Barnes, Andrew

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-81,067-01

IN RE ANDREW CLINTON BARNES, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NOS. 1179556A & 1179556B RD IN THE 183 JUDICIAL DISTRICT COURT FROM HARRIS 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 two 11.07 applications for writs of habeas

corpus in the convicting court on March 18, 2011 and October 11, 2011. He alleges that more than

35 days have elapsed since the filing dates and that timely orders designating issues have not been

entered. He wants this Court to order the district clerk to forward his 11.07 applications.

On April 2, 2014, 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 dates and this Court had

no record of timely entered orders designating issues. In response to this Court’s order, the district

clerk forwarded copies of orders designating issues which were signed on June 16, 2014. This Court has still not received the 11.07 applications for writs of habeas corpus and now conditionally grants

this motion for leave to file an application for a writ of mandamus because the orders designating

issues were 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). 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 the applications for writs of habeas corpus in the trial court on

March 18, 2011 and October 11, 2011. The district clerk’s office has informed this Court that the

district attorney’s office was served the writ applications on March 23, 2011 and November 7, 2011.

The trial court signed orders designating issues on June 16, 2014, which was after the time

limitations provided in the statute had expired. These untimely orders interfered with the district clerk’s duty to transmit the applications 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 applications for writs of habeas corpus and is under a ministerial duty to immediately

forward the applications and related records in cause numbers 11795560101A & 11795560101B

filed in the 183rd Judicial District Court of Harris 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 within

thirty days of the date of this opinion.

Delivered: September 17, 2014 Do not publish