in Re: Willis Floyd Wiley ( 2007 )

                NO. 12-07-00167-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§         

IN RE: WILLIS FLOYD WILEY,

§                      ORIGINAL PROCEEDING

RELATOR

§         

MEMORANDUM OPINION

            Willis Floyd Wiley requests mandamus relief complaining of the trial court’s refusal to issue the writ of habeas corpus.¹  We deny the petition for writ of mandamus.

Background

            Wiley is an inmate at Texas Department of Criminal Justice–Institutional Division (TDCJ) and has been indicted for possession of a prohibited substance in a penal institution.  See Tex. Penal Code Ann. § 38.11(d)(1) (Vernon Supp. 2006).  The trial court initially appointed the State Counsel for Offenders Office to represent Wiley.  At his request, he is now pro se in the indicted cause (trial court cause number 28,322).

            Wiley filed a petition for writ of habeas corpus in the trial court contending that he is illegally restrained in cause number 28,322 and seeking dismissal of the cause.  Specifically, he asserted that the trial court violated his constitutional and statutory rights by appointing the State Counsel for Offenders Office to represent him at trial.  In this court, Wiley alleges that he appeared at a pretrial hearing after filing his habeas petition, at which time he asked the respondent to rule on the petition. According to Wiley, the respondent informed him that he was not going to rule on his petition.  This original proceeding followed.

Discussion

            Mandamus relief is authorized only if the relator establishes that (1) he has no other adequate legal remedy and (2) under the facts and the law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Regarding the first requirement, a judge’s or court’s failure or refusal to issue the writ is not appealable.  Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991).  But the unavailability of appeal does not automatically establish that mandamus is available.  See In re Piper, 105 S.W.3d 107, 110-11 (Tex. App.–Waco 2003, orig. proceeding).  The remedy for a court’s failure to consider an application for a writ of habeas corpus is simply to file the writ with another court.  Williams v. State, No. 14-03-01214-CR, 2005 WL 831713, at *4 (Tex. App.–Houston [14th Dist.] 2005, pet. stricken) (mem. op., not designated for publication); In re Piper, 105 S.W.3d at 110.

            Here, Wiley has not shown that he has filed his habeas petition in any other court.  Consequently, he has not established that he has “no other remedy short of mandamus.”²  In re Piper, 105 S.W.3d at 110.  As such, Wiley has failed to satisfy the first requirement for mandamus. Therefore, we need not address the second requirement.  The petition for writ of mandamus is denied.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered July 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The respondent is the Honorable Bascom W. Bentley, III, Judge of the 3rd Judicial District Court, Anderson County, Texas.

² In Piper, the court noted that this law has been criticized by both judges and scholars, but is still the law.  See Piper, 105 S.W.3d at 110.