      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00189-CV



                                   Juan Enriquez, Appellant

                                                 v.

            Dale Wainwright, Chairman of the Texas Board of Criminal Justice;
                          and Lannette Linthicum, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-16-005852, HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Juan Enriquez, an inmate confined in the Institutional Division of the Texas

Department of Criminal Justice who is appearing pro se and in forma pauperis, appeals the trial

court’s order granting a plea to the jurisdiction filed by Dale Wainwright, Chairman of the Texas

Board of Criminal Justice,1 and Lannette Linthicum, Director of the Health Services Division of the

Texas Department of Criminal Justice. Because the trial court had jurisdiction over the underlying

mandamus proceeding—the sole issue before us—we will reverse and remand.




       1
          The nine member Texas Board of Criminal Justice is appointed by the governor to oversee
the Texas Department of Criminal Justice. The board members are responsible for hiring the executive
director of the department and setting rules and policies that govern the agency.
                                         BACKGROUND

               Enriquez sued Wainwright and Linthicum and a number of other prison officials

and medical doctors complaining of the manner in which medical treatment was provided to him

in connection with conditions of his kidneys, prostate gland, and urinary tract. Enriquez sought the

following relief against Wainwright and Linthicum:


       A writ of mandamus directing Defendants to provide Plaintiff with either
       transurethral microwave thermotherapy or transurethral needle ablation to correct
       Plaintiff’s diagnosed BPH and which procedure shall be performed by doctors not
       connected to or associated with the TDCJ or UTMB.

       A writ of mandamus directing Defendants to provide Plaintiff with a comprehensive
       evaluation of the damage to his kidneys and the treatment necessary to repair or
       restore them and which evaluation and treatment shall be done by doctors not
       connected to or associated with the TDCJ or UTMB.

       A writ of mandamus directing Defendants to provide Plaintiff with the treatment
       necessary to correct or cure Plaintiff’s anemia caused by kidney failure and which
       treatment shall be provided by doctors not connected to or associated with the TDCJ
       or UTMB.


Enriquez also sought unspecified “prospective equitable relief” as well as actual and exemplary

damages in excess of $15 million. Enriquez alleged that venue was proper in Travis County because

he sought mandamus relief against the head of a state agency. See Tex. Civ. Prac. & Rem. Code

§ 15.014 (“An action for mandamus against the head of a department of the state government shall

be brought in Travis County.”); cf. id. § 15.019 (“Except as provided by Section 15.014, an action

that accrued while the plaintiff was housed in a facility operated by or under contract with the Texas

Department of Criminal Justice shall be brought in the county in which the facility is located.”).




                                                  2
                Wainwright and Linthicum filed a motion to transfer venue and original answer. In

their motion to transfer venue, Wainwright and Linthicum argued that any claims against them

based on section 1983 of the United States Code must be brought in Anderson County, the location

of the facility where Enriquez was incarcerated at the time those claims accrued. See id. Enriquez

filed a response in which he asserted that section 15.019 of the Texas Civil Practice and Remedies

Code did not apply to his claims against Wainwright and Linthicum because he was seeking

mandamus relief against heads of a department of state government and, consequently, venue was

mandatory in Travis County. See id. § 15.014.

                Wainwright and Linthicum also filed a plea to the jurisdiction in which they

asserted that mandamus relief was not available because Enriquez was not seeking to compel

them to perform a ministerial act. See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.

1991) (“A writ of mandamus will issue to compel a public official to perform a ministerial act.”).

“An act is ministerial when the law clearly spells out the duty to be performed by the official with

sufficient certainty that nothing is left to the exercise of discretion.” Id.; see also Community Health

Choice, Inc. v. Hawkins, 328 S.W.3d 10, 13 (Tex. App.—Austin 2010, pet. denied). In general, a

writ of mandamus will not issue if the public official has discretion to perform the act requested.

Anderson, 806 S.W.2d at 793. There are, however, exceptions when a public official commits a clear

abuse of that discretion. Id.; see also Dykes v. City of Houston, 406 S.W.2d 176, 183 (Tex. 1966);

Womack v. Berry, 291 S.W.2d 677, 682 (Tex. 1956).




                                                   3
                The trial court held a hearing on Wainwright and Linthicum’s plea to the jurisdiction.2

At the hearing, counsel for Wainwright and Linthicum argued that Enriquez was not entitled to

mandamus relief because he sought to compel a particular form of medical care, which was, in their

view, “clearly discretionary action.” Counsel argued that, as a consequence, the trial court had “no

jurisdiction to order mandamus.” At the conclusion of the hearing the court granted the plea to the

jurisdiction and Enriquez perfected this appeal.


                                            DISCUSSION

                The district court has exclusive original jurisdiction over mandamus proceedings

except when the Texas Constitution or a statute confers original jurisdiction in another tribunal. In

re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 775 (Tex. 1999). The Texas Constitution empowers

trial courts to issue writs of mandamus to compel public officials to perform ministerial acts. Tex.

Const. art. V, § 8. An original proceeding for a writ of mandamus initiated in the trial court is a civil

action subject to trial and appeal on substantive issues and rules of procedure as any other civil suit.

See Anderson, 806 S.W.2d at 792 n.1. Thus, the trial court had jurisdiction to consider Enriquez’s

action seeking mandamus relief against Wainwright and Linthicum.

                The public officials argued, and the trial court apparently agreed, that mandamus was

not available because the relief sought was not the performance of a ministerial act. Such a ruling

would not, however, operate to deprive the court of subject-matter jurisdiction over Enriquez’s




        2
          The motion to transfer venue was not addressed by the court at the hearing because
Enriquez was not provided the required 45-days’ notice. See Tex. R. Civ. P. 87(1). (“Except on leave
of court each party is entitled to at least 45-days’ notice of a hearing on the motion to transfer.”).

                                                   4
claim. Instead, such a conclusion would simply dictate the denial of the requested mandamus relief,

a decision that could then be appealed as in any other civil suit. We express no opinion on the merits

of the relief Enriquez seeks. However, because the trial court had subject-matter jurisdiction over

Enriquez’s request for a writ of mandamus against Wainwright and Linthicum, we hold that it erred

in granting the plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000) (“A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause

of action without regard to whether the claims asserted have merit.”).

               Wainwright and Linthicum also argue that this Court should dismiss the appeal

because Enriquez failed to comply with the requirement that he file an affidavit or declaration

“identifying each action . . . previously brought by the person and in which the person was not

represented by an attorney, . . . .” See Tex. Civ. Prac. & Rem. Code § 14.004(a)(1) (inmate who files

affidavit or unsworn declaration of inability to pay costs shall file separate affidavit or declaration

“relating to previous filings” in which inmate must detail all previous actions filed pro se); Douglas

v. Moffett, 418 S.W.3d 336, 340 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (requirement of

filing inmate’s list of previous filings generally applies to appeals brought in appellate court on or

after January 2012).3 Relying on Hickman v. Texas Department of Criminal Justice, they assert that

Texas courts of appeals consistently dismiss cases in which an inmate has failed to file an affidavit




       3
          The purpose of the statutory requirement that inmates bringing in forma pauperis suits
identify previous suits they have filed and their outcomes is to assist the trial court in determining
whether a suit is malicious or frivolous under section 14.003(a). Gowan v. Texas Dep’t of Crim.
Justice, 99 S.W.3d 319, 321 (Tex. App.—Texarkana 2003, no pet.); see Tex. Civ. Prac. & Rem.
Code § 14.003(a)(2) (court may dismiss claim brought by inmate appearing in forma pauperis if
court finds that claim is frivolous or malicious).

                                                  5
or declaration of previous filings. Hickman v. Texas Dep’t of Crim. Justice, No. 13-12-00437-CV,

2013 WL 3770916, at *3 (Tex. App.—Corpus Christi July 18, 2013, no pet.) (mem. op.). In Hickman,

the court of appeals dismissed, without notice, an inmate’s appeal because he did not file an affidavit

of previous filings with his notice of appeal. Id. Wainwright and Linthicum’s reliance on Hickman,

however, is misplaced because that case has been expressly abrogated by the Texas Supreme Court.

See McLean v. Livingston, 486 S.W.3d 561, 563-64 (Tex. 2016). In McLean, the court expressly

rejected the reasoning of the court of appeals in Hickman and concluded that “an inmate must be

afforded the [] opportunity to amend his appellate filings to cure Chapter 14 filing defects, prior to

dismissal of the appeal.” Id. at 564. In the present case, Enriquez has provided this Court with a

declaration of previous filings and has thus complied with the requirement of section 14.004(a)(1).

We decline to dismiss his appeal pursuant to chapter 14.4


                                          CONCLUSION

               For the reasons stated in this opinion, we conclude that the trial court erred in granting

the plea to the jurisdiction filed by Wainwright and Linthicum. A plea to the jurisdiction should

not be used to address whether a petitioner is entitled to mandamus relief. The trial court had

jurisdiction over Enriquez’s request for mandamus relief, without regard to its merits. We therefore


       4
          Wainwright and Linthicum also suggest that Enriquez has not complied, as required, with
section 14.005(a)(2) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.
Code § 14.005(a)(2) (inmate who files claim subject to grievance system established under Texas
Government Code section 501.008 must file affidavit or unsworn declaration showing exhaustion
of administrative remedies through TDCJ grievance system). Wainwright and Linthicum do not
provide any authority or explanation for their presupposition that the grievance system established
under Texas Government Code section 501.008 is applicable to Enriquez’s action seeking mandamus
relief against them. We decline to dismiss the appeal on this ground.

                                                   6
reverse the trial court’s order granting the plea and remand the claims against Wainwright and

Linthicum to the trial court for further proceedings.



                                              _____________________________________________

                                              Scott K. Field, Justice

Before Chief Justice Rose, Justices Field and Toth

Reversed and Remanded

Filed: December 13, 2018




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