In re Michael Kennedy--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00822-CV

IN RE Michael KENNEDY

Original Mandamus Proceeding //

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 14, 2005

PETITION FOR WRIT OF MANDAMUS DISMISSED FOR LACK OF JURISDICTION IN PART AND DENIED IN PART

Michael Kennedy has filed a petition for a writ of mandamus asking this court to compel the trial court and the district clerk to file a petition and issue a citation. Kennedy represents that, although he sent the petition to the district clerk on August 13, 2004, it has not been acted upon by the district clerk. // We dismiss Kennedy s petition for lack of jurisdiction in part and deny it in part.

A petition commencing a civil action must be filed with the district clerk. See Tex. R. Civ. P. 22. Similarly, when the issuance of a citation is properly requested by a party, the duty to issue the citation rests upon the district clerk. See Tex. R. Civ. P. 99. However, this court does not have jurisdiction to issue a writ of mandamus against a district clerk unless it is necessary to enforce this court s jurisdiction. See Tex. Gov t Code Ann. 22.221 (Vernon 2004); In re Lann, 2004 WL 1881751, at *1 (Tex. App. San Antonio, August 25, 2004, orig. proceeding); In re Dunn, 120 S.W.3d 913, 913 (Tex. App. Texarkana 2003, orig. proceeding). Kennedy has not alleged or established that a writ of mandamus directed to the district clerk is necessary to enforce this court s jurisdiction. Therefore, that part of Kennedy s petition seeking a writ of mandamus directed to the district clerk is dismissed for lack of jurisdiction.

The trial court has no duty to file a petition or issue a citation. See Tex. R. Civ. P. 22, 99. Accordingly, to the extent Kennedy s petition seeks a writ of mandamus directed to the trial court, he has failed to establish either that the trial court has abused its discretion or violated a legal duty. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Therefore, Kennedy s petition seeking a writ of mandamus directed to the trial court is denied.

PER CURIAM