## NO. 12

- 21

- 00144

- CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE:

ROBERT BRITT , RELA TO R § § § ORIGINAL PROCEEDING

MEMORANDUM OPINION PER CURIAM Robert Britt, acting pro se , filed this original proceeding to complain of the failure by Respondent, Smith County District Clerk Penny Clarkston, to file his petition for discretionary

rev ie w and writ of mandamus

. 1 Relator states that he was convi cted in trial court cause number 007

- 1061

- 17, has bee n told different stories with respect to the status of his filings, has not bee n appointed counsel for a ssistance with post

- conviction remedies , and has been denied access to the
court and to the law library

. 2 A search of the Smith County website reflects that a writ of

1 A petition for discretionar y review is to be filed with the Texas Court of Cr imi n al Appeals in Austin. See T EX

. R. A PP

. P. 68.3

.

2 In a supplemental petition, Relator r aises other complaints related to his conviction. A search of the Smith County website reflects that Relator ’s commun it y sup ervision was revoked and a judg ment adjudicat ing guilt was entered May 4, 2021. To the extent Relator attempts to raise issue s rega rding revocation , Rel ator did not appeal his conviction

. See A ter v. Eighth Court of Appeals , 802 S.W.2d 241, 24 3 (Tex . Crim. App. 1991) (o nly court of criminal appeals has j urisdi ction to grant out

- of

- time appeal ) ; see T EX

. C ODE C RIM

. P ROC

. A NN

. art 11.07 § 3(a) (West 20 05)

.2 mandamus and a petition were filed in Relator ’ s case on July 27 , 2021. 3 Relator a sks this Court to compel Respondent to proces s his writs. 4 However, a district clerk is not a judge over which this Court has mandamus jurisdiction; nor does the record dem onstrate t hat issuance of a writ of mandamus against Respondent is necessary to protect this Court ’ s jurisdiction. 5 See T EX

. G OV ’ T C ODE A NN

. 22.221(a) , (b) (West Supp. 2020) (writ power); see also In re Eaton , No. 12

– 15

– 00118

– CR, 2016 WL 6 876502, at *1 (Tex. App.

– Tyler, Nov. 22, 2016, orig. proceeding) (mem. op., not designated for publication) (appellate court lacked jur isdiction to consider merits of mandamus petition as to district clerk ); In re Vargas , N o. 01

- 12

- 00351

- CV, 2012 WL 1454550, at *1 (Tex. App.

— Houston [1st Dist.] Apr. 26, 2012, orig. proceeding) (mem. op) (per curiam) (dismi ssing mandamus proceeding against district clerk for want of jurisdiction because addressing complaint that cle rk refus e d to file petition was not necessary to enforce appellate court jurisdiction). Accordingly, this Court lacks jurisdiction to grant mand amus relief under the circumstances of this case. We dismiss the petition for writ of mandamus for want of juris diction

. Opinion delivered September 15 , 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3 A trial court has a ministerial duty to rule on a motio n wit hin a reasonable time once the motion is called to the co urt ’s atten tion. See In re Gomez , 602 S.W.3d 71, 73 (Te x. App.

— Houston [14th Dist.] 2020, orig. proc eeding) ; s ee also In re Ramos , 598 S.W.3d 472, 474 (Tex. Ap p.

— Houston [14th Dist.] 2020, orig. proceeding) (judge was aware of motion for judgment nunc pro tunc approximately fiv e months before appe llat e court opinion; thus, judge did not rule on motion withi n reas onable time ); In re Sayyed , No. 05

- 20

- 00195

- CV, 2020 WL 6074117, at *3 (Tex. App.

— Dallas Oct . 15, 2020, orig. proceeding) (mem. op. on r eh ’ g) (at time of Oc tobe r 2020 opinion, respondent had learned of motion on July 1, 202 0; thus, reasonable time for ruling had not passed).

4 The State of Texas is the R eal Party in Interest.

5 For instance, we have jurisdiction to issue a writ against a district clerk for f ailu re to forward a notice of appeal to this Court because su ch is necessary to enforce our jurisdiction. See In re Talkington , No. 12

- 07

- 00272

- CR, 2007 WL 21 78551 , at *1 (Tex. App.

— Tyler July 31, 2007, orig. proceeding) (me m. op., not designated for publication) ; see also Ex parte Sander s , No. WR

- 80,356

- 01, 2013 WL 5872901, at *1 (Tex. Crim. App. Oct. 30, 2013) (order, not des ignated for publication) (per curiam); In re Foster , No. 14

- 16

- 00698

- CR, 2016 WL 5853282, at
* 1 (Tex . App.

— Houston [14th Dist.] Oct. 6, 2016, orig. proceeding) (mem. op., not designated for publication) (per curiam) ; I n re Smith , 26 3 S.W.3d 93, 95 (Tex. App.

— Houston [1st Dis t.] 20 06, orig. proceeding)

.3 

## COURT OF APPEALS
T WELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

SEPTEMBER 15 , 2021
NO. 12

- 21

- 0 0144

- CR

ROBERT BRITT , Relator V.
HON. PENNY CLARKSTON , Respondent

O RIGINAL P ROCEEDING
ON THIS DAY came to be heard the pet ition f or writ of mandamus filed by Robert Britt ; who is the relator in appellate cause number 12

- 21

- 00144

- CR and the defe ndant in trial court cause number 007

- 1061

- 17 , formerly pending on the docket of the 7th Judicial District Court of Smith County , Texa s. Sa i d petition for writ of mandamus having been filed herein on August 25 , 2021 , and the same having been duly consider ed, beca u se it is the opinion of this Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petit i on for writ of mandamus be, and the same is, hereby dismissed for want of jurisdiction

. By per curiam opinion. Pane l consis t ed of Worthen, C.J., Hoyle, J. and Neeley, J.