in Re: Howard Holland

• Court: Court of Appeals of Texas
• Decided: April 26, 2017
• Docket: 05-17-00375-CV
• Status: Published

Opinion

Denied and Opinion Filed April 26, 2017.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00375-CV

IN RE HOWARD HOLLAND, Relator

Original Proceeding from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 31610-422

MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Boatright Opinion by Justice Myers Before the Court is relator’s April 13, 2017 petition for writ of mandamus in which he

complains that the trial court denied his motion for nunc pro tunc without allowing relator to

appear at the hearing on the motion and be represented by counsel. Relator asks this Court to

order the trial court to vacate the order denying the motion for nunc pro tunc and to hold a

hearing on the motion with relator present and represented by counsel.

Denials of motions for judgment nunc pro tunc may be challenged by mandamus. In re

Malone, No. 05-14-01458-CV, 2014 WL 6779279, at *2 (Tex. App.—Dallas Dec. 2, 2014, no

pet.). To be entitled to mandamus relief in a criminal case, the relator must show (1) that he has

no adequate remedy at law and (2) that what he seeks to compel is a ministerial act. In re

Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014) (orig. proceeding).

“Before any unfavorable nunc pro tunc orders are entered the person convicted should be

given an opportunity to be present for the hearing, represented by counsel, in order to accord him due process of law.” Vallez v. State, 21 S.W.3d 778, 782 (Tex. App.—San Antonio 2000, pet.

ref’d) (emphasis added) (quoting Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App. 1976)).

Relator relies on Vallez and Shaw to support his contention that the trial court had a ministerial

duty to provide relator with an opportunity to be present at the hearing and represented by

counsel before denying the motion for nunc pro tunc. We disagree. Vallez and Shaw are

inapplicable here because the trial court did not enter an unfavorable judgment nunc pro tunc.

Rather, the trial court denied relator’s motion for judgment nunc pro tunc.

Relator has not shown himself entitled to the relief requested. Accordingly, we deny

relator’s petition for writ of mandamus.

/s/Lana Myers/ LANA MYERS JUSTICE 170375F.P05

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