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In re Kuntze

Court of Appeals of Texas, Tenth District

December 27, 2017

IN RE ULLJA KUNTZE

         Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          TOM GRAY, Chief Justice

         Ullja Kuntze submitted a document to the Court which was filed as a new original proceeding on November 17, 2017 and seeks action by the Court against Dana Fritsche, the Burleson County District Clerk. Kuntze put the docket number 10-17-00228-CV on the document. That docket number is assigned to an appeal styled Kuntze v. Cowan. The Court evaluated the contents of the document, made the determination that it was an attempted mandamus proceeding, and filed it as such.

         Kuntze sent an email to the deputy clerk that handled the filing of the document, arguing that it was an error to set it up as a new proceeding rather than file it in the case in which she had designated it to be filed. Kuntze failed to copy opposing counsel with her email correspondence. On the next business day, Kuntze called the Court and suggested the deputy clerk should not file the document as a new proceeding as instructed by the Court. She was advised that if she thought there was a problem, she should file a response in writing.[1]

         Notwithstanding her protestations, the document tendered by Kuntze is clearly a petition for a writ of mandamus. Kuntze even styled it as "In re Kuntze, " albeit as a subtitle under the style of the appeal. Kuntze characterizes the document as an "Original Proceeding" and denominates "Dana Fritsche, District Clerk of Burleson County" as the "Respondent" and Sandra Cowan and Able Reyna, the "Criminal District Attorney of McLennan County, " as the "real parties in interest" [emphasis added]. These are terms of art that are uniquely applicable to mandamus proceedings, and Kuntze even cites to Texas Rule of Appellate Procedure 52, the rule regulating original proceedings in the appellate courts.

         Contrary to Kuntze's request and instruction, the Court Clerk did not make a mistake (or "error") in setting this proceeding up as an entirely new proceeding. A mandamus is not filed under a direct appeal. Moreover, when a document is tendered for filing, the Court examines it and must determine its character, not from the style or title, but rather from the content of the document. See Tex. R. Civ. P. 71; Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).

         In this proceeding, Kuntze wants this Court to

1. declare the district clerk has "stolen Relator's right to designate what should be in the Clerk's record;"
2. strike the district clerk's certification of the appellate record; and
3. "inform the appropriate authorities of a crime done in front of them" which we presume is why Kuntze identified the McLennan County District Attorney as a real party in interest.

         We have no jurisdiction to render a writ of mandamus against a district clerk except to protect or enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221(a), (b) (West 2004). Kuntze has not alleged any need for this Court to protect or enforce our jurisdiction.[2]

         We caution Kuntze that her over-the-top allegations of criminal conduct and the waste of the Court's time in filing unwarranted and frivolous pleadings not only delays the Court's ability to address the merits of her appeals, but also impairs the Court's ability to work on other proceedings. Moreover, the Court may determine that because this action is frivolous and unwarranted, it is an indication that it is only delay that Kuntze seeks, not a timely disposition of the merits of her other proceedings.

         We have no authority to grant any of Kuntze's requests; accordingly, this proceeding is ...


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