In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-13-0072-CV
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IN RE PAUL THOMAS GERIK, RELATOR
Original Proceeding Arising From Proceedings Before the 181st District Court
Randall County, Texas
Trial Court No. 22,925-B, Honorable John Board, Presiding
March 22, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Relator, Paul Thomas Gerik, proceeding pro se and in forma pauperis, seeks a
writ of mandamus to compel the Honorable John Board to enforce this Court’s Order of
Abatement issued December 20, 2012, in Gerik v. State, 2012 Tex. App. LEXIS 10591
Tex.App.—Amarillo Dec. 20, 2012, no pet.). For reasons expressed herein, we deny
mandamus relief.
BACKGROUND FACTS
Relator was convicted of burglary of a habitation, enhanced, and on August 8,
2012, he was sentenced to ninety-nine years confinement. An appeal from that
conviction is pending in this Court in Gerik v. State, No. 07-12-0360-CR. Per the Bill of
Costs, he was assessed $299 in legislatively mandated costs and fees. On November
6, 2012, the trial court signed an Order to Withdraw Funds authorizing the Texas
Department of Criminal Justice to begin withdrawing funds from Relator’s inmate
account to satisfy the costs and fees owed. Relator appealed the Order to Withdraw
Funds and that appeal is pending in Gerik v. State, No. 07-12-0452-CV. By the Order
of Abatement issued on December 20th, this Court abated that appeal for 180 days to
allow Relator an opportunity to challenge the statutory basis and amount of sums
assessed in the Bill of Costs to satisfy the due process requirements discussed in
Harrell v. State, 286 S.W.3d 315 (Tex. 2009).
MANDAMUS STANDARD OF REVIEW
Mandamus relief is extraordinary. In re Braswell, 310 S.W.3d 165, 166
(Tex.App.--Amarillo 2010, orig. proceeding) (citing In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding)). A 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
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performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979).
ANALYSIS
An Order to Withdraw Funds may be challenged by way of a motion to modify,
correct or rescind the order. See Snelson v. State, 326 S.W.3d 754, 756 (Tex.App.—
Amarillo 2010, no pet.); Williams v. State, 322 S.W.3d 301 (Tex.App.—Amarillo 2010,
no pet.). According to Relator’s petition, the only motion he has filed in the trial court is
a motion to enforce our abatement order. Relator misunderstands the purpose of our
order. As stated above, the abatement order merely suspends the appeal for 180 days
to allow Relator the opportunity to challenge the withdrawal order. Our abatement order
in no way directs the Texas Department of Criminal Justice to cease withdrawing funds
from Relator’s inmate account.
From the limited documents filed in this proceeding, it does not appear that there
is a pending motion in the trial court challenging the Order to Withdraw Funds. Thus,
Judge Board has no legal duty to perform at this time. Consequently, mandamus will
not lie.
Accordingly, the petition for writ of mandamus is denied.
Per Curiam
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