                                           COURT OF APPEALS
                                        EIGHTH DISTRICT OF TEXAS
                                             EL PASO, TEXAS


                                                              §                      No. 08-14-00132-CV
IN RE: MIGUEL ROJAS, JR.,
                                                              §               AN ORIGINAL PROCEEDING
                   Relator.
                                                              §                ON PETITION FOR WRIT OF

                                                              §                          MANDAMUS


                                          MEMORANDUM OPINION

         Relator, Miguel Rojas, Jr., a Texas inmate, has filed a petition for writ of mandamus

against the Honorable Angie Juarez Barill, Judge of the 346th District Court of El Paso County,

Texas, and Norma Favela, District Clerk of El Paso County, Texas. Relator seeks an order

compelling the District Clerk to file a petition for writ of mandamus previously mailed to the

District Clerk’s Office. Alternatively, he asks that we order Judge Barill to accept his mandamus

petition for filing. We deny mandamus relief.

         Relator is a Texas inmate. He mailed a mandamus petition to the El Paso County District

Clerk in January 2014, but Relator alleges it has never been filed. 1 Relator wrote to the District

Clerk on February 10, 2014, and requested that she file his mandamus petition but he has

received no response. Relator filed a mandamus petition in this Court on April 10, 2014,


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  Relator has provided the Court with a copy of his certified mail receipt showing that the District Clerk’s Office
accepted a document on January 30, 2014. Relator has not provided the Court with a copy of the mandamus petition
he attempted to file with the district clerk. He alleges that it is a civil matter and the 346th District Court is the court
of “original jurisdiction”.
requesting that the Court order the District Clerk to file his mandamus petition. Alternatively, he

requests that the Court order Judge Barill to accept his mandamus petition for filing pursuant to

TEX.R.CIV.P. 74.

       To be entitled to mandamus relief, a relator must meet two requirements. First, the

relator must show that the trial court clearly abused its discretion. In re Prudential Insurance

Company of America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate

that there is no adequate remedy by appeal. Id. at 135-36.

       We will first address Relator’s petition for writ of mandamus directed against the District

Clerk. A court of appeals has jurisdiction to issue a writ of mandamus against certain judges

within its geographic district. TEX. GOV’T CODE ANN. § 22.221(b)(West 2004). A court of

appeals also has authority to issue a writ of mandamus if it is necessary to enforce its

jurisdiction. Id. § 22.221(a). Thus, we may issue a writ of mandamus to a district clerk only if

he or she interferes with the court’s jurisdiction. See id. at § 22.221(a); In re Washington, 7

S.W.3d 181, 182 (Tex.App.--Houston [1st Dist.] 1999, orig. proceeding). Relator does not have

any pending appeals before this Court and he has failed to show that the District Clerk has

interfered with the Court’s appellate jurisdiction. Consequently, we do not have jurisdiction to

grant the relief requested with respect to the District Clerk. See In re Bernard, 993 S.W.2d 453,

454 (Tex.App.--Houston [1st Dist.] 1999, orig. proceeding)(holding that the court of appeals

lacked jurisdiction to compel the district clerk to file relator’s mandamus petition).

       Relator also seeks mandamus relief against Judge Barill. Citing In re Simmonds, 271

S.W.3d 874 (Tex.App.--Waco 2008, orig. proceeding) and Justice O’Connor’s concurring

opinion in Bernard, Relator asks the Court to order Judge Barill to file his mandamus petition.

See Bernard, 993 S.W.2d at 454-55 (O’Connor, J., concurring opinion). In Bernard, the district



                                                -2-
clerk refused to file a mandamus petition and the relator sought mandamus relief in the First

Court of Appeals. Bernard, 993 S.W.2d at 454. The Court of Appeals concluded it did not have

jurisdiction to grant mandamus relief against the district clerk. In re Bernard, 993 S.W.2d at

454. Justice O’Connor offered a remedy in her concurring opinion and wrote that when the

district clerk refuses to accept a petition or other pleading for filing, the party should attempt to

file the pleading directly with the district court as permitted by TEX.R.CIV.P. 742, explaining in a

verified motion that the clerk refused to accept the pleading for filing. In re Bernard, 993

S.W.2d at 454-55 (O’Connor, J., concurring opinion). The concurring opinion went on to state

that if the district judge also refuses to accept the pleading for filing, the party could seek

mandamus relief in the appellate court. Id.

         In Simmonds, an inmate attempted to file suit against a fellow inmate directly with the

district court pursuant to Rule 74 because he anticipated that the district clerk would not file it

based on prior correspondence. In re Simmonds, 271 S.W.3d at 878-79. The district court

refused to file the petition. Id. The inmate then attempted to file his petition with the district

clerk, but the clerk also refused to file the suit because he had not paid court costs in a previous

suit which had been dismissed as frivolous under Chapter 14 of the Civil Practice and Remedies

Code. In re Simmonds, 271 S.W.3d at 879. The inmate filed a mandamus petition in the Waco

Court of Appeals against the district clerk and the district judge. The Waco Court of Appeals

concluded that it did not have jurisdiction to grant relief against the district clerk.                       In re

Simmonds, 271 S.W.3d at 879. Citing the concurring opinion in Bernard, the court of appeals

found, however, that the district judge had abused his discretion by refusing to file the petition


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   Rule 74 provides that the filing of pleadings, other papers and exhibits as required by the rules shall be made by
filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which
event he shall note thereon the filing date and time and forthwith transmit them to the office of the clerk.
TEX.R.CIV.P. 74.

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and it conditionally granted the writ of mandamus against the district judge. In re Simmonds,

271 S.W.3d at 883.

       This Court has not had an occasion to determine whether we will follow Simmonds or the

concurring opinion in Bernard. We decline to decide the question in this case because Relator

has not established that he submitted the mandamus petition to Judge Barill for filing in

accordance with the procedure discussed in Simmonds and the concurring opinion in Bernard or

that she has refused to file it. Relator has not established that Judge Barill has failed or refused

to take any required action or that she has otherwise abused her discretion. Accordingly, we

conclude that Relator has not established his entitlement to mandamus relief. The petition for

writ of mandamus is denied.



                                              GUADALUPE RIVERA, Justice
May 16, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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