                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-157-CV


ROBERT BELL                                           APPELLANT

                                       V.

COUNTY COURT AT LAW NO. 2,                             APPELLEES
THE HONORABLE TOM BACUS AND
TIMOTHY SAWYER

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

           FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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

                        MEMORANDUM OPINION 1

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

I.   Introduction




     1
         … See Tex. R. App. P. 47.4.
      Appellant Robert Bell, pro se, appeals the denial of a petition for writ of

mandamus he filed in the 78th District Court of Wichita County. Before the

court are Appellee Judge Tom Bacus’s 2

 motions to dismiss this appeal and for extension of time to file his appellee’s

brief, Appellee Timothy Sawyer’s motions for a copy of the record and for

extension of time to file his appellee’s brief, and Bell’s motion for a copy of the

appendix to his brief and response to the motion to dismiss. We grant the

motion to dismiss and deny the other motions as moot.

II.   Procedural Background

      Bell is an inmate in the James Allred Unit of the Texas Department of

Criminal Justice. Bell filed a lawsuit against Sawyer, also an inmate of the

Allred Unit, in the small claims court in Wichita County on February 21, 2008.

Both Bell and Sawyer are pro se and indigent.

      Bell’s lawsuit is governed by chapter fourteen of the civil practice and

remedies code.    Chapter fourteen governs suits brought by an inmate in a

district, county, justice of the peace, or small claims court in which the inmate

files an affidavit or unsworn declaration of inability to pay costs. Tex. Civ.

Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002); Garrett v. Borden, 283



      2
      … Judge Bacus is the presiding judge of County Court at Law No. 2 of
Wichita County.

                                        2
S.W.3d 852, 853 (Tex. 2009); Hamilton v. Williams, No. 02-07-00401-CV,

2009 WL 2751044, at *3 (Tex. App.—Fort Worth Aug. 31, 2009, no pet. h.).

Chapter fourteen’s purpose is not to punish inmates for filing claims but to aid

the court in determining whether an inmate’s claim is frivolous.      Garrett v.

Williams, 250 S.W.3d 154, 157 (Tex. App.—Fort W orth 2008, no pet.). A

court may dismiss a claim before or after service of process if the court finds

the allegation of poverty in the affidavit or unsworn declaration to be false, if

the claim is frivolous or malicious, or if the court finds the inmate filed an

affidavit or unsworn declaration the inmate knew was false. Tex. Civ. Prac. &

Rem. Code Ann. § 14.003(a) (Vernon 2002). To determine whether a claim is

frivolous, a court may consider, among other things, whether “the claim’s

realistic chance of ultimate success is slight” or whether “it is clear that the

party cannot prove facts in support of the claim.” Id. § 14.003(b)(1), (3).

      The small claims court dismissed Bell’s lawsuit with prejudice on August

26, 2008, finding the lawsuit frivolous and malicious as defined by subsections

14.003(b)(1) and (3) of the civil practice and remedies code. Bell filed a motion

to set aside the judgment on September 1, 2008, and a notice of appeal on

September 24, 2008. The small claims court subsequently entered an order

denying Bell’s right to appeal to the county court at law on September 29,

2008, and Bell appealed the order to the county court at law on October 3,

                                       3
2008. On January 6, 2009, Bell filed a petition for writ of mandamus in the

district court, asking the district court to “issue a writ of mandamus directing

the County Court At Law No. 2 to hold [a] hearing and render judgement [sic]

in this case.” The district court dismissed Bell’s petition for writ of mandamus

with prejudice on May 12, 2009. Bell appealed the May 12, 2009 order to this

court and asks us to “reverse the order of the district court dismissing Bell’s

petition for a writ of mandamus and remand back for further proceedings.”

III. Discussion

      Judge Bacus argues this appeal should be dismissed because the district

court does not have mandamus authority over the county court at law in this

scenario.   We agree.     The court of appeals, not the district court, has

mandamus authority over the county court at law when the district court’s

jurisdiction has not been encroached upon.             Tex. Gov’t Code Ann.

§§ 22.221(b)(1), 24.011 (Vernon 2003). Thus, the district court could not

have properly issued a writ of mandamus against the county court at law in this

instance.   We cannot grant Bell’s requested relief because doing so would

require the district court to conduct a mandamus proceeding it does not have

the authority to conduct. Id. §§ 22.221(b)(1), 24.011.

      Even if we were to consider the merits of Bell’s appeal, the result would

not be different. Rule 571 of the rules of civil procedure required Bell to file an

                                        4
appeal bond with the small claims court within ten days of the date of the small

claims court’s judgment or order overruling a motion for new trial. Tex. R. Civ.

P. 571. Alternatively, rule 572 required Bell to “mak[e] strict proof” of his

inability to pay the costs of appeal within five days of the small claims court’s

judgment or order overruling a motion for new trial.       Tex. R. Civ. P. 572.

Instead of filing an appeal bond or proof of inability to pay the costs of appeal,

Bell filed a motion to set aside the judgment on September 1, 2008. Bell’s

motion was overruled by operation of law on September 5, 2008, ten days

after the small claims court rendered judgment. See Searcy v. Sagullo, 915

S.W.2d 595, 597 (Tex. App.—Houston [14th Dist.] 1996, no writ) (citing

Jones v. Collins, 70 Tex. 752, 8 S.W. 681 (1888)); see also Tex. R. Civ. P.

567. Therefore, the latest date on which Bell could have timely taken action

to perfect his appeal to the county court at law was September 15, 2008, ten

days after his motion was overruled by operation of law. See Searcy, 915

S.W.2d at 597; see also Tex. R. Civ. P. 567. Bell did not file his notice of

appeal until September 24, 2008, so the county court at law was without

jurisdiction to consider his untimely appeal. See Searcy, 915 S.W.2d at 597;

see also Tex. R. Civ. P. 567. We cannot compel the county court at law to

conduct a proceeding over which it has no jurisdiction.

IV.   Conclusion

                                        5
      Based on the foregoing, we grant Judge Bacus’s motion to dismiss and

dismiss this appeal. We deny as moot Judge Bacus’s motion for extension of

time to file his appellee’s brief, Sawyer’s motions for a copy of the record and

for extension of time to file his appellee’s brief, and Bell’s motion for a copy of

the appendix to his brief.

                                            PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: October 15, 2009




                                        6
