In Re: Greggory T. Graham--Appeal from 241st District Court of Smith County

NO. 12-05-00058-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: GREGGORY T. GRAHAM, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

PER CURIAM

In this original proceeding, relator Greggory T. Graham seeks a writ of mandamus against the Honorable Jack Skeen, Jr., Judge of the 241st Judicial District Court, Smith County, Texas, for his failure to rule on Graham s motion for appointment of counsel filed pursuant to Texas Code of Criminal Procedure, article 64.01(c). // He also complains that Lois Rogers, District Clerk of Smith County, has failed to file date stamp his motion. We deny Graham s petition.

Discussion

The Legislature has not conferred authority on courts of appeals to issue writs of mandamus generally. See Tex. Gov t Code Ann. 22.221 (Vernon 2004). We may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. Id. 22.221(a). We may also issue a writ of mandamus against a judge of a district or county court in the court of appeals district or a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district. Id. 22.221(b). Graham s allegations relating to the respondent district clerk do not show that the issuance of a writ of mandamus is necessary to enforce our jurisdiction. Therefore, we have no jurisdiction to grant the requested relief as to the district clerk. Moreover, even if we had such authority, Graham has not presented a record that supports his complaint against the district clerk. See Tex. R. App. P. 52.

As to the respondent trial judge, mandamus is available only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Moreover, there must be no adequate remedy at law. Id. Relators seeking issuance of a writ of mandamus directed to a trial judge must satisfy three requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. O Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). A trial court is not required to consider a motion not called to its attention. See Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App. Houston [1st Dist.] 1994, writ denied); see also Tex. R. App. P. 33.1. Indeed, one can hardly be faulted for doing nothing if he were never aware of the need to act. In re Chavez, 62 S.W.3d 225, 227 (Tex. App. Amarillo 2001, orig. proceeding).

Here, nothing appears in the record showing that the respondent trial judge had notice of the motion. Graham has furnished a document that he asserts is a copy of a letter transmitting his motion to the district clerk asking that she [p]lease file this, and bring it to the attention of the Court. However, nothing in the record indicates whether the district clerk received the letter and did, in fact, call the motion to the trial judge s attention. To be entitled to mandamus relief against the trial judge, it is incumbent upon Graham to illustrate that the clerk informed the trial judge of the motion or that he otherwise obtained knowledge of it. Id. at 228. Graham has not met this burden, and therefore we cannot say that the trial judge abused his discretion in allegedly failing to act on the motion. See id.

Disposition

The portion of Graham s mandamus petition requesting mandamus relief against the district clerk is dismissed for want of jurisdiction. As to the respondent trial judge, the writ is denied.

SAM GRIFFITH

Justice

Opinion delivered March 23, 2005.

Panel consisted of Worthen, C.J. and Griffith, J.

Devasto, J., not participating.

(PUBLISH)