Opinion
NO. WR-83,695-01
01-13-2016
EX PARTE NICHOLAS G. HEINTZ, Applicant
ON APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS FROM SMITH COUNTY
JOHNSON, J., filed a concurring statement. CONCURRING STATEMENT
Applicant has filed an application for an original writ of habeas corpus in this Court. The application was properly filed in the trial court, and statute and case law suggest that the trial court has a duty to issue the writ and to address the merits. TEX. CODE CRIM. PROC. Art. 11.05 (judges of district courts, among others, "have the power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law."). See also GEORGE E. DIX & JOHN M. SCHMOLESKEY, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 34.18 (3rd ed. 2011) (arguing that statutes and cases "make clear that a judge to whom a petition is presented is ordinarily under an obligation to issue the writ, to do so with dispatch, and to address the contentions on their merits.").
Based on the record before this Court, applicant properly filed his application in the trial court, which both issued the writ and decided it by denying relief on its merits. It is well established that an application for a writ of habeas corpus will lie only if the act complained of is ministerial rather than discretionary and the applicant has no adequate remedy at law. In this case, assuming that applicant received timely notice of the trial court's order denying relief, he has an adequate remedy at law—appeal of that decision to the appellate court. Therefore, this Court properly denies leave to file. Filed: January 13, 2016
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