                                    NO. 07-07-0228-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    JULY 19, 2007
                           ______________________________

                            IN RE ROB L. NEWBY, RELATOR
                          _______________________________


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


                       ON PETITION FOR WRIT OF MANDAMUS


       Relator Rob L. Newby, acting pro se, has filed a petition seeking issuance of a writ

of mandamus. We will dismiss the petition in part and deny it in part.


       According to relator’s petition, he is incarcerated in the Institutional Division of the

Texas Department of Criminal Justice, and filed a civil suit in the 100th District Court

seeking damages and declaratory and injunctive relief against officials of the TDCJ’s

Roach Unit in Childress County. He states that his claims arise from the officials’ handling

of his grievance over damage to his radio.


       In his petition, relator asserts that the Hon. David M. McCoy, judge of the 100th

District Court, has failed to take certain actions with respect to relator’s civil suit despite

relator’s requests. He also asserts that the district clerk, Zona Prince, has ignored his

requests that she send him copies of documents he has filed in the civil suit. He asks that
we direct the district clerk to send him a copy of pleadings filed in the case, and direct

Judge McCoy “to set this case and serve the A.G.”


       A court of appeals has the authority to issue a writ of mandamus against a judge of

a district or county court in the court of appeals’ district and all writs necessary to enforce

its jurisdiction. Tex. Gov’t Code Ann. § 22.221(a),(b) (Vernon 2004). We have jurisdiction

to issue a writ of mandamus to the district clerk, then, only to the extent necessary to

enforce our jurisdiction. Tex. Gov’t Code Ann. § 22.221(a); In re Washington, 7 S.W.3d

181, 182 (Tex.App.–Houston [1st Dist.] 1999, orig. proceeding). Our jurisdiction under

section 22.221(a) exists to enforce our actual, as opposed to potential, jurisdiction. In re

Johnson, No. 07-04-0048-CV, 2004 WL 384458 (Tex.App.–Amarillo, March 2, 2004, orig.

proceeding) (citing Shelvin v. Lykos, 741 S.W.2d 178, 181 (Tex.App.–Houston [1st Dist.]

1987, orig. proceeding)). As we sometimes have stated the rule, our writ authority under

section 22.221(a) applies only when the relief sought implicates a pending appeal. See,

e.g., In re Jackson, No. 07-03-0372-CV, 2003 WL 22047701 (Tex.App.–Amarillo

September 2, 2003, orig. proceeding). It does not appear that the relief sought by relator’s

petition against the district clerk implicates a pending appeal, or affects our actual appellate

jurisdiction. Accordingly, we find the relief he seeks against the district clerk lies outside

our writ jurisdiction.


       “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.” Johnson v. Fourth

Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985), quoted in Walker v. Packer, 827



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S.W.2d 833, 839 (Tex. 1992). One seeking issuance of a writ of mandamus must provide

a sufficient record to establish his right to such relief. Walker, 827 S.W.2d at 837. The

relief sought by relator against Judge McCoy would issue only on a clear showing that the

trial court had a legal duty to perform a nondiscretionary or ministerial act; that he has been

requested to perform the act; and that he has refused to do so. Barnes v. State, 832

S.W.2d 424, 426 (Tex.App.–Houston [1st Dist.] 1992) (orig. proceeding) (citing Stoner v.

Massey, 586 S.W.2d 843, 846 (Tex. 1979)). This court has held that the acts of giving

consideration to and ruling on motions properly filed and pending before a trial court are

ministerial acts the performance of which, in a proper case, may be enforced by

mandamus. See In re Christensen, 39 S.W.3d 250 (Tex.App.–Amarillo 2000) (orig.

proceeding).


        As noted, relator requests that we direct Judge McCoy to “serve the A.G.” The

request demonstrates relator misunderstands the role of the trial court in service of process

in civil cases. Under the Texas Rules of Civil Procedure, arranging for service of citation

and a copy of the original petition on other parties is the responsibility of a litigant, not that

of the trial court. Rule 99 provides, in pertinent part, that, on the filing of the petition, “the

clerk, when requested, shall forthwith issue a citation and deliver the citation as directed

by the requesting party. The party requesting citation shall be responsible for obtaining

service of the citation and a copy of the petition.” Tex. R. Civ. P. 99. Many other rules may

affect the requirements for service in a particular case, but reference to Rule 99 is sufficient

to show that relator is mistaken in his apparent belief the trial court bears responsibility to

initiate service on the defendants in his civil case.


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       In the context of the facts relator presents in his petition, we are not certain we

understand relator’s request that we direct Judge McCoy to “set” his civil case. If he means

the judge should set the case for trial, it is apparent that the request is premature, since

the defendants have not been served with a copy of the petition or given an opportunity to

respond to it. See Tex. R. Civ. P. 245 (addressing assignment of cases for trial). In any

event, we find that relator has not demonstrated that Judge McCoy has refused to perform

a nondiscretionary or ministerial act so as to justify this court’s intervention in the

scheduling of his court’s trial docket. See Ho v. Univ. of Texas at Arlington, 984 S.W.2d

672, 693-94 (Tex.App.–Amarillo 1998, pet. denied) (recognizing trial court’s wide discretion

to manage its docket). Accordingly, and accepting relator’s statements in his petition as

true,1 we nonetheless find that he has failed to demonstrate entitlement to the writ of

mandamus he seeks.


       For the reasons stated, to the extent relator’s petition seeks relief against the district

clerk Zona Prince, it is dismissed for want of jurisdiction, and to the extent it seeks relief

against Judge McCoy, it is denied.


                                                   Per Curiam




       1
        Because the contentions made in relator’s petition, on its face, do not establish his
entitlement to mandamus relief, we need not address the absence of certified or sworn
copies of documents material to relator’s claim for relief, as required by Rule of Appellate
Procedure 52.7. Relator’s request, included within his petition, that we “excuse him from
Rule 52.7" is therefore dismissed as moot.

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