Tuesday, September 1, 2009
Errors to avoid when seeking mandamus relief in the court of appeals
Fourteenth Court of Appeals panel finds pro se petition for writ of mandamus defective and denies it. To its credit, the panel identifies the deficiencies in its per curiam opinion, thus reminding other would-be applicants ("relators") and their counsel - if any - of the formal requirements for mandamus relief.
PRO SE LITIGANT GETS MORE THAN A ONE-LINER (NON) OPINION
Mandamus relief is rarely granted in any event, but appellate panels routinely dispose of such petitions without any explanation, by merely issuing one-line orders stating that the petition is denied.
M E M O R A N D U M O P I N I O N
On August 12, 2009, relator, David Smotherman, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In his petition, relator requests that we compel the Honorable James H. Shoemake, presiding judge of the 434th District Court of Fort Bend County, to rule on his pending motion for appointment of counsel and motion for photocopying.
Relator's petition does not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 20.1 (requiring affidavit of indigence to proceed in court of appeals without advance payment of costs); Tex. R. App. P. 52.3(a) (requiring complete list of all parties, and names and addresses of all counsel); Tex. R. App. P. 52.3(j) (requiring certification that every factual statement in petition is supported by competent evidence in appendix or record); Tex. R. App. P. 52.7(a)(1) (requiring relator to file certified or sworn copy of every document that is material to his claim for relief).
Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator's petition for writ of mandamus.
In Re Smotherman (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(per curiam mandamus denial) (mandamus petition was defective, errors to avoid when filing a petition for writ of mandamus) MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00692-CV In Re David Smotherman Appeal from 434th Judicial District Court of Fort Bend County