Pat Walker & Co., Inc. v. Johnson
| Decision Date | 28 October 1981 |
| Docket Number | C-445,Nos. C-428,s. C-428 |
| Citation | 623 S.W.2d 306 |
| Parties | PAT WALKER & COMPANY, INC., Relator, v. Mary L. JOHNSON, Court Reporter, et al., Respondents. PAT WALKER & COMPANY, INC., Relator, v. NINTH COURT OF CIVIL APPEALS, Respondents. |
| Court | Texas Supreme Court |
Brill, Brooks, Powell & Yount, Michael T. Powell and Kaaran Thomas, Houston, for relator.
Hightower, Bush & Jones, Bill Jones, Livingston, McClain, Harrell & McClain, Stephen W. McClain, Conreoe, for respondents.
We are presented with two Petitions for Writ of Mandamus, both filed by Pat Walker & Company, Inc., (Walker). These petitions arose out of a case tried in the District Court of San Jacinto County wherein Walker was plaintiff and cross-defendant. The trial court rendered judgment against Walker who perfected an appeal to the Ninth Court of Civil Appeals. An appeal bond in the amount of $500.00 was filed with the District Clerk of San Jacinto County. Mary L. Johnson (Johnson) was the Official Court Reporter for the trial court. Upon written request by Walker containing a promise to pay reasonable fees for her services, Johnson prepared a statement of facts but refused to deliver it to Walker before she was paid her fees which she set at $2,600.00. Walker filed a Petition for Writ of Mandamus with the Ninth Court of Civil Appeals seeking an order commanding Johnson to deliver the statement of facts. At the direction of the Court of Civil Appeals, Walker filed objections to the Court Reporter fees in the trial court. The trial court held a hearing on the objections and overruled them, finding the fees were reasonable.
Walker then filed a motion pursuant to Rule 21c, Tex.R.Civ.Pro. requesting an extension of time for filing the statement of facts pending an appeal of the trial court's order overruling the objection to the court reporter's fees. The Court of Civil Appeals denied both the 21c motion and the Petition for Writ of Mandamus.
Walker now seeks from this Court a Writ of Mandamus ordering Johnson to deliver the statement of facts, or in the alternative, ordering the Court of Appeals to vacate their order denying a Writ of Mandamus and to issue a Writ of Mandamus to Johnson ordering her to deliver the statement of facts. Walker, by a separate petition, seeks to have this Court mandamus the Court of Appeals to grant the motion for extension of time to file the statement of facts. We deny both petitions.
The constitutional authority of this Court to issue Writs of Mandamus is Tex.Const. art. V, § 3 which provides, "The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified ...." Pursuant to that constitutional authority the Legislature enacted Article 1733, Tex.Rev.Civ.Stat.Ann. (1962), which provides, "The Supreme Court or any Justice thereof, shall have power to issue writs of procedendo, certiorari and all writs of quo warranto or mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Appeals or judges thereof, or any officer of the State Government except the Governor."
The Supreme Court does not have original jurisdiction to issue a Writ of Mandamus against a county officer or district officer, other than a district judge. Travis County v. Jourdan, 91 Tex. 217, 42 S.W. 543 (1897); Cocke v. Smith, 142 Tex. 396, 179 S.W.2d 958 (1944). The official court reporter of a district court is a district officer not subject to mandamus power of this Court.
Walker urges this Court to issue a Writ of Mandamus to the Court of Appeals ordering that court to mandamus Johnson to produce the statement of facts; thus achieving by indirect means what we are without authority to do directly. Original mandamus will not lie to compel the performance of a discretionary act. Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779, 782 (Tex.1967); Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805, 807 (Tex.1945). Therefore, mandamus to the Court of Appeals would lie only if there were a clear duty on the part of the court reporter to deliver the statement of facts.
Walker contends there was a clear duty on the part of the court reporter to deliver the statement of facts and cites several cases for authority. Volpe v. Stephens, 589 S.W.2d 809 (Tex.Civ.App.-Dallas 1979, no writ); O'Neal v. County of San Saba, 577 S.W.2d 795 (Tex.Civ.App.-Austin 1979, no writ); Fine v. Page, 572 S.W.2d 577 (Tex.Civ.App.-Eastland 1978, writ dism'd); Wells v. Wells, 570 S.W.2d 224 (Tex.Civ.App.-Houston (1st Dist.) 1978, no writ); City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.-Corpus Christi 1976, no writ); and Caples v. Goodwin, 578 S.W.2d 529 (Tex.Civ.App.-Houston (14th Dist.) 1979, no writ). None of these cases are in point except City of Ingleside v. Johnson. Volpe, O'Neal, Fine and Caples merely ordered the reporter to prepare the statement of facts. Wells stated that the court reporter could not insist on being paid before delivery of the statement of facts if a bond had been filed sufficient to cover the transcript, statement of facts and other costs of court. (Emphasis added). In our case a bond of only $500 was filed, which was clearly insufficient to cover the transcript, statement of facts and other costs of the trial court. Walker does not contend that the bond was sufficient.
In Ingleside, the appellant was a home-rule city and as such was not required to file a bond. Tex.Rev.Civ.Stat.Ann. art. 1174 and art. 2072. Therefore, the language of the court which Walker interpreted as authority for it to demand the statement of facts after filing an insufficient bond is dicta and not controlling in our case.
The version of Rule 354 in effect prior to 1976 read, "... the appellant shall execute a bond to be approved by the clerk, payable to the appellee in a sum at least double the probable amount of the costs in the trial court and the costs of the statement of facts and transcript, to be fixed by the clerk, less such sums as may have been paid by appellant on the costs ...." In 1975, Rule 354 was amended, effective January 1, 1976, to read, "... the appellant shall execute a bond payable to the appellee in the sum of $500.00 unless the court fixes a different amount upon motion of either party." This is the wording of the statute that was in effect at the time of the proceeding before the trial court. As worded in 1976, Rule 354 did not provide for the court reporter or other interested officers of the court to...
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