                                    NO. 07-04-0048-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                     MARCH 2, 2004

                          ______________________________


                        IN RE R. WAYNE JOHNSON, RELATOR
                         _______________________________

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


                                MEMORANDUM OPINION


       Relator, R. Wayne Johnson, seeks issuance of a writ of mandamus directing

respondent Caroline Woodburn, District Clerk of Potter County, to (1) accept and file a

petition for habeas corpus relator wishes to file, (2) obey her oath of office, and (3) obey

certain specified decisions of the United States Supreme Court and the law in general. He

also seeks our declaration that an application for habeas corpus is not subject to the

provisions of TEX . CIV. PRAC . & REM . CODE ANN . chapter 11 (Vernon Supp. 2004),

concerning vexatious litigants. We dismiss for lack of jurisdiction.


       A district clerk is not one of the officials against whom we have jurisdiction to issue

writs of mandamus pursuant to TEX . GOV’T CODE ANN . § 22.221(b) (Vernon Supp. 2004).

Nor does relator so urge. Instead, relator claims that we have jurisdiction in this original

proceeding because respondent’s refusal to accept his suit interferes with this court’s
appellate jurisdiction. See id. § 22.221(a). He cites, in part, In re Washington, 7 S.W.3d

181 (Tex.App.--Houston [1st Dist.] 1999, orig. proceeding).


       In Washington the relator filed a notice of appeal from a trial court proceeding. The

district clerk failed to process and forward the notice to the appellate court. The court of

appeals noted that the filing of a notice of appeal invokes appellate jurisdiction, and

determined that it had jurisdiction to issue a writ of mandamus directing the district clerk

to perform the ministerial duty of forwarding the notice to the appropriate appellate court.

Id. at 181-82.


       We agree with relator that we have jurisdiction to issue a writ of mandamus to

enforce our jurisdiction. See Gov’t. Code § 22.221(a); In re Washington, 7 S.W.3d at 182.

But, such jurisdiction exists to enforce our actual, as opposed to potential, jurisdiction. See

Shelvin v. Lykos, 741 S.W.2d 178, 181 (Tex.App.--Houston [1st Dist.] 1987, orig.

proceeding).


       Relator does not claim the existence of, nor does he present documents which he

claims evidence an appealable order, or a notice of appeal which has not been forwarded

as occurred in Washington. Our appellate jurisdiction as to the lawsuit relator alleges

respondent refuses to file is potential, as it is with any lawsuit which might be filed and

eventually appealed to this court. But, our jurisdiction over such a suit is not actual until

an event occurs which ripens our potential jurisdiction into actual jurisdiction. And, it is

relator’s burden to properly request and show entitlement to the mandamus relief he




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requests. See generally Johnson v. Fourth District Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985) (orig. proceeding). He has not done so.


      We dismiss the petition for writ of mandamus for want of jurisdiction.




                                                      Phil Johnson
                                                      Chief Justice




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