In Re: Michael Kennedy--Appeal from 3rd District Court of Anderson County

NO. 12-05-00423-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MICHAEL KENNEDY, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Michael Kennedy seeks a writ of mandamus requiring the trial court clerk to send his first and second notices of appeal to this Court. We dismiss the petition for want of jurisdiction.

The legislature has not conferred authority on courts of appeals to issue writs of mandamus generally. See Tex. Gov t Code Ann. 22.221 (Vernon 2004). We may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court. Id. 22.221(a). We may also issue a writ of mandamus against a judge of a district or county court in the court of appeals district or a judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district. Id. 22.221(b). Because we are not specifically authorized to issue a writ of mandamus against a trial court clerk, we may do so only where the writ is necessary to enforce our jurisdiction.

Here, Kennedy alleges that he filed his first notice of appeal in appellate cause number 12-05-00405-CR on October 19, 2005 and subsequently filed a second notice of appeal. The clerk s records indicate that Kennedy s fourth notice of appeal was received on November 28, 2005. We received this notice of appeal from the clerk on December 13, 2005. The clerk s records also show that Kennedy s first notice of appeal was received on December 27, 2005. That notice of appeal was not forwarded to this Court. The clerk has no record of receiving any other notices of appeal from Kennedy in appellate cause number 12-05-00405-CR.

Kennedy s fourth notice of appeal was sufficient to invoke the jurisdiction of this Court, subject to other applicable law. Thus, the trial court s clerk s failure to forward Kennedy s first notice of appeal, which was received after his fourth notice of appeal had been forwarded to this Court, did not affect the jurisdiction of this Court. Kennedy s allegations do not show that the issuance of a writ of mandamus against the trial court clerk is necessary to enforce our jurisdiction. Therefore, we have no jurisdiction to grant the requested relief. Accordingly, Kennedy s petition for writ of mandamus is dismissed for want of jurisdiction.

SAM GRIFFITH

Justice

Opinion delivered January 18, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)