            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. WR-76,736-02


                            IN RE ROSALI BONILLA, Relator


                 ON PETITION FOR A WRIT OF MANDAMUS
            IN CAUSE NO. 1056657-A IN THE 179TH DISTRICT COURT
                          FROM HARRIS COUNTY


      ALCALA, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS,
WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined. PRICE, J.,
concurred.

                                         OPINION

       When it declined to provide any information about the amount it would cost to

purchase a trial and appellate transcript, the district clerk deprived Rosali Bonilla, relator, an

imprisoned individual, of his constitutional right to have access to the courts. In denying

relator’s request for information, the district clerk relied on statutory authority in Section

552.028 of the Texas Government Code that broadly permits a governmental body to decline

to give information requested by an imprisoned individual or his agent unless that agent is
                                                                                      In re Bonilla –2

an attorney. See TEX. GOV’T CODE § 552.028.1 We conclude that, when the information

sought by an imprisoned individual relates only to the amount that it would cost to obtain

trial and appellate transcripts for use in preparing an application for a writ of habeas corpus,

application of Section 552.028 to deny the prisoner access to that information

unconstitutionally infringes on his federal constitutional right to have access to the courts.

See id. Although relator has established that he had no adequate remedy at law and a clear

right to relief, we decline to grant his request for relief in this application for a writ of

mandamus because, while this case was under abatement, the district clerk provided the

information to him and, therefore, his request for relief is now moot.

                                         I. Background

       Relator is an inmate incarcerated in the Texas Department of Criminal Justice serving

a sentence for aggravated sexual assault.        He wrote a letter to the Harris County District

Clerk asking for information about the amount that it would cost to buy his trial and appellate

1
        The District Clerk’s policy was in conformity with the plain language in Section 552.028 of
the Texas Government Code, which gives him the discretion not to accept or comply with a request
for information from an inmate or his agent, unless the agent is an attorney. See TEX. GOV’T CODE
§ 552.028. The Code states,

       REQUEST FOR INFORMATION FROM INCARCERATED INDIVIDUAL. (a)
       A governmental body is not required to accept or comply with a request for
       information from: (1) an individual who is imprisoned or confined in a correctional
       facility; or (2) an agent of that individual, other than that individual’s attorney when
       the attorney is requesting information that is subject to disclosure under this chapter.
       (b) This section does not prohibit a governmental body from disclosing to an
       individual described by Subsection (a)(1), or that individual’s agent, information held
       by the governmental body pertaining to that individual.

Id.
                                                                                  In re Bonilla –3

transcripts. The district clerk declined the request in accordance with his office policy

outlined in a written standard operating procedure that adopts the provisions in Section

552.028. See id. Under the four steps of this standard operating procedure, (1) a clerk

reviews the inmate’s letter and moves to step two, unless the letter is a petition or addressed

to a named judge, in which event the letter is forwarded to the appropriate courtroom, (2) the

clerk marks the file “canceled,” (3) the clerk sends the inmate a form letter declining to

provide the requested information and returns the inmate’s original letter and envelope to

him, and (4) the clerk keeps a running count of the number of these letters that it receives but

does not keep the letter or any other identifying information about the sender.

       After his first request for this information was declined, relator sent another letter in

July 2013 to the district clerk. Relator informed the district clerk that he was requesting

information regarding the amount it would cost to obtain the trial and appellate transcripts

so that he could pay for them and then use them to prepare an application for a writ of habeas

corpus to challenge his conviction. His letter cited to Supreme Court decisions supporting

his position that, under the federal Constitution, a prisoner’s right of access to the courts may

not be denied or obstructed. In accordance with its standard operating procedures, the district

clerk’s response declined to give the information to relator.

       The following month, relator filed a “motion to compel” in this Court repeating the

content of his letter that he had sent to the district clerk and requesting relief from this Court

through an order to the district clerk compelling him to provide the information to relator.
                                                                                    In re Bonilla –4

Based on the substance of relator’s motion, this Court filed it as an application for a writ of

mandamus, abated the case, and requested a response from the district clerk.2 After that, the

district clerk provided the information to relator, informing him that the cost to obtain the

transcripts was $456.25.

                             II. Constitutional Access to Courts

         Citing to Supreme Court precedent, relator asserts that the district clerk’s refusal to

provide him with the information about the cost of the trial and appeal transcripts was “a

denial of [his] access to court which is a fundamental right under the constitution.” See

Bounds v. Smith, 430 U.S. 817, 821 (1977); Johnson v. Avery, 393 U.S. 483, 485 (1969). We

agree.

         “The right of access to the courts . . . is founded in the Due Process Clause and assures

that no person will be denied the opportunity to present to the judiciary allegations

concerning violations of fundamental constitutional rights.” Wolff v. McDonnell, 418 U.S.

539, 579 (1974). “It is now established beyond doubt that prisoners have a constitutional

right of access to the courts.” Bounds, 430 U.S. at 821. More than seventy years ago, the

Supreme Court recognized that right when it held that the “state and its officers may not

abridge or impair [a relator’s] right to apply to a federal court for a writ of habeas corpus.”

Id. at 821-22 (quoting Ex parte Hull, 312 U.S. 546, 549 (1941)). In Bounds, the Supreme

2
        See State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985) (“In
determining the specific nature of the extraordinary relief sought, this Court will not be limited by
the denomination of petitioner’s pleadings, but will look to the essence of the pleadings, including
the prayers, as well as the record before us.”).
                                                                               In re Bonilla –5

Court explained the rationale for enforcing the constitutional right to apply for a writ of

habeas corpus as follows:

       [I]n this case, we are concerned in large part with original actions seeking new
       trials, release from confinement, or vindication of fundamental civil rights.
       Rather than presenting claims that have been passed on by two courts, they
       frequently raise heretofore unlitigated issues. As this Court has “constantly
       emphasized,” habeas corpus and civil rights actions are of “fundamental
       importance . . . in our constitutional scheme” because they directly protect our
       most valued rights.

Bounds, 430 U.S. at 827 (quoting Johnson, 393 U.S. at 485; Wolff, 418 U.S. at 579). The

Supreme Court “has steadfastly insisted that there is no higher duty than to maintain [the

Great Writ] unimpaired.” Johnson, 393 U.S. at 485 (citations omitted).

       In accordance with this principle, the Supreme Court has repeatedly struck down

restrictions impeding access to the courts by habeas applicants and has required remedial

measures “to insure that inmate access to the courts is adequate, effective, and meaningful.”

Bounds, 430 U.S. at 822. Multiple decisions by the Supreme Court have struck down state

laws and rules that unconstitutionally impeded an inmate’s access to the courts. For example,

an indigent prisoner “must be allowed to file appeals and habeas corpus petitions without

payment of docket fees.” Id. (citing Burns v. Ohio, 360 U.S. 252 (1959); Smith v. Bennett,

365 U.S. 708 (1961)). Additionally, prison regulations must not prohibit prisoners from

assisting each other with habeas corpus applications and other legal matters because

“jailhouse lawyers” serve a role in assisting indigent prisoners who are unable to afford

counsel and are “unable themselves, with reasonable adequacy, to prepare their petitions”
                                                                                  In re Bonilla –6

challenging the legality of their confinements. Johnson, 393 U.S. at 489. Furthermore, “the

fundamental constitutional right of access to the courts requires prison authorities to assist

inmates in the preparation and filing of meaningful legal papers by providing prisoners with

adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430

U.S. at 828.

       Although they have rights to appointed counsel and a free trial record on direct appeal,

indigent defendants do not have those rights for discretionary review of a decision of the

court of appeals, nor for collateral attacks on their convictions. Compare Griffin v. Illinois,

351 U.S. 12, 19-20 (1956) (indigent inmate has constitutional right to obtain a free trial

record for direct appeal), and Douglas v. California, 372 U.S. 353, 357-58 (1963) (indigent

inmate has right to appointed counsel for direct appeal), with Johnson, 393 U.S. at 488 (“It

has not been held that there is any general obligation of the courts, state or federal, to appoint

counsel for prisoners who indicate, without more, that they wish to seek post-conviction

relief.”). In most federal courts, however, it is the usual practice to appoint counsel in post-

conviction proceedings, but only after a petition for post-conviction relief passes initial

judicial evaluation and the court has determined that the issues presented call for an

evidentiary hearing. See Johnson, 393 U.S. at 487 (describing practice of most federal courts

in delaying appointment of counsel for indigent habeas petitioners until merits of claims have

been assessed). Although an indigent inmate may eventually receive legal counsel to pursue

his application, his initial effort in preparing his application for a writ of habeas corpus will
                                                                                 In re Bonilla –7

likely be pro se.

       The Texas Constitution declares that “the writ of habeas corpus is a writ of right, and

shall never be suspended.” TEX. CONST., art. I, § 12. The Texas Constitution mandates that

the Legislature “shall enact laws to render the remedy speedy and effectual.”                 Id.

Accordingly, the Legislature codified procedures for filing applications for writs of habeas

corpus in death and non-death cases. See TEX. CODE CRIM. PROC. arts. 11.07 (procedures for

applications in non-death cases); 11.071 (procedures for applications in death cases). For an

indigent inmate wishing to pursue an application for a writ of habeas corpus in a non-death

case under Article 11.07, as here, ordinarily the burden falls solely on him, without appointed

counsel, to initially file his application. An applicant will usually get only one bite at the

habeas-corpus apple because Section 4 of Article 11.07 precludes a court from considering

the merits of or granting relief based on a subsequent application unless the application

contains sufficient specific facts establishing one of the two limited exceptions to the one-

bite rule. See TEX. CODE CRIM. PROC. art. 11.07, § 4.

       With no right to appointed counsel, an indigent inmate, either alone or possibly with

the help of a “jailhouse lawyer,” family member, or friend, must obtain any records necessary

to prepare and file his application for a writ of habeas corpus. In all likelihood, an applicant

will need to obtain and review his trial and appellate transcripts to ensure that he considered

the entire record so that he may present all his claims at what will likely be his first and only

bite at the habeas-corpus apple. And the first step to obtaining a transcript is to find out how
                                                                                  In re Bonilla –8

much it costs. By refusing to tell the relator how much it would cost to purchase a transcript,

the district clerk cut off the relator’s ability to prepare and present a complete application for

a writ of habeas corpus. Furthermore, even if the indigent inmate found a family member

or friend to assist him by requesting the information on his behalf, the district clerk’s policy

would also operate to withhold that information from anyone other than an attorney who was

acting as an agent for an inmate. See TEX. GOV’T CODE § 552.028. Although Section

552.028 and the district clerk’s policy would have required the district clerk to respond to an

attorney’s request for information, that was immaterial to relator, who was acting pro se in

his pursuit of an application for a writ of habeas corpus. See id.

       By depriving relator of the information about the cost to obtain his trial and appellate

transcripts, the district clerk’s policy invoking Section 552.028 deprived relator of the ability

to prepare an application for a writ of habeas corpus that included all possible grounds for

relief and thereby denied him the right to access the courts.

                 III. Relief is Warranted, But Relator’s Request is Moot

       To be entitled to mandamus relief, the relator must show two things: (1) that he has

no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). As to the first

prerequisite, relator has no adequate remedy at law because the information he seeks pertains

to an unfiled, future post-conviction application for a writ of habeas corpus.

       The second prerequisite, the ministerial-act requirement, is satisfied if the relator can
                                                                                    In re Bonilla –9

show a clear right to the relief sought. Id. A clear right to relief is shown when the facts and

circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from

extant statutory, constitutional, or case law sources), and clearly controlling legal principles.

Id. An issue of first impression can sometimes qualify for mandamus relief. Id.

       The issue before us is one of first impression in the sense that this Court has never

expressly held that a district clerk violates a defendant’s constitutional right to access the

courts by refusing to inform an indigent inmate of the amount that it would cost the inmate

to obtain a transcript of his case for his use in preparing an application for a writ of habeas

corpus. Furthermore, no Texas court of appeals has decided this issue. Compare Cox v.

State, 202 S.W.3d 454, 455 (Tex. App.—Amarillo 2006) (addressing defendant’s request for

a free record sought for purpose of collaterally attacking conviction); Nabelek v. Bradford,

228 S.W.3d 715, 718 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (addressing request

for discovery of files that did not belong to Nabelek)3; Harrison v. Vance, 34 S.W.3d 660,

3
        In Nabelek v. Bradford, Nabelek appealed the grant of summary judgment in favor of
Bradford, who was the chief of police for the Houston Police Department. Nabelek v. Bradford, 228
S.W.3d 715, 718 (Tex. App.—Houston [14th Dist.] 2006). Nabelek was convicted of aggravated
sexual assault of a child, sexual performance by a child, and possession of child pornography. Id. at
717. The evidence of guilt included a photograph seized from Nabelek depicting him molesting a
two-year-old child. Id. Nabelek sought portions of a file regarding his offenses from Bradford. Id.
Nabelek asserted that Bradford was violating his due-process right to information necessary to
pursue a petition for a writ of habeas corpus. Id. at 718. Declining to provide the information,
Bradford invoked Section 552.028 of the Texas Government Code. Id. Citing to Supreme Court
precedent, the court of appeals noted that Nabelek had no constitutionally protected right to that
information as a matter of due process because a habeas relator, unlike the usual civil litigant in
federal court, “is not entitled to discovery as a matter of ordinary course.” Id. (quoting Bracy v.
Gramley, 520 U.S. 899, 904 (1997)). The court explained that the information and items sought by
Nabelek were not his but were instead the property of and in the custody of the City. Id. Nabelek
                                                                                     (continued...)
                                                                                    In re Bonilla –10

663 (Tex. App.—Dallas 2000) (addressing denial of access to grand jury proceedings);

Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App.—Waco 1998, pet. ref’d) (addressing

denial of access to inmate disciplinary records). Although there is no specific precedent in

Texas addressing the unconstitutionality of Section 552.028 as it applies to a district clerk’s

refusal to provide information needed by an imprisoned inmate desiring to pursue an

application for a writ of habeas corpus, the constitutional right to access the courts is well

established by Supreme Court precedent that has required no docketing fees for indigent

habeas applicants, access to jailhouse lawyers, and the benefit of prison law libraries. We

hold that relator has satisfied the ministerial-act requirement by showing that he has a clear

right to the relief sought because the facts and circumstances dictate but one rational decision

under unequivocal, well-settled, and clearly controlling legal principles. See Weeks, 391

S.W.3d at 122. Relator was entitled to mandamus relief.

       We note, however, that while this case was abated to obtain a response from the

district clerk, the information sought by relator was provided to him. This particular dispute

is now moot. This Court has dismissed petitions for mandamus on the ground that the relief



3
(...continued)
is distinguishable from the facts of this case. In Nabelek, the information was a file that did not
belong to the relator and that appeared to be properly characterized as discovery. Id. In contrast,
here the information sought by relator cannot be characterized as discovery of underlying facts or
evidence. And it is undisputed that the relator had the right to access his trial and appellate
transcripts, presuming he pays for them. See TEX. GOV’T CODE § 552.022(a)(17). The sole question
before us is whether the district clerk can refuse to tell relator the amount it would cost for him to
pay for the trial and appellate transcripts. That question was not answered by Nabelek. See Nabelek,
228 S.W.3d at 718.
                                                                             In re Bonilla –11

sought had become moot and, therefore, “there is nothing to mandamus, ergo mandamus does

not lie.” State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984); see

Homan v. Hughes, 708 S.W.2d 449, 453-54 (Tex. Crim. App. 1986) (holding that the

applicant was “entitled to relief with regard to the request for writ of mandamus to compel

the trial court to vacate the improper order[,]” but dismissing application because the trial

court’s actions would “remain unchanged”); State ex rel. Eidson v. Edwards, 793 S.W.2d 1,

4 (Tex. Crim. App. 1990) (dismissing petition for mandamus on original submission on the

grounds that the relief sought was moot). We, therefore, decline to grant mandamus relief

and dismiss the petition because the matter is now moot.

                                      IV. Conclusion

       A district clerk must provide information to an imprisoned or confined individual or

his agent about the amount it would cost to obtain trial and appellate transcripts so that the

individual may then pay for them and use them to pursue an application for a writ of habeas

corpus. Because the district clerk has now complied with relator’s request for information,

we dismiss relator’s petition for mandamus against the district clerk.



Delivered: March 12, 2014

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