Opinion
No. 14-04-00573-CV
Memorandum Opinion filed July 29, 2004.
Original Proceeding Writ of Mandamus.
Petition for Writ of Mandamus Conditionally Granted.
Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
MEMORANDUM OPINION
On June 14, 2004, Relator, Woodrow Miller, filed a petition for writ of mandamus in this Court. See TEX. GOV'T CODE ANN § 22.221 (Vernon 2004); see also TEX. R. APP. P. 52.1. Relator claims the Harris County District Clerk, Charles Bacarisse, violated a mandatory duty to forward relator's notice of appeal to the court of appeals. We agree.
The sentence relator wishes to appeal was entered on May 20, 2002. On June 19, 2002, relator filed a timely notice of appeal. On June 27, 2002, relator filed a motion to withdraw the notice of appeal. On June 27, 2002, the trial judge signed an order granting the motion to withdraw the notice of appeal. The appeal was never assigned to a court of appeals and the notice of appeal was not forwarded.
The State has filed a response to relator's petition. The State notes that Rule 42.2 allows an appellate court to dismiss an appeal pursuant to a written withdrawal from the appellant. See Tex.R.App.P. 42.2a(a). The State further observes that the rules do not expressly authorize a trial court to terminate an appeal on motion of the appellant.
The District Clerk, Charles Bacarisse, has also filed a response, in which he states that he "will gladly have the notice of appeal forwarded to this Court, if it desires. . . ." However, Bacarisse challenges this court's jurisdiction to issue mandamus. Section 22.221 provides that a court of appeals may issue a writ of mandamus when "necessary to enforce the jurisdiction of the court." TEX. GOV'T CODE ANN. § 22.221(a) (Vernon 2004).
Based on Bacarisse's statement, our clerk's office called the district clerk and asked that they forward the notice of appeal. The district clerk employee requested authority requiring them to forward the notice of appeal. Our authority is set out in this opinion.
The filing of a notice of appeal invokes a court of appeals' jurisdiction. In re Washington, 7 S.W.3d 181, 182 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding). A document is considered filed when delivered to the clerk for filing. Id. Therefore, when a notice of appeal, timely or untimely, is delivered to the clerk for filing, any further determination concerning appellate jurisdiction must be made by the appellate court. Id. After jurisdiction of the appellate court is invoked in the manner prescribed by law, the appellate court may act to enforce or protect its jurisdiction. Winfrey v. Chandler, 318 S.W.2d 59, 61 (Tex. 1958). Accordingly, we find that we have jurisdiction to issue a writ of mandamus against a district clerk for failure to forward to the appropriate court of appeals a notice of appeal delivered to him for filing.
In addition to challenging this court's jurisdiction, Bacarisse asserts that mandamus is inappropriate because another court of appeals has given effect to a trial court's dismissal of an appeal. The case to which Bacarisse refers is Garcia v. State, No. 01-02-01218-CR, 2003 WL 321549 (Tex. App.-Houston [1st Dist.] Feb. 13, 2003, no pet.) (not designated for publication). In that case, the appellant had filed a motion to dismiss his appeal in the trial court; however, the trial judge apparently did not rule on the motion. Id. at *1. The appeal was assigned to the First Court of Appeals, the record was forwarded, and the court of appeals considered the motion to dismiss it discovered in the clerk's record. The court of appeals found that, although motions to dismiss an appeal should be filed in the appellate court, there was good cause to consider the motion as if it had been filed in the court of appeals. Id. Accordingly, the appellate court granted the motion and dismissed the appeal. Id.
Because this case is unpublished, it has no precedential value. TEX. R. APP. P. 47.7.
We find Garcia easily distinguishable from the facts in this case. Although the motion to dismiss in Garcia was filed in the trial court, the trial judge did not rule on it, and the appeal was forwarded to the court of appeals. In the present case, the motion to withdraw the notice of appeal was filed in the trial court, the trial court granted it, and the appeal was never forwarded to the court of appeals. The fact that a motion to withdraw was filed and granted; however, is not material to our decision. Our decision is based on the fact that appellant filed a notice of appeal and that notice of appeal was never forwarded to the appellate court.
In conclusion, we find the District Clerk's failure to forward the notice of appeal in this case interfered with our jurisdiction. Therefore, we hold that relator has established his right to mandamus relief. We conditionally grant the writ. We are confident the District Clerk will assign the appeal to a court of appeals and forward the appeal to the assigned court. If the District Clerk does not do so, the writ will issue.