Opinion
No. 06-05-00040-CR
Submitted: February 1, 2005.
Decided: February 2, 2005. DO NOT PUBLISH.
On Appeal from the 336th Judicial District Court Fannin County, Texas, Trial Court No. 17192.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
James Hayes has filed a document with this court in which he alternatively seeks to invoke an attempt to appeal from a refusal to set bail, a writ of mandamus to order the trial judge to set bail, or pretrial habeas corpus relief. We have received a response from the state, and the basic facts are not in dispute. Hayes was arrested on January 16, 2005, for possession of marihuana and possession with intent to deliver methamphetamine. A magistrate (municipal judge) set bail on the marihuana charge, but refused to do so on the methamphetamine charge. Hayes is in jail, and sought to have a bail set on the other charge. Apparently at the suggestion of the magistrate, he proceeded to the district court. At that time (and now as well), Hayes was arrested and jailed, but had not been indicted on either charge. The proceeding went before the district judge in the form of a motion to set bond, and a hearing was conducted that addressed his flight risk and his lack of known prior convictions or arrests. The district court then denied bail, stating that trial must be held within sixty days according to statute. See Tex. Const. art. I, § 11a. We recognize at this time that the state has correctly stated in its response before this court that Hayes is indeed entitled to have bail set. The offense does not implicate a category under Texas Constitution art. I, § 11 or 11a that would relieve the magistrate of his duty to set bail, and thus the setting of bail is a mandatory act. However, an initial question common to the first two contentions raised by Hayes in this proceeding is whether the district court had the authority in this instance to set bail. The Court of Criminal Appeals has held that when one magistrate has assumed jurisdiction over a case, and nothing has been done to invoke the district court's jurisdiction, a district court has "exceeded his authority by usurping the lawful jurisdiction of the justice court." Guerra v. Garza, 987 S.W.2d 593, 594 (Tex.Crim.App. 1999) (orig proceeding); Ex parte Clear, 573 S.W.2d 224 (Tex.Crim.App. 1978). Accordingly, the district court in this case had no jurisdiction over the complaint, and the proper relief would be for Hayes to seek a writ of habeas corpus from the district court. Whether we treat this proceeding as an attempted appeal from an order denying bail, or as an attempt to mandamus the district judge, Hayes cannot ultimately prevail. Further, this court has original habeas jurisdiction in only a very limited number of situations as set out by the Legislature. This is not one of them. See TEX. GOV'T CODE ANN. § 22.221 (Vernon 2004). We conclude that we do not have jurisdiction over this appeal because there is no explicit grant of jurisdictional authority by the Legislature that authorizes an appeal from a pretrial bail proceeding. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). Because the district court did not have jurisdiction at that time over the underlying proceeding, even if we treated this as a petition for mandamus, there is likewise no authority requiring that court to rule on bail in derogation of the jurisdiction of the court which had originally heard the matter — and there is explicit authority from the Court of Criminal Appeals to the contrary. We reiterate, however, that on this record it appears that Hayes is constitutionally and statutorily entitled to have a reasonable bail set, and that upon filing of a petition seeking a writ of habeas corpus with the district court he would be entitled to such. The appeal is dismissed.
Hayes correctly points out that § 11a authorizes denial of bond for certain offenses by district judges exclusively. We also note that this article of the constitution expressly provides the right of appeal of an order under that subdivision directly to the Court of Criminal Appeals. TEX. CONST. art. I, § 11a.
There is a split in authority as to whether an order on bail is appealable. See Primrose v. State, 725 S.W.2d 254, 256 n. 3 (Tex.Crim.App. 1987) (stating that rule 44(a) (now rule 31.1) allows direct appeals in bail proceedings); Ramos v. State, 89 S.W.3d 122, 124-26 (Tex.App.-Corpus Christi 2002, no pet.); Clark v. Barr, 827 S.W.2d 556, 557 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (holding that mandamus was not appropriate because there was a right to appeal). Contra, Vargas v. State, 109 S.W.3d 26, 29 (Tex.App.-Amarillo 2003, no pet.); Benford v. State, 994 S.W.2d 404, 409 (Tex.App.-Waco 1999, no pet.) (appellate jurisdiction does not exist over appeal from interlocutory pretrial order increasing amount of bail because no statutory grant of jurisdiction, concluding that the Primrose footnote is dicta); Ex parte Shumake, 953 S.W.2d 842, 846-47 (Tex.App.-Austin 1997, no pet.) (same holding); see also Wright v. State, 969 S.W.2d 588, 589-90 (Tex.App.-Dallas 1998, no pet.).