In re Arturo Solis--Appeal from County Court at Law No 8 of Bexar County

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 16, 2004

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART

Relator Arturo Solis filed a petition for writ of mandamus, seeking an order directing the trial court to declare the judgment in his misdemeanor DWI case void because the judgment was allegedly rendered without a proper information on file. In the alternative, Solis alleges that any information contained in the clerk's record must be a forgery or fraud placed there after his conviction. We construe the petition as requesting an order compelling the trial court to consider and rule on Solis's application for writ of habeas corpus filed in the misdemeanor case.

To obtain mandamus relief in a criminal matter, the relator must show he has no other adequate remedy at law to redress the alleged error and the act relator seeks to compel must be ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). (2) When a trial judge refuses to issue a writ of habeas corpus or denies a hearing on the merits, the applicant may either present the application to another judge having jurisdiction, or "under proper circumstances" seek a writ of mandamus. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991) (citing Von Kolb v. Koehler, 609 S.W.2d 654 (Tex. App.-El Paso 1980, orig. proceeding)).

In Von Kolb, relator filed a pre-trial application for writ of habeas corpus sixteen days before the court of appeals' opinion. He made several unsuccessful attempts to set a hearing date, but the trial court took no action on the application. The court of appeals rejected the state's argument that Von Kolb had the adequate remedy of "shop[ping] around for a different forum which would take action on his application for the writ of habeas corpus." Id. at 656. The court conditionally issued the writ, ordering the trial judge to act on the application. Id. Moreover, the Code of Criminal Procedure states, "it is [the]duty [of judges with the power to issue the writ], upon proper motion, to grant the writ under the rules prescribed by law" and "[t]he 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." Tex. Code Crim. Proc. Ann. arts. 11.05, 11.15 (Vernon 1977). Accordingly, it appears mandamus may issue to compel a trial court to grant a writ and consider the merits of the relief requested if: (1) an application or petition for writ of habeas corpus has been filed with a court having jurisdiction; (2) the applicant has made some attempt to have the matter heard; and (3) it is not "manifest from the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever."

In this case, Solis filed his application in a proper court. He sent a letter to the County Clerk asking that the trial court rule on his habeas. He tried to file a mandamus with the county clerk's office and when the clerk refused to file it, he filed a mandamus in this court, which was denied. See In re Solis, 04-99-00351-CV, slip op. at 1, (Tex. App.-San Antonio June 18, 1999, orig. proceeding) (not designated for publication). In our request for response in this proceeding, we stated, "If we receive notice [] that Solis's application for writ of habeas corpus has been granted and relief has been denied, we will deny the petition for writ of mandamus because Solis will have an adequate remedy at law." (3) In over ninety days, no response has been filed and no action has been taken by the trial court.

Because of the unique circumstances of this case, and because the allegation of fraud or forgery precludes the summary dismissal of Solis's application, we conditionally grant the petition for writ of habeas corpus. The trial court is ordered to rule on the application within thirty days of the date of this opinion. If the trial court does not timely act on the application, the writ will issue. All other requested relief is denied.

Paul W. Green, Justice

1. This proceeding arises out of Cause No. 395748/2357-W, styled Ex parte Arturo Solis, pending in the County Court at Law No. 8, Bexar County, Texas, the Honorable Karen Crouch, presiding.

2. Because we have no jurisdiction to order the trial court to rule in a certain manner or to address the merits of Solis's claim until the trial court has had the opportunity to rule, we deny relief on these issues. In re Ramirez, 994 S.W.2d 682, 684 (Tex. App.-San Antonio 1998, orig. proceeding).

3. The letter to the clerk is not sufficient in itself to bring the matter to the attention of the trial court. In re Heflin, 04-03-00302-CV, 2003 WL 21012595, at *1 (Tex. App.-San Antonio, May 7, 2003, orig. proceeding) (merely filing the matter with the clerk is not sufficient to impute knowledge of the pending pleading to the trial court) ; In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-Amarillo 2001, orig. proceeding). However, it does show that Solis made some attempt to bring his application to the attention of the trial court. Combined with the prior mandamus action and our request for response in the present proceeding, the trial court should be aware of Solis's attempts to have his habeas application heard.