in Re Willis Jackson Perryman ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00088-CR

In re Willis Jackson Perryman

Original Proceeding

MEMORANDUM  Opinion

          Relator has filed an Application[1] for Writ of Mandamus seeking to compel the District Attorney or District Judge of Newton County to comply with this Court’s mandate issued January 9, 2006 regarding the appointment of counsel in connection with a motion to conduct DNA testing under the former provisions of the Texas Code of Criminal Procedure, Chapter 64.  See Act of April 3, 2001, 77th Leg. R. S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art 64.01 (Vernon Pamp. 2005)).  The application was not served on the respondent trial court judge or the real party in interest.  Tex. R. App. P. 9.5, 52.2.  Normally, under these circumstances we would await proof of service before disposition of the application.

          However, because the application sought is against the District Judge of Newton County, which is beyond the territorial limits of this Court’s jurisdiction, and this mandamus proceeding was not transferred to us pursuant to a Docket Equalization Order from the Texas Supreme Court, we have no jurisdiction of this application.  See Kim v. State, 181 S.W.3d 448, 449 (Tex. App.—Waco 2005, no pet.).  Accordingly, we utilize Rule 2 to lift the requirement of service and dismiss the application for lack of jurisdiction.  Tex. R. App. P. 2.

                                                          TOM GRAY

                                                          Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Writ dismissed

Opinion delivered and filed April 19, 2006

Do not publish

[OT06]

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[1]   An original proceeding seeking extraordinary relief is commenced by filing a petition, not an application.  See Tex. R. App. P. 52.1.  But we will use the term relator uses.