In re Roy F. Hearn--Appeal from 38th Judicial District Court of Medina County

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 29, 2003

PETITION FOR WRIT OF MANDAMUS DENIED

Roy F. Hearn ("Hearn") filed a petition for writ of mandamus asserting the trial court abused its discretion in ordering him to pay trial court fees and refusing to rule on two motions filed by him. We deny the petition.

According to the allegations in his verified petition, Hearn filed a lawsuit for injunctive relief in Galveston County, Texas on the basis that the defendant, Owen J. Murray, M.D., chief executive officer of Correctional Managed Health Care - University of Texas Medical Branch, is permanently situated in Galveston. Hearn also filed a declaration of inability to pay costs in the trial court. A motion for change of venue filed by the defendants was granted, and the case was transferred to Medina County.

The trial court ordered Hearn to pay $130.00 as a court fee. Hearn complains that on or about April 16, 2003, he filed a motion to recuse Judge Charles Sherrill, Sr. and Judge Sherrill has "refused to answer the motion to recuse" or submit the motion to the presiding judge of the administrative judicial district. Additionally, on or about June 2, 2003, Hearn filed a motion for transfer of venue requesting that the case be transferred back to Galveston County. It is unclear whether Hearn complains of the trial court's refusal to rule on the motion for transfer of venue or of the trial court's denial of the motion. Hearn contends that venue in Galveston County is mandatory. Hearn has not provided us with a record in support of his petition.

We review pro se complaints by less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Therefore, we review a pro se relator's application for mandamus with patience and liberality to determine the merits of the complaint. See Johnson v. McAdams, 781 S.W.2d 451, 452 (Tex. App.--Houston [1st Dist.] 1989, no writ). Although we generously read a relator's petition, we hold a relator to the same procedural standards we apply to other litigants. Greenstreet v. Heiskell, 940 S.W.2d 831, 834-35 (Tex. App.--Amarillo 1997, no writ).

The appellate procedure rules require that a relator must provide the court with a record in support of the petition which contains a certified or sworn copy of every document material to the relator's claim for relief that was filed in the underlying proceeding. Tex. R. App. P. 52.7(a). Hearn has not provided this court with certified or sworn copies of the original petition, declaration of inability to pay costs, the order requiring payment of trial court fees, the motion to recuse, the motion for transfer of venue, and the order denying his motion for transfer of venue, if any. Without the record, we cannot determine whether the trial court abused its discretion.

Furthermore, to the extent Hearn complains of the trial court's refusal to rule on his motions, the record must show that Hearn called the motions to the trial court's attention. See In re Chavez, 62 S.W.3d 225, 228 (Tex. App.--Amarillo 2001, orig. proceeding). Without an adequate record, we cannot determine whether the trial court abused its discretion in refusing to rule on the motion to recuse and the motion for transfer of venue. See id. (stating filing with district clerk does not impute knowledge of a motion to the trial court); In re Bonds, 57 S.W.3d 456, 457 (Tex. App.--San Antonio 2001, orig. proceeding) (conditionally granting petition for writ of mandamus where record reflected relator filed motion and called motion to court's attention by letter).

For these reasons, we conclude Hearn is not entitled to the relief sought. Therefore, we deny the petition for writ of mandamus without prejudice to Hearn refiling a petition accompanied by a record. See Tex. R. App. P. 52.8(a).

Phylis J. Speedlin, Justice

1. This proceeding arises out of Cause No. 03-03-16405-CV, styled Roy F. Hearn v. Owen J. Murray, M.D. et al., pending in the 38th Judicial District Court, Medina County, Texas, the Honorable Charles Sherrill, Jr. presiding.