                                      NO. 07-07-0010-CV

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL A

                                    JANUARY 18, 2007
                             ______________________________

                         IN RE MICHAEL LOU GARRETT, RELATOR
                            _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


       Relator, Michael Lou Garrett, has filed a third Petition for Writ of Mandamus

requesting this Court order respondents, “Debbie Liles, Kelli Ward, Jamie L. Baker and

their agents[,] E.C. Williams (Warden, Allred Unit)[,] and F.L. Haynes (Access to Courts

Coordinator/Indigent Supplies Supervisor, Allred Unit)[,] to immediately refrain from

depriving relator, an indigent prisoner, of indigent supplies needed and necessary for

processing the matter of this appeal [Cause No. 07-06-00428-CV].” We deny the petition.


       Texas Rule of Appellate Procedure 52.31 identifies the requirements for a petition

for writ of mandamus filed in this court.          Garrett has failed to comply with these

requirements. Rule 52.3 requires that all factual statements in a petition must be verified

by affidavit made on personal knowledge. While Garrett does not include an affidavit, he

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           Further citation of Texas Rules of Appellate Procedure will be by reference to “Rule
__.”
does include an unsworn declaration subject to penalty of perjury, as authorized by TEX .

CIV. PRAC . & REM . CODE ANN . § 132.001(a) (Vernon 2005). However, Rule 52.3(a) requires

that a petition must include a complete list of all parties and the names and addresses of

all counsel. Garrett does not list the names of the parties against whom he seeks

mandamus relief apart from their identification in the argument portion of his petition. Rule

52.3(b) requires that the petition include a table of contents with references to the pages

of the petition and an indication of the subject matter of each issue or point raised in the

petition. Garrett’s petition includes no table of contents. Rule 52.3(c) requires that a

petition include an index of authorities in which all authorities cited in the petition are

arranged alphabetically and the page(s) upon which the authorities are cited is indicated.

Garrett’s petition includes no index of authorities. Rule 52.3(d) requires a statement of the

case. Garrett’s petition does not contain a statement of the case and does not identify the

nature of the underlying proceeding.2 Rule 52.3(f) requires the petition include a concise

statement of all issues or points presented for relief. Garrett’s petition includes no such

statement. Each of these items are required in a petition for writ of mandamus and, as

Garrett failed to include them in his petition, we will not grant the relief that he requests.


       However, even if Garrett had complied with the requirements of Rule 52.3, his

petition fails to establish his entitlement to mandamus relief. A court of appeals has

authority to issue writs of mandamus against district and county court judges within the



       2
       Garrett contends that mandamus is necessary for the processing of his pending
appeal in cause number 07-06-00428-CV. However, nowhere in Garrett’s petition for writ
of mandamus does he identify the nature of the case underlying this appeal nor does he
provide any information from which the nature of this appeal can be gleaned.

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court of appeals’s district and all writs necessary to enforce its jurisdiction. TEX . GOV’T

CODE ANN . § 22.221(a), (b) (Vernon 2004). As none of the named respondents are

identified as judges, they are not within our jurisdictional reach and we have no authority

to issue a writ of mandamus against the respondents absent a showing that issuance of

the writ is necessary to enforce our jurisdiction. In re Cummins, 2004 WL 1948048, at *1

(Tex.App.–Amarillo 2004, orig. proceeding) (mem. op.); In re Coronado, 980 S.W.2d 691,

692 (Tex.App.–San Antonio 1998, orig. proceeding).


       Garrett contends that issuance of the writ is necessary to enforce our jurisdiction

because, if we do not issue the writ, he will be “deprived of his right to process his appeal”

in cause number 07-06-00428-CV. Garrett has provided this court none of the material

documents relating to his pending appeal in cause number 07-06-00428-CV, see Rule

52.3(j)(1), and, as mentioned above, has failed to even identify the nature of the underlying

proceeding from which he appeals.           Thus, we are unable to determine, from the

documents provided in support of his petition, whether our issuance of mandamus would

be necessary to enforce this court’s jurisdiction over that appeal. Garrett contends that he

is required to file a brief in support of his appeal and that the denial of the supplies

necessary to file this brief affects this court’s enforcement of it jurisdiction over that appeal.

However, Rule 38.8 provides courts of appeals three options when a civil appellant fails

to timely file an appellate brief: (1) dismiss the appeal for want of prosecution,3 (2) decline


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         Rule 38.8(a)(1) provides for dismissal unless “the appellant reasonably explains
the failure and the appellee is not significantly injured” by the failure. Thus, Garrett would
have the opportunity to provide the court an explanation of the efforts that he has
undertaken to timely file an appellate brief and how maintaining the appeal on the court’s
docket would not significantly injure the appellees. Therefore, Garrett has an available

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to dismiss the appeal and give further direction to the case as the court considers proper,

or (3) if an appellee’s brief is filed, regard that brief as correctly presenting the case and

affirm the trial court’s judgment without examining the record. As none of these options

implicate this court’s jurisdiction to consider Garrett’s appeal in cause number 07-06-

00428-CV, we conclude that Garrett has failed to show how issuance of the requested writ

of mandamus would be necessary to the enforcement of this court’s jurisdiction.


       As Garrett’s petition for writ of mandamus does not comply with the requirements

of Rule 52.3 and fails to establish how the writ is necessary to enforce this court’s

jurisdiction, we deny the petition.




                                                  Mackey K. Hancock
                                                       Justice




remedy at law of a potential dismissal for want of prosecution under Rule 38.8(a)(1) and
mandamus relief is not appropriate. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d
304, 305 (Tex. 1994).

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