NO. 07-11-0454-CV
NO. 07-11-0455-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 18, 2011
______________________________
IN RE EDWARD EMMETT CORKER, RELATOR
______________________________
ORIGINAL PROCEEDINGS ARISING OUT OF PROCEEDINGS
BEFORE THE 320TH DISTRICT COURT OF POTTER COUNTY;
NOS. 47,763-D & 47,764-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Edward Emmett Corker, an inmate proceeding pro se and in forma pauperis,
seeks a writ of mandamus to compel the Honorable Don Emerson, Judge of the 320th
District Court of Potter County, to rule on his motion to dismiss in which he challenges
Orders to Withdraw Funds from his inmate account entered pursuant to section
501.014(e) of the Texas Government Code Annotated (West Supp. 2011). For the
reasons expressed herein, we deny Relator's request.
Background
On April 19, 2011, Relator was convicted of possession of a controlled
substance, enhanced, in cause number 47,763-D, and sentenced to seven years
confinement. That same day, he was also convicted of credit card abuse in cause
number 47,764-D and sentenced to eighteen months in a state jail facility. According to
documents filed with his petition for writ of mandamus, on May 11, 2011, the Potter
County District Clerk filed a turnover order without a proceeding being held. Relator
alleges, among other claims, due process violations due to the trial court's entry of
Orders to Withdraw Funds from his inmate account. He also challenges the Bills of
Costs.
Mandamus Standard of Review
Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephone
Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "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). Additionally, a relator has the burden to provide a sufficient record to enable a
reviewing court to consider the basis for the relief sought. See Walker, 827 S.W.2d at
837.
2
Analysis
Initially, we address Relator's failure to comply with some of the mandatory
requirements of Rule 52.3 of the Texas Rules of Appellate Procedure. A petition for writ
of mandamus must include Identity of Parties and Counsel, Table of Contents, Index of
Authorities, Statement of the Case, Statement of Jurisdiction, Issues Presented,
Statement of Facts, Argument, Prayer, Certification and Appendix. See Tex. R. App. P.
52.3(a)-(k). Although Relator's petition identifies the Honorable Don Emerson as
Respondent, it does not contain a Table of Contents, Index of Authorities, Statement of
the Case, Statement of Jurisdiction, Issues Presented, Statement of Facts, Argument,1
and Certification. See generally Tex. R. App. P. 52.3. Although Relator includes certain
items in his Appendix, he does not include a certified or sworn copy of the motion to
dismiss, copies of the Orders to Withdraw Funds or copies of the Bills of Costs of which
he complains. Exhibit B to Relator's petition is presumably a copy of the motion to
dismiss the orders to withdraw funds filed in the trial court on which he seeks to have
the trial court enter rulings. However, the motion does not bear a file stamp.2 We are
unable to determine whether the motion has been brought to the trial court's attention.3
Showing that a motion was filed with the trial court clerk does not constitute proof that
1
Relator's argument is not supported by citations to authority. Tex. R. App. P. 52.3(h).
2
Relator alleges he filed his motion on August 15, 2011.
3
When a motion is properly pending in the trial court, the act of considering and ruling upon it is a
ministerial act. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). However, the trial court
has a reasonable time within which to perform that duty. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268,
269 (Tex.App.--San Antonio 1997, orig. proceeding). Whether a reasonable time has lapsed is
dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.--
Houston [1st Dist.] 1992, orig. proceeding). Other influential circumstances include the trial court's actual
knowledge of the motion, its overt refusal to act, the state of its docket, and other judicial and
administrative duties which must be addressed. In re Villarreal, 96 S.W.3d 708, 711 (Tex.App.--Amarillo
2003, orig. proceeding).
3
the motion was brought to the trial court's attention. See In re Chavez, 62 S.W.3d 225,
228 (Tex.App.--Amarillo 2001, orig. proceeding).
Recognizing that pro se filings may be reviewed less stringently than those filed
by attorneys, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652
(1972), a party proceeding pro se must still comply with rules of procedure. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Even if we were to
review Relator's request for mandamus relief with patience and liberality, he has not
satisfied his burden to provide a sufficient record to enable this Court to consider his
complaint.4 See Walker, 827 S.W.2d at 837. Neither has he established his entitlement
to mandamus relief.5
Consequently, Relator's petition for writ of mandamus is denied.
Patrick A. Pirtle
Justice
4
Without copies of the Orders to Withdraw Funds and Bills of Costs, we are unable to determine the
characterization or amounts authorized to be withdrawn from Relator's inmate account. A certified bill of
costs imposes an obligation upon a criminal defendant to pay court costs, irrespective of whether that bill
is incorporated by reference into the written judgment. See generally Tex. Code Crim. Proc. Ann. arts.
103.001 and 103.003 (West 2006 and Supp. 2011). See also Tex. Gov't Code Ann. §§ 102.001-103.033
(West 2005 and Supp. 2011). Court costs imposed as a matter of legislative directive may be withdrawn
from an inmate's account without regard to his ability to pay and do not need to be included in the oral
pronouncement of sentence or in the written judgment in order to be imposed upon a convicted
defendant. See Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009). See also Williams v. State,
332 S.W.3d 694 (Tex.App.--Amarillo 2011, pet. denied). Repayment of court-appointed attorney's fees,
however, is dependent on a defendant's ability to pay. See Tex. Code Crim. Proc. Ann. art. 26.05(g).
See also Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010). Unless a material change in a criminal
defendant's financial resources is established by competent legal evidence, once that defendant has
been found to be indigent, he is presumed indigent for the remainder of the proceedings. Mayer, 309
S.W.3d at 557.
5
The trial court's disposition of an inmate's challenge to an Order to Withdraw Funds creates an
appealable order. See Ramirez v. State, 318 S.W.3d 906, 908 (Tex.App.--Waco 2010, no pet.).
Mandamus will not lie when there is an adequate remedy by appeal. See Walker, 827 S.W.3d at 839.
4