NO. 07-03-0119-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D APRIL 2, 2003

______________________________ IN RE BENJA MIN A. HASS LER, JR.,

_________________________________ Before QUINN and REAVIS an d CAMPBELL, JJ.
MEMORAND UM OPINION
Relator Benjamin A. Has sler, Jr. seeks a w rit of mandamus directi ng respondents the Honorable John T. Forbis, s enior judge , and Stuart Me sser, district attorney of Carson Coun ty, to consider and rule on an appl ication for tempor ary rest raining or

der relator fil ed with the dist rict clerk of Carson County on February 11, 2003. W e must deny relator’s petition.
From t he do cuments relator has appended to his

petition filed with thi s court and other documents relator has sub m itted wi th his petiti on, it appears that relator filed a petition for bill of rev iew assi gned cause number 9251 in the distri ct court for the100 th judicial district , Carson Coun ty, on December 10, 2002. In that petiti on, relator s tates that he was convicted of murder on August 24, 1970, in cause number 1645 in the 100 th district2

court, Carson Count

y, and that th e judgment on that convicti on contained an error by which relator was depri ved of

credit for the 262 days he was confined in jail before hi s convic tion and sentenci ng. Rel ator sta tes that

he r ecei ved the m axi mum s ente nce of 9 9 years confinement, and argues t hatthe erroneous failure to give him credit for the 262 days jail time resulted in an illegal sentence of over 100 years. F urther, rel ator states tha t with the proper credit for the 262 days jail time, and with other credits re lator has acc umulated during his prison confinement, he should have been dis charged from th e In stitutional Divisi on of t h e Texas Depar tment of Criminal Justice no l ater than Febru ary 28, 2003. Relator’s application for a tem porary restraining order raises the same issues.
In his petitio n for writ

of mandamus, relator

states that the respondents have refused to consider hi s applicatio n for a temporary restraini ng order, an d asserts that he has now
serve d a lo nger s ente nce o f co nfi nem ent t han is requ ired by law.
“Mandamus issues on ly to cor rec t a c lear abus e of d isc ret ion or t he v iol atio n of a duty imposed by l aw when there is no oth er adequate remedy by law.” Johnson v. Fourth Cou rt of Appeals , 700 S.W.2d 916, 917 (Tex. 1985), quoted in Walker v. Packer , 82 7 S.W.2d 833, 839 (Tex. 1992). One see king issuance of a writ of mandamus must provi de
a sufficient record to esta blish his right to such relief. Walker , 827 S.W .2d at 837. The writ sought by relator here, dir

ecting the considerat ion of pleadings he has filed w ith a trial court, would issue only on a clear showin g that the respondents have a leg al duty to perform a nondiscreti onary or mi nisterial act; that they have been req uested to perform the act; and that they have refused to d o so. Barne s v. State , 832 S.W.2d 424, 4263

(Tex.App.-- Houston [ 1 stDist.] 19 92) (orig. p roceed ing) (citing Stoner v. Mas sey , 586 S.W.2d 843, 846 (Tex. 1979)). The record before us does not show that any of those three prerequis ites are satisfied. This court hasheld that the acts of g iving consideration to and rulin g on motions properly filed and pending before a trial court are mini sterial act s the performance of which, i n a prop er cas e, ma y be enforced by mandamus. See In re Christensen , 39 S.W.3d 250 (Tex.App.--Amarillo 2000) (orig. proceeding). But the record before us does not reflect that the persons relator hasnamed as respo ndentsat thi s time have any leg al duties w ith respect e ither to the bi ll of revi ew proceedi ng or the temporary restrainin g order appli cation. We take notice that Judge Forbis is a retired di strict ju dge and thatMr. Mess er is the 10 0 th dis trict attorney . Even if we assume, whi ch we do not, that either of the named responde nts has a present legal duty with respect to relator’s filings, t he rec ord provided us does not show either that the m atters have been brought to their attention or that

they have refused to take ac tion on them.
Relator’s request for

mandamus relief m ust be denied for ano ther reason as well. W hat the record before us does show is relator’s use of theciv il a cti on of a bill of rev iew in his effort to correct what he conten ds is a time- served er ror in his now long -final murder convicti on. A bill of rev iew is not the proper vehicle for that e ffort. Cf

. Jackson v. J

ohnson , 69 S.W.3d 372 (Tex.App.--Texarkana 2002, pet. denied). The Court ofCriminal Appeals has held that the duration of an inmate’s confine ment and applicable tim e credits are proper subjects for an application for a writ of habeas corpus under Texas Code of1 This is not relator’s first proceeding in this court. In 2001, relator filed a n original

proceeding seeking a w rit of mandamus tocompel the presidin g judge of the 100 th district court to rule on his nunc pro tunc motion to have his judgment of conviction reflect cred it for the 262 days as time served. In this cour t’s opinion, not desig nated for publicati on, denying relator’s

requested relief, we suggested the possibility of an application f or a writ of habeas corpus under article 11.07. Although relator make s reference in his petitio n for a bill of rev iew to a 199 4 writ of habeas corpus, we cannot tell from the documents re lator now presents to us whether, since 2001, he h as presented his claims in a pr oceeding under article 11. 07, or in one br ought unde r section 501. 0081 of the Government Code. In re Hassl

er , No. 01-0273-CV (Tex.App.–Am arillo July 24, 2001, pet. denied). 4 Criminal Procedure article 11.07 (Vernon 20 02). 1 Ex parte Ruthart , 980 S.W.2d 469, 470 (Tex.Cri m.App. 1998). Indeed, ar ticle 11.07 pr

ovidesthat, after conv iction, its procedures
are ex clu sive and that

“an y ot her proceedi ng s hall be void and o f no fo rceand e ffe ct i n dischargi ng the prisoner.” Se e also, I n re Stone , 26 S.W .3d 568, 569 (Tex.App. --Wa co 2000) (orig. proceeding) (court of appeals

lacked jur isdiction to act on application for writ of mandamus directed to trial co urt; under ar ticle 11.07, only Cour

t of Criminal Appeals has jurisdict ion to grant s uch post conv iction rel ief). Texas Gov ernmen t Code Se ction 501.0081 requiresthat an inmate first ma ke use of the disputeresolution system created under that section with r

espect to clai ms of time-served credit er rors made after J anuary 1, 2000, but thatsection makes clear that article 11.07 provides the proper ultimate remedy fo r such claims.
The Texas Supreme C ourt has stated that mandamus is not issued as a matte r of right, but at the disc retion of the cour t, and that althoug h mandamus is not a n equitab le
reme dy, its issuance is largely controlle d b y equita ble princip les. Rivercenter Assoc. v. Rivera , 858 S.W.2d 366 (Tex. 1993). A co urt of eq uity wi ll n ot r

equ irethe d oing of a useless thing; nor

will it lend its powers to accomplish a us eless purpose. Da vis v

.5

Carothers , 335 S.W .2d 631 (Tex.Civ.App.--W aco 1960, writdism’d). We would be doi ng relator n o favor to exercise our discretion to encourage him in the vain pursuitof a proceeding t hat is voi d and of no force or effect. We decline to do s o.
For these rea sons, relator ’s petition for a writ

of mandamus is denied.

James T. Campbell Justice