Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Rodriguez and Hinojosa
LETICIA HINOJOSA Justice 
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. 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
Standard of Review
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.
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.
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.
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.
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.
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.
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.
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