in Re Shane Mix ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00463-CR
IN RE SHANE MIX
Original Proceeding
MEMORANDUM OPINION
Shane Mix, a prisoner, asks this Court to issue a writ of prohibition to prohibit the
Brazos County District Attorney from prosecuting Mix for theft. There are numerous
procedural problems with Mix'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 suspend
these requirements and expedite a disposition of the petition. TEX. R. APP. P.2.
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). 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.
Although Mix has a petition for writ of mandamus pending in this Court, his
petition for writ of prohibition 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.
In Re Mix Page 2
Accordingly, Mix's petition for writ of prohibition is dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Pet. dismissed
Opinion delivered and filed December 23, 2019
Do not publish
[OT06]
In Re Mix Page 3