Ex Parte Robert Elmond Price

IN THE TENTH COURT OF APPEALS No. 10-07-00153-CR Ex parte Robert Elmond Price Original Proceeding MEMORANDUM Opinion Robert Elmond Price has filed an original habeas application with this Court complaining that Respondent, the Honorable Matt Johnson, Judge of the 54th District Court of McLennan County, has refused to rule on a habeas application he filed with Respondent in which Price asked to be released from jail on a personal recognizance bond. We will dismiss this proceeding for want of jurisdiction. According to Price’s application,[1] he was arrested for burglary of a habitation on October 28, 2006 and was not released on a personal recognizance bond after ninety days. See Tex. Code Crim. Proc. Ann. art. 17.151, § 1(1) (Vernon Supp. 2006); Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993); Ex parte Avila, 201 S.W.3d 824, 826 (Tex. App.—Waco 2006, no pet.). Price was indicted on March 28, 2007. He filed a habeas application with Respondent on April 12, requesting release on a personal recognizance bond. Price contends that Respondent has not set the matter for hearing or otherwise ruled on the merits of his application. He asks this Court “to please order the trial court to appoint a time to hear the Writ I filed to the trial court or to rule on the appeal writ I filed to this court.”[2] This Court does not have original habeas corpus jurisdiction in criminal law matters. Queen v. State, 212 S.W.3d 619, 623 (Tex. App.—Austin 2006, no pet.); Watson v. State, 96 S.W.3d 497, 500 (Tex. App.—Amarillo 2002, pet. ref’d); In re White, 45 S.W.3d 787, 789 (Tex. App.—Waco 2001, orig. proceeding). In a case where a judge refuses to issue the requested writ of habeas corpus or denies an applicant the requested hearing on the merits of his claim, an applicant’s remedies are limited. Some remedies available to an applicant in that situation are to present the application to another district judge having jurisdiction, or under proper circumstances, to pursue a writ of mandamus. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (footnotes omitted); Ex parte Gonzales, 12 S.W.3d 913, 914-15 (Tex. App.—Austin 2000, pet. ref’d). Here, there is no indication that Price has presented his habeas application to another district judge. For mandamus relief to be proper, Price must have no other adequate legal remedy available to him. See Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (per curiam). Presentation to another district judge is an adequate legal remedy available to Price. Therefore, mandamus relief would be inappropriate. Because we do not have original habeas jurisdiction in criminal law matters and because Price has an adequate legal remedy, we dismiss this proceeding for want of jurisdiction. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance dissents from the judgment with a note)* Application dismissed Opinion delivered and filed June 27, 2007 [OT06] * (As I explained in In re Piper, 105 S.W.3d 107 (Tex. App.—Waco 2003, orig. proceeding) (Vance, J., dissenting), Price has a right and the trial judge has a duty to issue the writ. See also Ex parte Williams, 200 S.W.3d 819 (Tex. App.—Beaumont 2006, orig. proceeding). [1] Price filed a verified habeas application with this Court. We presume that the factual allegations are accurate. Cf. Tex. R. App. P. 52.3 (petition in original proceeding “must be verified”). Nevertheless, even assuming as we do that the allegations are true, Price is not entitled to the relief sought. [2] This request for relief is actually contained in Price’s response to a notice letter sent by the Clerk of this Court requiring Price to show that we have jurisdiction or otherwise show grounds for continuing this proceeding. 889in; margin-left: 0.3in">THE COURT: I think he's got a cash deposit bond, if I'm not mistaken, but anyway .... Behee filed a petition for mandamus asking that Respondent be directed to vacate his order terminating Silas as his court-appointed counsel. APPLICABLE LAW To be entitled to mandamus relief, Behee must establish that (1) he has no adequate remedy at law, and (2) that he has a clear right to relief. Buntion v. Harmon, 827 S.W.2d 945, 947 (Tex. Crim. App. 1992). Behee cites several cases for the proposition that mandamus is proper when a judge has improperly removed appointed counsel. See id.; Stearnes v. Clinton, 780 S.W.2d 216, 225 (Tex. Crim. App. 1989); Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex. Crim. App. 1995) (replacing appointed trial counsel on appeal over objection). Article 24.06 provides for the appointment of counsel for indigent defendants. Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon 1989). When the court determines a defendant is indigent, the court “shall appoint” an attorney to defend him. Id. art. 26.04(a). An attorney so appointed “shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.” Id. In determining whether a defendant is indigent, the court may consider many factors. Id. art. 26.04(b). The court may not, however, deny appointment of counsel “solely because the defendant has posted or is capable of posting bail.” Id. If there is a material change in the defendant's circumstances after the indigency determination, the defendant, his counsel, or the prosecutor may move for reconsideration of the determination. Id. art. 26.04(e). The statute allows Respondent to reconsider the determination of Behee's indigency upon a motion that there has been a material change in his circumstances. Id. Here, however, there was no hearing to reconsider that determination. The sole reason for Respondent's action that is apparent in the record is that Behee had posted bond—a situation specifically prohibited under the statute. Id. art. 26.04(b). Under these circumstances, Respondent acted outside his statutory authority and abused his discretion in terminating the appointment of counsel. Thus, we conditionally grant the relief sought. Respondent is directed to vacate his order terminating appointment of counsel. Confident that he will do so, the writ will issue only upon Respondent's failure to comply with this opinion. PER CURIAM Before Chief Justice Davis, Justice Vance, and Justice Gray Relief granted Opinion delivered and filed February 10, 1999 Publish