Opinion
NUMBER 13-17-00578-CR
11-08-2017
IN RE ERNESTO BENAVIDES JR.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator Ernesto Benavides Jr., proceeding pro se, filed a petition for writ of mandamus in the above cause contending that the Kleberg County District Clerk has failed to properly file relator's application for writ of habeas. This Court requested that the State of Texas, acting by and through the District Attorney of Kleberg County, Texas, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.2, 52.4, 52.8. The State filed a response to the petition which simply states in one sentence that "[t]here is nothing to give to the realtor [sic] is [sic] this matter."
To be entitled to mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a purely ministerial act not involving a discretionary or judicial decision. In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). It is the relator's burden to properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). In addition to other requirements, the relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. The relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record).
Here, relator's petition for writ of mandamus requests us to compel the Kleberg County District Clerk to receive and process relator's article 11.09 application for writ of habeas corpus and to transmit the application to the Texas Court of Criminal Appeals. See art. 11.09 (West, Westlaw through on 2017 1st C.S.). In support of his original proceeding, relator has furnished only: (1) a copy of our memorandum opinion in 13-17-00169-CR; (2) a copy of a letter dated May 5, 2017 to the district clerk referencing an article 11.09 application for writ of habeas corpus, which is not file-stamped; (3) a "form" application for a writ of habeas corpus seeking relief from a final felony conviction under article 11.07 of the code of criminal procedure, which is neither verified nor file-stamped; (4) an unidentified printout of "docket transactions" for file number 033059 and a written docket sheet for the same case; and (5) a September 20, 2001 judgment of conviction, suspension of sentence and conditions of community supervision showing a plea of guilty for the misdemeanor offense of "DWI-BTR."
See In re Benavides, 13-17-00169-CR, 2017 WL 1281332, at *1 (Tex. App.—Corpus Christi Mar. 31, 2017, orig. proceeding) (mem. op., not designated for publication).
Article I, section 12 of the Texas Constitution provides that the writ of habeas corpus "is a writ of right, and shall never be suspended." TEX. CONST., Art. I, § 12. That constitutional provision also charges the legislature with enacting "laws to render the remedy speedy and effectual." Id. Article 11.05 of the Code of Criminal Procedure recognizes the authority of the Texas Court of Criminal Appeals, the district courts, the county courts, and any judges of these courts to issue the writ of habeas corpus "under the rules prescribed by law." TEX. CODE CRIM. PROC. ANN. art. 11.05 (West, Westlaw through 2017 1st C.S.). Chapter 11 of the Code of Criminal Procedure contains some provisions that apply in general to habeas proceedings, and it also contains a few sections that detail procedures to be used for relief from particular types of judgments, orders, or proceedings under certain circumstances. See generally TEX. CODE CRIM. PROC. ANN. arts. 11.01-11.04, 11.07-11.65 (West, Westlaw through 2017 1st C.S.); see also Ex parte Valdez, 489 S.W.3d 462, 463 (Tex. Crim. App. 2016). The district clerk's office has a ministerial duty to file any properly submitted habeas applications. See generally TEX. CODE CRIM. PROC. ANN. 2.21 (West, Westlaw through 2017 1st C.S.); see, e.g., Aranda v. Dist. Clerk, 207 S.W.3d 785, 786-87 (Tex. Crim. App. 2006).
This Court's mandamus jurisdiction is expressly limited to: (1) writs against a district court judge or county court judge in this Court's district, and (2) all writs necessary to enforce our jurisdiction. See Tex. Gov't Code § 22.221 (West, Westlaw through 2017 1st C.S.). Thus, we have no jurisdiction to issue a writ of mandamus against a district clerk unless necessary to enforce our jurisdiction. See id.; In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).
Based on the limited documents filed with this Court, it is unclear which application for writ of habeas corpus relator is attempting to pursue or whether this original proceeding invokes our jurisdiction. To the extent that this original proceeding may invoke our jurisdiction, we conclude that relator has failed to meet his burden to obtain relief insofar as he has not shown that he properly filed an application for writ of habeas corpus with the district clerk and the district clerk has refused to act on it. Accordingly, the Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that the relator has not met his burden to obtain mandamus relief. See State ex rel. Young, 236 S.W.3d at 210. Relator's petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 8th day of November, 2017.