 

COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00243-CV

EN RE RICKEY LYNN JOHNSON RELATOR

Pro se reiator Rickey Lynn Johnson has filed a petition for a writ of
mandamus requesting that we require respondent, the Honorable Janelle
Haverkamp, the presiding judge of the 235th District Court of Cooke County, to

rule on his objections to the clerk and reporter’s fees. We conditionally grant

relief.

fSee Tex. R. App. P. 47.4.

Background Facts

On August 17, 2012, Relator pleaded guilty to the criminal charges against
him pursuant to a plea bargain.2 On April 27, 2013, and May 13, 2013, Relator
requested a page and cost summary from both the court reporter and the district
cierk. The district clerk and court reporter responded with quotes totaiing $121
On June 7, 2013, Relator filed his “Objections to Clerk and Reporter’s Fees,”
stating that he was unable to pay the costs because he was indigent. He asked
the triai court to determine a reasonabie fee and proposed to pay ten cents per
page or, in the alternative, to borrow the record for ninety days or to be allowed
to View the record in Cooke County jail upon a bench warrant. The trial court has
not ruled on his objections.

Reiator filed a petition for a writ of mandamus in this court, arguing that the
triai court has abused its discretion by not determining a reesonabie fee as
required by section 52.04703) of the government code. See Tex. Gov’t Code
Ann. § 52.047(b) (West 2013). The State responded by arguing that the Relator
is not indigent as he claims to be and that the proposed fees are reasonable.

Standard of Review

Mandamus relief is proper only to correct a ciear abuse of discretion when

there is no adequate remedy by appeal. In re State, 355 S.W.3d Bi’i, 613 (Tex.

2011) (orig. proceeding). A trial court cieariy abuses its discretion when it

2Neither the Relator nor the Real Party in Interest, the State of Texas,
noted what the charges against Reiator were.

2

reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or if it clearly fails to correctiy analyze or apply the law.
In re Olshan Found. Repair Co, 328 S.W.3d 883, 888 (Tex. 2010) (orig.
proceeding); Walker v. Packer, 827 S.W.2ci 833, 839 (Tex. 1992) (orig.
proceeding). Absent extraordinary circumstances, mandamus wit! not issue
unless reiator lacks an adequate remedy by appeal. In re Van Waters & Rogers,
Inc, 145 S.W.3d 203, 210-41 (Tex. 2004) (orig. proceeding) (citing Walker, 827
S.W.Zd at 839).

A trial court “commits a clear abuse of discretion when it refuses to
exercise its discretion to hear and rule on pending motions," and a court of
appeals may compel a trial court to rule. Grant v. Wood, 916 S.W.Zd 42, 45
(Tex. App.-——Houston [tst Dist] 1995, orig. proceeding); see In re Am. Media
Consol., 121 S.W.3d 70, 72 (Tex. App—San Antonio 2003, orig. proceeding).
The triai court’s duty to act on a pending motion arises when the movant has
brought the motion to the court’s attention and the court has had a reasonable
time to rule. In re Layton, 257 S.W.3d 794, 795 (Tex. App.--~Amariiio 2008, orig.
proceeding).

Discussion

Section 52.04703) of the government code states that if “an objection is

made to the amount of the transcript fee, the judge shat! determine a reasonabie

fee, taking into consideration the difficulty and technicaiity of the materiai to be

ﬂanscdbed and any tkne consuahns anosed by the person requesﬁng the
transcript.” Tex. Gov’t Code Ann. § 52.047(b). We have previously held that the
unambiguous and plain meaning of this section requires the respondent to rule
on Relator’s objections. See In re Slaughter, No. 02-13—00122«CV, 20i3 WL
1960624, at *3 (Tex. App—Fort Worth May 14, 2013, orig. proceeding) (mem.
op.) The arguments in the State’s response go only to the merits of Reiator’s
objections, not to the trial court’s failure to act. That Relatet has waived his right
to appeal also does not excuse the trial court's failure to rule. See id. at *4
(rejecting the State’s argument that the trial court did not abuse its discretion by
failing to rule on relator’s objections when reiator had waived his right to appeal
because relator had not waived his right to retrieve records related to his
conviction “for use in whatever purpose" or that he had waived his right to seek
postconviction reiiet through appiying for a writ of habeas corpus). Because the
triai court has not ruied, it has clearly abused its discretion. Reiator has no
adequate remedy by appeal and is entitled to relief. See id; see also In re
Mitchell, No. 10—07-00250-CV, 2008 WL 191477, at *1-—2 (Tex. App.--~Waco Jan.
23, 2008, orig. proceeding) (mem. op.) (granting relator’s petition for writ of
mandamus when trial court did not rule on reiator’s motion within a reasonable

time).

Conctusion
Having held that respondent abused her discretion by not ruling on
relator’s objections to the court reporter’s and district Clerk’s cost estimates and
that relator does not have an adequate remedy by appeat from the trial court's
refusal to rule, we conditionally grant relator’s petition for a writ of mandamus.
We order respondent to ruEe on relator’s objections. See Tex. Gov’t Code Ann.
§52.0047(b). A writ of mandamus will issue only in the event that respondent

fails to comply with our instructions within thirty days of the date of this opinion.

PER CUREAM
PANEL: GABRIEL, J.; LlVlNGSTON, C.J.; and GARDNER, J.

DELIVERED: August 9, 2013

