Opinion
NUMBER 13-17-00310-CR
06-20-2017
IN RE FRED G. MARTINEZ
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
Relator Fred G. Martinez filed a pro se petition for writ of mandamus in the above cause on June 16, 2017, asking us to direct the Nueces County District Clerk to transmit a copy of his post-conviction application for writ of habeas corpus, and all related filings, to the Texas Court of Criminal Appeals in accordance with article 11.07 of Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(c) (West, Westlaw through Ch. 49, 2017 R.S.). We lack jurisdiction to grant the relief requested.
To be entitled to mandamus relief, the relator must show: (1) that he has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). It is the relator's burden to properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). In addition to other requirements, the relator must include a statement of facts supported by citations to "competent evidence included in the appendix or record," and must also provide "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record." See generally TEX. R. APP. P. 52.3. In this regard, it is clear that the relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record). The petition for writ of mandamus in this case lacks an appendix or record and thus fails to comply with these requirements.
This Court does not have mandamus jurisdiction over district clerks unless it is shown that issuance of the writ is necessary to enforce our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a), (b) (West, Westlaw through Ch. 49, 2017 R.S.); In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding); In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding); In re Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998, orig. proceeding). Moreover, only the Texas Court of Criminal Appeals has jurisdiction over matters related to final post-conviction felony proceedings when there is a pending application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07; Padieu v. Ct. of App. of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013) (orig. proceeding) (delineating the limited jurisdiction possessed by intermediate appellate courts with regard to article 11.07 applications for writs of habeas corpus). We lack jurisdiction to order the district clerk to perform the ministerial task of transmitting materials related to a post-conviction application for writ of habeas corpus to the court of criminal appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07; see also In re Madrigal, No. 11-17-00093-CR, 2017 WL 1453807, at *1 (Tex. App.—Eastland Apr. 20, 2017, orig. proceeding) (per curiam) (mem. op., not designated for publication) (concluding that the court lacked jurisdiction to order the district clerk to transmit materials under article 11.07); In re Henderson, No. 14-13-00420-CR, 2013 WL 2296192, at *1 (Tex. App.—Houston [14th Dist.] May 23, 2013, orig. proceeding) (mem. op., not designated for publication) (same); In re Guajardo, No. 03-11-00821-CV, 2012 WL 254675, at *1 (Tex. App.—Austin Jan. 25, 2012, orig. proceeding) (mem. op.) (same). If an applicant finds it necessary to complain about the processing of an article 11.07 application for writ of habeas corpus, the applicant may seek mandamus relief directly from the Texas Court of Criminal Appeals. See, e.g., Benson v. Dist. Clerk, 331 S.W.3d 431 (Tex. Crim. App. 2011); Gibson v. Dallas Cnty. Dist. Clerk, 275 S.W.3d 491 (Tex. Crim. App. 2009); see also In re Watson, 253 S.W.3d 319, 320 (Tex. App.—Amarillo 2008, orig. proceeding).
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that the relator has not established that we possess jurisdiction over this original proceeding. See Padieu, 392 S.W.3d at 117-18. Accordingly, relator's petition for writ of mandamus is dismissed for lack of jurisdiction. See TEX. R. APP. P. 52.8(a).
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 20th day of June, 2017.