In Re: Gordon Dean Haley--Appeal from County Court at Law No 1 of Nueces County

NUMBER 13-05-626-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

  IN RE GORDON DEAN HALEY

On Petition for Writ of Mandamus

O P I N I O N

Before Chief Justice Valdez and Justices Castillo and Garza

Opinion by Justice Castillo

The question presented is whether the relator, Gordon Dean Haley, may compel the respondent by writ of mandamus to furnish him a transcription of the court reporter's notes without cost for the purpose of his civil appeal. We deny the application.

I. Background

The limited record before us shows that relator filed an affidavit of indigence in the underlying civil proceeding, an amended motion requesting the trial court vacate the indigency hearing, and a third request for a reporter's record with the court reporter's affidavit attached as an exhibit.[1] Relator asserts, among other things, that (1) the court reporter did not timely file a contest, see Tex. R. App. P. 20.1(e),[2] (2) the trial court improvidently convened a hearing on the court reporter's untimely contest, see Tex. R. App. P. 20.1(f),[3] and (3) the trial court improperly sustained the contest and denied his application for a free reporter's record.

II. Standard of Review

Mandamus relief is appropriate only: (1) to correct a clear abuse of discretion or the violation of a duty imposed by law; and (2) there is no adequate appellate remedy by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)).

III. Analysis

Relator labors under a heavy burden. The record before us does not comport with the procedural requirements for extraordinary relief because the documents attached to relator's application are not certified. See Tex. R. App. P. 52.7(a)(1). Further, a certified copy of the complained-of order is not before us. Id.; see also Tex. R. App. P. 33.1(a)(2)(A). More importantly, the Texas Supreme Court has held that mandamus relief is not appropriate under these circumstances because there is an adequate remedy by appeal for review of an order sustaining a contest to an affidavit of indigence. See In re Arroyo, 988 S.W.2d 737, 738 39 (Tex. 1998); Packer, 827 S.W.2d at 839.

IV. Conclusion

Because the record before us is insufficient, see Tex. R. App. P. 52.7(a)(1), and because relator has not shown that remedy by appeal is inadequate, see Arroyo, 988 S.W.2d at 738 39, we deny relator's application for writ of mandamus.

ERRLINDA CASTILLO

Justice

Opinion delivered and filed this

the 14th day of October, 2005

[1]The court reporter's affidavit contains the reasons for the untimely filing of the contest to relator's application.

[2]"The contest must be filed on or before the date set by the clerk if the affidavit was filed in the appellate court, or within 10 days after the date when the affidavit was filed if the affidavit was filed in the trial court." Tex. R. App. P. 20.1(e).

[3]"Unless a contest is timely filed, no hearing will be conducted, the affidavit's allegations will be deemed true, and the party will be allowed to proceed without advance payment of costs." Tex. R. App. P. 20.1(f).