In Re Michael W. Bohannan--Appeal from 284th District Court of Montgomery County (per curiam)

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In The Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00563-CR _________________ IN RE MICHAEL W. BOHANNAN ________________________________________________________________________ Original Proceeding ________________________________________________________________________ MEMORANDUM OPINION In a petition for writ of mandamus, Michael A. Bohannan seeks to compel the Judge of the 284th District Court of Montgomery County, Texas, to rule upon a pre-trial habeas corpus petition that alleges a double jeopardy bar to the prosecution of the indictment filed in Cause No. 11-04-04462-CR. We deny the petition for writ of mandamus. [W]hen a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial. Ex parte Bates, 65 S.W.3d 133, 134-35 (Tex. App. Amarillo 2001, orig. proceeding). The criminal case has been assigned to the 435th District Court. See Tex. Gov t Code Ann. § 24.579 (West Supp. 2011) (requiring 1 the 435th District Court to give preference to criminal cases involving violation of an order of civil commitment). Relator s pre-trial habeas proceeding has been assigned to the court in which the indictment is pending. See Tex. Code Crim. Proc. Ann. art. 11.08 (West 2005) ( 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[.] ); see generally Montgomery Cnty (Tex.) Dist. Ct. Loc. R. 5. Thus, Bohannan s pre-trial habeas petition is not presently filed in the 284th District Court. Relator argues that Article 11.08 is permissive and he may present his petition to another court with jurisdiction. See Garber v. State, 667 S.W.2d 611, 613 (Tex. App. El Paso 1984, no pet.). Presuming that a court other than the court in which an indictment is pending may, under some circumstances, address the merits of a pre-trial writ of habeas corpus, that is immaterial in this case where the pre-trial habeas proceeding has been assigned to the court in which the indictment is pending. We further note that trial courts have broad discretion to transfer cases on their dockets. In re Guideone Lloyds Ins. Co., No. 09-08-472 CV, 2008 WL 4821569, at *1 (Tex. App. Beaumont Nov. 5, 2008, orig. proceeding [mand. denied]) (mem. op.). To be entitled to a writ of mandamus in a criminal case, the relator must demonstrate that he has a clear and indisputable right to the relief sought. See State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002). Bohannan has not shown that the 2 judge of the 284th District Court has failed to act upon a petition that is presently before that court. Accordingly, we deny the petition for writ of mandamus. PETITION DENIED. PER CURIAM Submitted on December 1, 2011 Opinion Delivered December 14, 2011 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ. 3

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