving a petition with anyone over the age of 16 found at the defendant's last known place of employment. The motion alleges that citation was returned unserved in 2001 because the defendant was no longer employed there. Rule 106(b) authorizes substituted service upon motion supported by affidavit "stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found... ." Tex. R. Civ. P. 106(b). Foster has not demonstrated that he is entitled to compel the trial judge to authorize substituted service under Rule 106(b) because he has not supplied an affidavit that satisfies the applicable rule.
Finally, Foster seeks a writ of mandamus to compel service of a subpoena duces tecum on a non-party. From the record presented with his petition, it appears that Foster issued his own subpoena. He is not one of the persons so authorized by the Rules of Civil Procedure. See Tex. R. Civ. P. 176.4. Therefore, it would not be an abuse of discretion to fail to enforce the subpoena.
The relator has not shown that he is entitled to the relief sought. The petition for writ of mandamus, filed July 7, 2003, is DENIED.
PER CURIAM
Opinion Delivered July 24, 2003
Before McKeithen, C.J., Burgess and Gaultney, JJ.
1. Tex. R. App. P. 47.4.