Opinion
NO. 14-20-00480-CR NO. 14-20-00535-CR
08-04-2020
IN RE BRETT DAVID BOGUS, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
176th District Court Harris County, Texas
Trial Court Cause No. 1433472A
MEMORANDUM OPINION
On July 6, 2020, relator Brett David Bogus filed petitions for writs of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petitions, relator asks this court to compel the Honorable Nikita V. Harmon, presiding judge of the 176th District Court of Harris County, and the Honorable Marilyn Burgess, Harris County District Clerk, to perform their duties in connection with relator's application for a writ of habeas corpus.
BACKGROUND
On November 20, 2019, the Texas Court of Criminal Appeals remanded relator's application for writ of habeas corpus to allow the trial court to complete an evidentiary and enter findings of fact and conclusions of law. The court stated that it would hold relator's application in abeyance until the trial court had resolved the fact issues within 90 days of the court's order. The court further directed that a supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of act and conclusions of law be forwarded to the court within 120 days of November 20, 2019, the date of the court's order. Further, the court ordered that any extensions of time must be requested from the trial court and obtained from the Court of Criminal Appeals.
On May 4, 2020, the trial court signed the State's proposed findings of fact and conclusions of law. The trial court found that there were no controverted, previously unresolved facts material to the legality of relator's confinement, which would require an evidentiary hearing, and recommended that relief be denied.
ANALYSIS
We cannot exercise jurisdiction to issue a writ against the trial judge. While the courts of appeals have mandamus jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has jurisdiction to grant relief in a post-conviction habeas corpus proceeding. Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013); Ater v. Eighth Court of Appeals, 802 S.W.3d 241, 243 (Tex. Crim. App. 1991). Therefore, this court has no jurisdiction over relator's request for relief against the trial court.
We also lack jurisdiction over the district clerk. A court of appeals may issue writs of mandamus against (1) a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district; (2) a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52 of the Code of Criminal Procedure in the court of appeals district; or (3) an associate judge of a district or county court appointed by a judge under Chapter 201 of the Family Code in the court of appeals district for the judge who appointed the associate judge. Tex. Gov't Code Ann. § 22.221(b). The courts of appeals also may issue all writs necessary to enforce the court of appeals' jurisdiction. Id. § 22.221(a).
The district clerk is not among the parties specified section 22.221(b). See id. § 22.221(b). Moreover, relator has not shown that the issuance of a writ compelling the requested relief is necessary to enforce our appellate jurisdiction. See id. § 22.221(a). Therefore, we lack jurisdiction to issue a writ of mandamus against the district clerk.
Accordingly, we dismiss relator's petitions for lack of jurisdiction.
PER CURIAM Panel consists of Justices Wise, Bourliot, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).