in Re Danny L. Teal

In re Danny L. Teal

IN THE

TENTH COURT OF APPEALS

No. 10-00-250-CR

IN RE DANNY L. TEAL

Original Proceeding

MEMORANDUM OPINION

      Danny L. Teal seeks a writ of mandamus from this Court compelling Respondent, the Honorable F.B. McGregor, Jr., Judge of the 66th District Court of Hill County, to hold a hearing on Teal’s post-conviction application for habeas relief. Mandamus issues to correct a clear abuse of discretion for which the Relator has no adequate legal remedy. Perkins v. Third Court of Appeals, 738 S.W.2d 276, 285 (Tex. Crim. App. 1987) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)); In re Price, 998 S.W.2d 897, 897 (Tex. App.—Waco 1999, orig. proceeding).

      When a trial court refuses to hear a habeas application, “an applicant’s remedies are limited. Some remedies available to an applicant in that situation are to present the application to another district judge having jurisdiction, or under proper circumstances, to pursue a writ of mandamus.” Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991); Ex parte Gonzales, 12 S.W.3d 913, 914-15 (Tex. App.—Austin 2000, pet. ref’d); accord In re Davis, 990 S.W.2d 455, 457 (Tex. App.—Waco 1999, orig. proceeding). The only “proper circumstances” for mandamus relief identified by the Court in Hargett occur when a trial court refuses to hear a pretrial habeas application challenging the constitutionality of a statute under which the accused is charged. See Hargett, 819 S.W.2d at 868 n.13 (citing Von Kolb v. Koehler, 609 S.W.2d 654, 655-56 (Tex. Civ. App.—El Paso 1980, orig. proceeding)).

      Although Teal’s remedies have been described as “limited,” he clearly does have a remedy. This remedy, as described in Hargett, is to present his habeas application to another district judge. See Hargett, 819 S.W.2d at 868; Gonzales, 12 S.W.3d at 914-15; Davis, 990 S.W.2d at 457. Because Teal has an adequate legal remedy, we deny his petition for mandamus relief.

                                                                   PER CURIAM 

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Writ denied

Opinion delivered and filed July 26, 2000

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