                                                                                  ACCEPTED
                                                                              12-15-00238-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         9/30/2015 3:31:32 PM
                                                                                    Pam Estes
                                                                                       CLERK




                     No. 12-15-00238-CR
                                                             FILED IN
                                                      12th COURT OF APPEALS
                                                           TYLER, TEXAS
      IN THE TWELFTH COURT OF                    APPEALS
                                                      9/30/2015 3:31:32 PM
                       TYLER, TEXAS                          PAM ESTES
                                                               Clerk
        ------------------------------------------------

                      In re
               DAVID MARK DAVIS II,

                           Relator

        ------------------------------------------------

               The Honorable April Earley,
City of Lufkin Municipal Court Judge, Real Party in Interest

      ----------------------------------------------------

RESPONSE TO PETITION FOR WRIT OF MANDAMUS


      ----------------------------------------------------

                   BRUCE W. GREEN
                       City Attorney
                   City of Lufkin, Texas
                  State Bar No. 24001154
                 bgreen@cityoflufkin.com
                      300 E. Shepherd
                   Lufkin, Texas 75901
                      (936) 633-0260
                   (936) 633-0381 (Fax)

   ATTORNEY FOR REAL PARTY IN INTEREST
      THE HONORABLE APRIL EARLEY
                   LIST OF PARTIES AND COUNSEL

RELATOR                              RESPONDENT

David Mark Davis II, Pro Se          Honorable Derek Flournoy
905 N Loop 499, Unit 525             Angelina County Court-at-Law
Harlingen, TX 78550                  No. 2 Judge
dmarkdavis2@gmail.com                Angelina County, Texas
(936) 238-8507                       215 E. Lufkin Ave.
(936) 309-0060 (Fax)                 Lufkin, TX 75902

REAL PARTY IN INTEREST               Counsel for Respondent

Honorable April Earley               Ed C. Jones
Municipal Court Judge                County Attorney
City of Lufkin                       Angelina County, Texas
222 E. Shepherd                      215 E. Lufkin Avenue, 1st
Floor, Lufkin, Texas 75902                 Rm. 115
                                     Lufkin, Texas 75902
Counsel for Real Party in Interest   ejones@angelinacounty.net
                                     (936) 639-3929
Bruce W. Green                       (936) 639-3905 (Fax)
City Attorney
City of Lufkin, Texas
300 E. Shepherd
Lufkin, Texas 75902
bgreen@cityoflufkin.com
(936) 633-0260
(936) 633-0381 (Fax)




                                                                ii
                                      TABLE OF CONTENTS

LIST OF PARTIES AND COUNSEL ...................................................................... iii

TABLE OF CONTENTS ..................................................................................... iiii

INDEX OF AUTHORITIES .................................................................................. iv

APPENDIX REFERENCES……………………………………………………...V

STATEMENT OF THE CASE ............................................................................... vi

STATEMENT OF JURISDICTION ........................................................................ vii

ISSUE PRESENTED ........................................................................................... ix

BACKGROUND...................................................................................................1

STATEMENT OF FACTS ......................................................................................2

ARGUMENT .......................................................................................................3

CONCLUSION AND PRAYER ...............................................................................5

CERTIFICATE OF SERVICE .................................................................................7

CERTIFICATE OF COMPLIANCE ..........................................................................8

APPENDIX




                                                                                                              iii
                                      INDEX OF AUTHORITIES

CASES                                                                                                PAGE(S)

Anderson v. City of Seven Points,
          806                     S.W.2d                        791                   (Tex.              1991)
.................................................................3
Dunlop v. Deloach,
     2013 Tex. App. LEXIS 4518 (Tex. App.—San Antonio Apr. 10,
     2013)………………………………………………………………...vii

Hogan v. Turland,
     428 S.W.2d 316, 317 (Tex. 1968) ....................................................4, 5

In re Robinson,
    175 S.W.3d 824 (Tex. App–Houston [1st Dist.]
    2005,                                             orig.                                     proceeding)
    ..............................................................................3
In re Roof,
    130 S.W.3d 414 (Tex. App.–Houston [14th Dist.]
    2004,                                             orig.                                     proceeding)
    ..............................................................................3

Safety Nat’l Cas. Corp. v. State,
      305 S.W.3d 586, 590 (Tex. Crim. App. 2010)………………………..4

CONSTITUTIONS

Tex. Const. art. V, § 6……………………………………………………...vii

STATUTES

Texas Gov’t Code
§
22.221(b)(1)................................................................................................vii


                                                                                                                  iv
                            APPENDIX REFERENCES

         The attached Appendix (“App.”) consists of the following:

Texas Const., art. V, § 6……....................................................................A

Texas Gov’t Code § 22.221(b)(1)………………………………………..B




                                                                                               v
                      STATEMENT OF THE CASE

Nature of the Case   The Relator filed a Petition for a Writ of Mandamus
                     in the Angelina County Court-at-Law No. 2 seeking
                     the court to compel Lufkin Municipal Judge April
                     Earley to set an appeal bond on a case that resulted in
                     a dismissed traffic citation. The citation was
                     dismissed in municipal court pursuant to an Order
                     Deferring Further Proceedings and the authority of
                     art. 45.051(c) of the Texas Code of Criminal
                     Procedure. No final judgment of conviction exists.
                     Relator seeks to appeal what he characterizes as a
                     “bond forfeiture,” although no bond forfeiture
                     proceedings occurred in the municipal court.

                     When Municipal Court Judge Earley did not set an
                     appeal bond, the Relator filed a Petition for a Writ of
                     Mandamus against Judge Earley in the Angelina
                     County Court-at-Law No. 2. County Court-at-Law
                     Judge Derek Flournoy notified the Relator that he
                     must either pay the customary civil filing fee, or file a
                     Pauper’s Affidavit. Rather than doing either, the
                     Relator filed this Petition for Writ of Mandamus
                     against Judge Flournoy.


                     Hon. Derek Flournoy, Angelina County Court-at Law
Respondent
                     No. 2 Judge

Relief Requested     Respondent should be compelled to allow the Relator
                     to file his Petition for Writ of Mandamus without
                     payment of a civil filing fee.

                                                                            vi
                    STATEMENT OF JURISDICTION

      This Court has jurisdiction over this petition for a writ of mandamus.

See Texas Gov’t Code § 22.221(b)(1) (“Each court of appeals for a court of

appeals district may issue all writs of mandamus, agreeable to the principals

of law regulating those writs, against a judge of a district or county court in

the court of appeals district.”), App. B; see also Tex. Const. art. V, § 6

(“Said courts shall have such other jurisdiction, original and appellate, as

may be prescribed by law.”), App. A.

      This Court does not have jurisdiction over the underlying petition for

writ of mandamus pending before the Angelina County Court-at-Law No. 2

Judge Derek Flournoy. See Texas Gov’t Code § 22.221(b)(1), App. B;

Dunlop v. Deloach, 2013 Tex. App. LEXIS 4518 (Tex. App. San Antonio

Apr. 10, 2013) (Courts of appeal have authority to issue writs of mandamus

against “a judge of a district or county court in the court of appeals district’

and other writs as necessary to enforce [their] appellate jurisdiction,” but

justice or municipal courts since such a writ is not necessary to enforce an

appeals’ court jurisdiction).


                                                                             vii
viii
                              ISSUE PRESENTED

      Relator seeks mandamus relief compelling Respondent to allow the

filing of his Petition for Writ of Mandamus without paying a civil filing fee,

or the filing of a Pauper’s Affidavit. See Exhibit A to Petition for Writ of

Mandamus & Prohibition. Relator asserts that no filing fee is required when

seeking mandamus relief relating to a municipal court criminal case.

      Did Respondent fail to perform a nondiscretionary, ministerial duty to

allow Relator to file his petition without requiring a filing fee?




                                                                            ix
                             BACKGROUND

      The underlying proceeding involves an assertion of a right to appeal a

matter (an alleged “bond forfeiture”) relating to a municipal court traffic

case. Although no adjudication of guilt occurred, the citation carried the

possibility of a Class C misdemeanor fine only penalty, and thus is criminal

in nature.

      The petition before this Court is a result of the Respondent’s

requirement that the Relator pay a civil filing fee or file a Pauper’s Affidavit

before Respondent will address the merits of Relator’s writ to compel the

municipal court judge to set an appeal bond in the underlying matter.




                                                                              1
                           STATEMENT OF FACTS

   On August 31, 2015, Relator filed a petition for writ of mandamus in

Angelina County Court-at-Law No. 2, which is presided over by Judge

Derek Flournoy. See Petition for Writ of Mandamus & Prohibition

(“Petition”), p. 4. The petition seeks to compel Lufkin Municipal Court

Judge April Earley to take action resulting from a criminal traffic citation in

the municipal court. See Id.

      Upon receipt of Relator’s petition, the Respondent Judge Flournoy

declined to proceed until Relator either paid the required filing fee or filed a

Pauper’s Affidavit. See Letter from Hon. Derek C. Flournoy, dated

September 21, 2015, attached to Petition as Exhibit A.

      On September 22, 2015, Relator filed this Petition for Writ of

Mandamus & Prohibition to compel Judge Flournoy to accept the underlying

petition for filing without requiring a filing fee.




                                                                              2
                                 ARGUMENT

I.    Mandamus Is Not Appropriate to Compel the Respondent to
      Accept for Filing, Without Payment of a Filing Fee, A Petition for
      Writ of Mandamus in County Court.

      A. Mandamus Will Lie to Compel a Nondiscretionary, Ministerial
      Act.

      A writ of mandamus is proper to compel a public official to perform a

ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793

(Tex. 1991); see also In re Robinson, 175 S.W.3d 824, 829 (Tex. App–

Houston [1st Dist.] 2005, orig. proceeding); In re Roof, 130 S.W.3d 414,

415-16 (Tex. App.–Houston [14th Dist.] 2004, orig. proceeding). A duty

imposed by law is ministerial when ―the law clearly spells out the duty to

be performed by the official with sufficient certainty that nothing is left to

the exercise of discretion. Anderson, 806 S.W.2d at 793. That is not the

case here.

      B.     Acceptance of a Petition for a Writ of Mandamus without
             the Requirement of a Filing Fee is Not a Nondiscretionary,
             Ministerial Duty of the Respondent.

      The Relator conflates his petition before this Court with his Petition

for Writ of Mandamus pending before the Angelina County Court-at-Law

No. 2. See Petition, p. 5. This Petition has nothing to do with “a trial courts

                                                                             3
[sic] interference with a defendant’s right to appeal.” Id. The issue presented

for decision in this Petition is whether Respondent failed to perform a

nondiscretionary, ministerial duty to allow Relator to file his Petition

without requiring a filing fee.

      Relator has offered no authority for the proposition that accepting for

filing a petition for a writ of mandamus, without requiring a filing fee, is a

nondiscretionary, ministerial act. In fact, Relator tacitly acknowledges that

the Respondent’s requirement of a filing fee is discretionary. See Id. (“Had

this been a civil case, Judge Flournoy would be well within his discretion to

demand payment of a filing fee before he heard the case.”)

      C.     A Mandamus Proceeding is a Civil rather Than a Criminal
             Action.

      Admittedly, if the matter pending below before the Respondent was

an appeal from a final judgment rendered in a criminal bond-forfeiture case,

no civil filing fee could be assessed. See Safety Nat’l Cas. Corp. v. State,

305 S.W.3d 586, 590 (Tex. Crim. App. 2010).

      The matter before the Respondent in the County Court-at-Law is not,

however, an appeal from a criminal bond-forfeiture proceeding. It is a

petition for a writ of mandamus, which is a civil rather than a criminal

proceeding. Hogan v. Turland, 428 S.W.2d 316, 317 (Tex. 1968) (“We have


                                                                              4
concluded that a mandamus proceeding is a civil rather than criminal

action.”).

       In Hogan, the Supreme Court held a mandamus proceeding to be civil

in nature based upon the fact that it is not brought by nor in the name of the

state, and the officer against whom the writ is requested is not alleged to

have committed a crime nor violated any penal statute. “The complaint is

that the officer simply refuses to perform his legal duty.” Id.

                       CONCLUSION AND PRAYER

      Based on the foregoing, the Respondent is under no nondiscretionary,

ministerial duty to accept for filing Relator’s underlying petition without

requiring a civil filing fee. For this reason, Real Party in Interest Judge April

Earley respectfully requests that the Court deny this Petition for Writ of

Mandamus & Prohibition. Real Party in Interest further requests all

additional relief to which she is entitled at law or in equity.




                                                                               5
  Respectfully submitted,


By: /s/ Bruce W. Green
  Bruce W. Green
  City Attorney
  City of Lufkin, Texas
  Texas Bar No. 24001154
  bgreen@cityoflufkin.com
  300 E. Shepherd
  Lufkin, TX 75901
  (936) 633-0260
  (936) 633-0381 (Fax)

  ATTORNEY FOR REAL
  PARTY IN INTEREST
  HON. APRIL EARLEY




                            6
                      CERTIFICATE OF SERVICE

       I certify that copies of the foregoing were provided in electronic form
at the same time this instrument was filed with the Court to counsel and Pro
Se Relator listed below. I likewise certify that true and correct copies of the
foregoing document will be formally served on the Hon. Derek Flournoy,
Respondent, by hand delivery, and counsel listed below, by hand delivery on
the 30th day of September 2015, as follows:
                      The Honorable Derek Flournoy
                 Angelina County Court-at-Law No. 2 Judge
                          Angelina County, Texas
                           215 E. Lufkin Ave.
                           Lufkin, TX 75902

                                Ed C. Jones
                              County Attorney
                           Angelina County, Texas
                  215 E. Lufkin Avenue, 1st Floor, Rm. 115
                            Lufkin, Texas 75902
                         ejones@angelinacounty.net

                           David Mark Davis II, Pro Se
                            905 N Loop 499, Unit 525
                              Harlingen, TX 78550
                            dmarkdavis2@gmail.com



                                           /s/ Bruce W. Green
                                              Bruce W. Green




                                                                             7
                     CERTIFICATE OF COMPLIANCE

1.     This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(i)(2)(B) because it contains 1,994 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(i)(2)(B).

2.     This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.

    Dated: September 30, 2015.



                                          /s/ Bruce W. Green
                                             Bruce W. Green
                                          Counsel for Real Party in Interest




                                                                               8
                                      No. 12-15-00238-CR


                     IN THE TWELFTH COURT OF APPEALS
                                      TYLER, TEXAS
                       ------------------------------------------------

                                      In re
                               DAVID MARK DAVIS II,

                                            Relator

                        ------------------------------------------------

                           The Honorable April Earley,
            City of Lufkin Municipal Court Judge, Real Party in Interest

                     ----------------------------------------------------


                                           APPENDIX

                     ----------------------------------------------------

                                                                                             Tab
Texas Const., art. V, § 6…….....................................................................A

Texas Gov’t Code § 22.221(b)(1)………………………………………..B
            Tab A

Texas Constitution, art. V, § 6
                       THE TEXAS CONSTITUTION

                 ARTICLE 5. JUDICIAL DEPARTMENT

         Sec. 6. COURTS OF APPEALS; TERMS OF JUSTICES;
CLERKS. (a) The state shall be divided into courts of appeals districts, with
each district having a Chief Justice, two or more other Justices, and such
other officials as may be provided by law. The Justices shall have the
qualifications prescribed for Justices of the Supreme Court. The Court of
Appeals may sit in sections as authorized by law. The concurrence of a
majority of the judges sitting in a section is necessary to decide a case. Said
Court of Appeals shall have appellate jurisdiction co-extensive with the
limits of their respective districts, which shall extend to all cases of which
the District Courts or County Courts have original or appellate jurisdiction,
under such restrictions and regulations as may be prescribed by law.
Provided, that the decision of said courts shall be conclusive on all questions
of fact brought before them on appeal or error. Said courts shall have such
other jurisdiction, original and appellate, as may be prescribed by law.
         (b) Each of said Courts of Appeals shall hold its sessions at a place
in its district to be designated by the Legislature, and at such time as may be
prescribed by law. Said Justices shall be elected by the qualified voters of
their respective districts at a general election, for a term of six years and
shall receive for their services the sum provided by law.
         (c) All constitutional and statutory references to the Courts of Civil
Appeals shall be construed to mean the Courts of Appeals.

(Amended Aug. 11, 1891, Nov. 7, 1978, Nov. 4, 1980, Nov. 5, 1985, and
Nov. 6, 2001.) (TEMPORARY TRANSITION PROVISION for Sec. 6: See
Appendix, Note 3.)
               Tab B

Texas Government Code § 22.221(b)(1)
                          GOVERNMENT CODE

                      TITLE 2. JUDICIAL BRANCH

                          SUBTITLE A. COURTS

                  CHAPTER 22. APPELLATE COURTS


Sec. 22.221. WRIT POWER. (a) Each court of appeals or a justice of a
court of appeals may issue a writ of mandamus and all other writs necessary
to enforce the jurisdiction of the court.
       (b) Each court of appeals for a court of appeals district may issue all
writs of mandamus, agreeable to the principles of law regulating those writs,
against a:
             (1) judge of a district or county court in the court of appeals
             district; or
             (2) judge of a district court who is acting as a magistrate at a
             court of inquiry under Chapter 52, Code of Criminal Procedure,
             in the court of appeals district.
       (c) Repealed by Acts 1987, 70th Leg., ch. 148, Sec. 2.03, eff. Sept. 1,
1987.
       (d) Concurrently with the supreme court, the court of appeals of a
court of appeals district in which a person is restrained in his liberty, or a
justice of the court of appeals, may issue a writ of habeas corpus when it
appears that the restraint of liberty is by virtue of an order, process, or
commitment issued by a court or judge because of the violation of an order,
judgment, or decree previously made, rendered, or entered by the court or
judge in a civil case. Pending the hearing of an application for a writ of
habeas corpus, the court of appeals or a justice of the court of appeals may
admit to bail a person to whom the writ of habeas corpus may be granted.

Acts 1985, 69th Leg., ch. 480, Sec. 1, eff. Sept. 1, 1985. Amended by Acts
1987, 70th Leg., ch. 69, Sec. 1, eff. May 6, 1987; Acts 1987, 70th Leg., ch.
148, Sec. 1.35, 2.03, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 58, Sec. 1,
eff. May 2, 1991; Acts 1995, 74th Leg., ch. 839, Sec. 1, eff. Sept. 1, 1995.
