## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-85,709-05 IN RE JAMES DWAYNE HOISAGER, Re lator

ON AP P LICATION FOR A WRIT OF M ANDAM US CAUSE NO. CR-32305A IN THE 142ND DIST RICT COURT

F ROM MID LAND COUNTY

Per curiam . O P I N I O N

Relator has filed a motion for leave to file a writ o f m an damus pursuant to the orig inal jurisdiction of this Court. I n it, he contends that he filed an a pplication for a

writ of habe as cor

pus in Midland County and that Respondent, the Midland Coun ty District Clerk, has not timely forwa rded his application to this Court or complied with Article 11.07, § 7 of the Code of Criminal Procedur e. We held this application in abey ance on October 9 and November 27, 2019, and order ed Respondent to fi le response s. I n his first response , he said that the 181-day deadline in Rule of2

Appellate Procedur e 73.4(b)( 5) had not expi re d

. I n his second response , he said that the State’s 1 proposed order desig nating issues and the trial court’s finding s of fac t and conclusions of law wer e mailed to Relator. We find that Respondent has complied wi th Article 11.07, § 7 of the Code of Criminal Procedur e. Respondent is, howeve r, violating his minist eria l duty to forwa rd Relator’s application to this Court. Acc ording to the rec ord, the trial court enter ed finding s of fac t and conclusions of law

on J une 26, 2019. Despite the 181-day deadline in Rule 73.4(b)( 5), R espondent had a mi nisterial duty to immediately forwa rd Relator’s application to this Court afte r the trial court enter ed finding s and conclusions. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). Although this Court has the authority to promulg ate rules of appellate proce dure such as Rule 73.4(b)( 5), these rules may n o t ab ri dg e,

en l ar ge, or modify the substantive rig hts of a litigant. T E X . G O V ’ T C O D E § 22.108; see al s o T E X . C O D E C R I M . P R O C . art. 44.33(a) (“The Court of Criminal Appe als shall make rules of posttrial and appellate proce dure as to the hear ing of criminal actions not inconsistent” with the Code of Criminal Procedur e); Carranza v. State , 980 S.W .2d 653, 658 (Tex. Crim. App. 1998) (To re quire a highe r burden than that found in Article 26.13 of the Code of Criminal Procedur e “would eff ectively allow the Rules of Appellate Procedur e, which are promulg ated by this Court, t o ‘trump’ or overr ide the Code of Criminal Procedur e” and contra vene Article 44.33(a) of the Code of Criminal Procedur e.). We conditionally g rant mandamus relief and order Respondent to immediately forwa rd Relator’s Article 11.07 application to this Court. We w ill withhold issuing the writ of mandamus Rule 73.4(b)(5) provides: “On the 181st day from the da te of re ceipt of the application 1 by the State of a

postconviction application for writ of habe as cor

pus under Ar

ticle 11.07, the district clerk sha ll forwar d the writ re cord to this Court unless the district court has r ece ived an extension of tim e fr om the Court of Criminal Appeals pursua nt to Rul e 73.5.” T E X . R. A P P . P. 73.4(b)( 5).3

so Respondent ca

n comply with this opi nion.

Filed: January

15, 2020 Do not publish