Lead Opinion
OPINION
Relator seeks to invoke this Court’s original jurisdiction to issue writs of mandamus pursuant to Article 5, § 5 of the Texas Constitution.
Relator was convicted by a jury of felony theft on January 14, 1987, and the jury assessed punishment at five years probation and a $5,000 fine. Thereafter, on February 13,1987, relator timely filed a motion for new trial alleging newly discovered evidence. This motion was overruled by operation of law on March 27, 1987. Relator timely filed notice of appeal on April 13, 1987, and perfected his appeal. Relator failed, however, to file the transcript and statement of facts in the Court of Appeals on or before April 24, 1987, one hundred days after sentencing, as required by Rule 54(b) of the Texas Rules of Appellate Procedure.
The Rules of Appellate Procedure provide that “an extension of time may be granted by the Court of Appeals if a motion reasonably explaining the need therefor is filed by the appellant not later than fifteen days after the last date for filing the record”. Tex.R.App.Pro. 54(c). Thus, counsel for relator had until May 9, 1987, to request an extension of time for filing the statement of facts.
The record reveals, however, that a letter dated May 7, 1987, was written to relator’s attorney, Rod Ponton, over the signature of a deputy clerk of the respondent Court. That letter informed counsel that the record had been due on April 24, 1987, but that an extension of time was possible if requested timely and appropriately drafted. The letter concluded:
The record has not been received by this Court and no motion to extend the time for filing the same has been filed. The Court mil dismiss the attempted appeal on its own motion ten days after the fifteen-day period above provided expires on May 9, 1987, unless the record or a timely motion to extend time for filing the same is received, (emphasis added).
Apparently interpreting the letter to authorize the late filing of a motion for extension,
Ponton then filed an “Original Petition for Writ of Habeas Corpus” on relator’s behalf in the 120th Judicial District Court of El Paso County on August 21, 1987, praying that his appeal be abated to April 13, 1987, the date relator filed notice of appeal. In this application, relator alleged he was illegally restrained by virtue of his conviction, and he invoked certain rules of the Texas Rules of Appellate Procedure against the Court of Appeals’ actions and omissions. Relator further asserted:
Applicant is entitled to one appeal as of right, as mandated by the Supreme Court of the United States. Douglas v. California,372 U.S. 353 [83 S.Ct. 814 ,9 L.Ed.2d 811 ] (1963). Further, the Sixth and Fourteenth Amendments of the United States Constitution mandate that Applicant receive effective assistance of counsel on his first appeal as of right, and that, should an appeal be dismissed for failure to comply with a State Appellate Rule, such appeal must be remanded to the State Court of Appeals for a full and fair hearing of the merits of the appeal. Evitts v. Lucy [Lucey]469 U.S. 387 [105 S.Ct. 830 ,83 L.Ed.2d 821 ] (1986).
On September 10, 1987, the district court convened a hearing on the matter at which the State appeared through counsel and evidence was taken. In support of his application, relator filed a post-hearing brief citing this Court’s opinion in Ex parte Renier,
The district judge repeatedly expressed his belief that he could not effectively order the respondent Court of Appeals to do anything. Nevertheless, the district court, apparently taken with the equity of the situation as to relator and pursuant to Article 5, § 8 of the Texas Constitution, granted relator the relief prayed for in the application, to wit: an out-of-time appeal.
Relator then filed this petition for what he denominates a Writ of Mandamus directly in this Court. Relator requests this Court to compel the Court of Appeals to comply with the district court's order granting him an out-of-time appeal. In this petition, relator contends that he has no
In Renter, supra, we held that Art. 11.07, supra, applies only where a defendant is “confined” pursuant to a final felony conviction. Id. at 351. The applicant in Renter, supra, was convicted of felony theft and placed on probation. Where a habeas corpus petitioner has been granted probation and it has not been revoked, the defendant is not confined and the conviction is not final for purposes of Art. 11.07, supra. Renter, supra; Ex parte Twyman,
The Renter applicant was not without recourse, however. Applying the rationale of Ex parte Crosley,
The Eighth Court of Appeals contends that Renter, supra, does not apply to relator’s cause in that Renter, supra, dealt with the relationship between habeas corpus jurisdiction under Art. 11.07, supra, and other general habeas corpus jurisdiction. The Court of Appeals perceives the issue in this case as a conflict between appellate relief and habeas corpus relief and argues that relator cannot relitigate the adverse procedural ruling of the Court of Appeals through a writ of habeas corpus. The gist of the Court of Appeals’ argument is that relator should have sought discretionary review from this Court prior to filing the writ of habeas corpus with the district court, and having failed to do that, relator is barred from using the writ as a substitute for an appeal. Although it is true that habeas corpus should not be used as a substitute for an appeal, Ex parte Clore,
In State ex rel. Rodriguez v. Onion,
We find this provision [Art. 11.05, supra] to be dispositive on the issue of jurisdiction.
Id. at 434. Further, in discussing Art. V, § 8 of the Texas Constitution, and specifically addressing whether district courts had habeas corpus jurisdiction in all cases except where “exclusive, appellate or original jurisdiction may be conferred by this Constitution or other law on some other
There is no grant of jurisdiction to the county courts which precluded a District Court from exercising its plenary power over issuance of writs of habeas corpus in misdemeanor actions”
Thus, we believe the dissent errs in saying "... neither the statutes contained in Chapter 11 of our Code of Criminal Procedure, nor Article V, Section 8 of the Texas Constitution, which defines jurisdictional limitations of the district courts, provide for a hearing or an order as was entered by the trial court in this instance.” (emphasis supplied). It is simply illogical to read the wording in Article V, § 8 as jurisdictionally restrictive in a district court habeas corpus case involving the granting of an out of time appeal after having just read it juris-dictionally expansive in a district court ha-beas corpus case involving relief under a misdemeanor conviction. We are dealing with the same writ of habeas corpus in both instances, although the present case gives the appearance of dealing with a different hierarchy. It is the appearance that here we have a district court interfering with an appellate court’s jurisdiction instead of that of a county court that forms the basis of the dissent’s complaint, so to that we now turn.
In discussing the idea that our ruling today “tum[s] a segment of our criminal justice system on its head” by allowing a “lower” district court to grant an out of time appeal after a “higher” court of appeals affirms an appellant’s conviction, one must keep in mind that this is not a case where the district court is attempting to encroach into a matter pending before the Court of Appeals, such as would be prohibited by the constitutional language denying the district court habeas jurisdiction where “exclusive, appellate or original jurisdiction may be conferred ... on some other court”. This is a case where the appellate court has concluded with relator’s appeal and thus has relinquished its traditional jurisdiction over the relator’s appeal. Thus, the district court is exercising its plenary power over the relator and the State of Texas as represented by the district attorney, not over the Court of Appeals.
Article 11.01, V.A.C.C.P., defines writ of habeas corpus as “the remedy to be used when any person is restrained in his liberty.” (emphasis added). Article 11.22, V.A. C.C.P., defines restraint as “the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.” Although a post “final” conviction writ of habeas corpus pursuant to Art. 11.07, supra, mandates that the applicant be “in custody” before the writ is entertainable by this Court, see Renier, supra, the writs of habeas corpus under Art. 5, § 8 of the Texas Constitution and under Art. 11.05, V.A.C.C.P., and Art. 11.-07, § 1, V.A.C.C.P., are not so limited. See discussion of Renier, supra. A writ of habeas corpus filed in the district court pursuant to its original jurisdiction demands only that the applicant be restrained under the definition of Art. 11.22, supra. In this case, relator’s probation began when the Court of Appeals dismissed his original appeal. Relator was therefore under restraint when he filed his writ of habeas corpus with the district court.
We hold that the district court had jurisdiction to entertain the writ of habeas corpus, and applicant in this cause properly invoked that jurisdiction by filing his writ with the district court. Thus, the district court had jurisdiction of the habeas application. Since the district court had this jurisdiction, it had the authority to grant an out-of-time appeal
In this way the applicant may, in some instances, be afforded all of the relief which the Court of Criminal Appeals or the Federal Court would afford him under the facts.
We will grant relator the requested relief if he meets the requirements for obtaining issuance of a writ of mandamus. There are two requirements for obtaining a writ of mandamus: (1) the relator has no other adequate remedy at law; and (2) the act to be compelled is ministerial. Homan v. Hughes,
“In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate. See, e.g., Houston & T.C. Ry. Co. v. City of Dallas,98 Tex. 396 ,84 S.W. 648 , 656 (1905) (“there is not a plain, adequate, certain, and speedy remedy”); City of Highland Park v. Dallas Ry. Co.,243 S.W. 674 , 681 (Tex.Civ.App.—Dallas 1922, writ ref’d) (remedy must be “equally convenient, beneficial, and effective as the proceeding by mandamus”) ... Considering all of the above factors, we find that the remedies at law herein enumerated could not provide re-lators the same swift, exact and sure relief that is available through mandamus; nor could they provide remedies that are equally as convenient, beneficial and effective as mandamus.”
Finally, the act to be compelled, the filing and docketing of relator’s appeal by the Court of Appeals, is a ministerial one. We therefore hold that issuance of the writ of mandamus is proper in this cause.
Having concluded that the trial court had the jurisdiction to grant the relator an out of time appeal, we will conditionally grant the application for a writ of mandamus. Accordingly, the relator’s case is remanded to the Court of Appeals for proceedings not inconsistent with this opinion.
It is so ordered.
Notes
. There is no provision in the Rules of Appellate Procedure for extending the time to file a motion for extension of time to file the record.
. The district court did not indicate in its order granting the out-of-time appeal the basis for its decision to grant the appeal. Whether applicant was denied the effective assistance of counsel on original appeal is not an issue before us, and we therefore do not address it.
. There is ample authority to support the granting, via writ of habeas corpus, of an out-of-time appeal by the trial court. See Reed v. State,
. This Court regularly grants out-of-time appeals to habeas corpus applicants who have been denied a meaningful appeal. See e.g. Crawford v. State,
Concurrence Opinion
concurring.
Agreeing with the ultimate decision of the Court, I write to explicate my reasons for concurring in its grant of relief.
In his application for writ of habeas corpus filed August 21,1987, applicant alleged that he “is illegally restrained of his liberty by virtue of his conviction ... on January 14,1987, of the felony offense of theft over $750.00, in Cause No. 48455.” He then recounted posttrial and appellate developments summarized at the outset in the opinion of the Court; he invoked certain
“Applicant is entitled to one appeal as of right, as mandated by the Supreme Court of the United States. Douglas v. California,372 U.S. 353 [,83 S.Ct. 814 ,9 L.Ed.2d 811 ] (1963). Further, the Sixth and Fourteenth Amendments of the United States Constitution mandate that Applicant receive effective assistance of counsel on his first appeal as of right, and that, should an appeal be dismissed for failure to comply with a State Appellate Rule, such appeal must be remanded to the State Court of Appeals for a full and fair hearing of the merits of the appeal. Evitts v. Lucy [Lucey ],469 U.S. 387 [,105 S.Ct. 830 ,83 L.Ed.2d 821 ] (1986).”
Petition, at 5-6 (All emphasis throughout this opinion is mine unless otherwise indicated.).
The judge of the habeas court convened a hearing on the application September 10, 1987; the State appeared through counsel and evidence was taken.
In support of his application applicant submitted a posthearing brief directing attention to the opinion of this Court in Renier v. State,
Thus it is clear that applicant based his prayer for relief by way of granting an out of time appeal on the proposition that he suffered a dismissal of his initial appeal because of ineffective assistance of appellate counsel. The habeas court entered a written order finding, inter alia, that the court had jurisdiction and that applicant was entitled to the relief for which he prayed; accordingly, the court granted applicant an out of time appeal.
In Ex parte Renter, supra, confronting an applicant “who is at large but claims he may suffer ‘restraints’ from collateral consequences of a prior felony conviction,” the Court found such an applicant is not barred from seeking relief by way of habe-as corpus, viz:
“Accordingly, along the lines of Ex parte Crosley, [548 S.W.2d 409 (Tex.Cr.App.1977)], we hold that the constitutional and statutory provisions combine to provide a procedure for seeking, and jurisdiction, power and authority in district courts under Article Y, § 8, to grant relief and failing there, for appeal to a court of appeals, subject to discretionary review by this Court.”
Id., at 353.
Today the Court applies that holding to an applicant who also is at large but claims that he is suffering “restraints” from consequences of being on probation following dismissal of an appeal challenging the order placing him on probation.
Under Article 44.02, V.A.C.C.P., every defendant in any criminal action has a right of appeal under rules specified in Chapter Fortyfour, V.A.C.C.P. The State may not defeat that right where, e.g., appellate counsel is so ineffective that the purported appeal is dismissed. Evitts v. Lucey, supra.
A court with jurisdiction and power to determine an application for habeas corpus claiming denial of the valued constitutional right to effective assistance of counsel on appeal also possesses authority to sustain that claim and grant appropriate relief. A District Court finds all that in Article V, § 8. See, e.g., State ex rel. Rodriguez v. Onion,
Whether the court of appeal correctly dismissed the "purported appeal,” as the Presiding Judge opines in his dissenting opinion, at 3, is irrelevant. And for Judge Teague colloquially to call
Dismissal of the "purported appeal" is a fait accompli, creating the status of "restraint” about which applicant complains and from which he seeks relief. To grant an out of time appeal does not impugn or entrench on prior exercise by the court of appeals of its jurisdiction, power and authority to order the dismissal; without at all faulting the court of appeals, it merely provides a remedy for a right denied by defaulting circumstances resulting in dismissal.
Paradoxically, the Presiding Judge concedes that applicant has a right of action via habeas corpus, but he insists, sans justification or explication, that “only this Court has the authority to grant relief to this petitioner [sic],” id., at 2. That suggests honoring some notion of "judicial hierarchy."
A proceeding pursuant to Article 11.07, §§ 2 and 3, aside, issuing the writ of habeas corpus to restore the right of appeal to one who lost it through procedural misadventure of counsel is not an exclusive province of any court, state or federal, in this State. Such is the imperative of The Great Writ.
Concurrence Opinion
concurring.
I continue to adhere to what I stated in the dissenting opinion that I filed in Ex parte Renter,
In Ex parte Renter, this Court’s majority opinion ruled, inter alia, “that an applicant [who seeks] relief under Article 11.07, §§ 2 and 3 [V.A.C.C.P.] must be suffering collateral legal consequences of a final felony conviction while in confinement in order for this Court to grant relief.”
In Ex parte Renter, because this Court found that the defendant in that cause was not shown to be suffering from a final conviction and also was not shown to then be in confinement, a majority of this Court ruled that he could not seek habeas corpus relief under Art. 11.07 in this Court. The defendant’s application was dismissed without prejudice to file an original application for the writ of habeas corpus in a District Court. We are not privy to what later occurred, if anything.
In this instance, applicant sought and obtained from a District Court permission to belatedly pursue a direct appeal. The Eighth Court of Appeals has ruled that the District Court did not have jurisdiction to grant applicant an out-of-time appeal. Today, this Court is called upon to decide who wins the “turf war” that exists between these courts.
Although I did not expressly predict in the dissenting opinion that I filed in Ex parte Renter what havoc Ex parte Renter might in the future cause, I believe that the opinion is sufficiently clear to show that thereafter the members of the Courts of Appeals had my profoundest sympathy, and that Ex parte Renter would someday turn a segment of our criminal justice system on its head, which is what occurs by today’s majority opinion.
I believe that today’s decision is the fruit of the seed that this Court planted in Ex parte Renter. I also believe that those members of this Court who voted to join that opinion should be having a difficult time swallowing what must taste much like how many of us remember how castor oil tasted.
I believe that Ex parte Renter should have made it obvious to almost anyone that a District Court, rather than a Court of Appeals, or even this Court, see and compare, however, this Court’s decision of State ex rel. Wilson v. Briggs,
Who won the “turf war”? Under Ex parte Renter, the District Court, of course, did.
With these brief remarks, I join the majority opinion.
Dissenting Opinion
dissenting.
Without careful examination of the Constitution and statutes of the State of Texas, the majority determines that a trial court may, through its constitutional habeas corpus powers, order a Court of Appeals to hear an appeal which, under existing law, it has no authority or jurisdiction to hear. To give such authority to the trial courts of this State does indeed “turn a segment of our criminal justice system on its head.” The invitation which the majority today issues to the trial courts of this State to interfere with the jurisdiction of our Courts of Appeals will certainly be accepted by many well intentioned trial judges.
I believe we are all in agreement that Article 11.07, V.A.C.C.P., is totally inapplicable to this situation. Likewise, I believe we all recognize that, to a limited extent, the district courts of this State have certain constitutional authority to issue the writ of habeas corpus. However, neither the statutes contained in Chapter 11 of our Code of Criminal Procedure, nor Article V, Section 8 of the Texas Constitution, which defines the jurisdictional limitations of the district courts, provide for a hearing or an order as was entered by the trial court in this instance. Not only was the trial court in this case without jurisdiction to issue the order entered, the majority fails to recognize that mandamus is an extraordinary remedy which should be exercised with extreme caution and only in situations where the law requires the intervention of our jurisdiction.
Mandamus will lie only in situations where the respondent has a ministerial duty to act and where no other adequate remedy at law is available to the petitioner. The majority asserts that petitioner has no other adequate remedy at law because the time for appeal has expired. Such assertion ignores the fact that at the time the Court of Appeals in El Paso dismissed the purported appeal petitioner failed to file a petition for discretionary review to this Court within the time limits prescribed. Instead, petitioner sought ha-beas relief in the district court and, though he may be entitled to an out-of-time appeal, with the help of this Court, has forged a new remedy heretofore unknown to the jurisprudence of this State.
Even today, petitioner has an adequate remedy of law. That remedy at law is the only remedy that is available and is the one which this Court should require: an original habeas corpus application in this Court. In examining Chapter 11 of the Code of Criminal Procedure, the Constitution of the State of Texas and the case law which has developed, it is clear to me that this Court, and only this Court, has the authority to grant relief to this petitioner.
In summary, mandamus does not lie because there is an adequate remedy at law. Secondly, petitioner has failed to exercise the adequate remedy at law which was available to him at the time the Court of Appeals dismissed his purported appeal. To allow a trial court to dictate the jurisdiction of a superior court flies in the face of the orderly administration of justice and as such should not be tolerated. If this Court
The Court of Appeals was correct in dismissing this petitioner’s purported appeal and was correct in refusing to file the record of an out-of-time appeal which was ordered by the trial court. Although the petitioner’s contentions may have merit, to disregard our Texas Constitution and to establish a remedy which flies in the face of the separation of powers provisions of our Texas Constitution is to abandon the rule of law.
If Ex parte Renter,
By today’s opinion, the majority attempts to shirk the constitutional responsibilities that are vested in this Court and create a new remedy which may alleviate part of our already burdened docket. But such is not our function. It is the duty of this Court to operate within the confines of the Constitution of our great State and within the statutes that have been constitutionally written by our Texas Legislature. To allow the procedure that has been here created to become law may well save us from the obligation of addressing original habe-as corpus in many instances, but it will not do justice to the system that bears that name.
I must, therefore, for the reasons expressed, dissent to the action that the majority takes today.
Dissenting Opinion
dissentmg.
The majority opinion clearly follows from the holding and rationale of Ex parte Renter,
Under Renter, supra, this Court decided not to treat a probationer’s felony conviction as “final” for purposes of habeas review thereby depriving this Court of jurisdiction to hear a probationer’s habeas challenge. This interpretation results in granting jurisdiction in the district court to decide a probationer’s writ of habeas corpus. It is the application of the Renter rationale which inevitably leads to problems as exemplified in the case at bar and as a consequence turns the system of review upon its head.
I believe a more tenable approach is set forth in Judge Teague's well-written dissent to Renter,