            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. AP-76,067



                              JAY EDWIN GIBSON, Relator

                                               v.

                 DALLAS COUNTY DISTRICT CLERK, Respondent


           ON APPLICATION FOR A WRIT OF MANDAMUS
   CAUSE NO. W90-47176-T(A) IN THE 283rd JUDICIAL DISTRICT COURT
                       FROM DALLAS COUNTY


       Per curiam.

                                        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 an application for a writ of habeas

corpus in the 283rd Judicial District Court of Dallas County on June 7, 2008. He alleges that

more than 35 days have elapsed since he filed that application in the district court. He asks

that we order the district clerk to forward his 11.07 application to this Court because he has
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heard nothing from the district court and was allegedly told by the district clerk to refile his

habeas corpus application.

       On November 5, 2008, this Court held this mandamus application in abeyance and

ordered the district clerk to respond because more than 35 days had elapsed since the alleged

filing date and this Court had no record of a timely entered order designating issues. In

response to this Court’s order, the district clerk forwarded a copy of an order designating

contested factual issues which the trial judge had entered on November 17, 2008. This Court

has still not received the 11.07 application for writ of habeas corpus and the clerk has not

submitted any information showing that the order designating factual issues was timely

entered. We therefore grant Gibson’s motion for leave to file an application for a writ of

mandamus.

       When a person files an application for a writ of habeas corpus challenging a final

felony conviction with the clerk of the court in which the conviction was obtained, the clerk

shall assign the application to that trial court and send a copy of the application via certified

mail or personal service to the attorney representing the State. See T EX. C ODE C RIM. P ROC.

Art. 11.07, §(b). The State then has 15 days to respond to the allegations in the writ

application. Id. After the expiration of the time allowed for the State to respond, the trial

court is allowed an additional twenty days to determine whether the application contains

allegations of controverted, previously unresolved facts material to the legality of the

applicant’s confinement. Art. 11.07, §3(c). If the trial court determines that the application
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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.”

Id. This provision is mandatory. Article 11.07 requires the trial judge to either (1) enter an

order designating contested factual issues within thirty-five days of the receipt of the writ

application–regardless of whether the State files a response; or, (2) if there are no unresolved

facts to be determined, to send the application and all associated materials to this Court. The

Legislature’s purpose in setting these deadlines was to ensure that post-conviction

constitutional claims would be addressed and resolved with appropriate speed, efficiency,

and fairness.1

        Article 11.07 does not authorize the trial court to extend the time limitations imposed

by the statute, other than by a timely entry of an order designating issues. McCree v.

Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)(emphasis added). 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



       1
         T EX . CODE CRIM . PROC. art. 11.04 (“Every provision relating to the writ of habeas
corpus shall be most favorably construed in order to give effect to the remedy, and protect the
rights of the person seeking relief under it”); see Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim.
App. 2002) (“The purpose of a writ of habeas corpus is to obtain a speedy and effective
adjudication of a person's right to liberation from illegal restraint. “)(citing Blackledge v. Allison,
431 U.S. 63, 71 (1977) (“[T]he very purpose of the writ of habeas corpus [is] to safeguard a
person's freedom from detention in violation of constitutional guarantees”) and Ex parte Ramzy,
424 S.W.2d 220, 223 (Tex.1968) (“the purpose of the writ of habeas corpus is to obtain a speedy
adjudication of a person's right to liberation from illegal restraint”).
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further resolution. Art. 11.07, §3(c).

       In this case, Relator alleges that he filed this application for writ of habeas corpus in

the trial court on June 7, 2008, an allegation which the district clerk does not dispute. The

trial court entered an order designating issues on November 17, 2008, which was after the

time limitations provided in the statute had expired. The untimely order interfered with the

district clerk’s duty to transmit the application to this Court and is therefore without effect.

See Martin v. Hamlin, 25 S.W.3d 718, (Tex. Crim. App. 2000). The district clerk has no

authority to continue to hold Relator’s application for writ of habeas corpus and is under a

ministerial duty to immediately forward the application and related records in cause no. W90-

47176-T(A) filed in the 283 rd Judicial District Court of Dallas County to this Court unless

the clerk can certify that Relator’s habeas application was delivered to the State after October

12, 2008.

       We 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.


Filed: January 14, 2009
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