Perry, Michael Dean

• Court: Court of Criminal Appeals of Texas
• Decided: February 10, 2016
• Docket: WR-62,970-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-62,970-06

IN RE MICHAEL DEAN PERRY, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 42,139-A IN THE 188TH DISTRICT COURT FROM GREGG COUNTY

Per curiam.

ORDER

Relator filed a motion for leave to file a writ of mandamus pursuant to the original

jurisdiction of this Court. In it, he contended that he filed an application for a writ of habeas corpus

in the 188th District Court of Gregg County, that more than 35 days had elapsed, and that the

application had not yet been forwarded to this Court.

The District Clerk responded to this Court’s abatement order. According to the response,

Relator filed two 11.07 writ applications on June 15, 2015. On the State’s motion, the District Judge

signed an order finding that the writ applications were non-compliant with the Rules of Appellate

Procedure, and directing the District Clerk to return the writ applications to Relator. The District 2

Attorney kept a copy of one of the writ applications, but “discarded the other 800 plus pages,” as it

was expected they would be part of a re-filed writ application.

The Rules of Appellate Procedure, effective January 1, 2014, state that, “[t]he district clerk

of the county of conviction shall accept and file all Code of Criminal Procedure article 11.07

applications.” TEX . R. APP . P. 73.4(a) (West 2016) (eff. Jan. 1, 2014). Rule 73.2, which formerly

authorized district clerks to return writ applications that were not on the form to applicants, now says

that this Court “may dismiss an application that does not comply with these rules.” TEX . R. APP . P.

73.2 (West 2016) (eff. Jan. 1, 2014).

The District Judge’s order contravened clearly controlling legal principles, and caused the

District Clerk to violate her ministerial duty to file the writ applications and forward them to this

Court in accordance with Chapter 11 of Code of Criminal Procedure and Rule of Appellate

Procedure 73. However, because the District Clerk does not have Relator’s writ applications, and

the District Attorney has only an incomplete copy of one of the writ applications, Relator has no

remedy apart from re-filing his writ applications. Therefore, his motion for leave to file an

application for a writ of mandamus is denied.

While this mandamus action was pending, Relator filed a motion to waive service and several

motions to supplement. The motions contain many pages of exhibits, which appear to be from or

related to his habeas corpus applications. His motions are dismissed. All motion exhibits shall be

returned to Relator.

Filed: February 10, 2016

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