IN RE: Wayne Ernest Barker

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Court of Appeals of Texas, Waco.

IN RE: Wayne Ernest Barker

No. 10–11–00452–CV

Decided: December 21, 2011

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition


Wayne Ernest Barker, a prison inmate, has presented a petition for writ of mandamus requesting a mandamus to issue against Brad Livingston, the director of the Texas Department of Criminal Justice.

In another proceeding currently pending before us, Barker has conceded that he has been determined to be a vexatious litigant.   In re Barker, 10–11–00444–CV, filed November 29, 2011.   However, he does not state whether the trial court rendered an 11.101 prefiling order against him.   See Tex. Civ. Prac. & Rem.Code § 11.101 (West Supp.2011).   Further, we note that his name does not appear on the Office of Court Administration's list of vexatious litigants with prefiling orders rendered against them.1  Because there is no confirmation of a prefiling order rendered against Barker, our Clerk was not prohibited from filing this petition for writ of mandamus.   See id. § 11.103(a).

There are numerous procedural problems with Barker's petition.   We use Rule 2, however, to look beyond these procedural problems to reach the merits of the petition.  Tex.R.App. P. 2.

This Court has jurisdiction to issue writs of mandamus only against a judge of a district or county court in our appellate district or in order to protect our jurisdiction.  Tex. Gov't Code Ann. § 22.221(a), (b) (West 2004).   Brad Livingston is not a district or county court judge.   Barker does not allege the mandamus is necessary to protect our jurisdiction.   Thus, we have no jurisdiction to issue a writ of mandamus against Brad Livingston.

Accordingly, Barker's petition for writ of mandamus is dismissed.

Barker also presented for filing with this Court a declaration of indigence with his petition for writ of mandamus.   Under the circumstance of this case, we again use Rule 2 and grant Barker's request to proceed without the advance payment of cost.  Tex.R.App. P. 2.



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TOM GRAY Chief Justice

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