                            NUMBER 13-05-00426-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


BRUCE WAYNE HOUSER,                                                         Appellant,

                                           v.

KENNETH W. MCELVEEN, ET AL.,                                                Appellees.


                   On appeal from the 135th District Court
                         of Jackson County, Texas.


               MEMORANDUM OPINION ON REMAND

       Before Chief Justice Valdez and Justices Yañez and Garza
       Memorandum Opinion on Remand by Chief Justice Valdez

      This case is before us on remand from the Texas Supreme Court. See Houser v.

McElveen, 243 S.W.3d 646, 647 (Tex. 2008) (per curiam). Appellant, Bruce Wayne

Houser, a pro se inmate, filed an application for writ of mandamus in the trial court,

requesting that the district court judge order Kenneth W. McElveen, the county clerk of

Jackson County, Barbara Vanecek, the deputy clerk of Jackson County, and the “Jackson

County clerks [sic] offices” to probate Houser’s father’s will. The trial court denied the
petition. By eleven issues, Houser seeks to overturn the trial court’s decision. We affirm.

                                               I. BACKGROUND

        On February 8, 2005, Houser filed a writ of mandamus with the trial court requesting

that it order appellees to probate his father’s will.1 In his petition for writ of mandamus,

Houser asserted that appellees had a “ministerial duty” to accept his “Application for the

Probate of Will and for Granting of Administration” and accompanying affidavit of

indigency. A hearing was held on Houser’s writ of mandamus, and on May 16, 2005, the

trial court signed the following order:

                Be it remembered that on this the 16th day of May, 2005, the above
        entitled and numbered cause was called, and the plaintiff, Bruce Wayne
        Houser, came not though notice was duly given of the setting, and came the
        defendant, Kenneth W. McElveen, et al[.], in person, pro se, and announced
        ready; and the Court reviewed the Clerk’s file and a certified copy of the
        record of conviction of the defendant [sic], and other evidence that the
        plaintiff remains in the custody of the Institutional Division of the Texas
        Department of Criminal Justice, which the court concludes shows that the
        plaintiff is a convicted felon and has not been pardoned. The Court reviewed
        section 78 of the Probate Code of the State of Texas which provides that a
        person convicted of a felony in this or any other state or the United States,
        who has not been pardoned, is not eligible for appointment as executor or
        administrator of a decedent’s estate. The plaintiff seeks by his petition an
        order requiring Kenneth W. McElveen, County Clerk of Jackson County,
        Texas, to issue Letters Testamentary or Letters of Administration, relief to
        which the plaintiff is not entitled due to the prohibition of section 78 of the
        Probate Code of the State of Texas and therefore the relief sought should be
        denied.

                IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
        application for Writ of Mandamus and other relief sought by the plaintiff is in
        all things denied.

        Houser appealed and filed an affidavit of inability to pay with this Court. On original


        1
          On appeal, Houser asserts that he filed a writ of m andam us with the trial court after sending a
docum ent entitled, “Application for the Probate of W ill and for Granting of Adm inistration” (“the application”)
to the Jackson County clerk’s office and learning that the application had not been filed. Houser discusses
the application and the subsequent correspondence regarding the application between him self and the clerk’s
office; however, the appellate record does not contain copies of Houser’s application, any subsequent
correspondence with the clerk’s office, or a copy of Houser’s father’s will.
                                                        2
submission, this Court dismissed Houser’s appeal as not having been timely perfected

because the notice of appeal was not filed within thirty days of the judgment. Houser v.

McElveen, No. 13-05-00426-CV, 2006 WL 328134, at *1 (Tex. App.–Corpus Christi Feb.

9, 2006) (per curiam) (mem. op.), rev’d, 243 S.W.3d at 647. After concluding that Houser’s

failure to timely file was “not intentional but inadvertent,” the supreme court reversed and

remanded this case for further proceedings. Houser, 243 S.W.3d at 647.

       After this case was remanded to us, on April 3, 2008, Houser filed a motion with this

Court to obtain a copy of the appellate record. We granted Houser’s motion; however,

because the appellate record does not contain a reporter’s record, we sent Houser a copy

of the clerk’s record only. On July 3, 2008, this Court abated and remanded this case to

the district court to “determine if the reporter’s record, or any part thereof, ha[d] been lost

or destroyed” and to “make appropriate findings under [Texas Rule of Appellate Procedure]

34.6(f), if necessary.” See TEX . R. APP. P. 34.6(f). On September 2, 2008, we reinstated

this case after the trial court filed its “Findings and Conclusions,” wherein it concluded that

“if a reporter’s record ever existed for the hearing in question, it has been lost or

destroyed.”

                                         II. ANALYSIS

       A district court has the authority to issue writs of mandamus. See TEX . GOV’T CODE

ANN . § 24.011 (Vernon 2004). An original proceeding for a writ of mandamus initiated in

the trial court is a civil action subject to trial and appeal on substantive law issues and the

rules of procedure as any other civil suit. Anderson v. City of Seven Points, 806 S.W.2d

791, 795 n.1 (Tex. 1991). Houser’s request for mandamus was premised on his allegation

that the appellees had a “ministerial duty” to accept his “Application for the Probate of Will

and for Granting of Administration” upon receipt of his affidavit of indigency under rule 145

                                              3
of the Texas Rules of Civil Procedure. See TEX . R. CIV. P. 145.2 However, before

determining whether the appellees failed to perform a ministerial duty, we must determine

whether Houser’s issues are properly before this Court.

        We begin by noting that Houser’s brief is primarily a recitation of alleged facts and

the procedural background of this case.3 Although Houser’s brief lists eleven issues in its

“Issues Presented” section, arguably the only contention advanced in the body of Houser’s

brief is that the trial court erred in refusing to issue the writ of mandamus by relying on

section 78 of the probate code. See TEX . PROB. CODE ANN . § 78(b) (Vernon 2003)

(providing that a convicted felon is not qualified to serve as an executor or administrator).

On appeal, Houser contends that he did not seek to serve as either executor or

administrator of his father’s estate in his “Application for the Probate of Will and for

Granting of Administration.”4 Houser argues that through its May 16, 2005 order, the

district court “freely[,] knowingly, and wantonly lied” to this Court by making the “false

statement/false claim that [Houser] sought to be made executor or administrator of [his

father’s] estate.” Houser asserts that the “court[’s] records can and will show this false

statement or false claim to be a known lie and 100% false statement . . . .” However, the

appellate record does not contain a reporter’s record of the May 16, 2005 hearing or a copy

of Houser’s “Application for the Probate of Will and for Granting of Administration.”

        Although we construe pro se briefs liberally, pro se litigants are held to the same

standards as licensed attorneys and must comply with applicable laws and rules of

procedure, and we do not imply claims or arguments that are not made. See Green v.

        2
          Rule 145 provides: “Upon the filing of the affidavit [on indigency] the clerk m ust docket the action,
issue citation and provide such other custom ary services as are provided any party.” T EX . R. C IV . P. 145(a).

        3
            Appellees have not filed a brief with this Court.

        4
         On appeal, Houser does not indicate what relief he sought in his “Application for the Probate of W ill
and for Granting of Adm inistration.”
                                                         4
Kaposta, 152 S.W.3d 839, 841 (Tex. App.–Dallas 2005, no pet.); Greenstreet v. Heiskell,

940 S.W.2d 831, 835 (Tex. App.–Amarillo 1997, no writ) (holding that if a pro se litigant is

not required to comply with the applicable rules of procedure, he would be given an unfair

advantage over a litigant represented by counsel); see also Lynch v. Jack in the Box, No.

03-06-00444-CV, 2007 WL 2274838, at *3 (Tex. App.–Austin Aug. 9, 2007, no pet.) (mem.

op.) (citing Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.–Dallas 2003, no pet.)) (“While

pleadings are to be construed liberally, liberal construction does not mean that we imply

claims that are not alleged.”).

       Although Houser’s appellate brief spans thirty-five pages, no citation to authority

appears until page thirty-one, where Houser cites three cases that generally set forth the

law regarding mandamus relief. These cases, coupled with references to rule 145 of the

Texas Rules of Civil Procedure, are the only authority Houser cites to advance any

argument. See TEX . R. CIV. P. 145. Because we are to liberally construe Houser’s brief,

see TEX . R. APP. P. 38.9, we construe his argument as a complaint that the evidence is

insufficient to support the trial court’s May 16, 2005 order.

       The Texas Rules of Appellate Procedure provide that it is the appellant’s

responsibility to initiate the process of securing a reporter’s record by requesting its

preparation. See id. 35.3(b)(2). The rules provide:

       At or before the time for perfecting the appeal, the appellant must request in
       writing that the official reporter prepare the reporter’s record. The request
       must designate the exhibits to be included. . . .

Id. 34.6(b). Moreover, the clerk’s record must include any request for a reporter’s record.

Id. 34.5(a)(6). If the reporter’s record is missing, we presume that the missing record

supports the trial court’s determination. See In re Spiegel, 6 S.W.3d 643, 646 (Tex.

App.–Amarillo 1999, no pet.).
                                             5
         On appeal, Houser notes the absence of the reporter’s record, as well as the district

court’s August 15, 2008 finding that “if a reporter’s record ever existed for the hearing in

question, it has been lost or destroyed.” In his “prayer,” Houser requests a new trial under

rule 34(f) of the Texas Rules of Appellate Procedure.5 See id. 34(f)(6) (providing that an

appellant is entitled to a new trial if: (1) the appellant has timely requested a reporter’s

record; (2) “without the appellant’s fault, a significant portion of the court reporter’s notes

and records has been lost or destroyed”; (3) the lost or destroyed portion “is necessary to

the appeal’s resolution”; and (4) the lost or destroyed portion cannot be replaced by

agreement of the parties). By merely stating that the reporter’s record is “lost or destroyed”

and presenting no argument as to how 34.6(f) applies to the current case, Houser has

failed to adequately brief this issue. See TEX . R. APP. P. 38.1(i) (“The brief must contain

a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”). Nevertheless, out of an abundance of caution, we address

the issue of whether Houser is entitled to a new trial under rule 34.6(f). See TEX . R. APP.

P. 34.6(f).

         The clerk’s record contains no request for the preparation of a reporter’s record, and

Houser fails to provide a record citation to support his contention that any request was

made.6 Because the record before us indicates that Houser did not file a request for the
        5
          W e construe Houser’s request for a “new trial” as a request for a new hearing in the district court
on his writ of m andam us.

         6
           On April 21, 2008, Houser filed a docum ent entitled, “Motion for Reporter’s Record” with this Court
and attached a copy of a March 31, 2008 request for the preparation of a reporter’s record allegedly sent to
the district court's court reporter as well as the district court’s clerk. This letter provides the only indication that
a request was ever m ade and indicates that if a request was m ade, it was m ade alm ost three years after the
date the record was taken. Furtherm ore, the request does not reflect that it was ever properly sent to the
district court’s court reporter or the district court’s clerk. Houser notes in his appellate brief that the prison m ail
room ’s “legal log” records all outgoing and incom ing legal m ail, yet he has not provided us with evidence from
the legal log indicating that the request was sent to the district clerk or the court reporter before the three-year
period expired. See Piotrowski v. Minns, 873 S.W .2d 368, 371 (Tex. 1993). Additionally, because Houser’s
alleged request for the reporter’s record was attached to a m otion and never form ally included in the clerk’s
record, we do not consider it. See Mitchison v. Houston Indep. Sch. Dist., 803 S.W .2d 769, 771 (Tex.
App.–Houston [14th Dist.] 1991, writ denied) (citing Perry v. Kroger Stores, Store No. 119, 741 S.W .2d 533,
                                                           6
reporter’s record, we conclude that he has failed to satisfy the first prong of rule 34.6(f).

See id. 34.6(f)(1). Moreover, Houser does not appear to be without fault in the loss or

destruction of the court reporter’s notes. See TEX . R. APP. P. 34.6(f)(2).

        Upon abatement, the district court held a hearing on August 22, 2008, to determine

whether the court reporter’s records were lost or destroyed. The court reporter testified

that she was unable to locate her notes from the hearing and that she assumed that the

notes were destroyed three years after the May 16, 2005 proceeding.

        Under Texas law, court reporters are permitted to destroy records after three years.

See TEX . GOV’T CODE ANN . § 52.046(a)(4) (Vernon 2005). The Texas Supreme Court has

expressly held that “[i]f a litigant has not requested the reporter to prepare a statement of

the facts within three years, nor specifically requested that the notes of a proceeding be

preserved beyond three years, then the litigant is not free from fault . . . .” Piotrowski v.

Minns, 873 S.W.2d 368, 371 (Tex. 1993). Because Houser could have requested that the

court reporter prepare the record within three years, and nothing in the record indicates

that such request was ever made, Houser is not free from fault. See id. at 370. Having

determined that Houser has not satisfied the first and second prongs of 34.6(f), we

conclude that he has failed to prove that he is entitled to a new trial under rule 34.6. See

TEX . R. APP. P. 34.6(f).

        Because Houser’s failure to timely request the reporter’s record does not entitle him

to a new trial, we must decide this appeal without the reporter’s record. We cannot

determine the sufficiency of the evidence without a record; therefore, we must presume

that the evidence is legally and factually sufficient to support the trial court’s order and,

thus, requires that we overrule Houser’s issues to the extent that they can be construed


534 (Tex. App. Dallas 1987, writ denied)).
                                              7
to raise a sufficiency argument.7 See In re Spiegel, 6 S.W.3d at 646. All remaining issues

are overruled for inadequate briefing. See TEX . R. APP. P. 38.1(i).

                                              III. CONCLUSION

        The trial court’s judgment is affirmed.

                                                             ________________________
                                                             ROGELIO VALDEZ
                                                             Chief Justice

Delivered and filed the
1st day of April, 2010.




        7
           Texas Rule of Appellate Procedure 37.3(c) requires that we give Houser an opportunity to cure the
lack of record and inform him that if no reporter’s record is received, we will consider and decide any issues
that do not require the reporter’s record. See T EX . R. A PP . P. 37.3(c); see also In re Spiegel, 6 S.W .3d 643,
646 n.1 (Tex. App.–Am arillo 1999, no pet.) (noting that im plicit in rule 37.3(c) “is the notion that we need not
consider those issues that are dependent upon the presence of the docum ent. In other words, when the
reporter's record is m issing and the issue before us depends upon m atters within that record, we m ay overrule
or reject it.”). However, if Houser was to now request a reporter's record, we would be in the sam e position
as we are now— three years have passed since the May 16, 2005 proceeding and, through som e fault of
Houser, no reporter’s record can be produced. Therefore, because Houser has failed to provide a com plete
record, we presum e that the m issing reporter’s record supports the trial court’s determ ination. See In re
Spiegel, 6 S.W .3d at 646.

                                                        8
