Hubert, in Re Christopher D.

• Court: Court of Criminal Appeals of Texas
• Decided: May 5, 2010
• Docket: AP-76,338
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,338

CHRISTOPHER D. HUBERT, Relator

v.

HARRIS DISTRICT CLERK, Respondent

ON PETITION FOR A WRIT OF MANDAMUS CAUSE NOS. 884460 & 884472 IN THE 230 TH JUDICIAL DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

OPINION

Relator filed a motion for leave to file a petition for a writ of mandamus pursuant to this

Court’s original jurisdiction. In it, he contends that he filed 11.07 applications for writs of habeas

corpus in the convicting court on November 21, 2008. He alleges that the orders designating issues

signed on July 23, 2009 were untimely and asks this Court to order the district clerk to forward his

11.07 applications. Hubert -- 2

On February 24, 2010, this Court held Relator’s motion for leave to file in abeyance and

ordered the district clerk to respond with information concerning any orders designating issues and

the date the State was served with the writ application. In response to this Court’s order, the

respondent District Clerk submitted an affidavit stating that they have no record of an application

for a writ of habeas corpus in cause number 884460. As the district clerk has no record of a writ

application filed in cause number 884460, the respondent is under no current ministerial duty with

respect to Relator’s alleged application attacking cause number 884460. Relator’s motion for leave

to file a petition for writ of mandamus relating to cause number 884460 is denied.

The district clerk forwarded a copy of an order designating issues in cause number 884472,

signed on July 30, 2009, and evidence that the District Attorney’s office received the application on

December 12, 2008. This Court has still not received this 11.07 application for a writ of habeas

corpus and now conditionally grants this motion for leave to file a petition for a writ of mandamus

because the order designating issues was untimely.

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. 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. TEX . CODE CRIM .

PROC . 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 issuance of Hubert -- 3

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. TEX . CODE CRIM . PROC. art. 11.07, §3(c).

In this case, Relator filed the application for writ of habeas corpus attacking cause number

884472 in the trial court on November 21, 2008. The district attorney’s office was served with the

writ application on December 12, 2008. The trial court signed an order designating issues on July

30, 2009, which was well after the time limitations provided in the statute had expired. This

untimely order interfered with the district clerk’s duty to transmit the 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 writ of habeas corpus and

is under a ministerial duty to immediately forward the application and related records in cause

number 884472, filed in the 230th 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.

Filed: May 5, 2010 Do not publish