in Re: Joseph Wayne Hunter

DENIED and Opinion Filed December 20, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00731-CV
IN RE JOSEPH WAYNE HUNTER, Relator
Original Proceeding from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F13-56295-R
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
Joseph Wayne Hunter filed a petition for writ of mandamus seeking to compel
the trial court to send a copy of his motion seeking post-conviction DNA testing to
the State and require the State to file a response within sixty days as required by
article 64.02(a) of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN.
art. 64.02(a). The Court ordered the respondent and real party in interest to file a
response to the petition.
The State filed a response showing the trial court has issued to the State a
notice styled “Court’s Notification of Pro Se Motion Seeking Post-Conviction DNA
Testing.” The trial court’s notification directs the State to file a response within sixty
days. The trial court attached a copy of relator’s motion to the notification. The State
contends relator’s petition for mandamus has been rendered moot.
Relator has filed a reply to the State’s response. In his response, relator states
he is unopposed to dismissing the mandamus proceeding provided that the Court
issues an order requiring the respondent and real party in interest to furnish him with
copies of the State’s response to the motion and the trial court’s final order so that
he might perfect an appeal.
The trial court’s notification to the State delivers all of the relief relator
requested and is entitled to, thus rendering his petition for writ of mandamus moot.
See In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (original proceeding)
(mandamus relief rendered moot when relator received information he was seeking);
In re Johnson, 599 S.W.3d 311, 311–12 (Tex. App.—Dallas 2020, orig. proceeding)
(mandamus proceeding seeking ruling on motion rendered moot when respondent
trial court ruled on motion). Accordingly, we agree with the State that this matter is
now moot. See Bonilla, 424 S.W.3d at 534 (dismissal is proper when mandamus
proceeding becomes moot); Johnson, 599 S.W.3d at 312 (dismissing petition for
writ of mandamus after matter became moot).
The order relator requests in his reply, directing the trial court and the State to
provide relator with copies of the State’s response and the trial court’s final order, is
not appropriate for mandamus relief. First, regarding the State, the Court does not
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have mandamus jurisdiction over a district attorney unless it is necessary to enforce
our own jurisdiction. See TEX. GOV’T CODE ANN. § 22.221(a), (b).
Second, regarding the trial court, the duties relator asks us to enforce are not
yet due, and we will not presume the trial court will fail to provide relator with proper
notices in the pending Chapter 64 proceeding. See Cleveland v. County of Jack, 802
S.W.2d 906, 908 (Tex. App.—Fort Worth 1991, no writ) (mandamus not available
to compel performance of duty to be performed in future); see also State ex rel. Wade
v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985) (mandamus acts to undo or
nullify act already performed).
We deny as moot relator’s petition for writ of mandamus.
/Bill Pedersen, III//
210731f.p05 BILL PEDERSEN, III
JUSTICE
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