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

NO. 12-08-00078-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MICHAEL KENNEDY,

RELATOR ORIGINAL PROCEEDING

MEMORANDUM OPINION

Michael Kennedy seeks a writ of mandamus requiring the trial court to set bail, read him his rights and issue notice of the charges against Kennedy.1 We construe Kennedy s mandamus petition as a complaint that he is being illegally confined prior to indictment. We deny the petition.

Initially, we note that Kennedy has not complied with Texas Rule of Appellate Procedure 52, which sets out the requisites for filing an original proceeding such as mandamus. Rule 52.3, subsections (a) through (j), prescribes the form and contents of a mandamus petition. Tex. R. App. P. 52.3(a)-(j). Rule 52.7(a) describes the items that must be included in the record filed with the petition. Tex. R. App. P. 52.7(a). Kennedy has failed to satisfy several of these requirements. See Tex. R. App. P. 52.3(a)-(f), 52.3(j), 52.7(a).

Moreover, in a criminal case, mandamus relief is authorized only if the relator establishes that (1) he has no other adequate legal remedy and (2) under the facts and the law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). A defendant may raise by pretrial habeas corpus claims concerning unlawful confinement. See Tex. Code Crim. Proc. Ann. art. 11.23 (Vernon 2005) (writ of habeas corpus intended to be applicable to all cases of illegal confinement and restraint); see also In re Shaw, 204 S.W.3d 9, 14 (Tex. App. Texarkana 2006, pet. ref d) (matters of bail properly raised by pretrial habeas). Kennedy asserts he is illegally confined in the Anderson County Jail. That complaint is properly raised by pretrial habeas corpus. Because his claim may be raised by pretrial habeas corpus, Kennedy cannot show that he has no adequate legal remedy. Accordingly, his petition for writ of mandamus is denied.

Kennedy has also filed a motion for show cause, requesting that the Honorable Bascom W. Bentley, III, Judge of the 369th Judicial Court of Anderson County, be ordered to show this court why he set Kennedy s bond at $100,000. Because matters concerning bail are properly raised by pretrial habeas, In re Shaw, 204 S.W.3d at 14, we take no action on Kennedy s motion for show cause.

BRIAN HOYLE

Justice

Opinion delivered February 22, 2008.

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

(DO NOT PUBLISH)

1 The respondent is the Honorable Mark A. Calhoon, Judge of the 3rd Judicial District Court, Anderson County, Texas.