In Re: Anthony Joseph Richard--Appeal from 349th District Court of Houston County

NO. 12-07-00355-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: ANTHONY JOSEPH RICHARD,

RELATOR ORIGINAL PROCEEDING

MEMORANDUM OPINION

Anthony Joseph Richard seeks a writ of mandamus requiring the trial court and the district clerk to issue citation and serve the defendants named in Richard s lawsuit, which he alleges he filed in March 2007. We dismiss Richard s petition for lack of jurisdiction in part and deny it in part.

District Clerk

When the issuance of citation is properly requested, the duty to issue citation rests upon the district clerk. See Tex. R. Civ. P. 99. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. Tex. R. Civ. P. 103. However, we do not have jurisdiction to issue a writ of mandamus against a district clerk unless the writ is necessary to enforce this court s jurisdiction. See Tex. Gov t Code Ann. 22.221 (Vernon 2004); In re Johnson, 12-06-00018-CV, 2006 WL 176927, at *1 (Tex. App. Tyler Jan. 25, 2006, orig. proceeding). Richard alleges that he has requested the district clerk to issue citation and serve the defendants named in his lawsuit. But he has not alleged or demonstrated that a writ of mandamus directed to the district clerk is necessary to enforce this court s jurisdiction. Therefore, we are without jurisdiction to grant mandamus relief as to the district clerk.

Trial Court

Generally, a party seeking mandamus relief cannot prevail absent a showing that the trial court abused its discretion and appeal is an inadequate remedy. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). The trial court has no duty to issue citation or effect service. See Tex. R. Civ. P. 99, 103. Therefore, its failure to do so cannot constitute an abuse of discretion. See Walker, 827 S.W.2d at 839-40. Because Richard has not shown an abuse of discretion by the trial court, he has not established that he is entitled to the requested relief. See id. at 839.

Disposition

The portion of Richard s petition seeking a writ of mandamus directed to the district clerk is dismissed for want of jurisdiction. The portion seeking a writ of mandamus directed to the trial court is denied.

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 11, 2007.

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

(PUBLISH)