In Re Milton Lee Gardner v. the State of Texas

IN THE TENTH COURT OF APPEALS

No. 10-23-00139-CR

IN RE MILTON LEE GARDNER

Original Proceeding

From the 77th District Court Limestone County, Texas Trial Court No. 13074-A

MEMORANDUM OPINION

Based on Milton Lee Gardner’s Petition for Writ of Mandamus, he has filed three applications for a writ of habeas corpus. The first application (WR-43,847-09) was denied by the Court of Criminal Appeals on July 20, 2020. His second application, (WR-43,847-10) filed May 5, 2022, has been dismissed by the Court of Criminal Appeals. His attempt to file a third application for a writ of habeas corpus was sent to District Judge Alfonso Charles in the 124th District Court of Gregg County via “a letter to Gregg County District Clerk, Trey Hattaway.” Gardner seeks mandamus relief from this Court. “Specifically, movant request that this court exercise it’s Mandamus Jurisdiction and Order the 124th District Judge Alfonso Charles, as District Judge to issue the Writ Of Habeas Corpus….Specifically, said district clerk is ‘ignoring’ movants Habeas, and Judge Charles is failing to address it. In turn, these actions result in district court clerk, and district judges refusing to do their jobs, this court should grant mandamus relief.” [sic].

Upon the filing of the first application, the trial court judges then sitting in Freestone County both recused themselves; and Judge Charles, acting as the regional presiding judge, appointed himself to rule on the first application. He was not appointed to rule on the second application, nor has he been appointed to rule on the third application.

This Court has no jurisdiction over a trial court judge outside our district—the 124th District Court is not within our district; nor does this Court have jurisdiction to issue a writ of mandamus against a district clerk except in circumstances not relevant here. See TEX. GOV’T CODE §§ 22.201(k), 22.221(a), (b); see also In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig. proceeding).

Accordingly, Gardner’s Petition for Writ of Mandamus, filed May 12, 2023, is dismissed for want of jurisdiction.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Smith Petition dismissed Opinion delivered and filed May 24, 2023 Do not publish [OT06]

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