                               NO. 12-09-00423-CR
                               NO. 12-09-00424-CR

                       IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
                                                  '
IN RE: MARVIN WADDLETON,
RELATOR                                           '   ORIGINAL PROCEEDING

                                                  '
                                   MEMORANDUM OPINION

       Relator Marvin Waddleton III seeks a writ of mandamus directing the Honorable
Jack Skeen, Jr., Judge of the 241st Judicial District Court, Smith County, Texas, to order
the release of funds allegedly deposited by Relator upon the execution of his bail bonds
in trial court cause numbers 241–0843–05 and 241–1330–05. We deny the petition.

                                        DISCUSSION
       In a criminal case, the relator is entitled to mandamus relief only if he 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. See State ex rel. Hill v. Fifth Court of
Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Here, Relator contends that he
deposited funds in the sum of $2,950 in two criminal cases and is entitled to a refund of
the deposited funds pursuant to article 17.02 of the Texas Code of Criminal Procedure.
He further alleges that mandamus is appropriate because the respondent has been
requested to order the refund, but has failed to do so.
       A “bail bond” is a written undertaking entered into by the defendant and his
sureties for the appearance of the defendant before some court or magistrate to answer a
criminal accusation. TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005). If the
defendant chooses, he may deposit with the custodian of funds of the court in which
prosecution is pending cash in the amount of the bond in lieu of having sureties sign the
bond. Id.    The receiving officer must give a receipt for any funds deposited, and the
funds must be refunded to the defendant, upon order of the court, if and when he
complies with the conditions of his bond. Id.
        Initially, we note that a petition for writ of mandamus must be accompanied by an
appendix that contains a certified or sworn copy of any order complained of, or any other
document showing the matter complained of.               See TEX. R. APP. P. 52.3(k)(1)(A).
Additionally, the petition must be accompanied by a record containing a certified or
sworn copy of every document that is material to the relator’s claim for relief and that
was filed in any underlying proceeding. See TEX. R. APP. P. 52.7(a)(1). Relator’s
petition was not accompanied by an appendix or a record. Consequently, we are unable
to verify the allegations in his petition or conclude that he is entitled to mandamus.
        Moreover, Relator alleges that, in two separate cases, he was charged with theft
(trial court cause number 241–0843–05) and possession of a controlled substance (trial
court cause number 241–1330–5). He further alleges that his bond was set at $25,000 in
the theft case and $5,000 in the possession of a controlled substance case. According to
Relator, Fast Action Bail Bond wrote both of these bonds, and was paid a total premium
of $2,950. Thus, it appears from Relator’s petition that he posted a surety bond in each
case and that the amount he paid was a premium for the bonds and not a cash deposit in
lieu of sureties as contemplated by article 17.02.

                                            CONCLUSION
        Relator has not shown that he deposited cash in lieu of having sureties sign his
bonds as authorized by article 17.02 of the Texas Code of Criminal Procedure.
Therefore, he is unable to establish, under the facts and the law, that the respondent has
failed to perform an act that is purely ministerial. Because Relator has not satisfied this
prerequisite to mandamus, we need not address the second prerequisite, the availability of
an adequate legal remedy. Relator’s petition for writ of mandamus is denied.

                                                                  JAMES T. WORTHEN
                                                                      Chief Justice

Opinion delivered December 16, 2009.
Panel consisted of Worthen, C.J, and Hoyle, J.
Griffith, J., not participating.




                                        (DO NOT PUBLISH)
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