in Re David Flores ( 2013 )

NUMBER13-13-00542-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE DAVID FLORES
On Petition for Writ of Mandamus, Prohibition, or Injunction.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam1
By petition for writ of mandamus, prohibition, or injunction, David Flores,
proceeding pro se, seeks relief against Ruby Garcia, the District Clerk of Refugio County,
because she failed to file an original proceeding, and against Associate Judge John
George of the 24th District Court of Refugio County, because he refused to consider,
hear, or rule on the original proceeding. Relator alleges that he has prepared a petition
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See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
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for writ of mandamus contending that employees of the Texas Department of Criminal
Justice have denied him access to an “audio CD transcript” of trial court proceedings
relevant to relator’s pending appeal. 2 We strike the petition for writ of mandamus,
prohibition, or injunction.
I. JURISDICTION
Article V, Section 6 of the Texas Constitution specifies the appellate jurisdiction of
the courts of appeals, and states that the courts of appeals "shall have such other
jurisdiction, original and appellate, as may be prescribed by law." TEX. CONST. art. V, § 6.
As an appellate court, this Court's original jurisdiction is governed by section 22.221 of the
Texas Government Code. See TEX. GOV'T CODE ANN. § 22.221 (West 2004); see also In
re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012, orig. proceeding). In pertinent
part, this section provides that we may issue writs of mandamus and "all other writs
necessary to enforce the jurisdiction of the court." TEX. GOV'T CODE ANN § 22.221(a).
This section also provides that we may issue writs of mandamus against "a judge of a
district or county court in the court of appeals' district" or against a "judge of a district court
who is acting as a magistrate at a court of inquiry . . . in the court of appeals district." Id.
§ 22.221(b).
Relator's petition seeks relief against the district clerk and the trial court.
However, we do not have original jurisdiction against a district clerk unless necessary to
enforce our jurisdiction. See generally id. § 22.221; In re Richardson, 327 S.W.3d 848,
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This original proceeding arises from trial court cause number 2012-12-11617 in the 24th District
Court in Nueces County, Texas. Relator currently has an appeal pending in this Court in appellate cause
number 13-13-00337-CV arising from the same trial court cause number. As stated in this original
proceeding, relator seeks access to the “audio CD transcript” for purposes of preparing his brief in the
appeal. As of this date, relator has not filed a motion in the appeal seeking access to the trial court records.
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851 (Tex. App.—Fort Worth 2010, orig. proceeding); In re Phillips, 296 S.W.3d 682, 684
(Tex. App.—El Paso 2009, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex.
App.—Houston [1st Dist.] 1999, orig. proceeding). Given that relator seeks to gain
access to the audio recording transcript “for the purpose of preparing [his] appellate brief”
in the pending appeal, we conclude that we have jurisdiction over this original proceeding.
II. CHAPTER FOURTEEN
As an initial matter, we note that the Attorney General of Texas has filed an
“Amicus Curiae Chapter 14 Advisory” in this case. See TEX. CIV. PRAC. & REM. CODE
ANN. ch. 14 (West 2002 & Supp. 2013) (regarding inmate litigation). According to this
advisory, this original proceeding should be dismissed because relator failed to comply
with the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.
Specifically, relator did not include with his petition: (1) a certified copy of his inmate
account, see id. § 14.004(c) (West 2002 & Supp. 2013), § 14.006 (West 2002); (2) an
affidavit or declaration regarding other suits filed by relator, see id. § 14.004 (West 2002 &
Supp. 2013); or (3) documentation pertaining to the underlying grievance process, see id.
§ 14.006 (West 2002).
Based on the petition, relator is an incarcerated individual subject to the provisions
of chapter 14 of the Texas Civil Practice and Remedies Code. Effective January 1,
2012, chapter 14 of the civil practice and remedies code was amended to apply to an
action, including an appeal or an original proceeding, brought by an inmate in a district,
county, justice of the peace, or small claims court, or an appellate court in which an
affidavit or unsworn declaration of inability to pay costs is also filed. See TEX. CIV. PRAC.
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& REM. CODE ANN. § 14.002(a) (West Supp. 2013) (emphasis added). Thus, the
requirements of chapter 14 now apply when inmates file appeals or original proceedings
in the appellate courts just as when they file actions in the trial courts. See id.; see also
Hickman v. Tex. Dep't of Crim. Justice, No. 13-12-00437-CV, 2013 WL 3770916, at *2
(Tex. App.—Corpus Christi July 18, 2013, no pet.) (mem. op.); Douglas v. Turner, No.
10-13-00031-CV, 2013 WL 2245653, at *1 (Tex. App.—Waco May 9, 2013, no pet.).
However, the provisions of chapter 14 do not apply to actions brought under the Texas
Family Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(b) (West Supp. 2013).
Based on the petition, this original proceeding arises from an action brought under the
family code for the modification of an order regarding child support, possession, and
access. Accordingly, we do not apply the strictures of Chapter 14 to this original
proceeding. See id.
III. UNAUTHORIZED PRACTICE OF LAW
We now turn to the petition itself. The petition identifies David Flores as relator
pro se and as “pro se counsel in charge.” Flores signed the petition, the verification for
the petition, and the certificate of service for the petition. However, the petition identifies
Jim Herbert Hamilton Jr. as the “founder-author of petition” and “legal assistant and
counsel for appellant/relator.” Hamilton included a typewritten “signature” for the
certification for the petition, which states that “I certify that I have reviewed this Petition
and have confirmed with David Flores who has concluded that every factual statement
made in this petition is supported by competent evidence included in the appendix or the
record.” Based upon the face of the petition, Hamilton is not a member of the state bar or
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a licensed attorney. See, e.g., TEX. R. CIV. P. 57 (requiring an attorney to sign pleadings
with the attorney’s State Bar of Texas identification number). In fact, Hamilton has
appeared as a litigant in this Court. See Hamilton v. Livingston, No. 13-12-00707-CV,
2013 WL 4769450, at *4 (Tex. App.—Corpus Christi Sept. 5, 2013, no pet.) (mem. op.)
(affirming the dismissal of Hamilton’s lawsuit against prison officials for premises liability
and intentional denial of administrative remedies under chapter 14 of the civil practice and
remedies code).
To practice law in Texas state courts, an individual must be a member of the State
Bar of Texas and licensed by the Texas Supreme Court. See TEX. GOV'T CODE ANN. §
81.101 (West 2013); Id. § 81.102 (West 2013); TEX. PEN. CODE ANN. § 38.123 (West
2011); see Rabb Int'l, Inc. v. SHL Thai Food Serv., LLC, 346 S.W.3d 208, 210–11 (Tex.
App.—Houston [14th Dist.] 2011, no pet.); Crain v. The Unauthorized Practice of Law
Comm. of the Sup.Ct. of Tex., 11 S.W.3d 328, 332–34 (Tex. App.—Houston [1st Dist.]
1999, pet. denied). A person practices law by, among other things, preparing pleadings
incident to a lawsuit and managing a claim on a client's behalf. See TEX. GOV'T CODE
ANN. § 81.101(a); Martin v. Commercial Metals Co., 138 S.W.3d 619, 622 (Tex.
App.—Dallas 2004, no pet.); Jimison by Parker v. Mann, 957 S.W.2d 860, 861 (Tex.
App.—Amarillo 1997, no writ). A prison inmate, who is not a member of the State Bar,
may not practice law or otherwise represent another inmate. See Paselk v. Rabun, 293
S.W.3d 600, 606 (Tex. App.—Texarkana 2009, pet. denied); see also Morris v. Flores,
No. 13-11-00675-CV, 2012 WL 3043097, at *3 (Tex. App—Corpus Christi July 26, 2012,
pet. denied) (mem. op.).
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Hamilton is not an attorney and he is not legally permitted to represent or otherwise
file pleadings on another inmate's behalf. See Paselk, 293 S.W.3d at 606. Accordingly,
Hamilton could not serve as “founder-author” of the petition and “legal assistant and
counsel” for relator. Because the petition was not prepared by relator proceeding pro se
or a duly licensed attorney, but was instead prepared by a fellow inmate, we consider the
petition a nullity.
IV. BURDEN FOR ORIGINAL PROCEEDINGS
Finally, we note that even if we were to address the merits of this original
proceeding on grounds that relator participated in its preparation as “pro se counsel in
charge,” we would conclude that the petition lacks merit. It is the relator’s burden to
properly request and show entitlement to relief in an original proceeding. See In re CSX
Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Davidson, 153 S.W.3d 490, 491
(Tex. App.—Amarillo 2004, orig. proceeding); see also Barnes v. State, 832 S.W.2d 424,
426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for
a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).
This burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig.
proceeding). In addition to other requirements, the relator must include a statement of
facts supported by citations to “competent evidence included in the appendix or record,”
and must also provide “a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the appendix or record.” See generally TEX. R.
APP. P. 52.3. The relator must also file an appendix and record sufficient to support the
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claim for relief. See id. R. 52.3(k) (specifying the required contents for the appendix); id.
R. 52.7(a) (specifying the required contents for the record); see also Walker, 827 S.W.2d
at 837. The petition before the Court fails to meet these requirements for relief.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus, prohibition, or injunction, and the applicable law, is of the opinion that the
petition is a legal nullity and should be struck. Accordingly, we STRIKE the petition for
writ of mandamus, prohibition, or injunction.
PER CURIAM
Delivered and filed the
13th day of November, 2013.
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