ACCEPTED
12-15-00238-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/30/2015 3:31:32 PM
Pam Estes
CLERK
No. 12-15-00238-CR
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE TWELFTH COURT OF APPEALS
9/30/2015 3:31:32 PM
TYLER, TEXAS PAM ESTES
Clerk
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In re
DAVID MARK DAVIS II,
Relator
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The Honorable April Earley,
City of Lufkin Municipal Court Judge, Real Party in Interest
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RESPONSE TO PETITION FOR WRIT OF MANDAMUS
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BRUCE W. GREEN
City Attorney
City of Lufkin, Texas
State Bar No. 24001154
bgreen@cityoflufkin.com
300 E. Shepherd
Lufkin, Texas 75901
(936) 633-0260
(936) 633-0381 (Fax)
ATTORNEY FOR REAL PARTY IN INTEREST
THE HONORABLE APRIL EARLEY
LIST OF PARTIES AND COUNSEL
RELATOR RESPONDENT
David Mark Davis II, Pro Se Honorable Derek Flournoy
905 N Loop 499, Unit 525 Angelina County Court-at-Law
Harlingen, TX 78550 No. 2 Judge
dmarkdavis2@gmail.com Angelina County, Texas
(936) 238-8507 215 E. Lufkin Ave.
(936) 309-0060 (Fax) Lufkin, TX 75902
REAL PARTY IN INTEREST Counsel for Respondent
Honorable April Earley Ed C. Jones
Municipal Court Judge County Attorney
City of Lufkin Angelina County, Texas
222 E. Shepherd 215 E. Lufkin Avenue, 1st
Floor, Lufkin, Texas 75902 Rm. 115
Lufkin, Texas 75902
Counsel for Real Party in Interest ejones@angelinacounty.net
(936) 639-3929
Bruce W. Green (936) 639-3905 (Fax)
City Attorney
City of Lufkin, Texas
300 E. Shepherd
Lufkin, Texas 75902
bgreen@cityoflufkin.com
(936) 633-0260
(936) 633-0381 (Fax)
ii
TABLE OF CONTENTS
LIST OF PARTIES AND COUNSEL ...................................................................... iii
TABLE OF CONTENTS ..................................................................................... iiii
INDEX OF AUTHORITIES .................................................................................. iv
APPENDIX REFERENCES……………………………………………………...V
STATEMENT OF THE CASE ............................................................................... vi
STATEMENT OF JURISDICTION ........................................................................ vii
ISSUE PRESENTED ........................................................................................... ix
BACKGROUND...................................................................................................1
STATEMENT OF FACTS ......................................................................................2
ARGUMENT .......................................................................................................3
CONCLUSION AND PRAYER ...............................................................................5
CERTIFICATE OF SERVICE .................................................................................7
CERTIFICATE OF COMPLIANCE ..........................................................................8
APPENDIX
iii
INDEX OF AUTHORITIES
CASES PAGE(S)
Anderson v. City of Seven Points,
806 S.W.2d 791 (Tex. 1991)
.................................................................3
Dunlop v. Deloach,
2013 Tex. App. LEXIS 4518 (Tex. App.—San Antonio Apr. 10,
2013)………………………………………………………………...vii
Hogan v. Turland,
428 S.W.2d 316, 317 (Tex. 1968) ....................................................4, 5
In re Robinson,
175 S.W.3d 824 (Tex. App–Houston [1st Dist.]
2005, orig. proceeding)
..............................................................................3
In re Roof,
130 S.W.3d 414 (Tex. App.–Houston [14th Dist.]
2004, orig. proceeding)
..............................................................................3
Safety Nat’l Cas. Corp. v. State,
305 S.W.3d 586, 590 (Tex. Crim. App. 2010)………………………..4
CONSTITUTIONS
Tex. Const. art. V, § 6……………………………………………………...vii
STATUTES
Texas Gov’t Code
§
22.221(b)(1)................................................................................................vii
iv
APPENDIX REFERENCES
The attached Appendix (“App.”) consists of the following:
Texas Const., art. V, § 6……....................................................................A
Texas Gov’t Code § 22.221(b)(1)………………………………………..B
v
STATEMENT OF THE CASE
Nature of the Case The Relator filed a Petition for a Writ of Mandamus
in the Angelina County Court-at-Law No. 2 seeking
the court to compel Lufkin Municipal Judge April
Earley to set an appeal bond on a case that resulted in
a dismissed traffic citation. The citation was
dismissed in municipal court pursuant to an Order
Deferring Further Proceedings and the authority of
art. 45.051(c) of the Texas Code of Criminal
Procedure. No final judgment of conviction exists.
Relator seeks to appeal what he characterizes as a
“bond forfeiture,” although no bond forfeiture
proceedings occurred in the municipal court.
When Municipal Court Judge Earley did not set an
appeal bond, the Relator filed a Petition for a Writ of
Mandamus against Judge Earley in the Angelina
County Court-at-Law No. 2. County Court-at-Law
Judge Derek Flournoy notified the Relator that he
must either pay the customary civil filing fee, or file a
Pauper’s Affidavit. Rather than doing either, the
Relator filed this Petition for Writ of Mandamus
against Judge Flournoy.
Hon. Derek Flournoy, Angelina County Court-at Law
Respondent
No. 2 Judge
Relief Requested Respondent should be compelled to allow the Relator
to file his Petition for Writ of Mandamus without
payment of a civil filing fee.
vi
STATEMENT OF JURISDICTION
This Court has jurisdiction over this petition for a writ of mandamus.
See Texas Gov’t Code § 22.221(b)(1) (“Each court of appeals for a court of
appeals district may issue all writs of mandamus, agreeable to the principals
of law regulating those writs, against a judge of a district or county court in
the court of appeals district.”), App. B; see also Tex. Const. art. V, § 6
(“Said courts shall have such other jurisdiction, original and appellate, as
may be prescribed by law.”), App. A.
This Court does not have jurisdiction over the underlying petition for
writ of mandamus pending before the Angelina County Court-at-Law No. 2
Judge Derek Flournoy. See Texas Gov’t Code § 22.221(b)(1), App. B;
Dunlop v. Deloach, 2013 Tex. App. LEXIS 4518 (Tex. App. San Antonio
Apr. 10, 2013) (Courts of appeal have authority to issue writs of mandamus
against “a judge of a district or county court in the court of appeals district’
and other writs as necessary to enforce [their] appellate jurisdiction,” but
justice or municipal courts since such a writ is not necessary to enforce an
appeals’ court jurisdiction).
vii
viii
ISSUE PRESENTED
Relator seeks mandamus relief compelling Respondent to allow the
filing of his Petition for Writ of Mandamus without paying a civil filing fee,
or the filing of a Pauper’s Affidavit. See Exhibit A to Petition for Writ of
Mandamus & Prohibition. Relator asserts that no filing fee is required when
seeking mandamus relief relating to a municipal court criminal case.
Did Respondent fail to perform a nondiscretionary, ministerial duty to
allow Relator to file his petition without requiring a filing fee?
ix
BACKGROUND
The underlying proceeding involves an assertion of a right to appeal a
matter (an alleged “bond forfeiture”) relating to a municipal court traffic
case. Although no adjudication of guilt occurred, the citation carried the
possibility of a Class C misdemeanor fine only penalty, and thus is criminal
in nature.
The petition before this Court is a result of the Respondent’s
requirement that the Relator pay a civil filing fee or file a Pauper’s Affidavit
before Respondent will address the merits of Relator’s writ to compel the
municipal court judge to set an appeal bond in the underlying matter.
1
STATEMENT OF FACTS
On August 31, 2015, Relator filed a petition for writ of mandamus in
Angelina County Court-at-Law No. 2, which is presided over by Judge
Derek Flournoy. See Petition for Writ of Mandamus & Prohibition
(“Petition”), p. 4. The petition seeks to compel Lufkin Municipal Court
Judge April Earley to take action resulting from a criminal traffic citation in
the municipal court. See Id.
Upon receipt of Relator’s petition, the Respondent Judge Flournoy
declined to proceed until Relator either paid the required filing fee or filed a
Pauper’s Affidavit. See Letter from Hon. Derek C. Flournoy, dated
September 21, 2015, attached to Petition as Exhibit A.
On September 22, 2015, Relator filed this Petition for Writ of
Mandamus & Prohibition to compel Judge Flournoy to accept the underlying
petition for filing without requiring a filing fee.
2
ARGUMENT
I. Mandamus Is Not Appropriate to Compel the Respondent to
Accept for Filing, Without Payment of a Filing Fee, A Petition for
Writ of Mandamus in County Court.
A. Mandamus Will Lie to Compel a Nondiscretionary, Ministerial
Act.
A writ of mandamus is proper to compel a public official to perform a
ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793
(Tex. 1991); see also In re Robinson, 175 S.W.3d 824, 829 (Tex. App–
Houston [1st Dist.] 2005, orig. proceeding); In re Roof, 130 S.W.3d 414,
415-16 (Tex. App.–Houston [14th Dist.] 2004, orig. proceeding). A duty
imposed by law is ministerial when ―the law clearly spells out the duty to
be performed by the official with sufficient certainty that nothing is left to
the exercise of discretion. Anderson, 806 S.W.2d at 793. That is not the
case here.
B. Acceptance of a Petition for a Writ of Mandamus without
the Requirement of a Filing Fee is Not a Nondiscretionary,
Ministerial Duty of the Respondent.
The Relator conflates his petition before this Court with his Petition
for Writ of Mandamus pending before the Angelina County Court-at-Law
No. 2. See Petition, p. 5. This Petition has nothing to do with “a trial courts
3
[sic] interference with a defendant’s right to appeal.” Id. The issue presented
for decision in this Petition is whether Respondent failed to perform a
nondiscretionary, ministerial duty to allow Relator to file his Petition
without requiring a filing fee.
Relator has offered no authority for the proposition that accepting for
filing a petition for a writ of mandamus, without requiring a filing fee, is a
nondiscretionary, ministerial act. In fact, Relator tacitly acknowledges that
the Respondent’s requirement of a filing fee is discretionary. See Id. (“Had
this been a civil case, Judge Flournoy would be well within his discretion to
demand payment of a filing fee before he heard the case.”)
C. A Mandamus Proceeding is a Civil rather Than a Criminal
Action.
Admittedly, if the matter pending below before the Respondent was
an appeal from a final judgment rendered in a criminal bond-forfeiture case,
no civil filing fee could be assessed. See Safety Nat’l Cas. Corp. v. State,
305 S.W.3d 586, 590 (Tex. Crim. App. 2010).
The matter before the Respondent in the County Court-at-Law is not,
however, an appeal from a criminal bond-forfeiture proceeding. It is a
petition for a writ of mandamus, which is a civil rather than a criminal
proceeding. Hogan v. Turland, 428 S.W.2d 316, 317 (Tex. 1968) (“We have
4
concluded that a mandamus proceeding is a civil rather than criminal
action.”).
In Hogan, the Supreme Court held a mandamus proceeding to be civil
in nature based upon the fact that it is not brought by nor in the name of the
state, and the officer against whom the writ is requested is not alleged to
have committed a crime nor violated any penal statute. “The complaint is
that the officer simply refuses to perform his legal duty.” Id.
CONCLUSION AND PRAYER
Based on the foregoing, the Respondent is under no nondiscretionary,
ministerial duty to accept for filing Relator’s underlying petition without
requiring a civil filing fee. For this reason, Real Party in Interest Judge April
Earley respectfully requests that the Court deny this Petition for Writ of
Mandamus & Prohibition. Real Party in Interest further requests all
additional relief to which she is entitled at law or in equity.
5
Respectfully submitted,
By: /s/ Bruce W. Green
Bruce W. Green
City Attorney
City of Lufkin, Texas
Texas Bar No. 24001154
bgreen@cityoflufkin.com
300 E. Shepherd
Lufkin, TX 75901
(936) 633-0260
(936) 633-0381 (Fax)
ATTORNEY FOR REAL
PARTY IN INTEREST
HON. APRIL EARLEY
6
CERTIFICATE OF SERVICE
I certify that copies of the foregoing were provided in electronic form
at the same time this instrument was filed with the Court to counsel and Pro
Se Relator listed below. I likewise certify that true and correct copies of the
foregoing document will be formally served on the Hon. Derek Flournoy,
Respondent, by hand delivery, and counsel listed below, by hand delivery on
the 30th day of September 2015, as follows:
The Honorable Derek Flournoy
Angelina County Court-at-Law No. 2 Judge
Angelina County, Texas
215 E. Lufkin Ave.
Lufkin, TX 75902
Ed C. Jones
County Attorney
Angelina County, Texas
215 E. Lufkin Avenue, 1st Floor, Rm. 115
Lufkin, Texas 75902
ejones@angelinacounty.net
David Mark Davis II, Pro Se
905 N Loop 499, Unit 525
Harlingen, TX 78550
dmarkdavis2@gmail.com
/s/ Bruce W. Green
Bruce W. Green
7
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(i)(2)(B) because it contains 1,994 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(i)(2)(B).
2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.
Dated: September 30, 2015.
/s/ Bruce W. Green
Bruce W. Green
Counsel for Real Party in Interest
8
No. 12-15-00238-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
------------------------------------------------
In re
DAVID MARK DAVIS II,
Relator
------------------------------------------------
The Honorable April Earley,
City of Lufkin Municipal Court Judge, Real Party in Interest
----------------------------------------------------
APPENDIX
----------------------------------------------------
Tab
Texas Const., art. V, § 6…….....................................................................A
Texas Gov’t Code § 22.221(b)(1)………………………………………..B
Tab A
Texas Constitution, art. V, § 6
THE TEXAS CONSTITUTION
ARTICLE 5. JUDICIAL DEPARTMENT
Sec. 6. COURTS OF APPEALS; TERMS OF JUSTICES;
CLERKS. (a) The state shall be divided into courts of appeals districts, with
each district having a Chief Justice, two or more other Justices, and such
other officials as may be provided by law. The Justices shall have the
qualifications prescribed for Justices of the Supreme Court. The Court of
Appeals may sit in sections as authorized by law. The concurrence of a
majority of the judges sitting in a section is necessary to decide a case. Said
Court of Appeals shall have appellate jurisdiction co-extensive with the
limits of their respective districts, which shall extend to all cases of which
the District Courts or County Courts have original or appellate jurisdiction,
under such restrictions and regulations as may be prescribed by law.
Provided, that the decision of said courts shall be conclusive on all questions
of fact brought before them on appeal or error. Said courts shall have such
other jurisdiction, original and appellate, as may be prescribed by law.
(b) Each of said Courts of Appeals shall hold its sessions at a place
in its district to be designated by the Legislature, and at such time as may be
prescribed by law. Said Justices shall be elected by the qualified voters of
their respective districts at a general election, for a term of six years and
shall receive for their services the sum provided by law.
(c) All constitutional and statutory references to the Courts of Civil
Appeals shall be construed to mean the Courts of Appeals.
(Amended Aug. 11, 1891, Nov. 7, 1978, Nov. 4, 1980, Nov. 5, 1985, and
Nov. 6, 2001.) (TEMPORARY TRANSITION PROVISION for Sec. 6: See
Appendix, Note 3.)
Tab B
Texas Government Code § 22.221(b)(1)
GOVERNMENT CODE
TITLE 2. JUDICIAL BRANCH
SUBTITLE A. COURTS
CHAPTER 22. APPELLATE COURTS
Sec. 22.221. WRIT POWER. (a) Each court of appeals or a justice of a
court of appeals may issue a writ of mandamus and all other writs necessary
to enforce the jurisdiction of the court.
(b) Each court of appeals for a court of appeals district may issue all
writs of mandamus, agreeable to the principles of law regulating those writs,
against a:
(1) judge of a district or county court in the court of appeals
district; or
(2) judge of a district court who is acting as a magistrate at a
court of inquiry under Chapter 52, Code of Criminal Procedure,
in the court of appeals district.
(c) Repealed by Acts 1987, 70th Leg., ch. 148, Sec. 2.03, eff. Sept. 1,
1987.
(d) Concurrently with the supreme court, the court of appeals of a
court of appeals district in which a person is restrained in his liberty, or a
justice of the court of appeals, may issue a writ of habeas corpus when it
appears that the restraint of liberty is by virtue of an order, process, or
commitment issued by a court or judge because of the violation of an order,
judgment, or decree previously made, rendered, or entered by the court or
judge in a civil case. Pending the hearing of an application for a writ of
habeas corpus, the court of appeals or a justice of the court of appeals may
admit to bail a person to whom the writ of habeas corpus may be granted.
Acts 1985, 69th Leg., ch. 480, Sec. 1, eff. Sept. 1, 1985. Amended by Acts
1987, 70th Leg., ch. 69, Sec. 1, eff. May 6, 1987; Acts 1987, 70th Leg., ch.
148, Sec. 1.35, 2.03, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 58, Sec. 1,
eff. May 2, 1991; Acts 1995, 74th Leg., ch. 839, Sec. 1, eff. Sept. 1, 1995.