Petition for Writ of Mandamus Denied and Majority and Concurring Opinions
filed May 9, 2019.




                                       In the

                     Fourteenth Court of Appeals

                                 NO. 14-18-01116-CR



               IN RE THERMON JAMES FLANIGAN, Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               174th District Court
                              Harris County, Texas
                          Trial Court Cause No. 716513

                          CONCURRING OPINION

      While I concur in the denial of relator’s petition for a writ of mandamus, I
write separately because the court does not address the real issue underlying this
original proceeding: What is the minimum evidentiary threshold that a relator must
meet in an original proceeding to justify the appellate court either (1) requesting a
response or (2) granting the requested relief after requesting a response? See Tex. R.
App. P. 52.3(g), (j), (k)(1)(A)1; see also Tex. Gov’t Code Ann. § 22.221(b) (Supp.)
(writ power of court of appeals). In this mandamus action, relator has not met his
burden of coming forward with any evidence.

       Relator Thomas James Flanigan is an inmate at the Texas Department of
Criminal Justice’s Allan B. Polunsky Unit. He filed a petition for a writ of mandamus
in which he requests that this court compel the respondent, Honorable Hazel B.
Jones, presiding judge of the 174th District Court of Harris County, to “examine the
results of alleged D.N.A. testing, hold a hearing, and make a finding as to whether,
had the results been available during the trial of the offense, it is reasonably probable
that the person would not have been convicted.” See Tex. Code Crim. Proc. Ann.
arts. 64.01–.05 (proceedings in motion for forensic DNA testing).

       Relator suggests that he once had appointed counsel for DNA testing:

       Upon notice from court appointed attorney that a motion to be removed
       from court appointed duties with respect to D.N.A. testing . . . , relator
       sent his motion for objection (sent on 3-26-18) of court appointed
       attorney being released from appointment to Harris County District
       Clerk Chris Daniel to be directed to the 174th District Court.




       1
          The subdivision of Texas Rule of Appellate Procedure 10 “Motions in the Appellate
Court,” Rule 10.4 “Power of Panel or Single Justice or Judge to Entertain Motions” applies to Rule
52 “Original Proceedings.” Under the current Texas Rules of Appellate Procedure, a relator filing
a petition for a writ of mandamus need not verify the petition, but must instead certify that every
factual statement in the petition is supported by competent evidence included in the appendix or
record. Compare Tex. R. App. P. 121(a)(2)(F), 49 Tex. B.J. 585 (Tex. & Tex. Crim. App. 1986,
amended 1997), with Tex. R. App. P. 52.3(j). This change in the original proceedings rule may
preclude a non-attorney from using Texas Rule of Appellate Procedure 10.2 to verify statements
in a Rule 52 petition as competent evidence.
                                                2
Relator states that he sent “a request for notification of any hearing that was held to
be held [sic] to the 174th District Court Clerk (October - 2018).”

       Relator claims that he “is not receiving any response as to any motions filed
with court” and that he “do[es] not have the where-withawl [sic] to compel the 174th
District Court to respond to any motions.” Finally, relator states that he “was not
notified that a motion for D.N.A. testing has been granted[,] . . . was not notified that
a court[-]appointed attorney had been assigned[,] . . . [and] [t]here is no formal legal
correspondence coming from the 174th District Court.”

       Relator has not filed a record, and the rules require that he file “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.” See Tex. R. App. P. 52.7(a)(1); see
also In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.] 2016, no
pet.) (per curiam) (citing Walker v. Packer, 827 S.W.3d 833, 837 (Tex. 1992), and
Tex. R. App. P. 52.7(a)(1), and concluding pro se inmate relator did not provide
record sufficient to show his entitlement to mandamus relief). He has not expressly
stated that he is unable to file the required record. See Tex. Civ. Prac. & Rem. Code
Ann. § 132.001(a), (e) (availability of unsworn declaration and jurat requirement by
inmate).2


       2
         I note that the Court of Criminal Appeals has adopted a different mail-box rule for
prisoners due to the lack of control prison inmates have over filings as opposed to the various
options available to other litigants. See Campbell v. State, 320 S.W.3d 338, 343 (Tex. Crim. App.
2010). The court specifically noted that, unlike prison inmates, other litigants can place a document
in the United States mail and:
       they can follow its progress by calling the court to determine whether the notice has
       been received and stamped, knowing that if the mail goes awry they can personally
       deliver notice at the last moment or that their monitoring will provide them with
                                                 3
       Relator has not come forth with any evidence that a motion for forensic DNA
testing has been filed. He also has raised the possibility that he is represented by
counsel, but again there is no evidence. If in fact he has counsel, then relator is not
entitled to hybrid representation. See Landers v. State, 550 S.W.2d 272, 280 (Tex.
Crim. App. 1977) (op. on reh’g); see also Tex. Code Crim. Proc. Ann. art. 64.01(c)
(authorizing counsel for forensic DNA proceeding). This original proceeding is not
about whether relator has met his evidentiary burden to justify this court ordering
the respondent trial judge to act on a motion for forensic DNA resting, or even
whether relator presented enough evidence to warrant this court requesting a
response. See In re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.]
2017, orig. proceeding) (per curiam) (“A trial court has a ministerial duty to consider
and rule on motions properly filed and pending before it, and mandamus may issue
to compel the trial court to act.”); see also Tex. Code Crim. Proc. Ann. art. 64.03;
Tex. R. App. P. 52.4. Instead, this is an original proceeding in which relator has
presented no evidence whatsoever.


                                            /s/       Charles A. Spain
                                                      Justice

Panel consists of Justices Wise, Zimmerer, and Spain. (Wise, J., majority)

Publish—Tex. R. App. P. 47.2(b).


       evidence to demonstrate either excusable neglect or that the notice was not stamped
       on the day the court received it.
Id. (quoting Houston v. Lack, 487 U.S. 266, 271 (1988)).


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