                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00122-CV


IN RE HERMAN SLAUGHTER, JR.                                            RELATOR


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                           ORIGINAL PROCEEDING

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                        MEMORANDUM OPINION 1

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      Pro se relator Herman Slaughter, Jr. has filed a petition for a writ of

mandamus. As we construe relator’s petition, he asks us to require respondent,

the Honorable Mike Thomas, who is the presiding judge of Criminal District Court

Number Four of Tarrant County, to rule on relator’s “Amended Objections to

Reporter’s Record Fees” and to deliver a complete copy of the reporter’s record

from relator’s criminal proceedings so that relator may prepare an application for




      1
       See Tex. R. App. P. 47.4, 52.8(d).
a writ of habeas corpus. We conditionally grant relief in part and deny relief in

part. 2

                                  Background Facts

          In December 2010, pursuant to a plea bargain agreement, the trial court

convicted relator of possessing between two hundred and four hundred grams of

cocaine 3 and sentenced him to seventeen years’ confinement. A term of relator’s

plea-bargain agreement precluded him from appealing his conviction, and he did

not do so.

          Almost a year later, in November 2011, relator began seeking copies of the

clerk’s and reporter’s records from his criminal case for the purpose of preparing

an application for a writ of habeas corpus. In January 2012, relator filed his

original “Objections to Clerk and Reporter’s Fees,” stating, in part, that although

he had requested a cost summary of preparing a reporter’s record from the court

reporter who had transcribed his criminal proceedings, the court reporter had not

responded.       In conjunction with filing the original objections, relator filed a

statement in which he attested his inability to pay costs because he owns no real

estate, has no cash or income, and has debts and monthly expenses. Relator

eventually paid $55.65 to receive a copy of the 159-page clerk’s record from his

criminal case.


          2
          See Tex. R. App. P. 52.8(a), (c).
          3
          See Tex. Health & Safety Code Ann. § 481.115(e) (West 2010).

                                              2
      In February 2012, the court reporter sent relator a letter informing him that

the estimated cost of the transcript from his criminal proceedings was $1,065 and

that the transcript would be delivered upon payment of that amount.            After

receiving a letter from relator, the court reporter amended the estimate to $1,165.

      In July 2012, relator filed his amended objections pursuant to section

52.047(b) of the government code, 4 contending that the $1,165 fee was “well

beyond his means of payment” and asking the trial court to determine a

reasonable fee.    Relator contended in the amended objections that section

52.047(b) invoked a ministerial duty upon respondent. He proposed to pay ten

cents per page for the record, to borrow the record for ninety days and then

return it, or to be allowed to view the record while confined in Tarrant County

upon being transferred there through a bench warrant.

      Months after relator filed his amended objections, the Tarrant County

District Clerk sent a letter to him that stated, “In reference to your

correspondence regarding the [amended objections], please find enclosed a file-

marked copy. In reference to your inquiry, the Court is taking the motion/request

under advisement.” Our record does not reflect that respondent has ever ruled

on relator’s July 2012 amended objections.

      Relator filed a petition for a writ of mandamus in this court, arguing in part

that respondent has violated his due process rights by taking no action on his


      4
       See Tex. Gov’t Code Ann. § 52.047(b) (West 2013).

                                         3
amended objections.      Relator also asked us to require respondent to deliver a

complete copy of the reporter’s record to him. The real party in interest, the

State of Texas, responded by arguing that we lack jurisdiction and that

respondent has not abused his discretion.

                      Relator’s Entitlement to Partial Relief

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

there is no adequate remedy by appeal. In re State, 355 S.W.3d 611, 613 (Tex.

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

reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law or when it clearly fails to correctly 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.2d 833, 839 (Tex. 1992) (orig.

proceeding).

      A court reporter must, on written request, furnish a transcript of reported

evidence or other proceedings. Tex. Gov’t Code Ann. §§ 52.046–.047 (West

2013); see Browning v. Alexander, 843 S.W.2d 703, 704 (Tex. App.—Corpus

Christi 1992, orig. proceeding); see also In re Ledbetter, No. 07-03-00389-CV,

2003 WL 22061180, at *1 (Tex. App.—Amarillo Sept. 4, 2003, orig. proceeding)

(not designated for publication) (“[T]he official court reporter . . . is burdened with

the duty to transcribe court proceedings and furnish transcripts of those

proceedings to others.”). The court reporter may charge a fee for preparing the


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transcript, but if “an objection is made to the amount of the transcript fee, the

judge shall determine a reasonable fee, taking into consideration the difficulty

and technicality of the material to be transcribed and any time constraints

imposed by the person requesting the transcript.”       Tex. Gov’t Code Ann.

§ 52.047(b) (emphasis added). The term “shall” as used in a statute is generally

recognized as mandatory, creating a duty or obligation.      In re Salazar, 315

S.W.3d 279, 283–84 (Tex. App.—Fort Worth 2010, orig. proceeding) (citing

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)).

      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.2d 42, 45

(Tex. App.—Houston [1st Dist.] 1995, orig. proceeding); see In re Am. Media

Consol., 121 S.W.3d 70, 72 (Tex. App.—San Antonio 2003, orig. proceeding).

The trial 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.—Amarillo 2008, orig.

proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig.

proceeding).

      Applying the unambiguous and plain meaning of section 52.047(b) of the

government code, as we generally must, 5 we conclude that the section requires

      5
      See Wood v. Tex. Dep’t of Pub. Safety, 331 S.W.3d 78, 80 (Tex. App.—
Fort Worth 2010, no pet.).
                                       5
respondent to rule on relator’s amended objections and to “determine a

reasonable fee, taking into consideration the difficulty and technicality of the

material to be transcribed and any time constraints imposed by” relator. Tex.

Gov’t Code Ann. § 52.047(b). Our record in this original proceeding does not

contain a ruling on relator’s July 2012 amended objections. Respondent appears

to have known about the filing of the amended objections at least since October

2012 because in that month, the Tarrant County District Clerk informed relator

that respondent had taken the amended objections under advisement. Thus, we

hold that respondent has clearly abused his discretion by not ruling on relator’s

amended objections; that because respondent has not ruled, relator has no

adequate remedy by appeal; and that relator is therefore entitled to relief. See

State, 355 S.W.3d at 613; Grant, 916 S.W.2d at 45; 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.).

      We reject the State’s arguments with respect to respondent’s refusal to

rule. First, although the State argues that we lack jurisdiction to issue a writ of

mandamus against respondent under the circumstances of this case, we

generally have the authority to issue writs of mandamus against district court

judges within our geographic jurisdiction.        See Tex. Gov’t Code Ann.

§ 22.221(b)(1) (West 2004); Padieu v. Court of Appeals of Tex., Fifth Dist., 392

S.W.3d 115, 116 (Tex. Crim. App. 2013) (orig. proceeding).             And more


                                        6
specifically, the court of criminal appeals has recently held that a court of appeals

has jurisdiction in a mandamus proceeding relating to a trial court’s refusal to rule

on a request for records that are intended to be used in the preparation of a not-

yet-filed habeas corpus application. Padieu, 392 S.W.3d at 117–18; see In re

McGoldrick, No. 03-12-00094-CV, 2013 WL 499477, at *1 (Tex. App.—Austin

Jan. 29, 2013, orig. proceeding) (mem. op.) (holding that in light of Padieu, a

court of appeals had jurisdiction to consider a relator’s request for mandamus

relief “requiring the trial court to rule on his motion for a copy of the clerk’s record

and reporter’s record from his trial”).

      Also, to the extent that the State argues that the trial court did not have

jurisdiction to consider relator’s request for records because relator’s conviction

is final, we conclude that section 52.047(b)’s unambiguous language not only

gave the trial court the authority to rule on relator’s amended objections but

required it to do so. See Tex. Gov’t Code Ann. § 52.047(b) (“If an objection is

made to the amount of the transcript fee, the judge shall determine a reasonable

fee, taking into consideration the difficulty and technicality of the material to be

transcribed and any time constraints imposed by the person requesting the

transcript.”); see also State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App.

2002) (stating that upon a criminal defendant’s final conviction, the trial court “has

special or limited jurisdiction to ensure that a higher court’s mandate is carried




                                           7
out and to perform other functions specified by statute”) (emphasis added)

(footnote omitted).

      The State also argues that respondent has not abused his discretion by

declining to rule on relator’s objections because relator did not appeal his

conviction and expressly waived his right of appeal.         But the State has not

contended that in his plea bargain, relator expressly waived a right to retrieve

records related to his conviction under section 52.047, for use in whatever

purpose, 6 or that he expressly waived a right to seek postconviction relief through

applying for a writ of habeas corpus. See Ex parte Reedy, 282 S.W.3d 492,

494–96 (Tex. Crim. App. 2009) (distinguishing between a defendant’s waiver of

appellate remedies and a defendant’s waiver of postconviction habeas corpus

relief and explaining that an “express waiver” of seeking habeas corpus relief

must be made voluntarily, knowingly, and intelligently). 7

      Finally, the State argues that relator will not ultimately be entitled to a free

record “to explore possible grounds for collateral attack upon [his] conviction.”

But in relator’s amended objections that he expressly predicated on section

52.047(b), he did not principally request free access to the record; rather, he


      6
       Section 52.047 states that a “person” may apply for transcripts; the
section does not expressly limit its applicability to proper litigants. See Tex. Gov’t
Code Ann. § 52.047(a).
      7
       The State has not cited authority establishing that a waiver of appellate
rights also waives the right to file an application for a postconviction writ of
habeas corpus.

                                          8
objected to the court reporter’s quoted fee and asked respondent to set a

reasonable fee.

      Finally, relator asks us to require respondent to provide the reporter’s

record to him.    However, because respondent has not yet ruled on relator’s

amended objections and because a ruling on the amended objections could

make it possible for relator to obtain the reporter’s record, we deny that part of

relator’s mandamus petition because it is premature.      See In re Hearn, 137

S.W.3d 681, 686 (Tex. App.—San Antonio 2004, orig. proceeding) (“Hearn seeks

an order from this court transferring the case back to Galveston County. The

issue is premature because the trial court has not yet ruled on the motion to

transfer the case.”); In re Sensitive Care Inc., 28 S.W.3d 35, 42 (Tex. App.—Fort

Worth 2000, orig. proceeding); see also In re Gullatt, No. 05-08-00639-CV, 2008

WL 2266288, at *1 (Tex. App.—Dallas June 4, 2008, orig. proceeding) (mem.

op.) (denying a petition for writ of mandamus because it was not ripe for

adjudication); In re Weesner, No. 05-01-00024-CV, 2001 WL 15959, at *1 (Tex.

App.—Dallas Jan. 9, 2001, orig. proceeding) (not designated for publication)

(disposing of an issue in an original proceeding based on ripeness when a trial

court had not ruled on a pending motion).

                                  Conclusion

      For the reasons expressed above, having held that respondent abused his

discretion by not ruling on relator’s amended objections to the court reporter’s


                                        9
transcript cost estimate and that relator does not have an adequate remedy by

appeal from the trial court’s refusal to rule, we conditionally grant relator’s petition

for a writ of mandamus to the extent that we order respondent to rule on relator’s

amended objections. See Tex. Gov’t Code Ann. § 52.047(b). We deny all other

relief requested by relator. 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.




                                                      TERRIE LIVINGSTON
                                                      CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: May 14, 2013




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