                                      NO. 12-13-00293-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

IN RE:                                                §

THERON BELTON,                                        §       ORIGINAL PROCEEDING

RELATOR                                               §

                                     MEMORANDUM OPINION
          In this original proceeding, Theron Belton asserts that although a reasonable time has
passed, the trial court has failed to rule on his postconviction petition for writ of mandamus.
Therefore, he seeks a writ of mandamus directing the trial court to rule.1 We deny mandamus
relief.


                                              BACKGROUND
          Belton alleges that he was convicted of delivery of a controlled substance on October 26,
1998, and sentenced to imprisonment for twenty years. He was paroled on November 1, 2006,
and arrested on a blue warrant approximately five years later. His parole was revoked in 2012,
and he asserts that no preliminary hearing was conducted before the revocation as required by
Texas Government Code Section 508.2811.
          Several months after the revocation, Belton petitioned the trial court for a writ of
mandamus directing the Texas Board of Pardons and Paroles to conduct a preliminary hearing.
He complains here that the petition has been pending in the trial court for more than one year
without a ruling, and that the trial court’s failure to rule is a violation of its ministerial duty.




          1
          The respondent is the Honorable Barry R. Bryan, Judge of the 217th Judicial District Court, Angelina
County, Texas. The State of Texas is the real party in interest.
                                  AVAILABILITY OF MANDAMUS
       A “ministerial” act is one that is accomplished without the exercise of discretion or
judgment. State ex rel. Hill v. Fifth Dist. Court of Appeals, 34 S.W.3d 924, 927 (Tex. Crim.
App. 2001) (orig. proceeding). If there is any discretion or judicial determination attendant to
the act, it is not ministerial. Id. Consideration of a motion properly filed and before the court is
ministerial. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig.
proceeding). After a judgment becomes final, however, the trial court’s jurisdiction is limited to
specific functions authorized by statute or through the appellate process. See State v. Holloway,
360 S.W.3d 480, 484-85 (Tex. Crim. App. 2012) (orig. proceeding). Unless the trial court has
jurisdiction, mandamus is not available to compel the court to rule on a motion that is filed after
the judgment becomes final. In re Harrison, No. 09-14-00043-CR, 2014 WL 670182, at *1
(Tex. App.–Beaumont Feb. 19, 2014, orig. proceeding) (per curiam) (mem. op., not designated
for publication).
       Generally, an inmate is entitled to a preliminary hearing to determine whether probable
cause or reasonable grounds exist to believe that the inmate has violated a condition of his
parole. TEX. GOV’T CODE ANN. § 508.2811 (West 2012). Belton asserts that he did not receive
this preliminary hearing and sought mandamus relief from the trial court. However, a person
alleging irregularities in the proceeding leading to a parole revocation should raise those issues in
a postconviction application for writ of habeas corpus under Texas Code of Criminal Procedure
Article 11.07. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2013); Bd. of Pardons
& Paroles v. Eighth Court of Appeals, 910 S.W.2d 481, 484 (Tex. Crim. App. 1995) (holding
claim of unlawful parole revocation must be brought to attention of convicting court under
Article 11.07). The court of criminal appeals retains exclusive jurisdiction to grant relief in such
a proceeding. See Bd. of Pardons & Paroles, 910 S.W.2d at 484.
       Here, Belton filed his petition for writ of mandamus in the trial court after his felony
conviction was final. Moreover, the trial court has no jurisdiction to grant mandamus relief for
irregularities in parole revocation proceedings. See id. Consequently, Belton cannot show that
his petition for writ of mandamus is properly before the trial court. See, e.g., id. Therefore, the
trial court has no duty to rule on Belton’s petition. See In re Beatley, No. 09-10-00262-CV, 2010
WL 2541877, at *1 (Tex. App.–Beaumont June 24, 2010, orig. proceeding) (mem. op., not




                                                 2
designated for publication) (holding that trial court has no duty to rule on mandamus petition
where claim must be raised under Article 11.07).
         Because Belton has not shown that the trial court has a duty to rule on his mandamus
petition, he has not shown that he is entitled to mandamus relief from this court. Accordingly,
we deny Belton’s petition for writ of mandamus in this court.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered May 14, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           3
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             MAY 14, 2014


                                         NO. 12-13-00293-CR


                                       THERON BELTON,
                                             Relator
                                               V.
                                     HON. BARRY R. BRYAN,
                                           Respondent


                                       ORIGINAL PROCEEDING


                      ON THIS DAY came to be heard the petition for writ of mandamus filed
by THERON BELTON, who is the defendant in Cause No. 19,408-A pending on the docket of
the 217th Judicial District Court of Angelina County, Texas. Said petition for writ of mandamus
having been filed herein on September 19, 2013, and the same having been duly considered,
because it is the opinion of this Court that a writ of mandamus should not issue, it is therefore
CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be,
and the same is, hereby DENIED.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
