                                          NO. 07-03-0156-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                        APRIL 2, 2003
                               ______________________________

                                    IN RE LAWRENCE HIGGINS,

                                                                   Relator

                               ______________________________


                                     ORIGINAL PROCEEDING

                              _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1

        Pending before this court is a pro se motion for writ of mandamus seeking that we

compel “the 251st [D]istrict Court to proceed with operation of law in the cause #50,573-C.”

The latter cause apparently involves a lawsuit against defendants denominated

“Woodburn, Sears and Watkins.” Furthermore, we construe this as a request to order the

Hon. Patrick Pirtle, Judge of the 251st District Court in Randall County, to rule on relator

Lawrence Higgins’s allegedly pending motions “to appoint an expert investigator” and “to

refer [the] action to trial by jury.” We deny the motion for the following reasons.




        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).
         First, Higgins failed to accompany his petition with the requisite filing fee or an

affidavit of indigence.2 When a party seeks to invoke the jurisdiction of this court through

a notice of appeal, an affidavit of indigence is required of one who cannot pay the costs in

the appellate court. TEX . R. APP. P. 20.1. This rule is no less applicable in actions for writs

of mandamus, and we are not required to rule on matters without a proper showing of

indigence.       In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001) (orig.

proceeding).

         Second, the petition does not comply with the applicable rules of appellate

procedure. That is, Higgins failed to verify the factual statements in his petition and to

incorporate a table of contents, an index of authorities, a statement of the case, statement

of jurisdiction, a statement of the issues presented, a statement of facts, or a section

developing his argument.3 TEX . R. APP. P. 52.3. Also missing is an appendix including,

among other things, a “certified or sworn copy of . . . [the] document[s] showing the matter

complained of.” Id. In this case, those requisite documents would be, at the very least, the

motions upon which he seeks a ruling.

         Finally, a trial court does not abuse its discretion until the complainant establishes

that the court 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). Application of this rule would require Higgins to illustrate that the trial court



        2
            Higgins asserts in his petition that he has filed a “civil action claims su it.” Further, the address on
his letter to this court ind icates that he is incarcerated . W e therefore assume that he has filed an affidavit of
indigence in the trial court, but we have no reco rd be fore us to sho w tha t fact.

        3
         A pro se litigant is required to comply with the rules of ap pellate proc edu re. Holt v. F. F. Enterprises,
990 S.W .2d 756, 759 (T ex. A pp.--Am arillo 199 8, pet. denied).

                                                         2
was aware of the motions. However, we have nothing before us showing that the trial court

knew of them. Nor can we impute such knowledge simply because they may have been

filed with the district clerk. See In re Chavez, 62 S.W.3d at 222 (stating that we know of

no rule which imputes the clerk’s knowledge to the trial court).

       For these reasons, we deny, without prejudice, the petition for writ of mandamus.



                                                 Brian Quinn
                                                   Justice




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