Brown, Ex Parte James Gilbert, Relator v. Dallas County District Clerk ( 2008 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,006
JAMES GILBERT BROWN, Relator
v.
DISTRICT CLERK, DALLAS COUNTY, Respondent
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. W05-73416-H(A) IN THE CRIMINAL DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
OPINION
Relator has filed a motion for leave to file a writ of mandamus pursuant to the original
jurisdiction of this Court. In it, he contends that he filed an 11.07 application for a writ of habeas
corpus in the convicting court on December 10, 2007. He alleges that more than 35 days have
elapsed since the filing date and that a timely order designating issues has not been entered. He
wants this Court to order the district clerk to forward his 11.07 application.
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On May 7, 2008, this Court held this application in abeyance and ordered the district clerk
to respond because more than 35 days had elapsed since the alleged filing date and this Court had
no record of a timely entered order designating issues. In response to this Court’s order, the district
clerk forwarded a copy of an order designating issues which was entered on June 3, 2008. This
Court has still not received this 11.07 application for a writ of habeas corpus and now grants this
motion for leave to file an application for a writ of mandamus because the order designating issues
was untimely entered.
Upon receipt of an application for a writ of habeas corpus challenging a final felony
conviction, the attorney representing the State has 15 days to respond. See TEX . CODE CRIM . PROC.
Art. 11.07, §(b). After the expiration of the time allowed for the State to respond, the trial court is
allowed 20 days to determine whether the application contains allegations of controverted,
previously unresolved facts material to the legality of the applicant’s confinement. Art. 11.07, §3(c).
If the trial court determines that the application for writ of habeas corpus presents such issues it
“shall enter an order within 20 days of the expiration of the time allowed for the state to reply,
designating issues of fact to be resolved.” Id. Article 11.07 does not authorize the trial court to
extend the time limitations imposed by the statute, other than by a timely entry of an order
designating issues. McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)(emphasis
added). Without a timely entry of an order designating issues, Article 11.07 imposes a duty upon
the clerk of the trial court to immediately transmit to this Court the record from the application for
a writ of habeas corpus, deeming the trial court’s inaction a finding that no issues of fact require
further resolution. Art. 11.07, §3(c).
In this case, Relator filed this application for a writ of habeas corpus in the trial court on
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December 10, 2007. The trial court entered an order designating issues on June 3, 2008, which was
after the time limitations provided in the statute had expired. This untimely order interfered with
the district clerk’s duty to transmit this application to this Court and is therefore without effect. See
Martin v. Hamlin, 25 S.W.3d 718, (Tex. Crim. App. 2000). The district clerk has no authority to
continue to hold Relator’s application for a writ of habeas corpus and is under a ministerial duty to
immediately forward the application and related records in Cause No. W05-73416-H(A) filed in the
Criminal District Court of Dallas County to this Court.
We conditionally grant mandamus relief and direct the Respondent to comply with this
opinion. The writ of mandamus will issue only in the event the Respondent fails to comply.
Filed: September 24, 2008
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