in Re R Wayne Johnson, Relator ( 2011 )

NO. 07-11-00119-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 28, 2011
IN RE R WAYNE JOHNSON, RELATOR
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.1
MEMORANDUM OPINION
Relator R. Wayne Johnson, a state prison inmate proceeding pro se, seeks a writ
of mandamus against respondent, the Honorable Ana Estevez, Judge of the 251st
District Court of Potter County, Texas, on the ground that respondent refused to issue
arrest warrants or summonses in response to the complaint filed in her court by relator
alleging assault by certain prison officials. We will deny relator’s petition.
Mandamus is an extraordinary remedy available only in limited circumstances
involving manifest and urgent necessity and not for grievances that may be addressed
by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A relator must
demonstrate a clear abuse of discretion or the violation of a duty imposed by law and
that he has no other adequate remedy at law. See Republican Party of Texas v. Dietz,
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
940 S.W.2d 86, 88 (Tex. 1997). Relator does not challenge a ruling of the trial court.
Rather he alleges failure of that court to perform a ministerial duty. Here, then, to obtain
relief by mandamus, relator must show: (1) a legal duty by the trial court to act; (2) a
demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586 S.W.2d
843, 846 (Tex. 1979); In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001, orig.
proceeding).
We begin by noting that we could not issue the relief relator requests on the
record he submits. To support relief, a mandamus record must include every document
that is material to the claim for relief and that was filed in the underlying proceeding.
Tex. R. App. P. 52.7; Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655,
658 (Tex. 1992). This means relator must provide an adequate record to substantiate
the allegations contained in the petition for mandamus. Id.; Packer, 827 S.W.2d 833,
837 (Tex. 1992). Absent a sufficient record, mandamus will not issue. Id.
With his petition, relator has included a copy of some documents he states he
filed with the 251st District Court. But appellant’s mandamus petition is based on a
document entitled “criminal complaint” he states he sent to Judge Estevez, alleging
assault by several prison officials and requesting the judge issue arrest warrants or
summonses. He does not, however, include the document with his petition. Tex. R.
App. P. 52.3(k)(1)(a) (requiring a certified or sworn copy of documents showing the
matter complained of). We could not evaluate relator’s mandamus petition without the
critical document he says he filed with the respondent.
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Beyond these deficiencies, and assuming Judge Estevez has seen his criminal
complaint, relator’s petition on its face does not support his contention Judge Estevez
failed to perform a ministerial duty. Relator cites articles 15.03, 15.04, and 15.05 of the
Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. arts. 15.03, 15.04, 15.05
(West 2010). None of those provisions make the issuance of an arrest warrant a
ministerial duty.
Article 15.03 speaks only to situations when a warrant or summons may be
issued and the contents of a summons. As we have held before, it does not make the
issuance of either a warrant or a summons a ministerial duty. In re Johnson, No. 07-04-
0568-CV, 2004 Tex.App. LEXIS 11433 (Tex.App.—Amarillo Dec. 20, 2004, orig.
proceeding) (mem. op.). It is fundamental, of course, that arrest warrants under article
15.03 are properly issued only on a demonstration of probable cause to believe an
offense has been committed, as determined by a neutral and detached magistrate.
U.S. Const. amend. IV (requiring probable cause for issuance of warrant); see State v.
Martin, 833 S.W.2d 129, 132 (Tex.Crim.App. 1992) (describing requirements for
issuance of warrant).
Article 15.04 simply defines the word “complaint” and article 15.05 sets forth the
requisites of a complaint. Tex. Code Crim. Proc. Ann. arts. 15.04; 15.05 (West 2010).
Neither supports relator’s contention that issuing arrest warrants or summonses is a
ministerial duty.
Relator further complains that, alternatively, Judge Estevez could have initiated a
court of inquiry pursuant to article 52.01 of the Code of Criminal Procedure. Tex. Code
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Crim. Proc. Ann. art. 52.01 (West 2009). But again relator points to nothing suggesting
that a failure to do so on request violates a ministerial duty.
Accordingly, relator’s petition for writ of mandamus is denied.
Per Curiam
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