                                    NO. 07-10-00260-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                       JULY 26, 2010


                           IN RE: JOE P. MAESTAS, RELATOR


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


                                 MEMORANDUM OPINION

       Relator, Joe P. Maestas, has filed a Petition for Writ of Mandamus seeking this

Court to order the Honorable Don R. Emerson Ato produce the T[exas] D[epartment of]

C[riminal] J[ustice] Classification Records on the R[e]lator[‘]s [se]ntence and any

agreement made with the federal [p]rison [s]ystems, including all Parole-Revocation

warrants, detainers[,] and/or all relevant material(s) involved in satisfying this issue. . . .@

We deny the petition.


       Texas Rule of Appellate Procedure 52.3 identifies the requirements for a petition

for writ of mandamus filed in this court. See TEX. R. APP. P. 52.3. 1 Maestas 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 Maestas does


       1
       Further citation of Texas Rules of Appellate Procedure will be by reference to
ARule __.@
not include an affidavit, he 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 include a complete list of all

parties and the names and addresses of all counsel. Maestas does not list the names

of the parties against whom he seeks mandamus relief apart from identification of the

trial court and vague references 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. Maestas=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. Maestas=s petition includes no index of authorities. Rule 52.3(e) requires

that the petition state, without argument, the basis of the Court’s jurisdiction to consider

the original proceeding. Maestas’s petition does not identify the basis for this Court’s

exercise of jurisdiction. Rule 52.3(f) requires the petition include a concise statement of

all issues or points presented for relief. Maestas=s petition includes no such statement.

Rule 52.3(h) requires the petition include a clear and concise argument for the

contentions made. Maestas’s petition is far from clear in that it appears that he is

requesting both copies of records purportedly in the possession of the trial court and

also this Court’s reconsideration of the Texas Court of Criminal Appeals’s opinion on a

writ of habeas corpus previously filed by Maestas.2 See Ex parte Maestas, No. AP-



       2
       While the prayer in Maestas’s petition requests only that we order the trial court
to provide certain records from the prior habeas corpus proceeding, a liberal
                                             2
75,926, 2008 Tex.Crim.App. Unpub. LEXIS 401 (Tex.Crim.App. June 4, 2008) (per

curiam). Rule 52.3(k)(1) requires the relator append a certified or sworn copy of any

order or other document showing the matter complained of. Maestas did not append

any motion or other document establishing that he requested the documents sought

from the trial court. Each of these items are required in a petition for writ of mandamus

and, as Maestas failed to include them in his petition, we will not grant the relief that he

requests.


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

petition fails to establish his entitlement to mandamus relief.


       The party seeking mandamus relief has the burden to provide a record sufficient

to establish his entitlement to such relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.

1992). The relator in a mandamus proceeding must file, with his petition, a certified or

sworn copy of every document that is material to the relator=s claim for relief and that

was filed in any underlying proceeding. Rules 52.3(k)(1)(A), 52.7(a)(1). To establish

entitlement to mandamus relief for a trial court=s failure to consider and rule on a motion,

the relator must establish that the trial court had a legal duty to perform a non-

discretionary act, was asked to perform the act, and failed or refused to do so within a

reasonable time. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.BAmarillo 2001, orig.

proceeding). A trial court has a ministerial duty to consider and rule on motions properly

filed and pending before the court, and mandamus may issue to compel the judge to

act. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.BSan Antonio 1997,

construction of the argument reveals a request by Maestas that this Court reconsider
the Texas Court of Criminal Appeals’s opinion.
                                             3
orig. proceeding) (citing O=Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex.App.BTyler

1993, orig. proceeding)).


       Nothing in Maestas’s petition indicates that his request for records has ever been

brought to the attention of the trial court in any way. Maestas has not referenced, let

alone attached a copy of, a motion requesting the records sought by the instant petition

from the trial court. As such, Maestas has failed to present a record sufficient for this

Court to determine whether he is entitled to the relief sought.


       To the extent that Maestas’s petition asks this Court to reconsider the Texas

Court of Criminal Appeals’s opinion in Ex parte Maestas, 2008 Tex.Crim.App. Unpub.

LEXIS 401, we have no appellate or mandamus authority over the Texas Court of

Criminal Appeals. A court of appeals has authority to issue writs of mandamus against

district and county court judges within the 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 Maestas has made no effort to identify how this Court’s reconsideration of

the Texas Court of Criminal Appeals’s opinion is necessary to enforce the jurisdiction of

this Court, we have no authority to reconsider the previous opinion of the higher court.


       For the foregoing reasons, we deny Maestas’s petition for writ of mandamus.




                                                        Per Curiam




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