NUMBER 13-15-00388-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE LOUIS A. OLIVAREZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion Per Curiam1
Louis A. Olivarez, proceeding pro se, filed a “Petition for Reinstatement” on August
21, 2015 requesting that we compel the district clerk and the trial court to reinstate Louis
A. Olivarez v. West Oso Independent School District, Michael Sandroussi, and Rickey
Deleon, No. 2012DCV-2138-G in the 319th District Court of Nueces County, which was
dismissed on February 26, 2013. Olivarez, who is incarcerated, contends that he did not
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
receive timely notice that his lawsuit had been dismissed. Because Olivarez’s “Petition
for Reinstatement” asks us to command a public officer to perform an act, we construe
this document as a petition for writ of mandamus. See generally TEX. R. APP. P.
25.1(a),(d); In re Castle Texas Prod. Ltd. P'ship, 189 S.W.3d 400, 403 (Tex. App.—Tyler
2006, orig. proceeding) (“The function of the writ of mandamus is to compel action by
those who by virtue of their official or quasi-official positions are charged with a positive
duty to act.”) (citing Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70 (1953)). As
more fully explained herein, we dismiss the petition in part and deny the petition in part.
I. STANDARD OF REVIEW
To be entitled to the extraordinary relief of a writ of mandamus, the relator must
show that the trial court abused its discretion and that there is no adequate remedy by
appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). It is the relator’s burden to properly request and show entitlement to
mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding);
In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see
Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled
to the extraordinary relief he seeks.”). In addition to other requirements, the relator must
include a statement of facts supported by citations to “competent evidence included in the
appendix or record,” and must also provide “a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the appendix or record.”
See generally TEX. R. APP. P. 52.3. The relator must also file an appendix and record
sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the
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required contents for the appendix); R. 52.7(a) (specifying the required contents for the
record); see also Walker, 827 S.W.2d at 837; In re Blakeney, 254 S.W.3d 659, 661 (Tex.
App.—Texarkana 2008, orig. proceeding).
II. JURISDICTION
Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction of
the courts of appeals, and states that the courts of appeals "shall have such other
jurisdiction, original and appellate, as may be prescribed by law." TEX. CONST. art. V, § 6.
As an appellate court, this Court's original jurisdiction is governed by section 22.221 of
the Texas Government Code. See TEX. GOV'T CODE ANN. § 22.221 (West, Westlaw
through Ch. 46 2015 R.S.); see also In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler
2012, orig. proceeding). In pertinent part, this section provides that we may issue writs
of mandamus and "all other writs necessary to enforce the jurisdiction of the court." See
id. § 22.221(a). This section also provides that we may issue writs of mandamus against
"a judge of a district or county court in the court of appeals' district" or against a "judge of
a district court who is acting as a magistrate at a court of inquiry . . . in the court of appeals
district." See id. § 22.221(b).
Relator's petition seeks mandamus relief against the district clerk and the trial
court. To the extent that relator seeks relief against the district clerk, we do not have
original jurisdiction against a district clerk unless necessary to enforce our jurisdiction,
and relator has not demonstrated that the requested relief is necessary for this purpose.
See generally id. § 22.221; In re Richardson, 327 S.W.3d 848, 851 (Tex. App.—Fort
Worth 2010, orig. proceeding); In re Phillips, 296 S.W.3d 682, 684 (Tex. App.—El Paso
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2009, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st
Dist.] 1999, orig. proceeding).
III. ADEQUATE REMEDY BY APPEAL
Relator alleges that he did not receive notice that judgment had been rendered
against him until May 15, 2015. A bill of review is an appropriate remedy for contentions
regarding lost appeals based on lack of notice. See, e.g., Petro-Chemical Transp. v.
Carroll, 514 S.W.2d 240, 245 (Tex. 1974); Perdue v. Patten Corp., 142 S.W.3d 596, 604-
05 (Tex. App.—Austin 2004, no pet.). A bill of review is considered an adequate legal
remedy. In re Pannell, 283 S.W.3d 31, 35 (Tex. App.—Fort Worth 2009, no pet.). A
petitioner seeking a bill of review must prove: (1) a meritorious defense, (2) that was not
asserted due to fraud, accident, or wrongful act of an opponent or official mistake, (3)
unmixed with any fault or negligence by the petitioner. Ross v. Nat'l Ctr. for the
Employment of the Disabled, 197 S.W.3d 795, 797 (Tex.2006). In this regard, relator did
not file a bill of review.
IV. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has not met his burden to obtain
mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.
Accordingly, we DISMISS the petition for lack of jurisdiction to the extent that relator seeks
relief against the district clerk and we DENY the petition in all other respects.
PER CURIAM
Delivered and filed the
3rd day of September, 2015.
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