in Re: Michael A. Kennedy
12-17-00219-CR
| Tex. App. | Jul 31, 2017Background
- Relator Michael A. Kennedy filed an original mandamus petition asking this Court to treat his petition as a civil cause and to recuse the court from a purported civil proceeding in Anderson County.
- Kennedy has a criminal conviction with direct appeals previously resolved by this Court; he continues to seek post-conviction relief in various fora.
- Kennedy has repeatedly filed mandamus petitions in this Court and applications in the Court of Criminal Appeals; the latter has issued abuse-of-writ findings against him.
- The mandamus filing failed to comply with Texas R. App. P. 52.3(h) (argument and citations) and omitted required appellate documents under rules 52.3(k) and 52.7(a)(1).
- Kennedy had not perfected an appeal from any civil case (no proper notice of appeal, no final judgment or appealable order shown), so this Court lacked jurisdiction over any civil appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition should be treated/filed as a civil cause | Kennedy: his filing relates to a civil suit and the Court should treat it as civil | Court: no properly perfected appeal or showing of a pending civil case; procedural requirements unmet | Denied — no civil filing before the court; cannot be deemed civil without perfected appeal or final order |
| Whether this Court must recuse from the purported Anderson County civil proceeding | Kennedy: requests recusal of this Court from that civil proceeding | Court: recusal rules apply to judges actually presiding over a pending case; no pending appeal or civil case shown here | Denied — recusal rules not triggered absent a pending case before this Court |
| Jurisdiction — whether this Court has jurisdiction over an appeal from the alleged civil suit | Kennedy: claims an appeal/related civil matter exists | Court: appeal not perfected (no proper notice); no final judgment or appealable order presented | No jurisdiction — appeal not perfected; Court cannot act on a nonappealable matter |
| Compliance with appellate rules for mandamus petitions | Kennedy: (implicitly) merits review requested despite form deficiencies | Court: petition lacks clear argument, citations, and required documents per Tex. R. App. P. 52.3(h), 52.3(k), 52.7(a)(1) | Denied — procedural noncompliance supports denial of mandamus relief |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final judgment is required to invoke appellate jurisdiction)
- Rusk State Hosp. v. Black, 379 S.W.3d 283 (Tex. App.—Tyler 2010) (discussing appellate jurisdiction and finality), aff'd, 392 S.W.3d 88 (Tex. 2012)
- Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (mandamus is not a substitute for post-conviction habeas corpus relief)
- In re McAfee, 53 S.W.3d 715 (Tex. App.—Houston [1st Dist.] 2001) (courts of appeals lack authority to grant mandamus for matters properly raised in post-conviction habeas)