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In re Pegues

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 28, 2017

IN RE JAIRUS PEGUES

         On Petition for Writ of Mandamus.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

          MEMORANDUM OPINION

          LETICIA HINOJOSA Justice [1]

         By pro se petition for writ of mandamus, Jairus Pegues seeks to compel the Clerk of this Court to, inter alia, file his "principal brief for appeal" in our appellate cause number 13-16-00383-CV, and to grant his motions for summary judgment and default judgment against appellee Adecco USA, Inc. in that appeal.[2] Pegues contends generally that the Clerk has been "withholding filings, " has caused "excessive delay, " is "obstructing justice, " and is "seeking to help Adecco USA, Inc. prevail in this case." We deny the petition.

         I. Standard of Review

         Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276 (Tex. 2016) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., L.P., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)) (orig. proceeding).

         II. Discussion

         As a threshold matter, Pegues has an adequate remedy by resort to motions filed in the pending appeal. Further, to the extent that Pegues seeks relief as against this Court, any such relief would be rendered by the Texas Supreme Court. Finally, having taken judicial notice of the matters that have taken place in the related appeal, we conclude that appellant's claims wholly lack merit.

         In appellate cause 13-16-00383-CV, Pegues filed a pro se notice of appeal on June 27, 2016 from a judgment rendered by the 53rd District Court of Travis County, Texas. On July 15, 2016, the appeal was transferred to this Court. On July 26, 2016, the Clerk of this Court notified Pegues that he had failed to make arrangements for payment of the clerk's record and requested correction of this defect. On August 11, 2016, the Clerk notified Pegues that he had not yet paid the filing fee for the appeal.

         On August 10, 2016, Pegues responded to the Clerk that the court costs and fees associated with the appeal constituted a financial hardship for him, and he requested that this Court waive all court fees and court costs. On August 18, 2016, the Clerk notified Pegues that the Court had contacted the district clerk, who informed us that Pegues had not filed an affidavit of indigence, and the Clerk informed Pegues that if he wished to establish indigence, he was required to file an affidavit of indigence with the trial court. See Tex. R. App. P. 20.1(c)(1). The Clerk further notified Pegues that the failure to file an affidavit of indigence within ten days of the date of that notice would result in this appeal being dismissed for want of prosecution, unless he had paid the $205.00 filing fee and made arrangements to pay for the clerk's record by providing proof of payment.

         On August 30, 2016, the clerk's record was filed. On September 29, 2016, the Clerk notified the court reporter that the record had not been timely filed. On October 3, 2016, the reporter's record was filed.

         On October 25, 2016, the Clerk notified the court reporter and the district clerk that Pegues had contacted the Court and stated he had not received a copy of the appellate record and that Pegues was entitled to proceed without payment of costs. The Clerk directed the district clerk and court reporter to send a copy of the record to Pegues within ten days and to notify the Court as to the date upon which the appellate record was made available to appellant.

         Pegues tendered a brief to the Court on November 30, 2016. On December 1, 2016, the Clerk notified Pegues that the brief was marked received as untimely filed and because it failed to comply with Texas Rule of Appellate Procedure 9.4(i)(3). On December 9, 2016, Pegues filed a motion for leave to file his principal brief. According to the motion, the complete record had not been filed insofar as the transcripts for three hearings had not been filed, and Pegues had not been provided a copy of the record.

         By order issued on January 20, 2017, this Court abated the appeal. According to the order of abatement, the reporter had notified this Court that she mailed a copy of the reporter's record to Pegues but it did not appear the clerk's record had been sent to the appellant. We remanded the cause to the trial court for further proceedings regarding ...


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