                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

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              No. 06-09-00044-CV
        ______________________________



             IN RE: JO ALICE MCCUE




           Original Mandamus Proceeding




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Jo Alice McCue was sued in Justice Court in Hopkins County on a civil complaint. She asks

this Court to issue a writ of mandamus that directs the Eighth Judicial District Court of Hopkins

County, the Honorable Robert Newsome, presiding, to order the Justice of the Peace for Precinct

One of Hopkins County, the Honorable Yvonne King, presiding, to permit McCue to have

proceedings in that justice court transcribed by a certified court reporter. Without hearing oral

argument—and without inviting a response from the real party in interest—we deny McCue's

application.

       In her application, McCue states, "Relator readily concedes that there is no express statute

requiring a Justice of the Peace to allow for a court reporter." McCue, however, advances a policy

argument that parties should be allowed to have justice court proceedings transcribed; according to

her, such a policy would "favor[] transparent and honorable judicial proceedings" and "encourage[]

participants to conduct themselves according to established legal procedures." She argues that

forbidding the presence of a court reporter "promotes and sanctions secret courts and the

determination sub rosa of substantial rights."

       Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion

or the violation of a duty imposed by law and (2) the absence of a clear and adequate remedy at law.

Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994). Mandamus is an extraordinary remedy that will

issue only to correct a clear abuse of discretion, or, in the absence of another statutory remedy, when



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the trial court fails to observe a mandatory statutory provision conferring a right or forbidding a

particular action. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).               Although the right to

mandamus is quite limited, the denial of a jury trial, when such a right is clearly shown, can be

addressed by both appeal and mandamus. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 139

(Tex. 2004) (orig. proceeding). Additionally,

         [a] trial court abuses its discretion in its determination of factual issues only if the
         record clearly establishes the trial court "could reasonably have reached only one
         decision," and it failed to do so. "In contrast, a trial court has no discretion in
         determining what the law is or applying the law to the facts. Therefore, a failure by
         the trial court to analyze or apply the law correctly, as when a discovery order
         conflicts with the Texas Rules of Civil Procedure, constitutes an abuse of discretion."

In re White, 227 S.W.3d 234, 236 (Tex. App.—San Antonio 2007, orig. proceeding).

         Relator concedes no statute requires that a court reporter be allowed to transcribe proceedings

in a justice court. Moreover, relator acknowledges that justice courts are not courts of record. State

v. Alley, 137 S.W.3d 866, 869–70 (Tex. App.—Houston [1st Dist.] 2004, pet. granted) (citing Gano

v. State, 466 S.W.2d 730, 733 (Tex. Crim. App. 1971)), aff'd, 158 S.W.3d 485 (Tex. Crim. App.

2005).

         McCue argues that it is in her interest to secure an accurate transcription of sworn testimony

to preserve it for future use. Texas procedure provides civil litigants with an elaborate pretrial

discovery scheme for obtaining and preserving witness testimony such as the taking of depositions.

See TEX . R. CIV . P. 199.1 Further, we note that, if the justice court's ultimate ruling is thought to be

erroneous, McCue is entitled to a de novo trial on appeal. See TEX . R. CIV . P. 574b.


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          We find no statutory rule or constitutional principle that affords McCue the right to a

transcription of proceedings in justice court. Given that justice courts are not courts of record and

that the Legislature has not required justice courts to permit the transcription of proceedings therein

when requested by a party (even if transcribed at the party's own expense), we cannot conclude the

district court abused its discretion by denying McCue's petition for writ of mandamus against the

justice court. McCue's petition for mandamus from this Court against the district court is, therefore,

denied.




                                               Jack Carter
                                               Justice

Date Submitted:         May 6, 2009
Date Decided:           May 7, 2009




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