                                   NO. 07-09-0265-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                   OCTOBER 1, 2009

                          ______________________________


                           IN RE RANDY LACKEY, RELATOR

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


       By this original proceeding, Relator, Randy Lackey, an inmate currently incarcerated

in the Institutional Division of the Texas Department of Criminal Justice, proceeding pro se

and in forma pauperis, seeks a writ of mandamus to compel the Honorable Gordon Green,

Judge of the 287th District Court of Bailey County, to consider and rule on a brief and

motions and proceed to trial or final judgment. For the reasons herein, Relator’s request

for mandamus relief is denied.


                                   Background Facts


       According to exhibits attached to Relator’s petition, Real Party in Interest, Robert

McCool, an attorney, was retained to represent Relator in a forfeiture proceeding pending
in Bailey County and a criminal proceeding pending in Lubbock County. After McCool

failed to appear for a hearing scheduled in the forfeiture proceeding, judgment was

rendered against Relator resulting in loss of personal property in the amount of $12,256.

Relator then sued McCool for legal malpractice in 2002. In 2003, the trial court ordered

the suit abated due to the pendency of a similar malpractice suit in the 72nd District Court

of Lubbock County. On April 5, 2004, the trial court ordered the parties to file briefs

itemizing the issues to be litigated. Relator was given thirty-five days in which to file his

brief and McCool was given thirty days after the date Relator’s brief was filed in which to

respond.


       Relator filed a brief distinguishing the two lawsuits. Although Relator’s brief is not

file stamped, the certificate of service reflects that a copy was mailed to McCool on May

5, 2004. Relator explained that the malpractice suit pending in the 72nd District Court of

Lubbock County was for McCool’s failure to appear in Relator’s criminal trial for theft, while

the malpractice suit filed in the 287th District Court of Bailey County was for McCool’s

failure to appear for Relator’s forfeiture proceeding. According to Relator, the issues to be

resolved in his malpractice suit resulting from McCool’s failure to appear at the forfeiture

proceeding are whether McCool was obligated to appear and whether he is liable for the

damages resulting therefrom.


       According to Relator’s petition for writ of mandamus, McCool failed to file his brief

as ordered by the trial court. On February 23, 2009, Relator filed, among other documents,


                                              2
“Plaintiff’s Request for Jury Trial with Brief in Support” and “Plaintiff’s Motion for Leave of

the Court to File His First Amended Petition.” By correspondence dated March 16, 2009,

Relator reminded the Bailey County District Clerk of his earlier filings and noted that if he

did not hear anything in fourteen days, he would be seeking mandamus relief in this Court.


        Relator was notified by letter from the District Clerk on March 27, 2009, that all his

correspondence had been made available to the judge. She advised him that the judge

sets all hearing dates and at that time, she had no settings in the case.1


                                   Mandamus Standard of Review


        “Mandamus issues only to correct a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of

Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to

mandamus relief, a relator must satisfy three requirements: (1) a legal duty to perform; (2)

a demand for performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843,

846 (Tex. 1979).




        1
         In his petition for writ of m andam us, Relator assum es his request to the trial court has been refused.
He recites “the Clerk of the Court stated that she had subm itted the docum ents to the judge (Respondent).
Thus, Relator’s request has been refused.” However, the lim ited record filed with the petition for writ of
m andam us does not include any orders denying him any relief. If the trial court had ruled on his m otions,
m andam us would not lie.

                                                        3
        Relator asks this Court to compel Judge Green to rule on his brief and motions in

which he requests to proceed to trial or final judgment. We recognize that an inmate has

the constitutional right of access to the courts and may not be denied access simply

because he is incarcerated. Hudson v. Palmer, 468, 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d

393 (1984); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).2 However, an inmate does not

have an absolute right to appear in person in every court proceeding.                            Id. at 165.

Therefore, before the trial court has a duty to schedule a trial, Relator has the burden to

establish that he will be ready to prosecute his claim.


        Nothing in the documents filed in this Court reflects that Relator would be able to

appear for a trial setting. In the proceeding below he is appearing pro se. There is no

indication that he has retained or intends to retain counsel to represent his interests; nor

does he suggest that he will be released from incarceration in the near future and be able

to represent himself; neither has he demonstrated that he requested and was denied a

bench warrant ad prosequendam.3



        2
          There is no absolute right to be present in a civil action, and access m ay be by other m eans such
as affidavit, deposition, or telephone. See In re R.C.R., 230 S.W .3d 423, 426 (Tex.App.–Fort W orth 2007,
no pet.).

        3
          Merely requesting a bench warrant for purposes of prosecuting a civil lawsuit does not dem onstrate
entitlem ent to a bench warrant. In addition to requesting a bench warrant, Relator m ust also justify the need
for his presence, which m ust be weighed against the protection of our correctional system ’s integrity. See
In re Z.L.T., 124 S.W .3d at 165. Texas courts of appeal have recognized a variety of factors to be considered
when deciding whether to grant an inm ate’s request for a bench warrant ad prosequendam: (1) the cost and
inconvenience of transporting the inm ate to the courtroom ; (2) the security risk the inm ate presents to the
court and public; (3) whether the inm ate’s claim s are substantial; (4) whether the m atter’s resolution can
reasonably be delayed until the inm ate’s release; (5) whether the inm ate can and will offer adm issible, non-
cum ulative testim ony that cannot be effectively presented by deposition, telephone, or som e other m eans;
(6) whether the inm ate’s presence is im portant in judging his dem eanor and credibility; (7) whether the trial
is to the court or a jury; and (8) the inm ate’s probability of success on the m erits. Id. at 165-66.

                                                       4
      Mandamus relief is an extraordinary remedy. In re Southwestern Bell Telephoen

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (original proceeding). We decline to compel

Judge Green to set a trial date without Relator providing him the factual information

necessary to do so. At this time, Relator has not demonstrated that Judge Green clearly

abused his discretion or violated a duty imposed by law.


      Consequently, Relator’s petition for writ of mandamus is denied.




                                               Patrick A. Pirtle
                                                   Justice




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