NO. 12-21-00144-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
ROBERT BRITT, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Robert Britt, acting pro se, filed this original proceeding to complain of the failure by
Respondent, Smith County District Clerk Penny Clarkston, to file his petition for discretionary
review and writ of mandamus. 1 Relator states that he was convicted in trial court cause number
007-1061-17, has been told different stories with respect to the status of his filings, has not been
appointed counsel for assistance with post-conviction remedies, and has been denied access to the
court and to the law library. 2 A search of the Smith County website reflects that a writ of
A petition for discretionary review is to be filed with the Texas Court of Criminal Appeals in Austin. See
1
TEX. R. APP. P. 68.3.
2
In a supplemental petition, Relator raises other complaints related to his conviction. A search of the Smith
County website reflects that Relator’s community supervision was revoked and a judgment adjudicating guilt was
entered May 4, 2021. To the extent Relator attempts to raise issues regarding revocation, Relator did not appeal his
conviction. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (only court of
criminal appeals has jurisdiction to grant out-of-time appeal); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a)
(West 2005).
mandamus and a petition were filed in Relator’s case on July 27, 2021. 3 Relator asks this Court to
compel Respondent to process his writs. 4
However, a district clerk is not a judge over which this Court has mandamus jurisdiction;
nor does the record demonstrate that issuance of a writ of mandamus against Respondent is
necessary to protect this Court’s jurisdiction. 5 See TEX. GOV’T CODE ANN. 22.221(a), (b) (West
Supp. 2020) (writ power); see also In re Eaton, No. 12–15–00118–CR, 2016 WL 6876502, at *1
(Tex. App.–Tyler, Nov. 22, 2016, orig. proceeding) (mem. op., not designated for publication)
(appellate court lacked jurisdiction to consider merits of mandamus petition as to district clerk);
In re Vargas, No. 01-12-00351-CV, 2012 WL 1454550, at *1 (Tex. App.—Houston [1st Dist.]
Apr. 26, 2012, orig. proceeding) (mem. op) (per curiam) (dismissing mandamus proceeding
against district clerk for want of jurisdiction because addressing complaint that clerk refused to
file petition was not necessary to enforce appellate court jurisdiction). Accordingly, this Court
lacks jurisdiction to grant mandamus relief under the circumstances of this case. We dismiss the
petition for writ of mandamus for want of jurisdiction.
Opinion delivered September 15, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
A trial court has a ministerial duty to rule on a motion within a reasonable time once the motion is called to
the court’s attention. See In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding);
see also In re Ramos, 598 S.W.3d 472, 474 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (judge was
aware of motion for judgment nunc pro tunc approximately five months before appellate court opinion; thus, judge
did not rule on motion within reasonable time); In re Sayyed, No. 05-20-00195-CV, 2020 WL 6074117, at *3 (Tex.
App.—Dallas Oct. 15, 2020, orig. proceeding) (mem. op. on reh’g) (at time of October 2020 opinion, respondent had
learned of motion on July 1, 2020; thus, reasonable time for ruling had not passed).
4
The State of Texas is the Real Party in Interest.
5
For instance, we have jurisdiction to issue a writ against a district clerk for failure to forward a notice of
appeal to this Court because such is necessary to enforce our jurisdiction. See In re Talkington, No. 12-07-00272-
CR, 2007 WL 2178551, at *1 (Tex. App.—Tyler July 31, 2007, orig. proceeding) (mem. op., not designated for
publication); see also Ex parte Sanders, No. WR-80,356-01, 2013 WL 5872901, at *1 (Tex. Crim. App. Oct. 30,
2013) (order, not designated for publication) (per curiam); In re Foster, No. 14-16-00698-CR, 2016 WL 5853282, at
*1 (Tex. App.—Houston [14th Dist.] Oct. 6, 2016, orig. proceeding) (mem. op., not designated for publication) (per
curiam); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 15, 2021
NO. 12-21-00144-CR
ROBERT BRITT,
Relator
V.
HON. PENNY CLARKSTON,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
Robert Britt; who is the relator in appellate cause number 12-21-00144-CR and the defendant in
trial court cause number 007-1061-17, formerly pending on the docket of the 7th Judicial District
Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on
August 25, 2021, and the same having been duly considered, because it is the opinion of this
Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that
the said petition for writ of mandamus be, and the same is, hereby dismissed for want of
jurisdiction.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
3