Tisdale, Chad Wayne

WR-83,512-02 WR-83,512-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/29/2015 3:08:06 PM Accepted 6/29/2015 4:58:30 PM ABEL ACOSTA NO. ______________ CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS RECEIVED COURT OF CRIMINAL APPEALS 6/29/2015 AT AUSTIN, TEXAS ABEL ACOSTA, CLERK

___________________________________________________________

IN RE CHAD WAYNE TISDALE

___________________________________________________________

ORIGINAL PETITION FOR WRIT OF MANDAMUS OR

ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS

___________________________________________________________

The Honorable Benton Eskew Judge of the Bastrop County Court at Law

The Honorable Reva Towslee-Corbett Judge of the 335th Judicial District Court of Bastrop County

Respondents ___________________________________________________________

JAMES KRAMER 410 East 5th St. #306 Austin, Texas 78701 (512) 297-7211 PHONE (484) 205-5248 FAX james.kramer@usa.net Texas State Bar No. 24067712 COUNSEL FOR RELATOR/APPLICANT

ORAL ARGUMENT REQUESTED

IDENTIFICATION OF THE PARTIES

A complete list of the names and addresses of all interested parties is provided below:

Relator/Applicant: Chad Wayne Tisdale

Counsel for Relator/Applicant: James Kramer 410 East 5th St. #306 Austin, Texas 78701

Counsel for the State (Real Party in Interest): Bryan Goertz Greg Gilleland Office of Bastrop County District Attorney 804 Pecan Street Bastrop, Texas 78602

Respondents: Honorable Benton Eskew Judge County Court at Law Bastrop County, Texas 804 Pecan Street Bastrop, Texas 78602

Honorable Reva Towslee-Corbett Judge th 335 Judicial District Court of Bastrop County, Texas 804 Pecan Street Bastrop, Texas 78602

i Table of Contents Page Identification of the Parties i Index of Authorities iv Statement Regarding Oral Argument 1 Statement of the Case 1 Statement of Jurisdiction 2 Issues Presented 2 Background and Statement of Facts 3 Mandamus Requirements 5

Argument and Authorities: Relator/ApplicantEntitled to Prompt Issuance of Writ 5

A Non-Discretionary Duty to Issue Writ of Habeas Corpus 6 Defect in Petition Must Be “Manifest” to Justify Refusal 6 Voluntariness Determined by Totality of the Circumstances 8 Jurisdiction of the Trial Court 9 No Adequate Remedy at Law Other Than Resort to This Court 10

Original Petition for Writ of Habeas Corpus as an Alternative 11 Vehicle Prayer for Relief 12 Certification of Word Count 14

ii

Certificate of Service 14 Rule 52.3(j) Certification 14

Appendix post 15

iii Index of Authorities Page CASES: Click v. State, 39 S.W.2d 39 (Tex. Crim. App. 1931) 6

Ex parte Davis, 748 S.W.2d 555 (Tex. App. Houston [1st Dist.] 9 1988)

Ex parte Drake, 212 S.W.3d. 822 (Tex. App. Austin 2006) 9

Ex parte Hayes, No. WR-77,189-01, 2012 Tex. Crim. App. 12 Unpub. LEXIS 210 (Tex. Crim. App. 2012) (orig. proceeding) (not designated for publication)

Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991) 7

Ex parte Hight, No. AP-75,507, 2008 Tex. Crim. App. Unpub. 8 LEXIS 91 (Tex. Crim. App. 2008) (not designated for publication)

Ex parte Johnson, 876 S.W.2d 340 (Tex. Crim. App. 1994) (orig. 2, 11 proceeding)

Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012) 9

Ex parte Rodriguez, 980 S.W.2d 475 (Tex. Crim. App. 1998) 12 (orig. proceeding)

Ex parte Schmidt, 109 S.W.3d 480 (Tex. Crim. App. 2003) 9

Ex parte Chad Wayne Tisdale, No. 03-13-00785-CR, 2014 Tex. 3 App. LEXIS 3835 (Tex. App. Austin 2014, pet. ref’d.) (not designated for publication)

Ex parte Wolf, 296 S.W.3d 160 (Tex. App. Houston [14th Dist.] 9 2009)

iv

Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 10 159 S.W.3d 645 (Tex. Crim. App. 2005) (orig. proceeding)

Griffin v. State, 703 S.W.2d 193 (Tex. Crim. App. 1986) 8

In re Piper, 105 S.W.3d 107 (Tex. App. Waco 2003) (orig. 5, 6, 12 proceeding)

In re Chad Wayne Tisdale, No. 03-15-00184-CV, 2015 Tex. App. 4 LEXIS 4343 (Tex. App. Austin 2015) (orig. proceeding) (not designated for publication)

Mitschke v. State, 129 S.W.3d 130 (Tex. Crim. App. 2004) 7

Padieu v. Court of Appeals of Tex., 392 S.W.3d 115 (Tex. Crim. 5 App. 2013) (orig. proceeding)

Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003) 2 (orig. proceeding)

State v. Collazo, 264 S.W.3d 121 (Tex. App. Houston [1st Dist.] 9 2007)

State ex rel. Rodriguez v. Onion, 741 S.W.2d 433 (Tex. Crim. 9 App. 1987) (orig. proceeding)

TEXAS CONSTITUTION: Tex. Const. art. I, § 12 5 Tex. Const. art. V, § 5 2 TEXAS CODE OF CRIMINAL PROCEDURE OF 1965: Tex. Code Crim. Proc. art. 4.04 2 Tex. Code Crim. Proc. art. 11.05 2, 6

v Tex. Code Crim. Proc. art. 11.06 2 Tex. Code Crim. Proc. art. 11.09 2, 10 Tex. Code Crim. Proc. art. 11.10 6 Tex. Code Crim. Proc. art. 11.11 6 Tex. Code Crim. Proc. art. 11.15 6 SUPERSEDED CODES OF CRIMINAL PROCEDURE: Tex. Code Crim. Proc. art. 131 (1856) 7 Tex. Code Crim. Proc. art. 145 (1879) 7 Tex. Code Crim. Proc. art. 165 (1895) 7 Tex. Code Crim. Proc. art. 175 (1911) 7 Tex. Code Crim. Proc. art. 127 (1925) 7 TEXAS RULES OF APPELLATE PROCEDURE: Tex. R. App. Proc. 77.3 8 OTHER REFERENCES:

43 George E. Dix & John M. Schmolesky, Texas Practice: 5 Criminal Practice and Procedure § 34.16 (3d ed. 2011)

Webster’s Dictionary 1828-Online Edition, 7 http://webstersdictionary1828.com/Home?word=Manifest (last visited Mar. 26, 2015)

vi

Statement Regarding Oral Argument

Oral argument would facilitate exploration of issues not heretofore addressed by the Court in a published opinion.

Statement of the Case

Relator/Applicant’s post-conviction Petition for Writ of Habeas Corpus, asserting that his misdemeanor conviction is based on an involuntary plea, was refused by the Bastrop County Court at Law and by the 335th Judicial District Court of Bastrop County. Neither court addressed the merits of his petition.

Relator/Applicant petitions the Court to issue a writ of mandamus requiring that a writ of habeas corpus be issued by the Bastrop County Court at Law returnable to that court or, alternatively, that a writ of habeas corpus be issued by the 335th Judicial District Court of Bastrop County, returnable to that court or to the Bastrop County Court at Law.

Alternatively, Relator/Applicant petitions the Court to exercise its original jurisdiction to issue a writ of habeas corpus returnable to the Bastrop County Court at Law.

Relator/Applicant does not ask the Court to address the merits of his habeas corpus petition, as that is a matter best left to a trial court.

Statement of Jurisdiction

This Court has jurisdiction to issue the requested writ of mandamus per section 5 of Article V of the Texas Constitution and article 4.04 of the Texas Code of Criminal Procedure.1

This Court has jurisdiction to issue the requested writ of habeas corpus, returnable to the Bastrop County Court at Law, per section 5 of Article V of the Texas Constitution and articles 4.04, 11.05, 11.06 and 11.09 of the Texas Code of Criminal Procedure.2

Issues Presented

Did Respondents fail to carry out a ministerial duty to issue Relator/Applicant’s requested writ of habeas corpus?

Does Relator/Applicant have an adequate remedy at law other than resort to the Court of Criminal Appeals?

Is a petition for writ of mandamus or an original petition for writ of habeas corpus the preferred vehicle for petitioning this Court to compel a trial court to rule on the merits of a post-conviction misdemeanor habeas corpus petition?

1 Tex. Const. art. V, § 5; Tex. Code Crim. Proc. art. 4.04; Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003) (orig. proceeding). 2 Tex. Const. art. V, § 5; Tex. Code Crim. Proc. arts. 4.04, 11.05, 11.06, 11.09; Ex parte Johnson, 876 S.W.2d 340, 343 (Tex. Crim. App. 1994) (orig. proceeding).

Background and Statement of Facts

In October of 2013, Relator/Applicant filed a post-conviction petition for writ of habeas corpus in the Bastrop County Court at Law, cause number 13-16165, challenging a misdemeanor conviction based on an involuntary plea. The Bastrop County Court at Law issued a written final order dismissing the case, citing lack of jurisdiction. Relator/Applicant timely appealed to the Third District Court of Appeals, cause number 03-13-00785-CR. The Court of Appeals dismissed the appeal for lack of jurisdiction, holding that only when a trial court rules on the merits of a petition for writ of habeas corpus does the Court of Appeals have jurisdiction over an appeal. 3 A timely filed Petition for Discretionary Review was refused by the Texas Court of Criminal Appeals on November 5, 2014, cause number PD-1264-14. The mandate in the Court of Appeals issued on January 8, 2015.

On February 3, 2015, Relator/Applicant re-filed his petition for writ of habeas corpus, cause number 015-335.4 The cause was originally set

3 Ex parte Chad Wayne Tisdale, No. 03-13-00785-CR, 2014 Tex. App. LEXIS 3835 (Tex. App. Austin 2014, pet. ref’d.) (not designated for publication). 4 Relator/Applicant revised his petition in the second filing, but his claim is the same, namely, that he was actively misled into entering an involuntary plea. Also, per counsel’s

for a hearing on March 11, 2015 in the 335th Judicial District Court of Bastrop County, but was dismissed for lack of jurisdiction on February 25, 2015. The District Clerk failed to inform Relator/Applicant of the dismissal and failed to timely update the case on its website. Relator/Applicant eventually learned of the dismissal on March 9, 2015 from the administrator of the District Court, who forwarded a copy by fax. Relator/Applicant also obtained a copy of the Order Affecting Exchange of Benches5, which would appear to indicate that a petition to either of the other two district judges in Bastrop County would prove futile.

On March 27, 2015 Relator/Applicant filed a Petition for Writ of Mandamus with the Third District Court of Appeals, cause number 03-15-00184-CV, seeking to compel issuance of a writ of habeas corpus. Relief was denied on April 29, 2015.6 A timely filed motion for rehearing was over-ruled on June 15, 2015.

telephone conversation with the Bastrop County District Clerk, the revised petition was reviewed by Judge Eskew of the County Court at Law, who refused to take any action and entered no written order. 5 See Appendix. 6 In re Chad Wayne Tisdale, No. 03-15-00184-CV, 2015 Tex. App. LEXIS 4343 (Tex. App. Austin 2015) (orig. proceeding) (not designated for publication).

Mandamus Requirements

In order to prevail in a mandamus action, Relator/Applicant must show that the act that he seeks to compel is ministerial (non-discretionary) and that he has no adequate remedy at law.7

Relator/Applicant Entitled to Prompt Issuance of Writ

The Texas Constitution provides that the writ of habeas corpus is a "writ of right”.8 Issuance of a writ of habeas corpus does not necessarily provide an applicant with relief, but “merely directs that the sheriff bring the applicant to court for a hearing on his habeas application.”9 (Since Relator/Applicant is not in custody, issuance of the writ would presumably result in a summons being issued for his appearance at the hearing on his habeas petition.)10

7 Padieu v. Court of Appeals of Tex., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013) (orig. proceeding). 8 Tex. Const. art. I, § 12. 9 In re Piper, 105 S.W.3d 107, 111 n.1 (Tex. App. Waco 2003) (orig. proceeding) (Davis, J. concurring). 10 See 43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure § 34.16 (3d ed. 2011) at 238 n.1.

Relator/Applicant is entitled to prompt consideration of the merits his petition.11 Thus, delay in consideration of his claim is in and of itself a denial of Relator/Applicant’s rights under the law.

A Non-Discretionary Duty to Issue Writ of Habeas Corpus

It is the duty of a court, "upon proper motion, to grant the writ under the rules prescribed by law." 12 The court “shall appoint a time when [it] will examine the cause of the applicant, and issue the writ returnable at that time…”13 The writ "shall be granted without delay by the judge or court receiving the petition, unless it be manifest from the petition itself, or some documents annexed to it, that the party is entitled to no relief whatsoever."14

Defect in Petition Must Be “Manifest” to Justify Refusal

A court presented with a petition for writ of habeas corpus cannot refuse the petition unless it can point to some defect that is “manifest” within the meaning of article 11.15. A review of the history of the habeas corpus statute reveals that the term “manifest” in article 11.15 dates at

11 Tex. Code Crim. Proc. arts. 11.11, 11.15. 12 Tex. Code Crim. Proc. art. 11.05; see also Piper, 105 S.W.3d at 110; Click v. State, 39 S.W.2d 39, 41 (Tex. Crim. App. 1931). 13 Tex. Code Crim. Proc. art. 11.10. 14 Tex. Code Crim. Proc. art. 11.15.

least as far back as the 1856 Code of Criminal Procedure.15 To determine its plain meaning, a 19th century definition of the word “manifest” is appropriate:

“MAN'IFEST, adjective [Latin manifestus.] 1. Plain, open, clearly visible to the eye or obvious to the understanding; apparent; not obscure or difficult to be seen or understood.”16

Thus, unless a petition for writ of habeas corpus is obviously invalid, a trial court must issue the writ and address the merits17. Neither the State nor either of the Bastrop County trial courts cite any precedent to demonstrate that Applicant’s claim is obviously without merit, and thus fail to meet the heavy burden required to justify failure to issue the writ of habeas corpus.

In denying Relator/Applicant’s Petition for Writ of Mandamus, the Court of Appeals appears to attempt to demonstrate that Relator/Applicant’s petition is manifestly without merit by citing Mitschke v. State.18 However, in Ex parte Hight, this Court declined to

15 See, e.g, Tex. Code Crim. Proc. art. 131 (1856); Tex. Code Crim. Proc. art. 145 (1879); Tex. Code Crim. Proc. art. 165 (1895); Tex. Code Crim. Proc. art. 175 (1911); Tex. Code Crim. Proc. art. 127 (1925). 16 Webster’s Dictionary 1828-Online Edition, http://webstersdictionary1828.com/Home?word=Manifest (last visited Jun. 24, 2015). 17 A merits ruling based on the record (without a hearing) may be appropriate in some cases. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). 18 Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004).

apply Mitschke to a habeas corpus claim that a plea is involuntary, thereby limiting Mitschke to direct appeals based on claims of failure to provide statutory admonishments.19 While, per Rule 77.3,20 Hight is not precedent, the Court’s logic in that case is sound and should be applied in this case as well. Thus, Mitschke should not be read to foreclose Relator/Applicant’s involuntary plea claim, since that claim is distinguishable from a claim based on failure by the convicting court to provide statutory admonishments.

Voluntariness Determined by Totality of the Circumstances

A court must determine the voluntariness of a plea by examining the “totality of the circumstances.”21 Given the fact-intensive nature of the required inquiry, it is difficult to see how a court may avoid its duty to issue the writ merely by asserting that Relator/Applicant is manifestly entitled to no relief, since it cannot fully evaluate the “totality of the circumstances” without conducting a hearing (or at least without making findings of fact based on the record).

19 Ex parte Hight, No. AP-75,507, 2008 Tex. Crim. App. Unpub. LEXIS 91 (Tex. Crim. App. Feb. 6, 2008) (not designated for publication). 20 Tex. Rule App. P. 77.3. 21 Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986).

Jurisdiction of the Trial Court

The County Court at Law 22 and the District Courts 23 in Bastrop County possess concurrent jurisdiction over Relator/Applicant’s petition. Relator/Applicant’s claim that his plea was involuntary is cognizable in a habeas corpus action.24 Relator/Applicant’s driver’s license suspension is similar in nature to legal disabilities that Texas Courts of Appeals have found to constitute confinement or restraint within the meaning of Chapter 11 of the Texas Code of Criminal Procedure.25

There is thus no basis for a trial court to claim that it lacks jurisdiction over Relator/Applicant’s petition.

22 “When they are read together, Article V, section 16 of the Constitution, Section 25.0003(a) of the Government Code, and Article 11.05 of the Code of Criminal Procedure give the statutory county court at law, and the judges of that court, the power to issue the writ of habeas corpus when a person is restrained by an accusation or conviction of misdemeanor.” Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003). 23 State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 434 (Tex. Crim. App. 1987) (orig. proceeding) (holding that District Courts have concurrent habeas corpus jurisdiction in misdemeanor cases). 24 See Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012). 25 See, e.g., State v. Collazo, 264 S.W.3d 121 (Tex. App. Houston [1st Dist.] 2007) (denial of peace officer’s license); Ex parte Wolf, 296 S.W.3d 160, 166-67 (Tex. App. Houston [14th Dist.] 2009) (termination of employment); Ex parte Davis, 748 S.W.2d 555, 558 (Tex. App. Houston [1st Dist.] 1988) (denial of entry into military); Ex parte Drake, 212 S.W.3d. 822, 825 (Tex. App. Austin 2006) (arrest for driving while license suspended due to unpaid surcharges).

No Adequate Remedy at Law Other Than Resort to This Court

While Relator/Applicant does have a technical remedy at law (presenting his petition to yet another trial court judge), that technically available remedy is inadequate."26 As discussed supra, Relator/Applicant is entitled not just to a hearing, but to a prompt hearing. Thus, any further delay in the issuance of the writ of habeas corpus is a denial of substantive relief.

As Relator/Applicant is challenging a misdemeanor conviction in Bastrop County, the Bastrop County Court at Law is the most appropriate forum to hear his petition.27 But the most appropriate court refused his petition.

Relator/Applicant then applied to the 335th District Court in Bastrop County and got so far as having a hearing set on the docket only to have his petition refused again before the setting. Relator/Applicant then became aware of the Order Affecting Exchange of Benches28, signed by all Bastrop County judges, and concluded that further efforts in

Bastrop County would be futile and only result in further delay. 26 Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648- 649 (Tex. Crim. App. 2005) (orig. proceeding) ("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.”). 27 Tex. Code Crim. Proc. art. 11.09. 28 See Appendix.

While out-of-county judges may or may not technically have jurisdiction to issue Relator/Applicant’s writ, it defies logic to believe that any such judge would get involved in a case involving events that took place wholly within the Bastrop County Courthouse. It is even less logical to believe that such a hypothetical judge could be located promptly.

Relator/Applicant’s Petition for Writ Mandamus (to compel issuance of the writ of habeas corpus by a Bastrop County trial court) was denied by the Third District Court of Appeals.

In short, Relator/Applicant has nowhere else to go. Original Petition for Writ of Habeas Corpus as an Alternative Vehicle

In Ex parte Johnson, this Court exercised its original habeas corpus jurisdiction to compel a trial court to address the merits of a habeas corpus petition by issuing a writ of habeas corpus returnable to that trial court.29 Thus, this Court can grant Relator/Applicant relief using either of two alternative vehicles: mandamus or original habeas corpus.

Concurring opinions by various judges of the Court of Criminal Appeals have indicated that a habeas corpus applicant who has had his or

29 Ex parte Johnson, 876 S.W.2d at 343 (Court of Criminal Appeals issued writ of habeas corpus returnable to 180th Judicial District Court).

her petition refused by a trial court should file a petition for writ of mandamus rather than invoke the original habeas corpus jurisdiction of the Court of Criminal Appeals. 30 On the other hand, at least one intermediate court of appeals has held that failure to file an original petition for writ of habeas corpus in the Court of Criminal Appeals will bar issuance of a writ of mandamus (for failure to exhaust all adequate remedies at law).31

In light of the lack of clear authority, Relator/Applicant petitions this Court to exercise its original jurisdiction to issue a writ of habeas corpus, returnable to the Bastrop County Court at Law, as an alternative to his Petition for Writ of Mandamus.

Prayer for Relief

Relator/Applicant prays that the Court will issue a writ of mandamus ordering the Bastrop County Court at Law to issue the requested writ of habeas corpus, returnable to that court or, in the alternative, ordering that the 335th Judicial District Court issue the

30 E.g. Ex parte Hayes, No. WR-77,189-01, 2012 Tex. Crim. App. Unpub. LEXIS 210 (Tex. Crim. App. 2012) (orig. proceeding) (Johnson, J., joined by Price, Hervey, and Cochran, JJ., concurring) (not designated for publication); Ex parte Rodriguez, 980 S.W.2d 475 (Tex. Crim. App. 1998) (orig. proceeding) (Baird, J., concurring). 31 In re Piper, 105 S.W.3d at 110.

requested writ of habeas corpus, returnable to that court or to the Bastrop County Court at Law.

In the alternative, Relator/Applicant prays that the Court will exercise its original habeas corpus jurisdiction to issue a writ of habeas corpus returnable to the Bastrop County Court at Law.

Relator/Applicant prays for general relief.

RESPECTFULLY SUBMITTED,

/s/James Kramer

JAMES KRAMER

410 East 5th St. #306 Austin, Texas 78701 (512) 297-7211 PHONE (484) 205-5248 FAX james.kramer@usa.net Texas State Bar No. 24067712 COUNSEL FOR RELATOR/ APPLICANT

CERTIFCATION OF WORD COUNT

The preceding document was produced using Microsoft Word, and the Word Count tool returned a value of 2,650 words (including footnotes).

/s/James Kramer

JAMES KRAMER

CERTIFICATE OF SERVICE

This petition was served on opposing counsel, Assistant Bastrop County District Attorney Greg Gilleland, 804 Pecan Street, Bastrop, Texas, 78602, by first-class mail and by electronic means on June 26, 2015, and was also mailed to the Bastrop County District Clerk for distribution to Respondent Judges on that date.

/s/James Kramer

JAMES KRAMER

RULE 52.3(j) CERTIFICATION

Undersigned counsel has reviewed the foregoing petition and has concluded that every factual statement is supported by competent evidence in the Appendix or Record, with the exception of certain *15 background information specifically stated to have been obtained from phone conversations with the District Clerk or the administrator of the District Court.

/s/James Kramer

JAMES KRAMER

ORDER AFFECTING THE EXCHANGE OF BENCHES

FOR THE DISTRICT COURTS AND COUNTY

COURT AT LAW COURT OF BASTROP COUNTY, TEXAS

Pursuant to Article 5, Section II of the Texas Constitution and V.T.C.A., Government Code 24.303, and the statute creating the Bastrop County Court at Law, the undersigned do hereby exchange benches with each other insofar as the jurisdiction of each court pennits. Any of the undersigned may, in his own courtroom, try and detennine any case or proceeding pending in any of the other courts without having the case transferred. In case of absence, sickness, or disqualification of any of the judges, any of the other judges may hold court for him. Any of the judges may hear and detennine any part or question of a case or proceeding pending in any of the courts, and any of the other judges may complete the hearing and render judgment in the case.

This order becomes effective immediately upon execution of the same by all the Judges identified below and supercedes any previous orders affecting these matters.

SIGNED this ~ay of January, 2010. ton Eskew Judge, Bastrop County Court at Law

SIGNED thiso2D day of January, 2010.

Terry le,_".l""..n Judge, \/:-K kb. SIGNED this filL- day <*JauuaIy, 2010

RLED~~ DATE CathySmit LO District Clerk, Bastrop County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00184-CV

In re Chad Wayne Tisdale

ORIGINAL PROCEEDING FROM BASTROP COUNTY

MEMORANDUM OPINION

Relator has filed a petition for writ of mandamus. See Tex. R. App. P. 52. Having reviewed the petition and its accompanying exhibit, we deny the petition for writ of mandamus. See Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004); Ex parte Drake, 212 S.W.3d 822, 826-27 (Tex. App.—Austin 2006, pet. ref’d).

__________________________________________

David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Filed: April 29, 2015

REGISTER OF ACTIONS CASE NO. 015-335 EX PARTE CHAD WAYNE TISDALE § Case Type: Writ of Habeas Corpus § Date Filed: 02/03/2015 § Location: 335th District Court § §

PARTY INFORMATION

Attorneys Plaintiff Tisdale, Chad Wayne Male White James Kramer DOB: 06/28/1968 Retained 512-297-7211(W)

State The State of Texas Female White DOB: 01/27/1987

EVENTS & ORDERS OF THE COURT

DISPOSITIONS 02/25/2015 Order (Judicial Officer: Corbett, Reva Towslee)

OTHER EVENTS AND HEARINGS 02/03/2015 Original Petition (OCA) 02/25/2015 Response 03/04/2015 Reply 03/11/2015 CANCELED Hearing (9:00 AM) (Judicial Officer Corbett, Reva Towslee) Other

THE TEXAS CONSTITUTION

ARTICLE 1. BILL OF RIGHTS

Sec. 12. HABEAS CORPUS. The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.

ARTICLE 5. JUDICIAL DEPARTMENT

Sec. 5. JURISDICTION OF COURT OF CRIMINAL APPEALS; TERMS OF COURT; CLERK. (a) The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law. (b) The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. The appeal of all other criminal cases shall be to the Courts of Appeal as prescribed by law. In addition, the Court of Criminal Appeals may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion. (c) Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments. The court shall have the power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 4. COURTS AND CRIMINAL JURISDICTION

Art. 4.04. COURT OF CRIMINAL APPEALS Sec. 1. The Court of Criminal Appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The court and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of such other writs as may be necessary to protect its jurisdiction or enforce its judgments. Sec. 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final. The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. In addition, the Court of Criminal Appeals may, on its own motion, with or without a petition for such discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.

CHAPTER 11. HABEAS CORPUS

Art. 11.01. WHAT WRIT IS. The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person

in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.

Art. 11.02. TO WHOM DIRECTED. The writ runs in the name of "The State of Texas". It is addressed to a person having another under restraint, or in his custody, describing, as near as may be, the name of the office, if any, of the person to whom it is directed, and the name of the person said to be detained. It shall fix the time and place of return, and be signed by the judge, or by the clerk with his seal, where issued by a court.

Art. 11.03. WANT OF FORM. The writ of habeas corpus is not invalid, nor shall it be disobeyed for any want of form, if it substantially appear that it is issued by competent authority, and the writ sufficiently show the object of its issuance.

Art. 11.04. CONSTRUCTION. Every provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the remedy, and protect the rights of the person seeking relief under it.

Art. 11.05. BY WHOM WRIT MAY BE GRANTED. The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law.

Art. 11.051. FILING FEE PROHIBITED. Notwithstanding any other law, a clerk of a court may not require a filing fee from an individual who files an application or petition for a writ of habeas corpus.

Art. 11.06. RETURNABLE TO ANY COUNTY. Before indictment found, the writ may be made returnable to any county in the State.

Arts. 11.07 to 11.073 omitted to save space.

Art. 11.08. APPLICANT CHARGED WITH FELONY. If a person is confined after indictment on a charge of felony, he may apply to the judge of the court in which he is indicted; or if there be no judge within the district, then to the judge of any district whose residence is nearest to the court house of the county in which the applicant is held in custody.

Art. 11.09. APPLICANT CHARGED WITH MISDEMEANOR. If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed, or if there be no county judge in said county, then to the county judge whose residence is nearest to the courthouse of the county in which the applicant is held in custody.

Art. 11.10. PROCEEDINGS UNDER THE WRIT. When motion has been made to a judge under the circumstances set forth in the two preceding Articles, he shall appoint a time when he will examine the cause of the applicant, and issue the writ returnable at that time, in the county where the offense is charged in the indictment or information to have been committed. He shall also specify some place in the county where he will hear the motion.

Art. 11.11. EARLY HEARING. The time so appointed shall be the earliest day which the judge can devote to hearing the cause of the applicant.

Art. 11.12. WHO MAY PRESENT PETITION. Either the party for whose relief the writ is intended, or any person for him, may present a petition to the proper authority for the purpose of obtaining relief.

Art. 11.13. APPLICANT. The word applicant, as used in this Chapter, refers to the person for whose relief the writ is asked, though the petition may be signed and presented by any other person.

Art. 11.14. REQUISITES OF PETITION. The petition must state substantially: 1. That the person for whose benefit the application is made is illegally restrained in his liberty, and by whom, naming both parties, if their names are known, or if unknown, designating and describing them; 2. When the party is confined or restrained by virtue of any writ, order or process, or under color of either, a copy shall be annexed to the petition, or it shall be stated that a copy cannot be obtained; 3. When the confinement or restraint is not by virtue of any writ, order or process, the petition may state only that the party is illegally confined or restrained in his liberty; 4. There must be a prayer in the petition for the writ of habeas corpus; and 5. Oath must be made that the allegations of the petition are true, according to the belief of the petitioner.

Art. 11.15. WRIT GRANTED WITHOUT DELAY. The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest from the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever.

Remaining articles omitted to save space.

CODE OF CRIMINAL PROCEDURE (1856)

Art. 131. The writ of Habeas Corpus shall be granted without delay, by the Judge or Court receiving the petition, unless it be manifest by the statements of the petition itself, or some document annexed to it, that the party is entitled to no relief whatever.

CODE OF CRIMINAL PROCEDURE (1879)

Art. 145. The writ of habeas corpus shall be granted without delay by the Judge or Court receiving the petition, unless it be manifest by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever.

CODE OF CRIMINAL PROCEDURE (1895)

Art. 165. The writ of habeas corpus shall be granted without delay by the Judge or Court receiving the petition, unless it be manifest by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever.

CODE OF CRIMINAL PROCEDURE (1911)

Art. 175. The writ shall be granted without delay, unless, etc.- The writ of habeas corpus shall be granted without delay by the Judge or Court receiving the petition, unless it be manifest by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever.

CODE OF CRIMINAL PROCEDURE (1925)

Art. 127. The writ shall be granted without delay- The writ of habeas corpus shall be granted without delay by the Judge or Court receiving the petition, unless it be manifest by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever.