Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE JUAN R. RIVERA
Petition for Writ of Mandamus.
Justices Rodriguez, Contreras, and Benavides
M. BENAVIDES, Justice. 
Rivera, proceeding pro se, has filed documents in this Court
through which he requests that we take "judicial
notice" that "he has not received his requested
motion" from the trial court. According to this
pleading, it appears that Rivera filed a second motion in the
trial court requesting findings of fact and conclusions of
law on July 24, 2017, but has not received any ruling or
notification regarding the same from the trial court. Rivera
asserts that he "cannot proceed forward with his appeal
until he receives [the] requested motion." In support of
his motion, Rivera has supplied us with a copy of his
"Second Motion Requesting Findings of Fact and
Conclusions of Law on his Bill of Review Judgment." The
documents that Rivera has filed in this Court are otherwise
unclear regarding the specific actions or orders complained
of or the nature of the relief sought. Rivera's pleadings
do not comply with either the requirements for an original
proceeding or the requirements for a notice of appeal.
Compare Tex. R. App. P. 25.1 with id. R.
52.3. We address both forms of relief herein.
the document filed with us does not reference an order or
judgment subject to appeal and relator appears to be asking
us to command a public officer to perform an act, we construe
Rivera's pleading as a petition for writ of mandamus.
See generally Tex. R. App. P. 25.1(a), (d); In
re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400,
403 (Tex. App.-Tyler 2006, orig. proceeding) ("The
function of the writ of mandamus is to compel action by those
who by virtue of their official or quasi-official positions
are charged with a positive duty to act.") (citing
Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70
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, 279 (Tex. 2016)
(orig. proceeding). The relator bears the burden of proving
both of these requirements. In re H.E.B. Grocery
Co., 492 S.W.3d at 302; Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). In addition
to other requirements, the relator must include a statement
of facts supported by citations to "competent evidence
included in the appendix or record, " and must also
provide "a clear and concise argument for the
contentions made, with appropriate citations to authorities
and to the appendix or record." See generally
Tex. R. App. P. 52.3. Rivera's pleadings fail to meet the
foregoing requirements, and accordingly, we deny relief.
See Tex. R. App. P. 52.8(a).
further address whether Rivera's pleadings could be
construed as a notice of appeal. Appellate courts are to
"construe the Texas Rules of Appellate Procedure
reasonably, yet liberally, so that the right to appeal is not
lost by imposing requirements not absolutely necessary to
effect the purpose of a rule." Ross v. St.
Luke's Episcopal Hosp., 462 S.W.3d 496, 501 (Tex.
2015) (quoting Verburgt v. Dorner, 959 S.W.2d 615,
616-17 (Tex.1997)). Thus, a court of appeals has jurisdiction
over any appeal in which the appellant files an instrument in
a bona fide attempt to invoke the appellate court's
jurisdiction. In re J.M., 396 S.W.3d 528, 530 (Tex.
2013) (per curiam); Warwick Towers Council of Co-Owners
v. Park Warwick, LP., 244 S.W.3d 838, 839 (Tex. 2008);
Verburgt, 959 S.W.2d at 616. As long as "the
appellant timely files a document in a bona fide attempt to
invoke the appellate court's jurisdiction, the court of
appeals, on appellant's motion, must allow the appellant
an opportunity to amend or refile the instrument required by
law or our Rules to perfect the appeal." Grand
Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813
S.W.2d 499, 500 (Tex. 1991); In re J.M., 396 S.W.3d
at 530; see also Tex. R. App. P. 44.3 ("A court
of appeals must not ... dismiss an appeal for formal defects
or irregularities in appellate procedure without allowing a
reasonable time to correct or amend the defects or
irregularities."); id. R. 42.3 (providing that
a court may dismiss an appeal for want of jurisdiction
"after giving ten days' notice to all
parties"). Thus, Texas courts have determined, under a
liberal construction of the rules of appellate procedure,
that an individual has filed an instrument in a bona fide
attempt to invoke the appellate court's jurisdiction in
some instances where an individual filed a defective
document. See Tex. G & S Invs., Inc. v. Constellation
Newenergy, Inc., 459 S.W.3d 252, 255 (Tex. App.- Houston
[14th Dist.] 2015, no pet.).
conclude that Rivera's actions in this cause may
constitute a bona fide attempt to invoke appellate
jurisdiction. Accordingly, we direct the Clerk of this Court
to place his pleadings in a separate appellate cause as an
attempted appeal, and to afford Rivera an opportunity to
correct any deficiencies regarding that filling, if it can be
done. We further direct the Clerk to send a copy of
Rivera's pleadings to the trial court. See Tex.
R. App. P. 25(a).
See Tex. R. App. P. 52.8(d)
("When granting relief, the court must hand down an
opinion as in any other case, " but when "denying
relief, the court may hand down an opinion but is not
required to do so."); Tex.R.App.P. 47.4 (distinguishing