Petition for Writ of Habeas Corpus Dismissed and Memorandum Majority and Concurring Opinion s filed August 15 , 2023

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 23

- 00456

- CR

IN RE YU HENG TAO , Relator

ORIGINAL PROCEEDING WRIT OF HABEAS CORPUS 240th District Court Fort Bend County, Texas Trial Court Cause No. 22

- DCR

- 101104



### MEMORANDUM CONCURRING OPINION
I agree that this court has no subject

- matter jurisdiction over a felony preconviction habeas

- corpus proceeding

. 1 T he district court appears to have jurisdiction under Code of Criminal Procedure article 11.08 , and th is application for

1 The caption of this case suggests this is a Texas Rule of Appellate Procedure 52 original proceeding with a relator filing a petition. That is incorrect as this is an applicant filing an application under Code of Criminal Procedure chapter 11 (in the wrong court). This court nonetheless treats this as an original proceeding.2 a writ of habeas corpus is directed to the 240th District Court of Fort Bend County.
The underlying problem appears to be that the application was mailed to the clerk of the wrong court.
I concur in the judgment only to dispose of this matter. I am not convinced
that (1) the clerk of this court must (a) file a ny document presented for filing, even
if the documen t is addressed to another court, and ( 2 ) open a case on this court’s
docket

. There must be another way to handle something that was mistakenly mailed

to this court

. We could give notice and allow for a response, making it clear that it
will be filed and di smissed if no sufficient response is filed.

This is one example of why we sh ould follow the practice in civil appeals as set forth in Texas Rule of Appellate Procedure 42.3 which requires notice of an involuntary dismissal , including dismissals for want o f subject

- matter jurisdiction

. While not required by the Texas Rules of Appellate Procedure, this court now routinely sends notice s of involuntary dismissals in criminal appeals. See Tex. R. App. P. 42.4 (only requiring involuntary dismissal in criminal case if appellant escapes from custody pending appeal).
Does the absence of a rule requiring notice in original proceedings and criminal appeals make lack of notice appropriate? After all, w e have procedural rules
to sati sfy federal and state constitutional requirements of notice and an opportunity
to be heard in our court proceedings. Th e lack of a rule does not nullify those
constitutional issues.
What if the problem with dismissing without notice in a n original proceedi ng is that we are simply wrong in our legal analysis or assumptions ? Are we in such a hurry that we cannot do what we must do in civil appeals and currently do as standard3 operating procedure in criminal appeals? People do make mistakes, including people

w ho file things and people who rule on those things

. Absent extraordinary circumstances, we have the luxury of telegraphing an involuntary dismissal. We rarely receive a response when we do , which appears to
confirm the case should be dismissed . I would giv e notice whenever we can so that we do not involuntarily dismiss based on a mistake of law or , in this case, what appears to be a document intended to be filed in another court

. I respectfully concur.

/s/ Charles A. Spain Justice

Panel c onsists of Justices Wise, Bourliot, and Spain (Spain, J., concurring)

.
Do Not Publish

— Tex. R. App. P. 47.2(b).