Texas Department of Criminal Justice-Institutional Division v. Jeanette Utz

• Court: Court of Appeals of Texas
• Decided: January 24, 2007
• Docket: 10-06-00091-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00091-CV

Texas Department of Criminal

 Justice-Institutional Division,

                                                                      Appellant

 v.

Jeanette Utz,

                                                                      Appellee

From the 278th District Court

Madison County, Texas

Trial Court No. 05-10875-278-01

MEMORANDUM  Opinion

          Appellant, Texas Department of Criminal Justice—Institutional Division, after filing a notice of appeal, notified this Court that a settlement agreement had been reached and requested an abatement of the appeal during the settlement process.  The appeal was abated.

          TDCJ now advises this Court that the case has been fully settled and asks to dismiss the appeal.  The appeal is reinstated and is dismissed.  See Tex. R. App. P. 42.1(a)(1).

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal reinstated and dismissed

Opinion delivered and filed January 24, 2007

[CV06]

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      When a trial court refuses to hear a habeas application, “an applicant’s remedies are limited. Some remedies available to an applicant in that situation are to present the application to another district judge having jurisdiction, or under proper circumstances, to pursue a writ of mandamus.” Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991); Ex parte Gonzales, 12 S.W.3d 913, 914-15 (Tex. App.—Austin 2000, pet. ref’d); accord In re Davis, 990 S.W.2d 455, 457 (Tex. App.—Waco 1999, orig. proceeding). The only “proper circumstances” for mandamus relief identified by the Court in Hargett occur when a trial court refuses to hear a pretrial habeas application challenging the constitutionality of a statute under which the accused is charged. See Hargett, 819 S.W.2d at 868 n.13 (citing Von Kolb v. Koehler, 609 S.W.2d 654, 655-56 (Tex. Civ. App.—El Paso 1980, orig. proceeding)).

      Although Teal’s remedies have been described as “limited,” he clearly does have a remedy. This remedy, as described in Hargett, is to present his habeas application to another district judge. See Hargett, 819 S.W.2d at 868; Gonzales, 12 S.W.3d at 914-15; Davis, 990 S.W.2d at 457. Because Teal has an adequate legal remedy, we deny his petition for mandamus relief.

                                                                   PER CURIAM 

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Writ denied

Opinion delivered and filed July 26, 2000

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