in Re Kenneth W. Price

• Court: Court of Appeals of Texas
• Decided: July 25, 2001
• Docket: 10-01-00186-CV
• Status: Published

Opinion

In re Kenneth W. Price

IN THE

TENTH COURT OF APPEALS

No. 10-01-186-CV

IN RE KENNETH W. PRICE

Original Proceeding

                                                                                                                

O P I N I O N

                                                                                                                

      Kenneth Price seeks a writ of mandamus compelling the District Clerk of Coryell County to prepare and file with this court a copy of his notice of appeal. We dismiss the petition for want of jurisdiction.

      Section 22.221(b) of the Government Code prescribes the original jurisdiction of the courts of appeals. That section states:

      (b)  Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a:

(1) judge of a district or county court in the court of appeals district; or

(2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district.

Tex. Gov’t Code Ann. § 22.221(b) (Vernon Supp. 2001). The Government Code does not confer mandamus jurisdiction over District Clerks upon the courts of appeals. Id.; see HCA Health Servs. Of Tex., Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992). Accordingly, we dismiss the petition for want of jurisdiction.

 

                                                                         PER CURIAM

Before Chief Justice Davis

      Justice Vance, and

      Justice Gray

Writ dismissed

Opinion issued and filed July 25, 2001

Do not publish

no","serif"'>art. I, § 11a

            Article I, section 11a of the Texas Constitution provides the following four scenarios under which an accused charged with a non-capital felony may be denied pretrial bail:

·                     the accused has been previously convicted of two felonies, the second conviction being subsequent to the first;

·                     the accused has committed a felony while on bail for a prior felony for which he has been indicted;

·                     the accused is charged with a felony involving the use of a deadly weapon after being convicted of a prior felony;

·                     the accused is charged with a violent or sexual offense committed while incarcerated for a prior felony.

Tex. Const. art. I, § 11a(a).

            The State contends that the second alternative applies in Tennell’s case because he was charged with felony theft after being released on bond for aggravated assault and he was later charged with evading arrest with a vehicle after being released on bond for the prior felony charges.

            However, for this provision to apply, “A district judge must hold a hearing wherein the state must show substantial evidence of the defendant’s guilt for the [latest felony charge] and the district judge must enter an order denying bond, all within seven days of the defendant’s arrest [for the latest felony charge].”  Pharris v. State, 165 S.W.3d 681, 690 (Tex. Crim. App. 2005) (quoting Neuenschwander v. State, 784 S.W.2d 418, 420 (Tex. Crim. App. 1990)); see Tex. Const. art. I, § 11a(a).[2]  The burden is on the State to affirmatively show compliance with the requirements of article I, section 11a.  Pharris, 165 S.W.3d at 690.

            Here, the State presented no evidence of Tennell’s guilt for any of the pending charges.  Nor did the trial court sign the order denying Tennell’s habeas application within seven days after his arrest.  Id. at 690-91.

Therefore, we reverse the order denying Tennell’s habeas application and remand this cause to the trial court for further proceedings consistent with this opinion.  Id. at 691.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Reversed and remanded

Opinion delivered and filed July 15, 2009

[CR25]

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[1]               Bail is currently set at $10,000 on the evading arrest charge by a judgment nisi issued on August 13, 2008.

[2]               Article I, section 11a(a) provides similar evidentiary requirements for each of the four scenarios under which an accused may be held without bail.  See Tex. Const. art. I, § 11a(a).