In Re: Joe O'Cain v. The State of Texas--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: JOE O=CAIN,

Relator.

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No. 02-000260-CR

An Original Proceeding

In Mandamus

OPINION ON PETITION FOR WRIT OF MANDAMUS

This is an original proceeding in mandamus. Relator Joe O=Cain (AO=Cain@), seeks a writ of mandamus from this Court ordering the trial court to rule on his motion to obtain a free record in support of his petition for writ of habeas corpus. For the reason stated below, we dismiss the petition for lack of subject matter jurisdiction.

Before this Court can issue a writ of mandamus, it must have the authority to do so. See Greenville v. State, 798 S.W.2d 361, 362-363 (Tex. App.--Beaumont 1990, no pet.). In this case, the Court lacks jurisdiction to entertain O=Cain=s petition because the trial court has not yet taken action on O=Cain=s motion. There is therefore no order for this Court to review. See Tex. R. App. Proc. 52.1(j)(1)(A) (requiring inclusion of contested order with petition).

For all this reason, we dismiss O=Cain=s petition for writ of mandamus for lack of subject matter jurisdiction.

July 11, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 1

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)