NO. 12-21-00163-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 provide him with forms to file
applications for writ of habeas corpus. 1
As we previously informed Relator in another original proceeding, a district clerk is not a
judge over which this Court has mandamus jurisdiction. 2 See TEX. GOV’T CODE ANN. 22.221(a),
(b) (West Supp. 2020) (writ power); see also In re Mack, No. 10-17-00186-CR, 2017 WL
2819091, at *1 (Tex. App.—Waco June 28, 2017, orig. proceeding) (mem. op., not designated
for publication) (dismissing for want of jurisdiction mandamus petition against clerk for failure
to provide forms to assist in filing post-conviction relief); 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
1
The State of Texas is the Real Party in Interest.
2
See In re Britt, No. 12-21-00144-CR, 2021 WL 4202728, at *2 (Tex. App.—Tyler Sept. 15, 2021, orig.
proceeding) (mem. op., not designated for publication) (per curiam).
jurisdiction). Nor does the record demonstrate that issuance of a writ of mandamus against
Respondent is necessary to protect this Court’s jurisdiction, i.e., 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. 3 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). Here, Relator filed a notice of
appeal, and that appeal is currently pending before this Court in appellate cause number 12-21-
00166-CR.
Accordingly, this Court lacks jurisdiction to grant mandamus relief under the
circumstances of this case. 4 We dismiss the petition for writ of mandamus for want of
jurisdiction.
Opinion delivered October 6, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
We do note that the Texas Rules of Appellate Procedure state that a “district clerk of the county of
conviction shall make the form available to applicants on request, without charge.” TEX. R. APP. P. 73.1(b) (form
for application filed under Article 11.07 of the Code of Criminal Procedure) (emphasis added). Relator states that
he requested the form from Respondent, and we trust that Respondent will provide Relator with the applicable form
in accordance with Rule 73.1(b).
4
Relator’s community supervision was revoked, and he was convicted of assault-family violence by
impeding breath or circulation, a felony. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West Supp. 2020). Thus,
Article 11.07 of the Texas Code of Criminal Procedure applies. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 1
(West 2005) (establishing “procedures for an application for writ of habeas corpus in which the applicant seeks
relief from a felony judgment imposing a penalty other than death”). The form for an application for writ of habeas
corpus under Article 11.07 can be found on the Texas Court of Criminal Appeals’s website. See
https://www.txcourts.gov/media/1442926/1107-form-rev-2018.pdf.
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 6, 2021
NO. 12-21-00163-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 12-21-00163-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
September 29, 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