### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00242- CV

Bill y Ross Sims, Appellant

v. Jennif er Sm ith and Celia Turner, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0010 2, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Billy Ross Sims , an inmate in the Texas Depa rtment of Criminal J ust ice’ s I nstitut ional Division, appea ls pro se from the district court’s order g ranting the p l ea to the jurisdiction of appellee s J ennife r Smith and Celia Turner . We affir m the district court’s orde r.

BACK GR OUND Sims fi l ed a petition for writ of mandamus in the district court ag ainst Smit h and Turner in their officia l capa cities. Smit h was em p l o y ed as a supervisor of the Mail Sy stem Coordinators Panel and a member of the Dire ctor’s Revie w Commit tee in H untsvill e, Texas, a nd Turner was a mail room supervisor in the Powledg e Unit mail room. Sims alleg ed that Smit h and Turner improperly handled and withheld mail addre ssed to him from U.S. Mint Gre en, a company that Sims contac ted to locate a lost rela tive, and that they impaired his contra ct with the company . Appellee s withheld the addre sses of three in d i viduals that wer e included in the mail. Simscontende d that, by withholding this information, appellee s violated Article I , sections 16 and 29 of

the Texas Constit ution and the “F irst Amendment [of the United States Constit ution] rig ht to be fre e fr o m u n re asonable censor ship.” See U.S. Const. amend. I ; Tex. Const. art. I , §§ 16 (prohibit i n g “any law impai ri ng the obliga tion of contra cts”), 29 (voiding laws contra ry to “this ‘B ill of Rights’” ). He asked t he district cour t to order “the reversa l of t he denial of t he contents illega lly denied” and “tha t they

deliver the corr espondenc e fr om U.S. Mint Gre en addr esses to him.” Appellee s filed a plea to the jurisdiction based on lack of s t an d i n g. Appellee s contende d that Sims lacke d s t an d i n g b ec ause Sims alre ady had rec eived the addre sses at issue, mooting his claims. Appellee s attache d evidenc e to suppo rt their plea, including copies of envelope s showing tha t Sim s mailed letters to the a ddresse s and a le tter fr om Sim s to “J ohn.” I n the letter, Sims acknow l ed ges t h at he had the addre sses. Following a hear ing, the district court g rante d the plea. T his appea l followed. 1

ANALYSIS

As an initial matter, we note that a district court’s mandamus jurisdiction is limit ed
to the enfor ceme nt of its own jurisdiction. See Tex. Const. art. V, § 8 (“D istrict Court judge s shall have the power to issue writs nece ssary to enfor ce their jurisdiction.”); Tex. Gov’t Code § 24.011 (authorizing district court judge s to g rant writs of mandamus “nec essar y to the enfor ceme nt of the

Sims p reviously filed an appea l and a petition for writ of mandamus from the district 1 court’s procee dings. This Court dismiss ed the previous appea l for want of j urisdiction. See Sims v. Smith , No. 03-11-0 0 0 0 4 -C V, 2 011 Tex. App. L EXI S 5008 (Tex. App.—Austin J une 29, 2011, no pet.) (mem. op.). This Court also denied the petition for writ of mandam u s . S ee In re Sims , No. 03-11-00507- CV, 2011 T ex . App. L EXI S 6982 (Tex. App.—Austin Aug

. 26, 2011, orig

. proce eding ) (mem. op.)

. 2court’s jurisdiction”); Martinez v. Thaler , 931 S. W .2d 45, 46 (Tex. App.—Houston [14t h Dist.]

1996, writ denied) (“A distr i ct court has mandamus jurisdiction only to enfor ce its own jurisdiction.”). “A d i s t ri ct court has no constitutional or statutory jurisdiction to exercise supervisory control over prison officia ls

. ” T h a l er , 931 S.W .2d at 46; see Barker v. Livingston , No. 14-12-00254- CV, 2012 Tex. App. L EXI S 7635, at *6–7 (Tex. App.—Houston [14t h Dist.] Sept. 6, 2012, no pet.) (per curia m) (mem. op.) (citi ng Thaler to support its conclusion that trial
court did not have jurisdiction over inmate’s petition for writ of mandamus). Thus, the district court lacke d jurisdiction over Sim s ’s claims that soug ht mandamus relief from the district court to exercise supe rvisory

control over

state prison off

icials. We, howeve r, must view a pro se inmate’s pleading s “with liberality and patience .” See Minix v. Gonzales , 162 S.W .3d 635, 637 (Tex. App.—Houston [14t h Di s t
. ] 2005, no pet.) (citing , among other authority , Hughes v. Rowe , 449 U. S

. 5 , 9–10 (1980), for the principle that
courts g ener ally do not hold pro se inmates to “the stringe nt standards applied to formal pleading s draf ted by attorney s”); Brewer v. Colli ns , 857 S.W .2d 819, 821 (Tex. App.—Houston [1s t Dist.] 1993, no writ) (viewing pro se inmate petition “with libe ra l i t y an d patience ”). Viewing the substance of Sims ’s petit ion under this standard, he also pleade d that he was seeking decla ratory and injunctive relief fo r al l eg ed constitutional violations by state officia ls. I n this context, we consider Sims’s issues.

I n his first two issues, Sims contends that he “filed an oral motion for rec usal” that the district court improperly denied without comply ing with rule 18a(f ) of the Texas Rules of Civil Procedur e. See Tex. R. Civ. P. 18a(f ) (“Reg ardle ss of whether the motion complies with this rule,

3the responde nt judge , within three business day s afte r the motion is filed, must either: (A) sign and

file with the cler

k an order of rec usal or disqualification; or (B ) sign and file with the cler k an order ref err ing the motion to the reg ional presiding judge .”). He arg ues that t h e d istrict court “lost jurisdiction once the oral motion for rec usal was acc epted by the [di strict judge ] and without objection by opposing party ,” that the district judge ’s failure to comply with rule 18a(f ) voided the district court’s subsequent order on the plea to the jur isdiction, and theref ore tha t this C ourt “has no jurisdiction to consider the mer its of an appe al from a void judgment.” Her e, Sims assert s o n l y t h at he made an “ora l motion for rec usal” and bases his arg ument for rec usal on the judge ’s ruling s in the case . See Tex. R. Civ. P. 18a(a ) (re quiring motion
to be filed with cler

k of the court, verifie d, and to “asse rt one or more of the g rounds listed in Rule 18b” and “not [ ] based solely on the judge ’s ruling s in the ca s e” ). Sims also has not provided citation to the rec ord or a repor ter’s rec ord from the hear ing i n wh i ch h e al l eges that he orally

s o u gh t rec usal. See In re A. V ., 350 S.W .3d 317, 321 (Tex. App.—San Antonio 2011, no pet.) (n o t i n g t h at record did not contain “wr itten motion or any rec ord of the prec ise basis for the

rec usal”); see also Tex. R. App. P. 38.1(i) (re qu i ri n g brief to contain appropr iate citations to the

rec ord); Amir-Shar i

f v. Mason , 243 S.W .3d 854, 856 (Tex. App.—Dallas 2008, no pet.) (citing , among other authority , Mansfield State Bank v. Cohn , 573 S.W .2d 181, 1 8 4

– 8 5 (Tex

. 1978), for the principle that pro se litigants “must co m p l y with applicable laws and rules of proce dure” ). Thus, we conclude that Sims has waived any complaint as to the district judge ’s alleg ed ref usal to

rec use and ove rrule his fir st two issues on this basis.

4I n his third issue, Sims challeng es the district judge ’s ruling on appellee s’ plea to the

jurisdiction. He contends that “Appe llees prese nted a Plea to the J urisdiction document that g rossly misstated the fac ts, and obtained a favor able judgme nt by corr uption, duress, and fra

ud on the court, and was based on claims that the party knew to be fraudulent.” S i m s co n tends that the evidence attache d to app ellees’ plea was “stolen from TDCJ without proper discovery ” and that the letter from him to “John” was “cor e work product” protect ed b y ru le 192 of the Texas Rules of Civil Procedur e an d ru le 503 of the Texas Rules of Evidence

. See Tex. R. Civ. P. 192 (per missibl e discovery ); Tex. R. Evid. 503 (lawy er- client privileg e). He also contends that he has standing beca use appe llees fa iled to offer evidenc e that they

mailed the addr esses a

t issue as they

alleg ed. We reviewa plea

questioning the trial court’s subjec t matter jurisdiction de novo. See Texas Dep’ t of

Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004). We focus first

on the plaintiff’s petition to deter mine whether the fac ts tha t w ere pled aff irmatively demonstrate that subj ec t m at t er jurisdiction exis ts. Id

. We construe the pleading s liberally in favor of the plaintiff. Id

. I f a plea to the j urisdiction challeng es t he ex i s t en ce o f jurisdictional fac ts, the t rial
court may consider evidenc e and must do so when n ec es s ary to resolve the jurisdictional issues raised. Id . (citing Bland Indep. Sc h. Dist. v. Blue , 34 S.W .3d 547, 555 (Tex. 2000)).

Her e, appellee s filed a plea to the jurisdiction challeng ing the exis tence of jurisdictional fac ts. They arg ued that Sims did not have standing beca use his claims wer e moot and prese nted evidenc e to support their arg ument. “F or a plaintiff to have standing , a controve rsy must exis t betwee n the parties at ever y stag e of the leg al proce eding s.” W illiams v. Lara , 52 S.W .3d 171, 184 (Tex. 2001) (citing United States v. Munsingwear, Inc ., 340 U.S. 3 6 , 39 (1950))

. “I f a

5controve rsy cea ses to exis t—‘the issues prese nted are no longe r “live” or the parties lack a leg ally

cog nizable interest in the outcome’—the case become s moot.” Id. (citing , among other authority , Murphy v. Hunt , 455 U.S. 478, 481 (1982)) ; see also Texas Health Care Info. C o u n ci l v. S et o n Health Plan, Inc ., 94 S.W .3d 841, 846–47 (Tex. App.—Austin 2002, pet. denied) (“A cas e b e c omes moot when: (1) it appea

rs that one seeks to obtain a judgme nt on some controve rsy , when in rea lity

none exis ts; or (2) when one seeks a judgme nt on some matter which, when rende red for any rea son, cannot ha ve any prac tical leg al ef

fec t on a then-e x isting controve rsy .”). Although he asser

ts that a p p e ll e e s a c te d im

p roper ly when they obtained the evidenc e attache d to their plea, Sims fails to make appropr iate citations to the rec ord to support his asser tions. See Tex. R. App. P. 38.1(i) (re quiring appropr iate citations to the rec ord); Amir-Sharif , 243 S.W .3d
at 856. Thus, we conclude that he has waived this issue. See Fredonia State Bank v. Gene ral Am.

2 Life Ins. C

o. , 881 S.W .2d 279, 284–85 (Tex.1994) (ho l d i n g that appellate courts have di scre tion
to deem issues waived due to inadequa te briefing) ; W

i nters v. W

inters , No. 03-09-00004- CV, 2010 Tex. App. L EXI S 6533, at *11–12 (Tex. App.—Austin Aug

. 13, 2010, no pet.) (mem. op.) (conc luding issue wa s waived be cause not adequa tely briefe d).

To the extent Sims relies on the aff idavit attache d to his brief to support his arg ument, we 2 may not consider it. See Tex. R. App. P. 34.1; Save Our Springs Alliance , Inc. v. City of Dripping Springs , 304 S.W .3d 871, 892 (Tex. App.—Aus t i n 2010, pet. denied) (“We are limit ed to the appellate rec ord provided.” ); Burke v. Insurance Auto Auctions Corp. , 169 S.W .3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (docume nts that are cited in brief and attache d as appendic es may not be consider ed by

appellate courts if they

are not formally

included in re cord on a

ppeal)

. 6Fur ther, even if we wer e to conclude that Sims did not waive this issue, he does not dispute that he re ceive d the addre sses at issue. Be cause the evidenc e was undisputed that Sims 3

rec eived these addre sses, he lacks a leg ally cog nizable interest in obtaining his reque sted injunctive

or decla ratory relief

. See Lara , 52 S.W .3d at 184. He no longe r fac es the alleg edly unconstitutional conduct about which he complains, and thus any prospec tive relief we might g rant cannot help him. See id

. His claims for injunctive and decla ratory relief are there fore moot. Thus, we conclude that,

even if he h ad p re s erved this issue, the district court proper ly g rante d appellee s’ plea to the jurisdiction. W e over

rule Sims’s third issue.

CONCLUSION For thes e rea sons, we aff irm the district court’s order g ranting the plea to the jurisdiction of appellee s J ennife r Smith and Celia Turner

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: May

14, 2014

For example, he states in his brief that he “had obtained these addre sses by contra cting with 3 some other pa

rty separ ate f

rom the litiga tion.” 7