In re Larry Gene Buck--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00287-CV

In re Larry Gene Buck

Original Proceeding

MEMORANDUM Opinion

Larry Gene Buck, an inmate, filed an application for writ of mandamus requesting this Court to compel the district clerk of Johnson County to forward to the Court of Criminal Appeals a copy of his application for writ of habeas corpus, any answer filed, and a certificate reciting the date upon which the finding was made, if the convicting court decides that there are no issues to be resolved. Buck did not pay the filing fee for his application but, instead, filed an affidavit of indigency.

Neither the application nor the affidavit was properly served. There was no proof of service of the application and the affidavit was served on the Clerk of this Court, who is not a party to the proceeding. See Tex. R. App. P. 9.5 (a), (d); 52.2. The Clerk of this Court requested a proper proof of service of the mandamus but Buck, although he filed a proof of service, did not file a proper proof of service, in that he again served the Clerk of this Court. Because of the nature of the request made by Buck and the difficulty we have had in obtaining compliance with the Rules of Appellate Procedure, we use Rule 2 to suspend the service requirement of Rule 9.5 and proceed to the merits of the mandamus. Tex. R. App. P. 2, 9.5.

We have no jurisdiction to mandamus a district clerk except to protect our jurisdiction. In re Washington, 7 S.W.3d 181, 182 (Tex. App. Houston [1st Dist.] 1999) (orig. proceeding); In re Simpson, 997 S.W.2d 939 (Tex. App. Waco 1999) (orig. proceeding). See also Tex. Gov't Code Ann. 22.221(a), (b) (Vernon 2004). Buck's application does not allege facts that require us to protect our jurisdiction.

Further, absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998). See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5; Tex. Gov't Code Ann. 51.207(b) (Vernon 2005). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case. Tex. R. App. P. 2.

Accordingly, Buck s application for writ of mandamus is dismissed for want of jurisdiction.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition dismissed

Opinion delivered and filed October 10, 2007

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