In re Larry Gene Buck--Appeal from County Court at Law No 2 of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00303-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 an unspecified court of Johnson County to hold hearings, or properly issue orders in response to filings, motions, briefs, and pleadings regarding the demolition of Buck s house. 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 affidavit and the application 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. Because of the nature of the request made by Buck and the difficulty we have had in previously obtaining his compliance with the Rules of Appellate Procedure, see In re Buck, 10-07-00287-CV, October 10, 2007, 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.

Buck has not favored us with any record. This alone provides a proper ground to deny the mandamus. See Tex. R. App. P. 52.7. A record is necessary for us to determine in what court Buck s action was pending and what motions or other pleadings required hearings that had not been held.[1]

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 denied.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition denied

Opinion delivered and filed October 10, 2007

[OT06]

[1] In another proceeding, In re Buck, 10-07-00302-CV, October 10, 2007, Buck sought a writ of mandamus against the district clerk of Johnson County to compel the filing of his original petition. That proceeding seems to indicate no suit has been filed; so there is no proceeding in which any trial court could take the actions Buck seeks.