Opinion
No. 05-08-00064-CV
Opinion issued February 5, 2008.
Original Proceeding from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F05-26300-J.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Relator contends the trial judge violated a ministerial duty by not ruling on relator's motion asking the trial judge to order the Dallas County District Clerk to produce the transcripts of relator's trial proceedings. Relator asserts he needs the trial record to prepare an application for post-conviction writ of habeas corpus. We conclude we do not have jurisdiction over this original proceeding and dismiss the petition.
While courts of appeals have mandamus jurisdiction in criminal matters, see Tex. Gov't Code Ann. § 22.221 (Vernon 2004), only the Texas Court of Criminal Appeals has jurisdiction in final post-conviction habeas corpus proceedings. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2007); In re McAfee, 53 S.W.3d 715, 717 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding). "Article 11.07 contains no role for the courts of appeals; the only courts referred to are the convicting court and the Court of Criminal Appeals." In re McAfee, 53 S.W.3d at 718. If an applicant finds it necessary to complain about an action or inaction of the convicting court, the applicant may seek mandamus relief from the Texas Court of Criminal Appeals. Id.
Because in this case relator ties his right to mandamus relief specifically to his intent to file a post-conviction application for writ of habeas corpus, we conclude we do not have jurisdiction over the complaint. In reaching this conclusion, we recognize a sister court of appeals concluded it did have jurisdiction to address a similar complaint. See In re Christensen, 39 S.W.3d 250, 251 (Tex.App.-Amarillo 2000, orig. proceeding). However, because intermediate appellate courts have no role in post-conviction habeas corpus proceedings, we conclude the better practice is to not assert jurisdiction over original proceedings that are related to post-conviction habeas corpus proceedings, but rather to require that the relator seek relief from the Texas Court of Criminal Appeals. Cf. In re McAfee, 53 S.W.3d at 718.
Accordingly, we dismiss relator's petition for writ of mandamus for want of jurisdiction.