                                     NO. 07-09-0207-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                    JULY 20, 2009
                           ______________________________

                         IN RE JOEL L. HERNANDEZ, RELATOR
                          _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                ON PETITION FOR WRIT OF
                             MANDAMUS AND PROHIBITION


       By a petition for a writ of mandamus and prohibition, relator Joel L. Hernandez

requests issuance of mandamus directing the Honorable Larry B. “Rusty” Ladd, Presiding

Judge of the Lubbock County Court at Law No. 1, and Lubbock County, to conduct a

“judicial inquiry” or hearing into the extension of his jail time pursuant to article 43.09 of the

Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 43.09 (Vernon 2007).

See also Tex. R. App. P. 52.1. Relator also requests that we direct the trial court judge to

act on his application for writ of habeas corpus. We will deny relator’s petition.


       Relator’s petition states he currently is incarcerated in the Lubbock County Jail.

Relator was convicted in the Lubbock County Court at Law No. 1 of the misdemeanor

offense of assault-domestic violence. See Tex. Penal Code Ann. § 22.01(a) (Vernon

2007). He was sentenced to 365 days in jail and a fine and court costs in the amount of
$4309. This Court affirmed appellant’s conviction on September 24, 2008. See Hernandez

v. State, 280 S.W.3d 384 (Tex.App.–Amarillo 2008, no pet.). According to relator’s

petition, he filed an application for writ of habeas corpus with the trial court on May 26,

2009 asserting violations of his statutory and constitutional rights and requesting the trial

court conduct a “judicial inquiry” as to his inability to pay the imposed fine and costs and

his continued jail time pursuant to article 43.09. In response, relator asserts, the trial court

sent him a letter informing him that the court was closed until June 22, 2009 and Judge

Ladd was “on vacation.”1


       Thereafter, on June 24, relator filed his petition for writ of mandamus and prohibition

with this Court, asking us to: (1) consider his petition on a “fast-track accelerated

schedule;” (2) order respondents to file an accelerated reply to this petition; (3) order

respondents to issue the writ process, requiring the Lubbock County District Attorney to file

a reply to the writ application filed in the trial court; (4) order respondents to render a final

writ decision following a mandatory evidentiary hearing; and (5) in the alternative, to

transfer this case to the nearest county court at law in the event the trial court is “on

vacation.”



       1
          Relator has not provided us a copy of the letter he says he received from the trial
court. See Tex. R. App. P. 52.3(k) (requiring an appendix containing, among other items,
“a certified or sworn copy of any order complained of, or any other document showing the
matter complained of”). Moreover, the copy of application for writ of habeas corpus relator
has provided us bears no file-mark or other indication the application was filed. These
procedural defects alone would require us to deny relator’s petition. For purposes of this
opinion, however, we will assume the accuracy of relator’s statements concerning his filing
of the application. Further, relator’s petition fails to comply with appellate rule 52.3 in
several other respects, in that it contains no table of contents, index of authorities,
statement of the case, or statement of jurisdiction. Tex. R. App. P. 52.3.

                                               2
       A writ of prohibition directs a lower court to refrain from doing some act while a writ

of mandamus commands a lower court to do some act. In re Lambert, 993 S.W.2d 123,

126 (Tex.App.–San Antonio 1999, orig. proceeding), citing Tilton v. Marshall, 925 S.W.2d

672, 676 n.4 (Tex.1996). Prohibition is an extraordinary proceeding and should be used

sparingly. Guerra v. Garza, 987 S.W.2d 593, 594 (Tex.Crim.App.1999). Mandamus is an

extraordinary remedy available only in limited circumstances, and not for grievances that

may be addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)

(orig. proceeding).


       As noted, relator’s petition refers both to a writ of mandamus and writ of prohibition.

A writ of prohibition has three principal functions: 1) preventing interference with higher

courts in deciding a pending appeal; 2) preventing an inferior court from entertaining suits

that would relitigate controversies already settled by the issuing court; and 3) prohibiting

a trial court's action when it affirmatively appears the court lacks jurisdiction. Humble

Exploration Co., Inc. v. Walker, 641 S.W.2d 941, 943 (Tex.App.–Dallas 1982, writ ref’d);

In re Staley, No. 07-00-0467-CV, 2001 WL 25692 (Tex.App.–Amarillo 2001, orig.

proceeding). A writ of prohibition issues only to prevent the threatened commission of a

future act. State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 435 (Tex.Crim.App. 1987).

Relator does not ask this Court for relief consistent with a request for a writ of prohibition,

and his request for such a writ will be denied.




                                              3
       Turning to relator’s petition for a writ of mandamus, relator states he filed his

application for a writ of habeas corpus in the trial court on May 26 and the court had not

acted on it by the time he filed his petition in this Court on June 24. Mandamus relief is

authorized in a criminal case if the relator establishes that (1) he has no other adequate

legal remedy and (2) the act sought to be compelled is purely ministerial. State ex rel.

Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003).                    Regarding the first

requirement, there is no right to appeal in a misdemeanor case in which a trial judge

refuses to issue a post-conviction writ of habeas corpus or to grant a hearing on the merits

of the applicant's claim. Ex parte Crosley, 548 S.W.2d 409 (Tex.Crim.App.1977). In the

current matter, it is unclear that the trial court has refused to rule or hold a hearing. Rather,

it may be that the application has not been brought to the attention of the trial court.2


       Even assuming relator’s petition establishes appeal is not available to him, however,

the unavailability of an appeal does not automatically make mandamus available. See In

re Piper, 105 S.W.3d 107, 110-11 (Tex.App.–Waco 2003, orig. proceeding).                          In

circumstances similar to those relator alleges, Texas courts have found the relator to have

an adequate legal remedy by filing the application for writ of habeas corpus in another

court having habeas jurisdiction. See, e.g., In re Wiley, No. 12-07-00167-CR, 2007 WL



        2
          Relator filed a letter with his application in which he requested that the clerk
“forward a copy to the Honorable Larry B. “Rusty” Ladd, Presiding Judge, for his decision.”
The letter to the clerk is not sufficient in itself to bring the matter to the attention of the trial
court. In re Solis, No. 04-04-00050-CV, 2004 WL 1336266, 82 (Tex.App.–San Antonio
June 16, 2004, orig. proceeding); In re Heflin, 04-03-00302-CV, 2003 WL 21012595, at *1
(Tex.App.–San Antonio, May 7, 2003, orig. proceeding) (merely filing the matter with the
clerk is not sufficient to impute knowledge of the pending pleading to the trial court); In re
Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001, orig. proceeding) (holding same).

                                                 4
2178558 (Tex.App.–Tyler July 31, 2007, orig. proceeding); Piper, 105 S.W.3d at 110-11.

See also Onion, 741 S.W.2d at 434 (district courts also have power to issue writ of habeas

corpus, and Code of Criminal Procedure article 11.09 does not deprive them of that power

in cases involving misdemeanors).3 See generally Ex parte Schmidt, 109 S.W.3d 480, 481

(Tex.Crim.App. 2003).


       Here, relator’s petition is based on the assumption that a writ of mandamus issued

by this Court is his only remedy. But the law provides another legal remedy, and relator

has not shown it to be inadequate. See, e.g., In re Altschul, 236 S.W.3d 453, 456

(Tex.App.–Waco 2007, orig. proceeding) (distinguishing Piper and finding mandamus

available). Accordingly, relator’s petition for mandamus and prohibition both are denied.




                                           James T. Campbell
                                               Justice




       3
        Article 11.05 of the Code of Criminal Procedure provides: “The Court of Criminal
Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power
to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ
under the rules prescribed by law.” Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 2005).


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