In Re: Kurby Decker--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00134-CV

______________________________

IN RE:

KURBY DECKER

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Kurby Decker, an inmate at the Texas Department of Corrections Institutional Division, has filed a petition for writ of mandamus. Decker's petition contains no supporting clerk's or reporter's record. His petition, however, is related to an appeal currently pending before this Court styled Decker v. Clements, No. 06-04-00118-CV. In the interest of justice, we take judicial notice of the contents of the clerk's record in that companion case. See Tex. R. Evid. 201(b), (c), (f) (discretionary judicial notice of adjudicative facts may be taken at any stage of proceeding).

In his current petition for writ of mandamus, Decker asks us to order the Honorable John Miller, presiding judge of the 102nd Judicial District Court in Bowie County, Texas, to file written findings of fact and conclusions of law in Decker v. Clements, trial court cause number 04C0762-102. Decker had sued several employees of the Texas Department of Criminal Justice for allegedly violating Decker's constitutional rights. // On September 30, 2004, the trial court dismissed the lawsuit based on the State Attorney General's motion alleging Decker had failed to (1) include an affidavit relating to his prior inmate litigation as required by Tex. Civ. Prac. & Rem. Code Ann. 14.004 (Vernon 2002), (2) exhaust administrative remedies pursuant to Tex. Civ. Prac. & Rem. Code Ann. 14.005 (Vernon 2002), and (3) attach a certified copy of his trust fund account as required by Tex. Civ. Prac. & Rem. Code Ann. 14.006(f) (Vernon 2002). The trial court's order of dismissal did not contain written findings of fact and conclusions of law. Decker filed a request for written findings of fact and conclusions of law October 13, 2004. Decker then filed a notice of appeal October 22, 2004.

Mandamus relief is an extraordinary remedy. We will issue a writ of mandamus only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a legally imposed duty, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994). "Rules 296 and 297 [of the Texas Rules of Civil Procedure] do not require a trial court to make findings of fact and conclusions of law where there has been no trial." Timmons v. Luce, 840 S.W.2d 582, 586 (Tex. App. Tyler 1992, no writ) (referencing Kendrick v. Lynaugh, 804 S.W.2d 153 (Tex. App. Houston [14th Dist.] 1990, no writ)).

In this case, the trial court dismissed Decker's lawsuit based on a review of the clerk's record, and without conducting a hearing or receiving evidence. There was no trial. The trial court, therefore, had no duty to file written findings of fact and conclusions of law.

We deny Decker's petition for writ of mandamus.

Donald R. Ross

Justice

Date Submitted: December 2, 2004

Date Decided: December 3, 2004