Opinion
No. 09-07-353 CV
Opinion Delivered August 2, 2007.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Roy Anthony Foley filed a petition for writ of mandamus in this Court. See Tex. R. App. P. 52. The relator seeks to compel the District Clerk of Montgomery County and the judge presiding in the convicting court to transmit a copy of his application for writ of habeas corpus and related documents to the Court of Criminal Appeals. It appears the State filed its initial indictment in Cause No. 02-05-03258-CR, and filed a subsequent indictment in Cause No. 02-05-03563-CR. After the trial court denied the relator's pre-trial motion to quash the indictment in Cause No. 02-05-03563-CR, Foley challenged the indictment in a pre-trial application for writ of habeas corpus. It appears the trial court did not issue a writ of habeas corpus or rule on the merits of Foley's application before trial in cause No. 02-05-03563-CR. We affirmed the judgment in an unpublished opinion. See Foley v. State, No. 09-03-097 CR, 2004 WL 1299984 (Tex.App.-Beaumont June 9, 2004, pet. ref'd). Apparently the trial court dismissed the indictment in Cause No. 02-05-03258-CR. Foley claims he asked the district clerk to forward his application for writ of habeas corpus to the Court of Criminal Appeals on November 30, 2004. The Court of Criminal Appeals denied Foley's application for writ of habeas corpus without a written order. See Ex parte Foley, WR-16599-07 (Tex.Crim.App. Jan.11, 2006); see also Foley v. Quarterman, No. H-07-0384, 2007 WL 1256619 (Apr. 30, 2007) (dismissing federal habeas proceeding for failure to file within limitations period as tolled by the filing of the proceeding in WR-16599-07).
To be entitled to mandamus relief, the relator must demonstrate that the respondents violated a ministerial duty and that appeal would not be an adequate remedy. Deleon v. District Clerk, 187 S.W.3d 473, 474 (Tex.Crim.App. 2006) (orig. proceeding). As an intermediate appellate court, our authority to issue a writ of mandamus extends only to district and county judges in our district and to other parties only when necessary to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004). The relator's petition for writ of mandamus fails to establish that relief against the district clerk is necessary to enforce our jurisdiction. See In re McAfee, 53 S.W.3d 715, 718 (Tex.App.-Houston [1st Dist.] 2001, orig. proceeding). Likewise, the relator's petition fails to establish that the trial court violated a ministerial duty that could not be remedied on appeal. See Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex.Crim.App. 2003).
Accordingly, we deny the relator's petition for writ of mandamus.
PETITION DENIED.