Opinion
NO. 12-15-00238-CR
03-16-2016
IN RE: DAVID MARK DAVIS, II, RELATOR
ORIGINAL PROCEEDING
MEMORANDUM OPINION
David Mark Davis II seeks writs of mandamus and prohibition against the respondent, the Honorable Derek Flournoy, Judge of the Angelina County Court at Law No. 2. He requests that the respective writs direct the respondent to set a hearing on Davis's pending mandamus petition and enjoin the respondent from refusing to hear the case. We deny the petition.
BACKGROUND
Davis pleaded "no contest" in the Lufkin Municipal Court to the offense of speeding, a Class C misdemeanor. He requested and was granted a "deferred disposition" for ninety days. When the deferral period ended, Davis filed a motion to dismiss alleging that he had complied with the conditions imposed by the municipal court. He also requested the return of the $36.00 cash bond he had posted, but was informed that the bond had been forfeited. Davis filed a notice of appeal pertaining to the bond forfeiture. After making several inquiries about the amount of the appeal bond, Davis was told that the municipal court judge had declined to set an appeal bond.
Davis sought a writ of mandamus in the Angelina County Court at Law No. 2 directing the municipal court judge to set an appeal bond. The respondent notified Davis that the mandamus petition would not be "set or considered" until Davis paid the filing fee for the mandamus action or filed an affidavit of indigence. Davis refused to pay the fee and filed this original proceeding.
AVAILABILITY OF MANDAMUS
Davis contends that his mandamus action is a criminal action because it arises out of his misdemeanor conviction for speeding. He points out that the code of criminal procedure does not authorize a filing fee to enforce a court's jurisdiction in a criminal case. Therefore, he insists that the trial court has a ministerial duty to hear the mandamus action without payment of the requested filing fee. Davis argues further that he has no adequate remedy by appeal. Consequently, he concludes that he is entitled to the relief he seeks against the respondent. The City of Lufkin, on behalf of the municipal court judge, counters that a mandamus action in a trial court is a civil action. We agree.
An original proceeding for a writ of mandamus initiated in the trial court is a civil action subject to trial upon substantive law principles and procedural rules as in any other civil suit. Anderson v. City of Seven Points, 806 S.W.2d 791, 792 (Tex. 1991). It is not a criminal action even if it arises from a criminal proceeding. See Hogan v. Turland, 428 S.W.2d 316, 317 (Tex. 1968) (mandamus held civil action even though sought to compel justice of the peace to accept notice of appeal and appeal bond relating to misdemeanor conviction). Thus, Davis's mandamus action is a civil action. See id.
The Texas Legislature has prescribed the fees for filing a civil action in a county court. See TEX. LOC. GOV'T CODE ANN. § 118.052(1) (West Supp. 2015). Davis acknowledges that a filing fee can be charged for a mandamus action if it is a civil case and that the trial court can demand payment of the fee before setting and hearing the case. And we have not located any authority to the contrary. Accordingly, we hold that the trial court does not have a ministerial duty to set a hearing and consider Davis's mandamus petition without payment of the required filing fee. Therefore, the respondent did not abuse his discretion by refusing to do so. See Hogan, 428 S.W.2d at 317.
DISPOSITION
Because Davis has not shown an abuse of discretion by the trial court, we deny the petition for writ of mandamus. All pending motions are overruled as moot.
BRIAN HOYLE
Justice Opinion delivered March 16, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
JUDGMENT
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by DAVID MARK DAVIS II, who is the relator in Cause No. 194-15-CV, pending on the docket of the County Court at Law #2 of Angelina County, Texas. Said petition for writ of mandamus having been filed herein on September 22, 2015, and the same having been duly considered, because it is the opinion of this Court that a writ of mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby DENIED.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.