in Re: Peggy Dooley Welch

• Court: Court of Appeals of Texas
• Decided: August 15, 2007
• Docket: 12-07-00154-CR
• Status: Published

Opinion

                                                NO. 12-07-00154-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§                     

IN RE: PEGGY DOOLEY WELCH,           §          ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

            Peggy Dooley Welch seeks a writ of mandamus directing the trial court to rescind an alias capias warrant for her arrest, dismiss a bond forfeiture judgment nisi, and discharge her from probation.  We grant the requested relief.¹

Background

            The relevant facts are not in dispute.  Welch was convicted of the felony offense of retaliation following a jury trial on October 6, 1997.  The jury assessed punishment at four years of imprisonment, but determined that the sentence should be suspended and Welch should be placed on probation for a period of five years.  According to Welch, she began reporting for probation immediately following her sentencing.  She appealed her conviction to this court, and we affirmed her conviction in November 1998.  Dooley v. State, 999 S.W.2d 796 (Tex. App.–Tyler 1998, pet. ref’d).  Thereafter, the court of criminal appeals refused her petition for discretionary review, and we issued our mandate on July 15, 1999.

            No petitions to revoke Welch’s probation were filed.  On March 9, 2007, the trial court issued an order for Welch, her attorney, and the State to appear for a hearing on April 3, 2007.  Welch’s trial counsel filed an objection to the hearing and a motion to dismiss alleging that the trial court lacked jurisdiction because Welch’s probationary term had expired.  In their affidavits filed as part of the record of this proceeding, Welch’s trial counsel and the trial court’s coordinator disagree about the events leading up to April 3, 2007, but they agree that the scheduled hearing did not take place.  A hearing was held on April 4, 2007.  Neither Welch nor her counsel appeared at that hearing.  The trial court forfeited Welch’s pretrial bond, issued an alias capias warrant for her arrest, ordered that she be held without bond, and made a referral to the district attorney for consideration of whether Welch had committed the felony offenses of failure to appear and bail jumping.  The referral states that Welch did not appear on April 4, 2007 for a “mandate” hearing.

            Welch, according to her affidavit, did not learn of this action until ten days later when a letter from the trial court informed her that a warrant had been issued for her arrest.  According to Welch’s trial counsel’s affidavit, he made at least one informal effort to resolve the matter short of Welch’s being arrested.  Not being successful, Welch filed this original mandamus proceeding.  On Welch’s motion, we granted emergency relief, ordering the trial court to stay the arrest warrant pending further order.

Prerequisites to Mandamus

            Mandamus relief may be granted in a criminal case if the relator demonstrates (1) that there is no other adequate legal remedy and (2) that there is a clear and indisputable right to the relief sought.  See State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002).  The relator has a “clear right to the relief sought” when the merits of the relief sought are “beyond dispute.”  Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003).  The requirement of a clear legal right necessitates that the law plainly describes the duty to be performed such that there is no room for the exercise of discretion.  Id.  Stated another way, mandamus relief is appropriate if (1) the act sought to be compelled is purely ministerial and (2) there is no adequate remedy at law.  Winters, 118 S.W.3d at 775; Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987).  Mandamus relief is also appropriate to set aside an order entered by a trial court acting without jurisdiction when there is not another remedy.  See Patrick, 86 S.W.3d at 595–97; In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998); In re Hancock, 212 S.W.3d 922, 926 (Tex. App.–Fort Worth 2007, orig. proceeding).

Availability of Mandamus

            The trial court was without jurisdiction to issue an alias capias warrant for Welch’s arrest for two reasons.  First, the trial court lacked general jurisdiction over the case.  Second, the pretrial bond was no longer in effect, and so the trial court could not forfeit it or issue a warrant following a forfeiture of the bond.

            The State concedes that Welch’s probationary period has ended.²  A trial court has jurisdiction over a probationer during the probationary term.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 10 (Vernon 2006).  But absent statutory authority, express or implied, a trial court does not have general jurisdiction over a case after the mandate has issued.  Patrick, 86 S.W.3d at 594.  The trial court has special or limited jurisdiction to ensure that a higher court’s mandate is carried out and to perform other functions specified by statute, such as finding facts in a habeas corpus proceeding, determining entitlement to DNA testing, or other implicit functions.  Id.  The trial court has express statutory authority to discharge a person from probation.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a) (Vernon 2006).  Jurisdiction to require a person to be present for the discharge is not implied by the statute.  In light of the State’s concession, the undisputed fact that Welch was well past the end of her probationary period, and the absence of another jurisdictional basis for the trial court’s actions, the trial court lacked jurisdiction to do anything further in this case other than to discharge Welch from probation.  See Patrick, 86 S.W.3d at 594; Surety Corp. of America v. State, 550 S.W.2d 689, 690 (Tex. Crim. App. 1977) (trial court has no authority to hold hearing to resentence a probationer after receipt of mandate). 

            The trial court lacked jurisdiction to issue an alias capias warrant because the pretrial bond was no longer in effect after Welch began her probation.  A pretrial bond binds the surety and defendant for “any and all subsequent proceedings had relative to the charge.”  Tex. Code Crim. Proc. Ann. art. 17.09, § 1 (Vernon 2006).  But “subsequent proceedings” do not include anything that occurs after a motion for new trial has been overruled.  Surety Corp., 550 S.W.2d at 690; see also Tex. Code Crim. Proc. Ann. art. 17.08(5) (Vernon 2006) (“. . . but in no event shall the sureties be bound after such time as the defendant receives an order of deferred adjudication or is acquitted, sentenced, placed on community supervision, or dismissed from the charge.”).  The court of criminal appeals has held that a trial court does not have “jurisdiction over the case to take any action on the defendant’s bail bond” once probation has commenced.  Yarbrough v. State, 703 S.W.2d 645, 648 (Tex. Crim. App. 1985) (interpreting McConathy v. State, 544 S.W.2d 666, 668 (Tex. Crim. App. 1976)) (trial court has implicit authority to place a case on its docket after receipt of mandate where defendant is free on appeal bond and sentence is prison sentence); see also Reed v. State, 702 S.W.2d 738, 741 (Tex. App.–San Antonio 1985, no pet.).  The bond here was not an appeal bond, and the sentence was not a prison sentence.  Therefore, the trial court lacked jurisdiction to take action on Welch’s bail bond, to forfeit the bond, or to issue an alias capias warrant under Texas Code of Criminal Procedure, Article 23.05 following the forfeiture of the bond.

            With respect to the forfeiture of bond and the issuance of an alias capias, Welch has shown a clear right to relief.  Furthermore, we are persuaded that she lacks another legal remedy.  The harm she seeks to forestall is incarceration.³  Another remedy would come too late to prevent that harm.

            Finally, there is the issue of the discharge from probation.  The State indicates in its response that it communicated to Welch’s attorney that it did not object to dismissal of the matter.  Discharge from probation is a nondiscretionary, ministerial act.  See Cuellar v. State, 70 S.W.3d 815, 820 (Tex. Crim. App. 2002) (“In sum, a person who successfully completes all of the terms and conditions of community supervision must be discharged from community supervision.  This is not a discretionary matter.”).  The State does not argue that Welch has not successfully completed her probation.  There is no provision for an appeal from a trial court’s refusal to grant a request to discharge a person from probation.  Therefore, Welch has met the requirements for mandamus relief with respect to the order of discharge.

Conclusion

            Because Welch has fulfilled all requirements for mandamus relief, we conditionally grant the writ of mandamus and direct Respondent to withdraw the alias capias warrant, dismiss the judgment nisi entered relative to the bond forfeiture, and enter an order discharging Welch from probation.  We trust that the trial court will promptly take these actions.  The writ will issue only if the trial court fails to comply with this court’s opinion and order within ten days.  The trial court shall furnish this court, within the time for compliance with this court’s opinion and order, a certified copy of its order evidencing such compliance.

                                                                                                     SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered August 15, 2007.

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

(PUBLISH)

---

¹ The respondent is the Honorable Cynthia S. Kent, Judge of the 114th Judicial District Court of Smith County, Texas.  The real party in interest is the State of Texas.

² Welch claims that she began serving her probationary term after her sentence was imposed in 1997, and there are documents that support that assertion.  Even if Welch’s probationary period begun when we issued our mandate in 1999, her five year probationary term would have ended in 2004.

³ According to trial counsel’s affidavit, the trial court indicated to him in a conversation in March 2007 that it intended to consider whether to order Welch to report to probation.