                               Fourth Court of Appeals
                                       San Antonio, Texas
                                             January 27, 2020

                                          No. 04-20-00020-CR

           IN RE STATE OF TEXAS, ex. rel. Todd A. “Tadeo” Durden, County Attorney

                                    Original Mandamus Proceeding 1

                                                 ORDER

Sitting:          Patricia O. Alvarez, Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

        On January 10, 2020, this court received relator’s petition for writ of mandamus.
Because the petition violated Rule 9.4 of the Texas Rules of Appellate Procedure in that it
exceeded the maximum word limit, relator filed a motion requesting leave to exceed the word
limit. See TEX. R. APP. P. 9.4(i)(2)(B); (4). On January 13, 2020, relator filed two additional
motions regarding the mandamus record: (1) a “Motion for Relief Under Rule 9.2(c)(1)” and (2)
a “Successive Motion for Relief Under Rule 35.3.” In an order dated January 17, 2020, this
court ruled on relator’s motions as follows:

           We denied relator’s “Motion to Exceed Word Limits,” struck the petition for writ
           of mandamus from our record, and ordered relator to file an amended petition not
           to exceed the maximum word limit in compliance with Rule 9.4 no later than
           February 3, 2020.

           In its “Motion for Relief Under Rule 9.2(c)(1),” relator asked this court to accept
           for filing the mandamus record in a PDF file on flash drive and on CD. Because
           the PDF file was contemporaneously filed with this court, we granted relator’s
           “Motion for Relief Under Rule 9.2(c)(1).”

           We denied relator’s “Successive Motion for Relief Under Rule 35.3,” in which
           relator asked this court to order Kinney County to pay the costs for preparing the




1
  This proceeding arises out of The State of Texas v. Mark Anthony Gonzalez; Cause No. 10041CR, and twenty-one
other cases, pending in the County Court, Kinney County, Texas. The Honorable Sid L. Harle signed the order at
issue in this original proceeding.
         clerk’s record 2 and reporter’s record to be filed in this original proceeding and
         ordered relator to file the reporter’s record from the relevant hearing.

        On January 21, 2020, relator filed a motion asking this court to reconsider its denial of
the “Successive Motion for Relief Under Rule 35.3.” The underlying trial court order about
which relator complains in this original proceeding states the trial court held a hearing on “the
State’s verified motion to disqualify and recuse [Judge James Tullis Shahan II] . . . .” The order,
which denied the State’s motion, also states “[t]he State appeared by and through the County
Attorney of Kinney County, Texas and announced ready.” Because the order recognizes the
State of Texas appeared “by and through the County Attorney of Kinney County,” the relator in
this original proceeding is the State of Texas.

       Although this is an original proceeding by the State of Texas, the Texas Code of Criminal
Procedure requires the State to pay all costs of appeal and we believe this requirement also
extends to the payment of the cost of a reporter’s record in an original proceeding filed by the
State. TEX. CODE CRIM. PROC. art. 44.01(f). We therefore GRANT relator’s motion to
reconsider our January 17, 2020 order.

       Accordingly, Kinney County is ORDERED to pay the costs for preparing the reporter’s
record no later than February 7, 2020, subject to this court later determining whether costs
should otherwise be taxed on the final disposition of this original proceeding. The reporter’s
record must be filed no later than ten days after the costs have been paid.

        Relator’s amended petition for writ of mandamus, with all appropriate citations to the
record, is due no later than fifteen days from the date the reporter’s record is filed. If relator
fails to timely file its amended petition for writ of mandamus, this original proceeding will be
dismissed for want of prosecution. See TEX. R. APP. P. 38.9, 42.3.

         It is so ORDERED on January 27, 2020.


                                                                              PER CURIAM


ATTESTED TO: _________________________
             MICHAEL A. CRUZ,
             Clerk of Court




2
   A clerk’s record is not filed in an original proceeding because it is the relator’s responsibility to file an appendix.
See TEX. R. APP. P. 52.3(k); 52.7(a). The PDF file referenced above is over 5,500 pages long; therefore, we assume
this file contains the documents that might otherwise be included in a clerk’s record.
