Flores v. Onion

¶1dissenting.

¶2I dissent to the conditional granting of the writ of mandamus. The majority erroneously orders Judge Onion to perform an act not the subject matter of mandamus.

¶3Relator’s petition complains of Judge Onion’s refusal to “enter” the judgment he “rendered” on April 4, 1985, to wit:

He [Judge Onion] is the presiding judge who rendered judgment in the case below and who now refuses to enter judgment.

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Relator prays that citation issue to the respondent judge and Luis Enrique Flores, the real party in interest; that this petition for mandamus be set for hearing before this court as soon as possible; and that upon such hearing, this court issue its writ of mandamus directing the Honorable James C. Onion to enter a typed version of the judgment he rendered, (emphasis mine)

¶4If indeed a judgment was “rendered” on April 4, 1985, and I have strong reservations about the document referred to in the relator’s petition as a judgment inasmuch as it is written in abbreviated language not entirely decipherable without reference to outside sources, then the need for Judge Onion’s signature is superfluous. A signed judgment obtains no greater validity because it is signed twice.1

¶5But relator’s complaint before this court is Judge Onion’s refusal to “enter,” the-judgment rendered. It is not the judge’s duty to enter the judgment he has rendered. Rather that duty devolves upon the clerk of the court. See Polis v. Alford, 267 S.W.2d 918 (Tex.Civ.App.—San Antonio 1954, no writ). The ministerial duty belongs to the clerk and, therefore, Judge Onion is not the proper party before this court on an action for mandamus. Simpson v. Charity Benev. Association, Inc., 137 Tex. 215, 152 S.W.2d 1093 (1941).

¶6In addition, relator admits that she has never approached Judge Onion with a typewritten version of the judgment allegedly rendered on April 4, 1985. This court is *759asked to order Judge Onion to “sign” and “enter” a judgment in conformity with the judgment he allegedly rendered when there is no allegation that he has refused to do so upon timely request. I do not believe that this court has any business interfering with a trial court’s conduct in the absence of some showing that it has abused its discretion in the performance or non-performance of a purely ministerial act.

¶7Because the relief prayed for is not one which Judge Onion has a ministerial duty to perform and because relief sought from this court is premature in that there is no indication that Judge Onion will refuse to sign a correct typewritten version of the judgment he has already allegedly rendered, I would refuse to grant the writ. Cf Stark v. Dodd, 76 S.W.2d 865 (Tex.Civ.App.—Beaumont 1934, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635 (Tex.Civ.App.—Dallas 1981, no writ). I respectfully dissent.