             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-25,679-15


                           IN RE ARTHUR DAVID LOWE, Relator


                    ON APPLICATION FOR A WRIT OF MANDAMUS
                   CAUSE NO. 283709 IN THE 228TH DISTRICT COURT
                              FROM HARRIS COUNTY


       Per curiam. Keller, P.J., and Alcala, J. dissent.

                                            OPINION


       Relator has filed a motion for leave to file a writ of mandamus pursuant to the original

jurisdiction of this Court. In it, he contends that he filed a Motion to Obtain Writ of Second Time

in the 228th District Court of Harris County, but the District Clerk refused to accept the motion for

filing. We conditionally grant relief.

       Relator contends that he attempted to file a Motion to Obtain Writ of Second Time, pursuant

to article 11.59 of the Texas Code of Criminal Procedure, with the Harris County District Clerk, but

the motion was refused and returned. After this Court abated Relator’s mandamus application for

a response from the district clerk, the clerk responded that it was unclear in which of the three

previously filed writs Relator was attempting to file the motion.
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        The district clerk also responded that it appeared that Relator was challenging a final felony

conviction pursuant to TEX . CODE CRIM . PROC. art. 11.07. It does appear as if Relator is attempting

to circumvent the bar on subsequent applications, as codified in TEX . CODE CRIM . PROC. art. 11.07

§ 4. Relator calls his pleading a Motion for a Writ of Second Time1, but he is challenging a final,

discharged conviction. However, whether a filing has merit is irrelevant to the district clerk’s duty

to receive and file all papers. See TEX . CODE CRIM . PROC. art. 2.21.

        We will grant mandamus relief when a relator shows “(1) that the act sought to be compelled

is purely ministerial and (2) that there is no adequate remedy at law.” Winters v. Presiding Judge

of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003). District and

county clerks have a duty to “receive and file all papers.” TEX . CODE CRIM . PROC. art. 2.21. The trial

court certainly has no general ministerial duty to grant Relator’s motion, but the district clerk does

have a ministerial duty to “receive and file all papers” in a criminal proceeding. In Relator’s case,

the Harris County District Clerk has a ministerial duty to file Relator’s motion. Because Relator has

no right to appeal the District Clerk’s refusal to file his Motion to Obtain Writ of Second Time,

Relator has no other remedy at law.

        We conditionally grant Relator’s application for a writ of mandamus and direct the Harris

County District Clerk to accept and file Relator’s Motion to Obtain Writ of Second Time. Since

Relator does not designate under which writ he wishes to file this motion, the Harris County District

Clerk may file the motion under the writ number that is the most convenient for that office.

        Following custom, we will withhold issuance of the writ and allow the District Clerk an


        1
          A Motion for Writ of Second Time is a pre-trial motion that is generally filed when a
Defendant’s bail or bond reduction is denied. A trial court will holding a hearing on this type of motion
when new evidence becomes available that was not available at the first hearing. See TEX . CODE CRIM .
PROC . art 11.59.
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opportunity to conform her actions to this opinion. Only if she refuses to file Relator’s Motion for

Writ of Second Time will the writ of mandamus issue. State ex rel. Hill v. Pirtle, 887 S.W.2d 921,

932 (Tex. Crim. App. 1994).

       Relator shall file any supplemental information or habeas applications within 30 days of the

issuance of this opinion.



Delivered: October 8, 2014
Do not publish
