in Re: Frank Herbert McClain, Jr.

• Court: Court of Appeals of Texas
• Decided: January 23, 2008
• Docket: 12-08-00039-CR
• Status: Published

Opinion

                NO. 12-08-00039-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§         

IN RE: FRANK HERBERT

MCCLAIN, JR., RELATOR §          ORIGINAL PROCEEDING

MEMORANDUM OPINION

            Frank Herbert McClain, Jr. has filed an original application for writ of habeas corpus challenging the trial court’s revocation of his appeal bond by order signed on August 28, 2007.¹  McClain states that his application is also filed as a “Writ of Mandamus appealing the orders of the trial court on July 19, 2007 and August 23, 2007” whereby he was denied an appeal bond prior to the hearing on the State’s motion to revoke his appeal bond.  We dismiss for want of jurisdiction in part and deny in part.

            The original habeas jurisdiction of the courts of appeals is limited to those cases in which a person's liberty is restrained because the person has violated an order, judgment, or decree entered in a civil case.  Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2004).  Stated another way, courts of appeals do not have original habeas corpus jurisdiction in criminal law matters.  See id.  Accordingly, we are without jurisdiction to grant the requested habeas relief.²

            To obtain mandamus relief in a criminal case, the relator must establish that (1) the act sought to be compelled is ministerial and (2) there is no adequate remedy at law.  Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987) (orig. proceeding).  Here, the orders McClain challenges by mandamus relate to the revocation of his appeal bond and are appealable.  See Tex. Code Crim. Proc. Ann. art. 44.04(g).  Consequently, he has not shown that he has no adequate remedy at law.  Therefore, he cannot satisfy the requirements for mandamus.

            Because we have no original habeas jurisdiction in criminal cases and because McClain has not shown that he is entitled to mandamus, we dismiss for want of jurisdiction the portion of McClain’s application seeking habeas relief and we deny McClain’s request for mandamus relief.

                                                                                                     BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered January 23, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The respondent is the Honorable Paul E. White, Judge of the 159th Judicial District Court, Angelina County, Texas. 

² McClain states that this application is filed pursuant to Texas Rule of Appellate Procedure 52.7, which governs the filing of original proceedings.  He also cites Texas Rule of Appellate Procedure 31.2, which pertains to appeals in habeas corpus or bail proceedings, and refers to this proceeding as an appeal.  However, he has not filed a notice of appeal from any of the orders he refers to in his habeas application.  See Tex. Code Crim. Proc. Ann. art. 44.04(g) (Vernon 2006) (appeal available for review of any judgment or order made under article 44.04 relating to appeal bond).  Moreover, his habeas application was filed on January 22, 2008.  Thus, even if we were to consider his application a notice of appeal, it would be untimely.  See Tex. R. App. P. 26.2(a)(1) (notice of appeal in criminal case to be filed within thirty days after the day the trial court enters an appealable order).  Therefore, we consider this an original proceeding.