             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-74,190-04


                           IN RE DONIS LEMOND DENBY, Relator


                     ON APPLICATION FOR A WRIT OF MANDAMUS
                     CAUSE NO. 8512 IN THE 259TH DISTRICT COURT
                                FROM JONES COUNTY


       Per curiam.

                                           OPINION


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

jurisdiction of this Court. In it, he contended that he filed an 11.07 application for a writ of habeas

corpus in the convicting court on July 27, 2019. He alleged that more than 35 days have elapsed

since the filing date and that a timely order designating issues has not been entered. He wants this

Court to order the district clerk to forward his 11.07 application.

       On September 25, 2019, this Court held Relator’s motion for leave to file in abeyance and

ordered the district clerk to respond with information concerning any orders designating issues and

the date the State was served with the writ application. In response to this Court’s order, the
                                                                                                     2

respondent District Clerk, through the offices of the County Attorney, responded that a writ

application was received “on or about September 11, 2019,” that a judge has been assigned to hear

the case, and that no further orders have been entered.

       Upon receipt of an application for a writ of habeas corpus challenging a final felony

conviction, the attorney representing the State has 15 days to respond. TEX . CODE CRIM . PROC. art.

11.07 § 3(b). After the expiration of the time allowed for the State to respond, the trial court is

allowed 20 days to determine whether the application contains allegations of controverted,

previously unresolved facts material to the legality of the applicant’s confinement. TEX . CODE CRIM .

PROC. art. 11.07 § 3(c). If the trial court determines that the application for writ of habeas corpus

presents such issues it “shall enter an order within 20 days of the expiration of the time allowed for

the state to reply, designating issues of fact to be resolved.” TEX . CODE CRIM . PROC. art. 11.07 §

3(d). “If the convicting court enters an order designating issues, the clerk shall immediately transmit

to the Court of Criminal Appeals a copy of that order and proof of the date the district attorney

received the habeas application.” TEX . R. APP . P. 73.4(b)(1). Article 11.07 does not authorize the

trial court to extend the time limitations imposed by the statute, other than by a timely issuance of

an order designating issues. McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992).

Without a timely entry of an order designating issues, Article 11.07 imposes a duty upon the clerk

of the trial court to immediately transmit to this Court the record from the application for a writ of

habeas corpus, deeming the trial court’s inaction a finding that no issues of fact require further

resolution. TEX . CODE CRIM . PROC. art. 11.07 §3(c).

       In this case, Respondent says she received the application for a writ of habeas corpus on

September 11, 2019. She says no further action has been taken relating to the writ application and
                                                                                                3

has provided no order designating issues. The District Clerk has no authority to continue to hold

Relator’s application for a writ of habeas corpus and is under a ministerial duty to immediately

forward the application and related records in Cause No. 8512 filed in the 259th Judicial District

Court of Jones County to this Court.

       We grant Relator leave to file and conditionally grant mandamus relief and direct the

Respondent to comply with this opinion. The writ of mandamus will issue only in the event the

Respondent fails to comply within thirty days of the date of this opinion.




Filed: November 20, 2019
Do not publish
