                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-16-00202-CR

                         IN RE WILLIAM M. WINDSOR


                                Original Proceeding



                        CONCURRING O P I N I O N

      While I concur with the Court’s disposition of this original proceeding, I write

separately to discuss Relator William M. Windsor’s issues for the benefit of the parties.

      The Appendix in this original proceeding for a writ of mandamus reflects that an

Ellis County grand jury indicted Windsor for the offense of Bail Jumping and Failure to

Appear. See TEX. PENAL CODE ANN. § 38.10 (West 2011). See generally Ex parte Windsor,

No. 10-14-00401-CR, 2016 WL 192303, at *5-6 (Tex. App.—Waco Jan. 14, 2016, pet. ref’d)

(mem. op., not designated for publication). The Ellis County District Clerk filed the

indictment on January 14, 2015 in the 40th District Court and docketed it as cause number

39,746 CR.

      Windsor’s Appendix further reflects that the State filed a motion to dismiss the
case without prejudice on May 7, 2015, and on that same day, the Respondent trial judge

signed an order dismissing the “above entitled and numbered cause” without prejudice.

See TEX. CODE CRIM. PROC. ANN. art. 32.02 (West 2006) (providing that State may dismiss

criminal action with presiding judge’s consent). The State’s motion to dismiss and the

trial court’s order state the reason for dismissal, as required by article 32.02.1 See id.

       After the case’s dismissal, Windsor purportedly filed a motion for recusal of the

Respondent trial judge and a motion to quash the indictment.2 A letter to Windsor from

the Presiding Administrative Judge reflects that Windsor sent a notice to the Presiding

Administrative Judge complaining that the Respondent trial court judge had failed to act

on Windsor’s motion for recusal. The Presiding Administrative Judge informed Windsor

that “no court has jurisdiction to take action in your case because the case was dismissed

in May 2015. … The order of dismissal means that there is no pending case.”

       In his petition for writ of mandamus, Windsor’s first issue complains that the

Respondent trial judge is not considering and ruling on his post-dismissal motions.

Because the State’s case against Windsor has been dismissed, I would hold that the

Respondent trial judge does not have jurisdiction to consider and rule on Windsor’s post-

dismissal motions.




1The State’s reason for dismissal was that Windsor was in custody in Montana and that the State would
pursue the indictment and arrest of Windsor when the Montana prosecution was complete or near
completion.

2Windsor’s Appendix includes these post-dismissal motions, but they are not file-marked. There is thus
no showing that the post-dismissal motions have even been filed by the district clerk.


In re Windsor                                                                                  Page 2
       Windsor’s third issue requests that we grant his motion to quash the indictment.

I believe that we do not have jurisdiction to rule on Windsor’s post-dismissal motion to

quash, even if it was actually filed in the now-dismissed case, because there is no pending

case. Further, to the extent that Windsor’s request that we grant his motion to quash the

indictment is actually a request for habeas corpus relief, I note that we lack original

habeas corpus jurisdiction in criminal-law matters. Ex parte Hearon, 3 S.W.3d 650, 650

(Tex. App.—Waco 1999, orig. proceeding); see TEX. GOV’T CODE ANN. § 22.221(d) (West

2004). I would thus hold that we lack jurisdiction to address Windsor’s motion to quash

the indictment in this original proceeding.

       Windsor’s second issue asserts that his criminal case could not be closed or

dismissed without prejudice because there is a pending or “open” indictment and arrest

warrant against him. As discussed above, article 32.02 authorizes the State to dismiss a

criminal action with the trial court’s consent, and Windsor cites no contrary authority.

Plainly, Windsor’s case could be dismissed at the State’s request in compliance with

article 32.02.

       Windsor’s real complaint appears to be that the case was dismissed without

prejudice, that the State has asserted that it will again pursue the indictment and arrest

of Windsor, and that Windsor seeks to avoid arrest and prosecution. I would construe

this complaint as one seeking habeas corpus relief, and as noted above, we lack original

habeas corpus jurisdiction in criminal-law matters. I would thus hold that we lack

jurisdiction to address this complaint.




In re Windsor                                                                        Page 3
       For the above reasons, I would deny Windsor’s petition for writ of mandamus in

part and dismiss it in part for lack of jurisdiction.



                                                   REX D. DAVIS
                                                   Justice

Concurring opinion delivered and filed August 31, 2016
Do not publish




In re Windsor                                                                  Page 4
