in Re Michael Jon Bailey

• Court: Court of Appeals of Texas
• Decided: May 2, 2013
• Docket: 10-13-00117-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00117-CR

IN RE MICHAEL JON BAILEY

Original Proceeding

MEMORANDUM OPINION

Michael Jon Bailey has presented this Court with a “Petition for Writ of

Prohibition Nun (sic) Pro Tunc” against the Justice Court, Precinct 3, of Johnson County

for actions that have already occurred and the County Courts at Law Numbers 1 and 2

of Johnson County, for actions that may occur. The petition is 26 pages and attached to

it is an appendix of over 100 pages that is not indexed and not sequentially numbered.

The appendix consists of a number of documents identified as separate appendices and

there are a number of documents in each. Further, Bailey has filed a 46 page “Brief in

Support of Petition for Writ of Prohibition Nun (sic) Pro Tunc/Please Take Judicial

Notice.” It is difficult to follow what Bailey’s current complaint is or exactly what relief he

seeks. This is in large part because he does not comply with the procedural

requirements of original proceedings—including, but not limited to, a concise statement

of issues presented for relief, a clear and concise argument for the contentions made,

and a proper appendix and record containing certified or sworn copies of the

documents upon which the relief is requested. See TEX. R. APP. P. 52.3(f), (h); 52.3(k);

52.7. Thus, his petition lacks the focus necessary to assist the Court in deciding if he is

entitled to any relief. However, to expedite a decision in this proceeding, we use Rule 2

to suspend the rules and overlook these and other deficiencies. See TEX. R. APP. P. 2.

Writ of Prohibition of “Lower Courts”

Generally, a writ of prohibition issues to prevent the commission of a future act.

State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985). It will not be

granted when the act sought to be prevented is already done. Id. A writ of mandamus,

on the other hand, operates to undo or nullify an act already performed. Id. In order to

show that he is entitled to extraordinary relief by either of these methods, an applicant

must demonstrate that: (1) he has no other adequate remedy at law; and that (2) he is

clearly entitled to the relief sought. Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App.

1993); Id.

In October of 2011, Bailey was charged with the traffic offenses of failure to

display a valid vehicle license registration and of failure to be secured by a safety

In re Bailey Page 2 restraint (seat belt). It appears, and we gather this observation primarily from his

prayer for relief, that Bailey seeks a writ to prohibit the County Courts at Law Numbers

1 and 2 of Johnson County from proceeding on appeal with the prosecution of these

charges against Bailey, holding Bailey prisoner, sentencing Bailey, and making any and

all demands on Bailey when no jurisdiction has been proven on the record.

The most fundamental of Bailey’s complaints is that after he challenged the

jurisdiction of the Justice Court, the court failed to place “written proof of jurisdiction

upon the record.” We note that the justice courts of Johnson County are not courts of

record. Further, there is no need to make such a record because any judgment may be

appealed, and the appeal is by trial de novo. TEX. CODE CRIM. PROC. ANN. art 45.042(b)

(West 2006). Thus, what occurred in the Justice Court is immaterial if properly

appealed. A record is made in the County Court to which the appeal is taken. Any

error in asserting jurisdiction at that level, including its invocation through the appeal

of a judgment and sentence from a justice court, may be appealed.

But, more fundamentally to addressing Bailey’s complaint as applied to

proceedings in either court, is that it is not incumbent on the court to place its basis for

jurisdiction on the record. To do this in every case or even in those cases where the

jurisdiction is challenged would be a waste of judicial resources. Moreover, by proving

the elements of the crimes committed by Bailey, the State proved that Bailey has

In re Bailey Page 3 violated the penal statutes of the State within the territorial jurisdiction of the justice

court. See TEX. CODE CRIM. PROC. ANN. art 45.019(a), (b) (West 2006).

It also appears that Bailey seeks a writ to prohibit the County Courts at Law

Numbers 1 and 2 of Johnson County from prosecuting Bailey when the Courts did not

provide sworn complaints at least a day before any proceeding. There is nothing in the

documents attached to Bailey’s petition that indicate the County Courts at Law are in

the process of doing anything against Bailey that would entitle him to the relief sought.

See TEX. R. APP. P. 52.3(k); 52.7. He received notice of the charges against him by receipt

of the citation at the time of the offense. See Petition Ex. D401. The criminal complaint

is a different document and is timely served if it is delivered to Bailey no later than one

day before trial. TEX. CODE CRIM. PROC. ANN. art 45.018(b) (West 2006). Moreover, any

alleged error about the timeliness of the complaint is capable of being reviewed/cured

by his appeal to the County Court at Law. According to the documents presented by

Bailey, he has now had the complaint since October 19, 2012.

Bailey also seeks a writ to prohibit “all inferior courts,” presumably the Justice

Court about which he complains in his petition, the County Courts, and District Courts

from exercising jurisdiction, making any demands, or calling Bailey to answer any

complaint regarding these charges without first proving jurisdiction and providing the

complaint in a timely manner; from prosecuting Bailey when there is no injured party

or no injured party is present in court; and from criminally prosecuting Bailey as a

In re Bailey Page 4 fictitious corporate entity. All documents attached to Bailey’s petition indicate that any

action sought to be prevented in the Justice Court has already been done. Bailey

included notices and docket entries by the Justice Court which indicated Bailey initially

pled not guilty but subsequently, when he appeared for trial, pled no contest to the two

traffic offenses and was fined for those offenses. A writ of prohibition would not issue

in this instance.

In any event, if Bailey is requesting a writ of prohibition against the District

Court, County Courts at Law, or the Justice Court, we have no jurisdiction to enter such

a writ in a criminal law matter. In re Ruston, No. 05-13-00417-CV, 2013 Tex. App. LEXIS

4268 (Tex. App.—Dallas Apr. 3, 2013, orig. proceeding) (mem. op.); Allen v. Guarino, 635

S.W.2d 129, 129 (Tex. App.—Houston [1st Dist.] 1981, orig. proceeding). The Texas

Constitution and the Texas Code of Criminal Procedure grant the Court of Criminal

Appeals the power and authority to issue writs of prohibition in criminal matters. 1 TEX.

CONST. art. V, § 5(c) (“…the Court of Criminal Appeals and the Judges thereof shall

have the power to issue the writ of habeas corpus, and, in criminal law matters, the

writs of mandamus, procedendo, prohibition, and certiorari.”) (emphasis added); TEX.

CODE CRIM. PROC. art. 4.04, § 1 (West 2005) (“The Court of Criminal Appeals and each

judge thereof shall have, and is hereby given, the power and authority to grant and

1 Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution, are criminal law matters. Curry v. Wilson, 853 S.W.2d 40, 43 (Tex. Crim. App. 1993).

In re Bailey Page 5 issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the

writs of mandamus, procedendo, prohibition, and certiorari.”) (emphasis added). The

intermediate appellate courts, such as this Court, were not given the same power or

authority. See TEX. CONST. art. V, § 6; TEX. CODE CRIM. PROC. art. 4.03 (West Supp. 2012).

Accordingly, to the extent Bailey is requesting a writ of prohibition, his request is

dismissed.

Mandamus of Justice Court

If Bailey is actually also requesting a writ of mandamus to issue against the

Justice Court for acts already completed, his request suffers the same fate as his writ of

prohibition. We have no jurisdiction to issue a writ of mandamus against a judge of a

justice court. See TEX. GOV'T CODE ANN. § 22.221(b) (West 2004) (“Each court of appeals

for a court of appeals district may issue all writs of mandamus…against a: (1) judge of

a district or county court in the court of appeals district*.+”).

To the extent Bailey requests a writ of mandamus against the Justice Court, it is

Mandamus of Prosecutor

In addition to the above requested prohibitions, Bailey demands that we order

the prosecutor to prove jurisdiction on the record, answer the affidavits and motions by

Bailey challenging jurisdiction and to dismiss with prejudice all causes it has against

Bailey. With this demand to “undo or nullify an act already performed,” see State ex rel.

In re Bailey Page 6 Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985), it appears Bailey demands a

writ of mandamus to issue against a prosecutor. As we have already explained, we

only have the power to issue writs of mandamus against certain judges. See TEX. GOV'T

CODE ANN. § 22.221(b) (West 2004).

Thus, a request, if any, for a writ of mandamus against the prosecutor is

Appeal of Conviction and Other Actions

In the alternative, Bailey demands that we reverse all actions in the underlying

causes and release Bailey from those complaints. We cannot reverse any actions

through a writ of prohibition or a writ of mandamus because Bailey had a remedy by

appeal. See State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 n. 9 (Tex. Crim. App. 1985)

(prohibition); Hazen v. Pickett, 581 S.W.2d 694 (Tex. Crim. App. 1979) (mandamus).

If Bailey is attempting to appeal by this petition the Justice Court’s actions, the

appeal is too late. Generally, a notice of appeal in a criminal case must be filed within

30 days after the day sentence is imposed or suspended in open court. TEX. R. APP. P.

26.2(a)(1). But an appeal of a justice court judgment and sentence must be perfected by

an appeal bond filed with the justice who heard the case not later than the 10th day

after the date the judgment was entered. TEX. CODE CRIM. PROC. ANN. art 45.0426(a)

(West 2006). It appears Bailey was sentenced on June 13, 2012. Thus, Bailey’s notice of

appeal would have been due July 13, 2012. Further, appeals from convictions in the

In re Bailey Page 7 justice court are to the county court at law, not this Court. See TEX. CODE CRIM. PROC.

ANN. art. 45.042 (West 2006). We are unable to tell from the documents presented if

Bailey properly and timely appealed his conviction to the County Court at Law as was

his right. Nevertheless, he has failed to properly invoke our jurisdiction for an appeal.

Relief Against District Courts

Finally, at one point in the petition, Bailey references the District Court’s refusal

to become involved in his dispute with the County Courts at Law. It is unclear from

what Bailey has presented what his request was or how the court may have erred. This

complaint is dismissed as inadequately briefed. See TEX. R. APP. P. 38.8(i).

CONCLUSION

For the reasons stated, Bailey’s petition is dismissed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Petition dismissed Opinion delivered and filed May 2, 2013 Do not publish [OT06]

In re Bailey Page 8