Lerma, Guadalupe

• Court: Court of Criminal Appeals of Texas
• Decided: June 17, 2009
• Docket: WR-72,119-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-72,119-01

GUADALUPE LERMA, Relator

v.

FORT BEND DISTRICT CLERK, Respondent

ON APPLICATION FOR A WRIT OF MANDAMUS

CAUSE NO. 40504 IN THE 268th JUDICIAL DISTRICT COURT

FROM FORT BEND COUNTY

Per curiam.

O R D E R

Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus in the 268th Judicial District Court of Fort Bend County, the trial court subsequently entered an untimely Order Designating Issues (ODI), and that the application has not yet been forwarded to this Court. This Court has held that, if an ODI is not entered within the allotted period of time, the district clerk is required to forward the application because an untimely ODI interferes with the district clerk's duty to transmit it to the Court and is therefore without effect. Gibson v. Dallas County District Clerk, 275 S.W.3d 491 (Tex. Crim. App. 2009); Dejean v. Dallas County District Clerk, 259 S.W.3d 183 (Tex. Crim. App. 2008); Martin v. Hamlin, 25 S.W.3d 718 (Tex. Crim. App. 2000).

In these circumstances, additional facts are needed. The respondent, the District Clerk of Fort Bend County, is ordered to file a response, which may be made by: submitting the record on such habeas corpus application; submitting, along with an explanation regarding the pertinent filing dates, a copy of a timely filed order which designates issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex. Crim. App. 1992); stating that the nature of the claims asserted in the application filed by Relator is such that the claims are not cognizable under Tex. Code Crim. Proc. art 11.07, § 3; or stating that Relator has not filed an application for habeas corpus in Fort Bend County. This application for leave to file a writ of mandamus shall be held in abeyance until the respondent has submitted the appropriate response. Such response shall be submitted within 30 days of the date of this order.

Filed: June 17, 2009

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