             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-85,709-05


                        IN RE JAMES DWAYNE HOISAGER, Relator


                  ON APPLICATION FOR A WRIT OF MANDAMUS
                CAUSE NO. CR-32305A IN THE 142ND DISTRICT COURT
                            FROM MIDLAND 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 Midland County and that Respondent, the Midland County District Clerk, has not timely

forwarded his application to this Court or complied with Article 11.07, § 7 of the Code of Criminal

Procedure.

       We held this application in abeyance on October 9 and November 27, 2019, and ordered

Respondent to file responses. In his first response, he said that the 181-day deadline in Rule of
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Appellate Procedure 73.4(b)(5) had not expired.1 In his second response, he said that the State’s

proposed order designating issues and the trial court’s findings of fact and conclusions of law were

mailed to Relator.

       We find that Respondent has complied with Article 11.07, § 7 of the Code of Criminal

Procedure. Respondent is, however, violating his ministerial duty to forward Relator’s application

to this Court. According to the record, the trial court entered findings of fact and conclusions of law

on June 26, 2019. Despite the 181-day deadline in Rule 73.4(b)(5), Respondent had a ministerial

duty to immediately forward Relator’s application to this Court after the trial court entered findings

and conclusions. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). Although this Court has the authority

to promulgate rules of appellate procedure such as Rule 73.4(b)(5), these rules may not abridge,

enlarge, or modify the substantive rights of a litigant. TEX . GOV ’T CODE § 22.108; see also TEX .

CODE CRIM . PROC. art. 44.33(a) (“The Court of Criminal Appeals shall make rules of posttrial and

appellate procedure as to the hearing of criminal actions not inconsistent” with the Code of Criminal

Procedure); Carranza v. State, 980 S.W.2d 653, 658 (Tex. Crim. App. 1998) (To require a higher

burden than that found in Article 26.13 of the Code of Criminal Procedure “would effectively allow

the Rules of Appellate Procedure, which are promulgated by this Court, to ‘trump’ or override the

Code of Criminal Procedure” and contravene Article 44.33(a) of the Code of Criminal Procedure.).

       We conditionally grant mandamus relief and order Respondent to immediately forward

Relator’s Article 11.07 application to this Court. We will withhold issuing the writ of mandamus


       1
           Rule 73.4(b)(5) provides: “On the 181st day from the date of receipt of the application
by the State of a postconviction application for writ of habeas corpus under Article 11.07, the
district clerk shall forward the writ record to this Court unless the district court has received an
extension of time from the Court of Criminal Appeals pursuant to Rule 73.5.” TEX . R. APP . P.
73.4(b)(5).
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so Respondent can comply with this opinion.



Filed: January 15, 2020

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