                                  IN THE
                          TENTH COURT OF APPEALS



                                  No. 10-19-00463-CR

                                 IN RE SHANE MIX


                                 Original Proceeding



                           MEMORANDUM OPINION

       Shane Mix, a prisoner, asks this Court to issue a writ of prohibition to prohibit the

Brazos County District Attorney from prosecuting Mix for theft. There are numerous

procedural problems with Mix's petition, such as no certification and no record as

required by the Rules of Appellate Procedure. See TEX. R. APP. P. 52.3(j); 52.7. The petition

was also not properly served. See TEX. R. APP. P. 9.5. However, we use Rule 2 to suspend

these requirements and expedite a disposition of the petition. TEX. R. APP. P.2.

       Generally, a writ of prohibition issues to prevent the commission of a future act.

State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985). The Texas

Constitution and the Texas Code of Criminal Procedure grant the Court of Criminal

Appeals the power and authority to issue writs of prohibition in criminal matters. TEX.
CONST. art. V, § 5(c) ("...the Court of Criminal Appeals and the Judges thereof shall have

the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of

mandamus, procedendo, prohibition, and certiorari."); TEX. CODE CRIM. PROC. ANN. art.

4.04, sec. 1 ("The Court of Criminal Appeals and each judge thereof shall have, and is

hereby given, the power and authority to grant and issue and cause the issuance of writs

of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo,

prohibition, and certiorari."). The intermediate appellate courts, such as this Court, were

not given the same power or authority. See TEX. CONST. art. V, § 6 (original jurisdiction

only as may be established by law); TEX. CODE CRIM. PROC. ANN. art. 4.03 (no original

jurisdiction in criminal law matters established).

       The only situation in which a writ of prohibition may properly be used by this

Court is to protect our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a) ("Each court of

appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs

necessary to enforce the jurisdiction of the court."); In re Wyatt, 110 S.W.3d 511, 511 (Tex.

App.—Waco 2003, orig. proceeding); In re Salas, 994 S.W.2d 422, 423 (Tex. App.—Waco

1999, orig. proceeding).    Its use is limited to cases in which this Court has actual

jurisdiction of a pending proceeding. Wyatt, 110 S.W.3d at 511; Salas, 994 S.W.2d at 423.

       Although Mix has a petition for writ of mandamus pending in this Court, his

petition for writ of prohibition does not assert any manner in which our jurisdiction is in

jeopardy of being lost due to the events about which he is complaining. Therefore, we

have no jurisdiction to issue the requested writ.




In Re Mix                                                                              Page 2
       Accordingly, Mix's petition for writ of prohibition is dismissed.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Pet. dismissed
Opinion delivered and filed December 23, 2019
Do not publish
[OT06]




In Re Mix                                                                  Page 3
