in Re Allen "F" Calton

• Court: Court of Appeals of Texas
• Decided: May 26, 2016
• Docket: 05-16-00593-CV
• Status: Published

Opinion

DISMISS; and Opinion Filed May 26, 2016.

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-16-00593-CV

IN RE ALLEN "F" CALTON, Relator

Original Proceeding from the 213th District Court Tarrant County, Texas Trial Court Cause No. 0843168D

MEMORANDUM OPINION Before Justices Lang-Miers, Fillmore, and Schenck Opinion by Justice Schenck The Court has before it relator’s pro se petition for writ of mandamus and writ of

prohibition. In the petition, relator asks that we both order the Clerk of the Second District Court

of Appeals at Fort Worth to file his motion related to cause no. 02-04-00228-CR, styled Allen

Fitzgerald Calton v. The State of Texas, and prohibit the Clerk of that Court from refusing to file

further pro se motions regarding cause no. 02-04-00228-CR. 1 We conclude we lack jurisdiction

over the petition.

This Court’s jurisdiction over petitions for writ of mandamus and prohibition is governed

by section 22.221 of the Texas Government Code. Section 22.221, in relevant part, provides that

a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the

jurisdiction of the court. See TEX. GOV’T CODE ANN. § 22.221(a), (b) (West 2004).

1 The petition was originally filed in the Second District Court of Appeals. It was transferred to this Court by order of the Texas Supreme Court. Cause no. 02-04-00228-CR, styled Allen Fitzgerald Calton v. The State of Texas,

involved the appeal from relator’s conviction for attempted murder. The Second Court of

Appeals issued its opinion and judgment affirming the conviction in 2005, relator withdrew his

petition for discretionary review, and the appellate court’s mandate issued on February 17, 2006.

The Second District Court of Appeals lost jurisdiction to rule on any motions in the appeal long

before relator filed his 2015 motion. See generally TEX. R. APP. P. 18 (mandate), 19 (plenary

power of courts of appeals and expiration of term).

Moreover, although titled an “omnibus motion” in cause no. 02-04-00228-CR, the relief

sought by relator’s motion is, in substance, a collateral attack on his conviction, over which the

Second District Court of Appeals is also without jurisdiction. See TEX. CODE CRIM. P. ANN. arts.

11.05, 11.07 (West 2015) (habeas corpus); see also Ater v. Eighth Court of Appeals, 802 S.W.2d

241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (Texas Court of Criminal Appeals only court

with jurisdiction in final post-conviction felony proceedings). Because the Second District Court

of Appeals does not have jurisdiction to grant relator the relief he seeks, no order prohibiting the

Clerk of the Second District Court of Appeals from refusing to file motions in cause no. 02-04-

00228-CR is necessary to protect the jurisdiction of that Court.

Accordingly, we dismiss relator’s petition for writ of mandamus and prohibition for want

of jurisdiction.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

160593F.P05

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