                                      NO. 07-03-0389-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL D

                                  SEPTEMBER 4, 2003
                            ______________________________

                                   IN RE GUY LEDBETTER,

                                                  Relator
                          _________________________________

                                 ORIGINAL PROCEEDING
                            _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

           Pending before this court is the pro se motion of Guy Ledbetter for a writ of

mandamus. He asks that we direct “. . . the Honorable 50th Judicial District Court of Cottle

County, Texas to honor and comply by releasing . . . records to Relator.” The records

alluded to are those developed in the prosecution of Cause No. 2734, styled State v.

Ledbetter. Furthermore, the records purportedly are sought to enable him to pursue post-

judgment habeas relief. The petition of Ledbetter is denied for the following reasons.

       First, the petition does not comply with the applicable rules of appellate procedure.

That is, Ledbetter failed to verify the factual statements in his petition and to incorporate

a statement of the case or a statement of the issues presented.1 TEX . R. APP . P. 52.3. Also

missing is an appendix containing a "certified or sworn copy of . . . [the] document[s]


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         A pro se litigant is required to comply with the rules of appellate procedure. Holt v. F. F.
Enterprises, 990 S.W.2d 756, 759 (Tex. App.--Amarillo 1998, pet. denied).
showing the matter complained of." Id. In this case, the matters complained of would be

the various motions he allegedly filed in an attempt to secure the records in question.

       Second, mandamus cannot issue against a trial judge unless the relator establishes

that the judge clearly abused his discretion in acting upon a matter. In re Rogers, 43

S.W.3d 20, 24 (Tex. App. --Amarillo 2001, no pet.). Furthermore, this standard is not met

until the complainant illustrates that the trial judge had a legal duty to perform a

non-discretionary act, was asked to perform the act, and failed or refused to do so.

O'Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). Here, Ledbetter failed

to illustrate that the record developed in conjunction with his criminal prosecution was or

is in the possession or under the control of either the 50th Judicial District Court of Cottle

County or the judge of that court. Indeed, according to statute, the clerk of the district

court has custody of and maintains the records relating to or deposited with the clerk. TEX .

GOV ’T CODE ANN . §51.303(a) (Vernon 1998). Such records would undoubtedly include

those instruments pertaining to the initiation and filed during the prosecution of a criminal

proceeding. This is so because it is from that governmental entity which we obtain the

indictment, docket sheet, jury charge, judgment, and like items when assuring the

development of an appellate record. See TEX . R. APP . P. 34.5(a) & 35.3(a). Similarly, the

official court reporter, not the trial judge, is burdened with the duty to transcribe court

proceedings and furnish transcripts of those proceedings to others. TEX . GOV ’T CODE ANN .

§52.046(a)(5). And, it is with the court reporter that one applies for a copy of the particular

transcript. Id. §52.047(a). Given these circumstances, we cannot say Ledbetter proved

that the target of his writ had a legal duty to provide him the records sought.


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Accordingly, the petition for writ of mandamus is denied.



                                         Brian Quinn
                                           Justice




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