in Re Augustine Cantu Jimenez

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IN THE TENTH COURT OF APPEALS

No. 10-18-00023-CR

IN RE AUGUSTINE CANTU JIMENEZ

Original Proceeding

ORDER DENYING REHEARING

Relator’s motion for rehearing was filed on February 15, 2018. From the record before us, we have nothing to indicate that relator’s motion for DNA testing was actually filed with the district clerk’s office. We cannot force a trial court to rule on something that has not been filed.

Further, even though a district clerk has a ministerial duty to accept and file all pleadings presented for filing, In re Bernard, 993 S.W.2d 453, 454 (Tex. App. – Houston [1st Dist.] 1999, orig. proceeding) (O'Connor, J., concurring); see also DeLeon v. District Clerk, 187 S.W.3d 473, 474 (Tex. Crim. App. 2006) (orig. proceeding), we have no jurisdiction to issue a writ of mandamus against a district clerk except to protect our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a); (b) (West 2004). If a district clerk is not filing documents it is receiving, a party’s recourse may be with the district court. See TEX. GOV'T CODE ANN. § 24.011 (Vernon 2004); In re Bernard, 993 S.W.2d at 454, 455 (O'Connor, J., concurring).1

Accordingly, relator’s motion for rehearing is denied.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Motion Denied Order issued and filed February 28, 2018

1 Because the District Clerk has stated that no Chapter 64 motion has been filed, the most expeditious course of action may be for Jimenez to tender another motion. Even if the District Attorney and the trial court received copies of Jimenez’s previous Chapter 64 motion, it is possible that the one sent to the District Clerk to be filed was lost in the mail or even inadvertently filed in the wrong case. Human error does occur. Fortunately for Jimenez, a Chapter 64 motion does not have a deadline to be filed. While it may be frustrating to Jimenez to have to send another motion to the clerk and again serve the parties, we see no prohibition to his ability to start the process anew.

In re Jimenez Page 2