in Re Kevin Elijah Stephen

• Court: Court of Appeals of Texas
• Decided: September 10, 2021
• Docket: 02-21-00266-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00266-CV ___________________________

IN RE KEVIN ELIJAH STEPHEN, Relator

Original Proceeding Criminal District Court No. 4 of Tarrant County, Texas Trial Court No. 1394791D

Before Sudderth, C.J.; Kerr and Walker, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

Relator filed this mandamus proceeding asking that we compel the trial court to

rule on the merits of his habeas application or forward his application to the Court of

Criminal Appeals. Relator asserts that he was arrested on a parole revocation warrant

but has not received a parole revocation hearing and that he filed an application for

habeas relief on which the trial court has taken no action. This court has considered

relator’s petition for writ of mandamus and is of the opinion that relief must be

denied.

Although parole is a form of restraint from which an applicant may pursue

post-conviction remedies under Code of Criminal Procedure Article 11.07, only the

Court of Criminal Appeals has jurisdiction to grant such relief. Tex. Code Crim. Proc.

Ann. art. 11.07; Bd. of Pardons & Paroles ex rel. Keene v. Ct. of App. for Eighth Dist., 910

S.W.2d 481, 483–84 (Tex. Crim. App. 1995). Neither this court nor the trial court

may determine the merits of relator’s habeas application. See Keene, 910 S.W.2d at 484;

cf. In re Belton, No. 12-13-00293-CR, 2014 WL 2003108, at *2 (Tex. App.—Tyler May

14, 2014, orig. proceeding) (mem. op.) (holding that the trial court had no duty to rule

on Belton’s mandamus petition based on parole revocation irregularities because the

trial court had no jurisdiction to grant relief). Further, we have no authority to

compel the trial court to rule on any matters related to relator’s pending application or

to compel the trial court clerk to forward relator’s application to the Court of

Criminal Appeals. See Tex. Gov’t Code Ann. § 22.221; In re Sheppard, No. 02-17-

1 00141-CV, 2017 WL 2351094, at *1 (Tex. App.—Fort Worth May 5, 2017, orig.

proceeding) (per curiam) (mem. op.) (stating that this court has no mandamus

jurisdiction over trial court clerk); In re Bluitt, No. 02-13-00420-CV, 2013 WL

6579142, at *1 (Tex. App.—Fort Worth Dec. 13, 2013, orig. proceeding) (per curiam)

(mem. op.) (noting that applicant complaining about convicting court’s inaction on

habeas petition should seek mandamus relief from the Court of Criminal Appeals).

Accordingly, relator’s petition for writ of mandamus is denied.

Per Curiam

Delivered: September 10, 2021