in Re Brian C. Dawson

IN THE TENTH COURT OF APPEALS

No. 10-19-00427-CR

IN RE BRIAN C. DAWSON

Original Proceeding

MEMORANDUM OPINION

In what this Court characterizes as a petition for writ of mandamus, Brian C. Dawson requests that we compel the 21st District Court of Burleson County to produce certain records and, in light of those records, remand Dawson to the 21st District Court for re-sentencing. There are numerous procedural problems with Dawson's petitions, such as no certification, no appendix, and no record, as required by the Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(i), (j), (k); 52.7. However, we use Rule 2 to dispense with these requirements and proceed to a timely disposition of the petition.

Although the courts of appeals have mandamus jurisdiction over criminal law matters concurrent with the mandamus jurisdiction of the Texas Court of Criminal Appeals, Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987), Dawson has an adequate remedy at law: a post-conviction writ of habeas corpus. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991). And only the Texas Court of Criminal Appeals has jurisdiction in final post-conviction felony proceedings. TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Ater, 802 S.W.2d at 243; In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).

Accordingly, because Dawson complains about a final felony conviction and only the Court of Criminal Appeals has jurisdiction regarding Dawson's complaint, Dawson's petition for writ of mandamus is dismissed for want of jurisdiction.

Dawson also presented a motion for leave to file his petition for writ of mandamus. A motion for leave to file a petition for writ of mandamus is required when relief by mandamus is sought from the Court of Criminal Appeals. TEX. R. APP. P. 72.1. But the requirement for leave to file a petition for writ of mandamus at the court of appeals level was eliminated in 1997. See TEX. R. APP. P. 52, Notes and Comments. Thus, under the applicable rules, if mandamus relief is sought from an intermediate court of appeals, such as the Tenth Court of Appeals, a motion for leave to file the petition is unnecessary. Accordingly, Dawson's motion for leave to file a writ of mandamus is dismissed as moot.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Dismissed Motion dismissed as moot Opinion delivered and filed December 11, 2019 Do not publish [OT06]

In re Dawson Page 2