in Re: Robert Britt

NO. 12-21-00163-CR IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: § ROBERT BRITT, § ORIGINAL PROCEEDING RELATOR §

MEMORANDUM OPINION PER CURIAM

Robert Britt, acting pro se, filed this original proceeding to complain of the failure by Respondent, Smith County District Clerk Penny Clarkston, to provide him with forms to file applications for writ of habeas corpus. 1

As we previously informed Relator in another original proceeding, a district clerk is not a judge over which this Court has mandamus jurisdiction. 2 See TEX. GOV’T CODE ANN. 22.221(a), (b) (West Supp. 2020) (writ power); see also In re Mack, No. 10-17-00186-CR, 2017 WL 2819091, at *1 (Tex. App.—Waco June 28, 2017, orig. proceeding) (mem. op., not designated for publication) (dismissing for want of jurisdiction mandamus petition against clerk for failure to provide forms to assist in filing post-conviction relief); In re Eaton, No. 12–15–00118–CR, 2016 WL 6876502, at *1 (Tex. App.–Tyler, Nov. 22, 2016, orig. proceeding) (mem. op., not designated for publication) (appellate court lacked jurisdiction to consider merits of mandamus petition as to district clerk); In re Vargas, No. 01-12-00351-CV, 2012 WL 1454550, at *1 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, orig. proceeding) (mem. op) (per curiam) (dismissing mandamus proceeding against district clerk for want of jurisdiction because addressing complaint that clerk refused to file petition was not necessary to enforce appellate court jurisdiction). Nor does the record demonstrate that issuance of a writ of mandamus against Respondent is necessary to protect this Court’s jurisdiction, i.e., we have jurisdiction to issue a writ against a district clerk for failure to forward a notice of appeal to this Court because such is necessary to enforce our jurisdiction. 3 See In re Talkington, No. 12-07-00272-CR, 2007 WL 2178551, at *1 (Tex. App.—Tyler July 31, 2007, orig. proceeding) (mem. op., not designated for publication); see also Ex parte Sanders, No. WR-80,356-01, 2013 WL 5872901, at *1 (Tex. Crim. App. Oct. 30, 2013) (order, not designated for publication) (per curiam); In re Foster, No. 14-16-00698-CR, 2016 WL 5853282, at *1 (Tex. App.—Houston [14th Dist.] Oct. 6, 2016, orig. proceeding) (mem. op., not designated for publication) (per curiam); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Here, Relator filed a notice of appeal, and that appeal is currently pending before this Court in appellate cause number 12-21- 00166-CR.

Accordingly, this Court lacks jurisdiction to grant mandamus relief under the circumstances of this case. 4 We dismiss the petition for writ of mandamus for want of jurisdiction.

Opinion delivered October 6, 2021.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH) COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT OCTOBER 6, 2021 NO. 12-21-00163-CR ROBERT BRITT, Relator V. HON. PENNY CLARKSTON, Respondent ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by Robert Britt; who is the relator in appellate cause number 12-21-00163-CR and the defendant in trial court cause number 007-1061-17, formerly pending on the docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on September 29, 2021, and the same having been duly considered, because it is the opinion of this Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed for want of jurisdiction.

By per curiam opinion.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.