in Re: Raymundo Leyva, Relator

NO. 07-02-0529-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E JANUARY10, 2003 ______________________________ IN RE RAYMUNDO LEYVA, RELATOR _______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. (1) MEMORANDUM OPINION (2) By this original proceeding, relator Raymundo Leyva, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Jack R. Miller, Judge of the 64th District Court of Hale County, to dismiss the complaint against him for violating his right to a speedy trial. For the reasons expressed herein, the petition for writ of mandamus must be denied. By his unverified factual assertions, (3) relator claims that he was charged with escaping from the Hale County Jail and although he gave a bond, has been incarcerated since 1998 without proceeding to trial. Relator further contends that he has requested the trial court to dismiss the complaint for violation of his right to a speedy trial. However, his petition does not contain a certified or sworn copy of any document showing the matter complained of as required by Rule 52.3(j)(1)(A) of the Texas Rules of Appellate Procedure. Asserting that the relief requested is a ministerial act, he urges this Court to dismiss the charge against him and grant him any further relief he may be entitled to. Mandamus is an extraordinary remedy available only in limited circumstances involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A relator is eligible for mandamus relief only when he can establish two prerequisites: (1) he has no other adequate remedy at law, and (2) under the relevant law and facts, the act he seeks to compel is ministerial. Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex.Cr.App. 1995). In Pope v. Ferguson, 445 S.W.2d 950, 955-56 (Tex. 1969), the Court held that a defendant seeking dismissal of an indictment on speedy trial grounds was not eligible for mandamus relief because he had an adequate remedy at law, to-wit: he could file a motion to set aside the indictment for violations of his right to a speedy trial pursuant to article 27.03 of the Texas Code of Criminal Procedure. Further, if the trial court erroneously denied the motion, he could appeal from any conviction that resulted. Id.; see also Zamorano v. State, 84 S.W.3d 643, 646 (Tex.Cr.App. 2002) (holding that a four-year delay denied the defendant his right to a speedy trial). More recently, in Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex.Cr.App. 1998), the Court reiterated that a defendant seeking to compel dismissal of an indictment on speedy trial grounds had an adequate remedy at law and thus, was not entitled to mandamus relief. Accordingly, relator's petition for writ of mandamus is denied. Don H. Reavis Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. 2. Tex. R. App. P. 47.4. 3. Tex. R. App. P. 52.3 requires factual assertions to be verified by affidavit. font-size: 12pt">PANEL C MARCH 31, 2009 ______________________________ IN THE MATTER OF S.D.S. _________________________________ FROM THE COUNTY COURT OF SWISHER COUNTY; SITTING AS A JUVENILE COURT NO. 439; HON.HAROLD KEETER, PRESIDING _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, S.D.S., appeals the disposition in his juvenile case contending that Swisher County did not have proper jurisdiction to hear his case because he did not have notice of the case’s transfer from Potter County. We dismiss for want of jurisdiction. Factual Background On August 20, 2007, the Potter County Attorney’s office filed a petition alleging that S.D.S. had engaged in delinquent conduct and prayed that, upon a finding that the child had engaged in delinquent conduct, S.D.S.’s care, custody, and control be disposed by the trial court including the possibility of S.D.S.’s commitment to the Texas Youth Commission. On September 12th, the trial court held a hearing and adjudicated S.D.S. as having engaged in delinquent conduct. On September 28th, the Potter County Attorney’s Office filed a motion to transfer disposition in the case to the juvenile’s county of residence, Swisher County. See Tex. Family Code Ann. § 51.07 (Vernon 2008). However, neither S.D.S. nor his attorney were served with the Motion to Transfer or the corresponding order granting the transfer. On November 19th, a disposition hearing was held in Swisher County before the county court judge. Although S.D.S. and his attorney were present at the disposition hearing, a review of an audio recording of the hearing does not establish that S.D.S. objected to the commencement of the disposition hearing based on the failure of the State to give S.D.S. notice of the filing of the motion for transfer of the hearing. After hearing evidence, the trial court concluded that S.D.S. had engaged in delinquent conduct, determined that S.D.S. was in need of rehabilitation, and that it was in his best interest and in the best interest of the community to commit S.D.S. to the care, custody, and control of the Texas Youth Commission for an indeterminate period not to exceed S.D.S.’s 19th birthday. Although S.D.S. and his attorney attended the disposition hearing, S.D.S. was not served with a copy of the motion for transfer. S.D.S. appeals contending that, because notice of the transfer was not served upon him, Swisher County did not have jurisdiction to enter the disposition order. Therefore, S.D.S. contends that the disposition order must be vacated. Law and Analysis As a threshold matter, we consider our jurisdiction to review the challenged order. S.D.S. does not contest that Potter County had jurisdiction over the initial adjudication proceeding. § 51.04. Although S.D.S. framed the issue as one of jurisdiction, the issue is actually one of venue. See § 51.06(a). Venue is not a constitutional requirement; rather, it is a statutory requirement. See id. A juvenile's right to appeal in a juvenile proceeding is controlled by section 56.01(c). § 56.01(c); In re R.J.M., 211 S.W.3d 393, 394 (Tex.App.–San Antonio 2006, pet. denied). However, section 56.01 does not authorize an appeal from a transfer order issued under section 51.07. See § 56.01(c). When a legislative enactment says a juvenile may appeal orders delineated in the statute, there is no right to appeal orders not so included. In re R.J.M., 211 S.W.3d at 394; See In re J.H., 176 S.W.3d 677, 679 (Tex.App.–Dallas 2005, no pet.). Neither section 56.01 or 51.07 expressly allow a juvenile to appeal from a motion to transfer. Therefore, applying the plain language of section 56.01(c), we conclude that an order transferring the cause to another county under section 57.01 is not an appealable order. See In re R.J.M., 211 S.W.3d at 394; In re J.H., 176 S.W.3d at 679. Conclusion Because the controlling statute does not authorize an appeal from a transfer order issued under section 51.07, we conclude the order transferring S.D.S.’s case to another county for disposition is not an appealable order. In re M.A.O., No. 04-07-00658-CV, 2008 WL 5170297, at *6, (Tex.App.–San Antonio Dec. 10, 2008, no pet. h.). Because the transfer order is not an appealable order, we are without jurisdiction to consider S.D.S.’s issue and must dismiss the appeal. Id. Mackey K. Hancock Justice