in Re James L. Williamson ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00367-CV

In re James L. Williamson

Original Proceeding

MEMORANDUM  Opinion

          James Williamson, a pro-se prisoner, requests this Court to mandamus the Limestone County District Clerk to furnish a copy of a record sent to the Court of Criminal Appeals.  Williamson also filed a motion for leave to file his petition for writ of mandamus and a motion to proceed “in-forma pauperis.” 

          We have no jurisdiction to mandamus a district clerk except to protect our jurisdiction.  In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999) (orig. proceeding); In re Simpson, 997 S.W.2d 939 (Tex. App.—Waco 1999) (orig. proceeding).  See also Tex. Gov't Code Ann. § 22.221(a), (b) (Vernon 2004).  Williamson’s petition does not allege facts that require us to protect our jurisdiction.

          Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998).  See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5; Tex. Gov’t Code Ann. § 51.207(b) (Vernon 2005).  Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2. 

          The petition for writ of mandamus is dismissed for want of jurisdiction.  Williamson’s motion for leave to file his petition is dismissed as moot.  Likewise, the motion to proceed without the advance payment of cost is dismissed as moot.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Pet. dismissed

Opinion delivered and filed December 6, 2006

[OT06]

serif">      The District filed its motion to dismiss on March 7, 1995. According to the docket sheet and the first page of the statement of facts, the court held a hearing on this motion on April 26. However, the order contained in the transcript states:

CAME ON this day to be heard Defendants' Motion to Dismiss for Lack of Jurisdiction before this Court in the above-referenced cause. The Court, having considered the Motion, is of the opinion that it should be GRANTED. It is therefore,

ORDERED, ADJUDGED AND DECREED that the above-referenced cause is hereby dismissed with prejudice in its entirety.

SIGNED this 26th day of March, 1995.

Only the day and the signature is hand written, the remainder of the order is computer generated. The following notations are typed down the left margin of the order in a print different from the print of the text:

      Order Granting

      Motion to

      Dismiss for

      Lack of

      Jurisdiction

      SIGNED

      4-26-95

      FILED

      4-26-95

      RECORDED

      Vol-257

      Pg-1438

      Thrasher filed her cost bond on May 24, which was within thirty days of April 26, but more than thirty days after March 26. See Tex. R. App. P. 40(a)(1), 41(a)(1). On July 6 our clerk notified Thrasher "that it seems that the appeal [had] not been duly perfected because the cost bond was filed more than thirty days after March 26, 1995, the date the order was signed as shown in the transcript." See id. 56(a). In a responsive letter, Thrasher argued that the order "incorrectly states that it was signed on March 26, 1995." She points to "the District Clerk's notations" in the margin, the date on the statement of facts from the hearing, and the docket sheet entry indicating that the order was signed on April 26 as evidence that the March 26 date recited in the order is inaccurate.

      Our jurisdiction over a final order of a trial court is invoked by a timely filed cost bond, cash deposit or affidavit of inability to pay costs. See id. 40(a)(1), 41(a)(1); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). The appellate record must affirmatively show that our jurisdiction has been properly invoked. See Heard v. Heard, 305 S.W.2d 231, 234 (Tex. Civ. App.—Galveston 1957, writ ref'd); McDonald v. Newmyer, 775 S.W.2d 652, 653 (Tex. App.—Houston [1st Dist.] 1989, writ denied). "In civil cases, the date a judgment or order is signed as shown of record shall determine the beginning of the periods . . . for filing . . . an appeal bond . . . . " Tex. R. App. P. 5(b)(1) (emphasis added); see also Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). "[I]n the absence of a recital showing on the face of the judgment . . . that the judgment was signed on a different date, the date of rendition as recited therein governs and controls and . . . such date of rendition may not be impeached for purposes of appeal by affidavits or otherwise, or by anything short of the amendment of the judgment itself." Heard, 305 S.W.2d at 235.

      Thus, because the order in the transcript reflects that it was signed on March 26, Thrasher must have filed a cost bond, deposit or affidavit of inability to pay by April 25. See Tex. R. App. P. 40(a)(1), 41(a)(1); Heard, 305 S.W.2d at 235. We cannot refer to the notations in the margin to contradict the date recited in the order itself. See Heard, 305 S.W.2d at 235. She filed her cost bond on May 24, some twenty-nine days too late, and she has not amended the record to show that either the date recited in the order is incorrect or that her cost bond was filed timely. Thus, she failed to properly perfect this appeal.

      Perfecting an appeal is a requirement to invoke our jurisdiction. See El Paso Sharky's v. Amparan, 831 S.W.2d 3, 4-5 (Tex. App.—El Paso 1992, writ denied). Absent a timely filed cost bond or substitute, an appeal is not perfected and we do not have jurisdiction to consider it. See id.; Ludwig v. Enserch Corp., 845 S.W.2d 338, 339-40 (Tex. App.—Houston [1st Dist.] 1992, no writ).

      "If the transcript does not show the jurisdiction of the court, and if after notice it is not amended, the appeal shall be dismissed." Tex. R. App. P. 56(a) (emphasis added); see also Sharp v. Knowles, 474 S.W.2d 956, 957 (Tex. Civ. App.— Tyler 1971, no writ). Therefore, we are required to dismiss this appeal for want of jurisdiction. See Vicki Industries, Inc. v. Hupp Systems, Inc., 521 S.W.2d 733, 734-35 (Tex. Civ. App.—Waco 1975, no writ).

                                                                               PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed August 9, 1995

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