Opinion
No. 08-07-00129-CR
June 14, 2007. DO NOT PUBLISH.
AN ORIGINAL PROCEEDING IN MANDAMUS.
Before CHEW, C.J., McCLURE, and CARR, JJ.
MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS
Relator Angelo Dewell Branch ("Branch") seeks mandamus relief against this Court to recall the mandate issued in Branch's case. Branch contends he is entitled to mandamus relief because the visiting trial judge allegedly failed to take the mandated anti-bribery statement and oath of office. Branch also argues the trial court's judgment was void because the presiding visiting judge was disqualified since the case was held in a district court that was outside the county of the judge's residence. For the following reasons, we dismiss Branch's petition for mandamus for want of jurisdiction. A relator must establish that the act sought to be compelled is ministerial and that there is no adequate remedy at law in order to be entitled to mandamus relief. Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987). Under Section 22.221 of the Texas Government Code, this Court has the authority to issue a writ of mandamus in two instances: (1) when necessary to enforce the court's jurisdiction; or (2) against a judge of a district or county court or a judge of a district court acting as a magistrate at a court of inquiry in the court of appeals district. See Tex.Gov't Code Ann. § 22.221(a) (b) (Vernon 2004); In re McAfee, 53 S.W.3d 715, 716 (Tex.App.-Houston [1st Dist.] 2001, original proceeding). This Court affirmed Branch's murder conviction in Branch v. State, 774 S.W.2d 781, 782 (Tex.App.-El Paso 1989, pet. ref'd). The mandate in Branch's case was issued on February 23, 1990. Since the mandate has been issued, mandamus relief is not necessary to enforce this Court's jurisdiction. See In re Washington, No. 08-07-00085-CR, 2007 WL 1168373, at *1 (Tex.App.-El Paso April 19, 2007, orig. proceeding) (not designated for publication). Additionally, mandamus relief is appropriate against a judge of a district or county court or judge of a district court acting as a magistrate at a court of inquiry that are within the court of appeals district. See Tex.Gov't Code Ann. § 22.221(a) (b). In this case, Branch does not seek mandamus relief against a proper party under Section 22.221(b). Thus, for the reasons stated, we dismiss Branch's petition for writ of mandamus for lack of jurisdiction.