in Re Andrew P. Turk ( 2009 )

Petition for Writ of Mandamus Dismissed and Opinion filed February 19, 2009

Petition for Writ of Mandamus Dismissed and Opinion filed February 19, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00129-CR

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IN RE ANDREW P. TURK, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M  O P I N I O N

On February 5, 2009, Relator, Andrew P. Turk, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann '22.221 (Vernon 2004); see  also  Tex. R. App. P. 52.1.  In his petition, relator asks that this court order the respondent, the Honorable Randy Roll, presiding judge of the 179th District Court, to rule on his application for writ of habeas corpus filed pursuant to article 11.07 of the Texas Code of Criminal Procedure.  We do not have jurisdiction over this original proceeding and dismiss the petition.

While courts of appeals have mandamus jurisdiction in criminal matters, only the Court of Criminal Appeals has jurisdiction in final post-conviction habeas corpus proceedings.  Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008); In re Bailey, 14-06-00841-CV, 2006 WL 2827249 (Tex. App.CHouston [14th Dist.] 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.CHouston [1st Dist.] 2001, orig. proceeding).  The courts of appeals have concurrent mandamus jurisdiction with the Court of Criminal Appeals in some post-conviction proceedings.  Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003).  Because relator ties his right to mandamus relief specifically to a failure to rule on his post-conviction application for writ of habeas corpus, we conclude we do not have jurisdiction over the complaint.  See McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992) (Court of Criminal Appeals has jurisdiction to order the trial court to rule on applicant=s post-conviction writ of habeas corpus.).

Accordingly, the petition for writ of mandamus is ordered dismissed.

PER CURIAM

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).