in Re: Paul A. Propes, Jr. ( 2021 )

DENIED and Opinion Filed November 1, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00690-CV
IN RE PAUL A. PROPES JR., Relator
Original Proceeding from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-82537-08
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
Paul A. Propes Jr. petitions the Court for a writ of mandamus contending the
trial court has failed to rule on his pending motion for a bill of review. We deny
relief.
Relator bears the burden to provide the Court with a sufficient record to
establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding). To meet his evidentiary burden, rule 52.3(k)(1)(A) requires
relator to file an appendix with his petition that contains “a certified or sworn copy
of any order complained of, or any other document showing the matter complained
of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule 52.7(a)(1) requires relator to file with the
petition “a certified or sworn copy of every document that is material to the relator’s
claim for relief that was filed in any underlying proceeding.” TEX. R. APP. P.
52.7(a)(1).
Relator has not filed a copy of the motion for a bill of review for which he
seeks a ruling. The motion for bill of review is a “document that is material to the
relator’s claim for relief” filed in his underlying case. TEX. R. APP. P. 52.7(a)(1).
Furthermore, the other documents relator files to support his claims, judgments and
small excerpts of the reporter’s record from his trial, are not certified or sworn copies
as required by rules 52.3 and 52.7. Without a sufficient and properly authenticated
record, relator cannot show he is entitled to mandamus relief. See In re Butler, 270
S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding).
Moreover, even if relator filed the necessary supporting record, he would not
be entitled to mandamus relief. To obtain mandamus relief in a criminal case, relator
must show that he seeks to compel the trial court to perform a ministerial act and
that he has no adequate remedy at law. In re State ex rel. Weeks, 391 S.W.3d 117,
122 (Tex. Crim. App. 2013, orig. proceeding). To obtain mandamus relief for the
trial court’s failure to rule on a motion, the relator must show the trial court has a
legal duty to rule on the motion, was asked to rule on the motion, and refused to do
so within a reasonable time. See In re Prado, 522 S.W.3d 1, 2 (Tex. App.—Dallas
2017, orig. proceeding) (mem. op.).
In this case, relator cannot show the trial court has a legal duty to rule on the
motion and thus failed to perform a ministerial act. After the trial court’s plenary
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jurisdiction expires, it does not retain general jurisdiction over a case. State v.
Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002) (plurality op.). The trial court
retains limited jurisdiction to address certain matters such as ensuring that a higher
court’s mandate is carried out, fact finding on habeas applications, and determining
whether a convicted person is entitled to post-conviction DNA testing. Id.Relator, convicted of felony offenses, is not entitled to file a bill of review to
challenge his convictions. See Collins v. State, 257 S.W.3d 816, 817 (Tex. App.—
Texarkana 2008, no pet.); see also Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex.
Crim. App. 1996 (habeas proceeding under article 11.07 is exclusive post-conviction
remedy in final felony convictions); Perkins v. State, No. 05-16-00896-CR, 2016
WL 4217958, at *1 (Tex. App.—Dallas Aug. 9, 2016, no pet.) (mem. op., not
designated for publication) (bill of review has no application in criminal proceeding
and does not provide jurisdictional basis for appeal); In re Curry, No. 12-16-00147-
CR, 2016 WL 3063338, at *1 (Tex. App.—Tyler May 27, 2016, orig. proceeding)
(per curiam) (mem. op., not designated for publication) (denying mandamus relief
on ground trial court has no jurisdiction to consider bill of review and thus no
ministerial duty to act). Thus, because the trial court has no jurisdiction to consider
relator’s bill of review, it has no legal duty to act on appellant’s motion and has not
violated a ministerial duty entitling relator to mandamus relief. See Collins, 257
S.W.3d at 817; see also Curry, 2016 WL 3063338, at *1.
We deny the petition for writ of mandamus.
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/Bill Pedersen, III//
210690f.p05 BILL PEDERSEN, III
JUSTICE
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