in Re Roy Edward Addicks, Jr. ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00249-CV
IN RE ROY EDWARD ADDICKS, JR.
Original Proceeding
MEMORANDUM OPINION
Relator Roy Addicks, Jr. has filed a petition for writ of mandamus complaining
that Respondent, the Honorable Donald L. Kraemer, Judge of the Twelfth District Court
of Walker County, has refused to direct Robyn Flowers, the District Clerk of Walker
County, to file and forward Addicks’s notice of restricted appeal to us.1 Addicks
allegedly tendered his notice of restricted appeal to the District Clerk for filing on
August 25, 2009, in Cause No. 23,962, styled Gordon Simmonds v. Charles T. O’Reilly,
1Typically, a mandamus proceeding to compel the filing or forwarding of a notice of appeal is brought
against the trial court clerk rather than the trial court judge. See, e.g., In re Mullins, No. 10-09-00143-CV,
2009 WL 2959716 (Tex. App.—Waco Sept. 16, 2009, no pet.) (mem. op.); In re Smith, 270 S.W.3d 783 (Tex.
App.—Waco 2008, orig. proceeding). “Mandamus relief is appropriate when a trial court clerk fails to file
and forward a notice of appeal to the appropriate court of appeals.” Smith, 270 S.W.3d at 785 & n.2.
et al., filed in the Twelfth District Court.2
A review of our records indicates that Simmonds appealed Cause No. 23,962 to
this court in 2009 and it was docketed as No. 10-09-00097-CV, but pursuant to a Texas
Supreme Court order, the appeal was transferred to the Fourteenth District Court of
Appeals in Houston on April 8, 2009.3 The Houston court of appeals dismissed that
appeal for want of jurisdiction (without prejudice to filing a new appeal after a final
judgment was signed) because the judgment was not final and appealable. Simmonds v.
O’Reilly, No. 14-09-00337-CV, 2010 WL 2517976 (Tex. App.—Houston [14th Dist.] June
24, 2010, no pet.) (mem. op.). For that reason, Addicks’s request for mandamus relief is
moot, as the trial court has jurisdiction of the underlying case and there was no final
judgment for Addicks to appeal. We thus deny his petition, and all pending motions
are dismissed as moot.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition denied; all pending motions dismissed as moot
Opinion delivered and filed November 24, 2010
[OT06]
2 Addicks states that he filed a motion to join (or intervene) in the trial court in Simmonds’s lawsuit.
3In a motion filed with us, Addicks states that he forwarded a copy of his restricted notice of appeal to us
on or about August 25, 2009, but by that time, the appeal of Cause No. 23,962 had been transferred to the
Houston court, which possesses the file for the appeal. Our clerk would have forwarded anything sent
by Addicks to the Houston court. That court’s website reflects the filing of several “amended notices of
appeal” after the appeal was transferred, but we cannot ascertain whether any of them might be
Addicks’s restricted notice of appeal. Finally, in an April 12, 2010 letter, we advised Addicks that the
appeal had been transferred to Houston and that we were forwarding a letter from him to Robyn Flowers
to that court.
In re Addicks Page 2