in Re Micheal Gerod McGregor ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00355-CR
IN RE MICHEAL GEROD MCGREGOR
Original Proceeding
MEMORANDUM OPINION
Micheal Gerod McGregor is in prison. He asks this Court to issue a writ of
prohibition to prohibit the “rewriting” of a disciplinary action against him which he
believes was dismissed1 and to prevent a hearing on the new disciplinary action. There
are numerous procedural problems with McGregor’s petition, such as no certification and
no record as required by the Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(j); 52.7.
The petition was also not properly served. See TEX. R. APP. P. 9.5. However, we use Rule
2 to dispense with these requirements and proceed to a timely disposition of the petition.
1
McGregor states later in his petition that the alleged rewriting has already occurred.
Generally, a writ of prohibition issues to prevent the commission of a future act.
State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985). It will not be
granted when the act sought to be prevented is already done. Id.
The Texas Constitution and the Texas Code of Criminal Procedure grant the Court
of Criminal Appeals the power and authority to issue writs of prohibition in criminal
matters. TEX. CONST. art. V, § 5(c) ("...the Court of Criminal Appeals and the Judges
thereof shall have the power to issue the writ of habeas corpus, and, in criminal law
matters, the writs of mandamus, procedendo, prohibition, and certiorari."); TEX. CODE
CRIM. PROC. ANN. art. 4.04, sec. 1 ("The Court of Criminal Appeals and each judge thereof
shall have, and is hereby given, the power and authority to grant and issue and cause the
issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus,
procedendo, prohibition, and certiorari."). The intermediate appellate courts, such as this
Court, were not given the same power or authority. See TEX. CONST. art. V, § 6 (original
jurisdiction only as may be established by law); TEX. CODE CRIM. PROC. ANN. art. 4.03 (no
original jurisdiction in criminal law matters established).
The only situation in which a writ of prohibition may properly be used by this
Court is to protect our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a) (“Each court of
appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs
necessary to enforce the jurisdiction of the court.”); In re Wyatt, 110 S.W.3d 511, 511 (Tex.
App.—Waco 2003, orig. proceeding); In re Salas, 994 S.W.2d 422, 423 (Tex. App.—Waco
1999, orig. proceeding). Its use is limited to cases in which this Court has actual
jurisdiction of a pending proceeding. Wyatt, 110 S.W.3d at 511; Salas, 994 S.W.2d at 423.
In re McGregor Page 2
McGregor does not have an appeal pending in this Court, and his petition does
not assert any manner in which our jurisdiction is in jeopardy of being lost due to the
events about which he is complaining. Therefore, we have no jurisdiction to issue the
requested writ.
Accordingly, McGregor’s petition for writ of prohibition is dismissed.
McGregor also presented a motion for leave to file his petition for writ of
prohibition. A motion for leave to file a petition for writ of prohibition is required when
relief is sought from the Court of Criminal Appeals. TEX. R. APP. P. 72.1. But the
requirement for leave to file a petition at the court of appeals level was eliminated in 1997.
See TEX. R. APP. P. 52, Notes and Comments. Thus, under the applicable rules, if relief is
sought from an intermediate court of appeals, such as the Tenth Court of Appeals, a
motion for leave to file the petition is unnecessary. Accordingly, McGregor’s motion for
leave to file a writ of prohibition is dismissed as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Writ dismissed
Motion dismissed
Opinion delivered and filed October 23, 2019
Do not publish
[OT06]
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