Jeffrey Stefanoff, Relator v. Honorable Howard Warner

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-586-CV





JEFFREY STEFANOFF,

RELATOR

vs.





HONORABLE HOWARD S. WARNER, II, JUDGE,

RESPONDENT

ORIGINAL PROCEEDING FROM HAYS COUNTY

PER CURIAM

Relator, Jeffrey Stefanoff, seeks leave to file an application for writ of mandamus compelling Respondent, the Honorable Howard S. Warner, II, Judge, to set bail pending Relator's appeal from an order denying relief on petition for writ of habeas corpus. Tex. R. App. P. 121. Relator's appeal in the habeas corpus proceeding is pending in this Court as cause number 3-93-555-CR. Tex. R. App. P. 44. The transcription of the court reporter's notes from the hearing on Relator's application for bail, tendered with Relator's motion for leave to file, reflects that Respondent refused to set bail.

The Code of Criminal Procedure provides that in any habeas corpus proceeding in which the defendant is remanded to custody and an appeal is taken, the defendant "shall be allowed bail by the court or judge so remanding the defendant." Tex. Code Crim. Proc. Ann. art. 44.35 (West 1979). Because the statute is clear and unambiguous, it must be given its literal meaning. Cail v. Service Motors, Inc., 660 S.W.2d 814 (Tex. 1983); Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). Under the clear terms of the statute, Respondent has a ministerial duty to set bail pending Relator's appeal in the habeas corpus proceeding. See Proffer v. Yates, 734 S.W.2d 671 Tex. (1987). Mandamus relief is available under such circumstances. Id.

Accordingly, Relator's amended motion for leave to file amended application for writ of mandamus is granted and his application is filed. ⁽¹⁾ Further, we conditionally grant the writ of mandamus insofar as Relator asks that bail be set. We decline to order that bail be set in any particular amount. This Court assumes that Respondent will enter an order in compliance with this opinion and article 44.35. If he fails to do so, a writ of mandamus will issue.

Before Justices Powers, Jones and Kidd

Writ of Mandamus Conditionally Granted

Filed: November 24, 1993

Do Not Publish

1. Relator's original motion for leave to file application for writ of mandamus is dismissed.