Petition for Writ of Habeas Corpus Dismissed and Memorandum Majority and 

Concurring Opinions 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 The district court appears to have 

jurisdiction under Code of Criminal Procedure article 11.08, and this 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.
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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 any document presented for filing, even 

if the document 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 dismissed if no sufficient response is filed. 

This is one example of why we should 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 of subject-matter jurisdiction.

While not required by the Texas Rules of Appellate Procedure, this court now 

routinely sends notices 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, we have procedural rules 

to satisfy federal and state constitutional requirements of notice and an opportunity 

to be heard in our court proceedings. The lack of a rule does not nullify those 

constitutional issues.

What if the problem with dismissing without notice in an original proceeding 

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 standard 
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operating procedure in criminal appeals? People do make mistakes, including people 

who 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 give 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 consists of Justices Wise, Bourliot, and Spain (Spain, J., concurring).

Do Not Publish — Tex. R. App. P. 47.2(b).