


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-07-00287-CV
 
In re
Larry Gene Buck
 
 

Original Proceeding
 
 
 

MEMORANDUM  Opinion





 
            Larry Gene Buck, an inmate, filed an
application for writ of mandamus requesting this Court to compel the district
clerk of Johnson County to forward to the Court of Criminal Appeals “a copy of
his application for writ of habeas corpus, any answer filed, and a certificate
reciting the date upon which the finding was made, if the convicting court
decides that there are no issues to be resolved.”  Buck did not pay the filing
fee for his application but, instead, filed an affidavit of indigency.  
            Neither the application nor the
affidavit was properly served.  There was no proof of service of the
application and the affidavit was served on the Clerk of this Court, who is not
a party to the proceeding.  See Tex.
R. App. P. 9.5 (a), (d); 52.2.  The Clerk of this Court requested a
proper proof of service of the mandamus but Buck, although he filed a proof of
service, did not file a proper proof of service, in that he again served
the Clerk of this Court.  Because of the nature of the request made by Buck and
the difficulty we have had in obtaining compliance with the Rules of Appellate
Procedure, we use Rule 2 to suspend the service requirement of Rule 9.5 and
proceed to the merits of the mandamus.  Tex.
R. App. P. 2, 9.5.  
            We have no jurisdiction to mandamus a
district clerk except to protect our jurisdiction.  In re Washington, 7
S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999) (orig. proceeding); In
re Simpson, 997 S.W.2d 939 (Tex. App.—Waco 1999) (orig. proceeding).  See
also Tex. Gov't Code Ann. §
22.221(a), (b) (Vernon 2004).  Buck's application does not allege facts that
require us to protect our jurisdiction.
            Further, absent a specific exemption,
the Clerk of the Court must collect filing fees at the time a document is
presented for filing.  Tex. R. App. P.
12.1(b); Appendix to Tex. R. App. P.,
Order Regarding Fees (July 21, 1998).  See also Tex. R. App. P. 5; 10th
Tex. App. (Waco) Loc. R. 5; Tex.
Gov't Code Ann. § 51.207(b) (Vernon 2005).  Under these circumstances,
we suspend the rule and order the Clerk to write off all unpaid filing fees in
this case.  Tex. R. App. P. 2.
            Accordingly, Buck’s application for
writ of mandamus is dismissed for want of jurisdiction. 
 
                                                                                    TOM
GRAY
                                                                                    Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Vance, and
            Justice
Reyna
Petition
dismissed
Opinion
delivered and filed October 10, 2007
[OT06]

