NO. 07-04-0112-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C APRIL 1, 2004

______________________________ IN RE: ROGE R BOLLINGER, RELATOR

_________________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. MEMORA NDUM OPIN ION
R e lator Roger Bol linger s eeks issuance of a writ of mandamusagainst the Honorable Abe Lop ez, Judge of the 108 th Distric t Court of Potter

County. W e dismiss in part and deny in part. On March 22, 2004, relator fil ed with thec lerk of this court a pleading entitled Petition for W rit of Mandamus. Relator make s numerous all egations in his petition, but the underlyin g basis for

his seeking issuance of mandamus i s that he filed a s uit in the 108 th DistrictCourt and that the suit was dis m issed pursuant to Chapter 14 of the Texas Civil Practice and Remedies Cod e (“TCPRC” ). We are requested to (1) order respondent and the Distric

t Clerk, C aroline Woodburn, to adhere to th eir oa ths of offi ce, (2) adher e to certain canons of the Code of Jud icial Conduc t and obey the l aw and U.S. Constitutio n, (3)-2-

hold the trial court’s order of dismissal unconstitutional and an abuse of discr etion, and (4) issue a writ

of prohibition prohibiting respondent from enforci ng the prov isions of TCPRC Chapter 14 because enforcement of such law w ould viol ate respo ndent’s oath of office, canons of the Code of Judicial Conduct, and “Sup reme Ct. Precedents.”
In support of the petition for writ of mandamus, relator attached a copy of what he asserts he filed as a petition in the trial court, a notice from the district clerk’s off ice that his suit had been dismissed pursua nt to TCPRC Chapter 14, and a lett er from the district clerk advising relator that if

he wished to receive a file-marked copy of his petition, relator should furnish the clerk a stamped, self-addressed envelope. N o other document or record of proceedingsis attached to or furnished in support of the petit ion.

Pursuant to T EX . G OV ’ T . C ODE A NN . § 22.221 (Verno n 1 988 & Supp. 2000) (“TGCA”), a court of

appeals has jurisdiction to issue w rits of mandamus (1) to enforce its jurisdict ion, or (2) against certain judges of or a cting w ithi n the distri ct of the court of appeals. TGCA § 22.221(a) ,(b). A writ of mandamus is an ext raordinary remedy that will issue (1) o nly to correct a c lear abuse of dis cretion or t he violati on of a duty impose d by law, when (2)

there is no ot her

adequate remedy

by law

. See Canadian Heli copters Ltd. v. Wittig , 876 S.W .2d 304, 305 (Tex. 1994 ).
To establish thefirst req uirement for mandamus relief , an abuse of discretion, the complaining party must demonstrate that the trial court acted unreasonabl y, arbitr arily, or without reference to g uiding rul es and princi ples. Downer v. Aquamarine Operators , 701 S.W.2d 238, 241-42 (Tex . 1985). An abuse of discretion may also be established by proof-3-

that(1) the trial court had a leg al duty to per form a non-discr

etionary ac

t, (2) a demand for performance was

made, and (3) the tr ial court r efused to act. O'Connor v . First C ourt of Appeals , 837 S.W.2d 94, 97(Tex. 1992); Doctors Hosp. Facilities v. Fifth Court of Appeals , 750 S.W.2d 177, 178 (Tex.1988).
When petition for w rit of mandamus is made, it is the relator’s bu rden to show entitlement to the relief being requested. See generally John son v. Fourth DistrictCourt of Appeals , 700 S.W .2d 916, 917 (Tex. 1985 ) (orig. proceeding).
To the extent relator requests issuance of man damus directed to the district clerk, we do not have j urisdicti on to issue mandamus di rected to th e clerk. Such claims are dismissed for w

ant of jurisdic

tion. To the extent r

elator req uests issuance of man damus directed to respondent, he has not provi ded a copy of the or der dismissi ng his sui t nor any ot h er document or transcript

of testimony r

elated to the tr ial court pr oceedings othe r than the documents no ted above. He simply al leges, w ithout evi dentiary s upport via affidavits, test imony or documents, that respondent v iolated the Judi cial Cod e of Conduct, the Un ited States Constitution, and “the Law”, and that the orde r of dismissal which i s not before us w as unconstitutional in some manner. Mere allegations do no t fulfil re lator’s burden to show he is entitled to the extraordinary relief of m andamus.
In sum, relator

has not presente d a record w hich shows enti tleme nt to the reli ef sought, or upon which w e are authorized to act. The rel ief sought against the district clerk-4-

is dismissed for w

ant of jurisdic tion. The claims and relief sought against respondent are denied.
Phil Johnson Chief Justice