                                    NO. 07-02-0350-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL E

                                   SEPTEMBER 5, 2002

                           ______________________________


                                  IN RE MICHAEL SCOTT


                         _________________________________

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


       Relator Michael Scott, who is an indigent prisoner acting pro se, has filed a petition

for writ of mandamus asking us to order respondent, the Potter County District Attorney,

to file his application for a temporary restraining order, present it to a district judge and

compel that judge to make a ruling on his application. Relator also refers in his application

to a criminal complaint he sent to the district attorney’s office in December, 2001, which

he alleges the district attorney failed to act on.


       Initially, we note that relator has not complied with the Rules of Appellate Procedure

in that he has not included a table of contents, index of authorities, or a certified or sworn



       1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
copy of any order complained of or any other document showing the matter complained

of. Tex. R. App. P. 52.3. Relator has included a handwritten application for temporary

restraining order, but there is nothing on it to certify that this is a copy of the document sent

to the district attorney’s office.


       Even if relator had strictly complied with the procedural requirements, mandamus

will only issue to correct a clear abuse of discretion or violation of a duty imposed by law

where there is no other adequate remedy by law. Johnson v. Fourth Court of Appeals, 700

S.W.2d 916, 917 (Tex. 1985). A court of appeals may issue a writ of mandamus only

against a judge of a district or county court or a judge of a district court who is acting as a

magistrate of a court of inquiry under Chapter 52 of the Code of Criminal Procedure. Tex.

Gov’t. Code Ann. § 22.221(b) (Vernon Supp. 2002). There is no authority for us to issue

a writ of mandamus against an official other than the ones prescribed by statute. See

Casner v. Rosas, 943 S.W.2d 937, 938 (Tex.App.--El Paso 1997, no writ); Chandler v.

O’Neal, 668 S.W.2d 914, 915 (Tex.App.--Houston [14th Dist.] 1984, no writ). Accordingly,

we are without jurisdiction to consider relator’s petition for writ of mandamus to issue

against the district attorney. 2


       Further, even though relator requests that we compel a district judge to act on his

application, the evidence before us shows the application for temporary restraining order



       2
        Parenthetically, we know of no authority which imposes a duty on the district
attorney’s office to file an indigent inmate’s application for injunctive relief related to the
conditions of his incarceration with the district clerk’s office or any authority which would
prevent an indigent inmate from making that filing himself.

                                               2
has never been filed. To be entitled to mandamus relief, a relator must show that a lower

court has a legal duty to perform a nondiscretionary act, relator has made a demand for

performance, and the lower court refused that request. Stoner v. Massey, 586 S.W.2d

843, 846 (Tex. 1979). Without the application having been filed, there is no showing that

the trial court has any current duty to act.


       Finally, with respect to relator’s criminal complaint which he alleges he previously

tried to file with the district attorney, no certified or sworn copy has been provided.

Respondent has provided a copy of the complaint and asserts it has been forwarded to the

Office of the Inspector General, Chief of Administrative Support, Huntsville, Texas, and

respondent has not yet received a criminal referral. Relator has requested no relief from

this court regarding the complaint, and we will therefore not address it further. See Tex.

R. App. P. 52.3(i).


       In summary, we conclude that we are without jurisdiction to consider relator’s

petition for writ of mandamus against the Potter County District Attorney. The remainder

of his petition must be and hereby is overruled.


                                                   Per Curiam


Do not publish.




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