NO. 07-10-00202-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 23, 2010
IN RE R. WAYNE JOHNSON, RELATOR
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Relator R. Wayne Johnson, appearing pro se, filed a petition for writ of
mandamus. We will deny his petition.
Background
According to his petition, relator seeks a writ of mandamus against respondent
the Honorable Ana Estevez, judge of the 251st District Court of Potter County. The
petition asserts relator requested a temporary restraining order which Judge Estevez
refused to grant. Relator asks us to order Judge Estevez to issue a temporary
restraining order according to the form he prepared and included in the mandamus
record. The record also contains “Plaintiff’s Original Petition for Temporary Restraining
Order,” a letter from relator to Judge Estevez, and an affidavit of relator.
Analysis
Courts will issue mandamus to correct a clear abuse of discretion or the violation
of a duty imposed by law when there is no other adequate remedy available by appeal.
In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). The relator must generally bring forward all that is necessary to establish
a claim for relief. See Tex. R. App. P. 52.7; Dallas Morning News v. Fifth Court of
Appeals, 842 S.W.2d 655, 658 (Tex. 1992). This includes providing an adequate record
to substantiate the allegations contained in the petition for mandamus. Dallas Morning
News, 842 S.W.2d at 658; Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). Absent
a sufficient record, mandamus will not issue. Id.
Relator’s mandamus petition must be denied, for several reasons. We will
mention two. First, Rules of Civil Procedure 680 and 684 require a trial court issuing a
temporary restraining order to state why the order was granted without notice if it is
granted ex parte; state the reasons for issuance of the order by defining the injury and
describing why it is irreparable; state the date the order expires and set a hearing on a
temporary injunction; and set a bond. Orders that do not fulfill these requirements are
void. In re Office of the Attorney General, 257 S.W.3d 695, 697 (Tex. 2008) (per
curiam). The order relator provided Judge Estevez satisfied none of these
requirements. Judge Estevez did not abuse her discretion by declining to sign a void
order.
Second, as relator is aware, the 156th Judicial District Court of Bee County has
declared him a vexatious litigant according to Civil Practice and Remedies Code
2
Chapter 11. See Tex. Civ. Prac. & Rem. Code Ann. § 11.101 et seq. (Vernon 2002); In
re R. Wayne Johnson, No. 07-09-0008-CV, 2010 Tex. App. Lexis 3584, at *2 (Tex.App.-
-Amarillo May 11, 2010, orig. proceeding) (per curiam, mem. op.). By the terms of the
156th Judicial District Court’s June 14, 2001 order, relator is prohibited from filing any
additional litigation in Texas courts without the permission of a local administrative
judge. Order available at: http://www.courts.state.tx.us/oca/vexatiouslitigants.asp. See
Tex. Civ. Prac. & Rem. Code Ann. § 11.102(a) (Vernon 2002) (local administrative
judge may grant vexatious litigant permission to file suit only if litigation has merit and is
not filed for the purposes of harassment or delay) and § 11.104(b) (Vernon 2002)
(Office of Court Administration of the Texas Judicial System shall maintain a list of
vexatious litigants under § 11.101).
As noted, the mandamus record contains the “Plaintiff’s Original Petition for
Temporary Restraining Order” setting forth the relief relator seeks. Relator is
incarcerated in the Institutional Division of the Texas Department of Criminal Justice.
His original petition asks for injunctive relief against two prison system employees, the
law library supervisor and the mail room supervisor, whose actions relator alleges
violate his First Amendment rights and violate federal statutes. The original petition
would initiate a civil action within the definition of “litigation” under Chapter 11. Tex. Civ.
Prac. & Rem. Code Ann. § 11.001(2) (Vernon 2002) (“litigation” means a civil action
commenced, maintained, or pending in any state or federal court).1
1
Relator’s original petition seeks only a temporary restraining order. We express
no opinion on the sufficiency of his pleadings.
3
The temporary restraining order relator sought from Judge Estevez would not in
any event have been issued until relator’s original petition was filed. Tex. R. Civ. P.
688. Relator’s original petition cannot be filed without the local administrative judge’s
permission, and nothing shows that permission has been obtained. See Tex. Civ. Prac.
& Rem. Code Ann. § 11.103(a) (clerk may not file suit of vexatious litigant subject to
prefiling order unless litigant obtains order from local administrative judge permitting
filing). In fact, the mandamus record affirmatively suggests that such permission has
not been obtained. None of the documents relator presents contains a trial court cause
number or the file stamp of the district clerk. For this reason also, Judge Estevez did
not abuse her discretion by declining to grant a temporary restraining order that could
not have been issued.
For both these reasons, we find relator has not presented a mandamus record
sufficient to demonstrate an abuse of discretion by Judge Estevez. His petition for writ
of mandamus is denied.
James T. Campbell
Justice
4