### 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. 03-13-00481- CV NO. 03-13-00506- CV

In re David Lauer

ORI GINAL P ROCEEDI NGS F ROM TRAVIS CO UNTY

M E M O R A N D U M O P I N I O N

I n 2001, rela tor David L auer was convicte d o f the offe nse of capital murder and sentenc ed to life imprisonment. This Court aff irmed L auer ’s conviction on appea l. See Lauer

v. State , No. 03-01-00625- CR, 2004 Tex. App. L EXI S 5089 (Tex. App.—Austin J un e 1 0 , 2004, pet. ref ’d) (mem. op. on rema

nd, not desig nated for publication). The rec ord ref lects that on J une 8, 2012, L auer filed a petition for writ of mandamu s i n the district court ag ainst the Travis County Medica l Ex aminer’ s Offic e (the Medica l E x aminer’ s Offic e), w hich had pe rfor med an a utopsy on the victim in the murder case . These orig inal proce eding s arise from that filing. I n cause number 1 03-13-00481- CV, L auer has filed a petition f or writ of mandamus ag ainst the district court, asking

us to c ompel the district c ourt to issue a writ of mandamus ag ainst the Medica l E x aminer’ s Offic e pursuant to L auer ’s 2012 petition. I n cause number 03-13-00506- CV, L auer has filed a petition for

The exact nature of the relief soug ht by L auer in his 2012 petition is unclea r fr o m t h e 1 rec ord, althoug h it appear s that L auer is c halleng ing the finding of the Medic al Examiner’s Off ice reg arding the murder

victim’s cause of dea th.writ of prohibition ag ainst the district court, asking us to preve nt the district court from dismiss ing

his 2012 petition for want of pr osecution. 2

M an d am us and prohibition are extraordinary reme dies that issue only to corr ect a clea r abuse of di scre tion or vi olation of a duty imposed by law when no other adequate reme dy at law is available

. See W

alker v. Pack

er , 827 S.W .2d 833, 839 (Tex. 1992); Holloway v. Fifth Court of Appeals , 767 S.W .2d 680, 684 (Tex. 1989); Johnson v. Fourth Court of Appeal s , 7 0 0 S

. W

. 2 d 916, 917-18 (Tex. 1985); State v. W alker , 679 S.W .2d 484, 485 (Tex. 1984); Mid Plains Ree ves, Inc.

v. Baskin , 793 S.W .2d 286, 2 87 (Tex. App.—El Paso 1990, orig

. proce eding ). I n both case s, we conclude that L auer has failed to show himself entitled to the extraordinary relief reque sted. First, L auer has failed to show that the district court has clea rly abused its discretion in not issuing a writ of mandamus ag ainst the Medica l Ex aminer’ s Offic e. Specifica lly , no showing has been made that the issuance of a w rit of mandamus ag ainst the Medica l E x aminer’ s Offic e is ne cessa ry to e nforc e the district court’s jurisdiction. See Tex. Gov’t Code § 24.011 (district court may only issue writs of mandamus “nec essar

y to the enfor ceme nt of the cou rt’s jurisdiction”). Second, L auer has failed
t o s h o w that he has no adequa te reme dy at law to addre ss the district court’s pending dismiss al of hi s petition. As the not ice of co u rt s et t i n g s t ates, L auer may avoid di smissal by filing with the district court a moti o n t o re t ai n t he case . Alterna tively , if his cause is dismiss ed, he may appea l that dismiss al.

I n a notice of court setting attache d to L auer ’s petition for writ of prohibition, th e 2 district cler

k states t h at “t he above cause wil l be dis missed for want of prosecution on the court’s motion on the 16th day of Aug ust, 2013 at 1:45 p.m. in said court, unless a motion to reta in is filed prior to that date.” 2Be cause L auer has failed to show himself entitled to the ex t ra o rdi nary relief

reque sted, we deny his petition for writ of manda mus and his petition for writ of prohibit ion. See Tex. R. App. P . 52.8(a)

.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Filed: Aug ust 9, 2013

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