JOSE J. REYES 

TDC No. 821821 

McConnel Unit 

3001 s. Emily Dr. 

Beeville, Texas 78102 

Mr. Abel Acosta, Clerk 

COURT OF CRIMINAL APPEALS 

P. o. Box 12308 

Capitol Sllation 

Austin, Texas 78711 

RE: Cause No.· 752079-A(Count 2) 

writ Of Mandamus 

Dear Mr. Acosta, Clerk: 

March 2, 2015 

Encl·osed p'lease find Relator's Original copy of his 

Writ of Mandmaus. 

Thank you for your time and consideration in this 

ma-tter. 

Sincerely, 

JOSE J. REYES 

files 

RECEIVE'D IN 

COURT OF CRIMINAL APPEALS 

MAR 06 2015 

Abel Acosta, Clerk 
CAUSE 110.-· 752079-A (Count; 2} 

IN THE COURT OF CRIMINAL APPEALS 

AUSTIN TE_XAS 

JOSE J. REYES 

Relator, 

vs.-

THE 283th JUDICIAL DISTRICT COURT 

OF ~ARRIS COUN~Y, TEXAS 

Respondent, 

APPLICATION FOR WRIT OF MANDAUMS, 

PURSUANT TO RULE 52.8(c), TEX. RULE APPELLATE PROCEDURE, 

DIRECTING THE 283th JUDICIAL DISTRICT COURT TO PROCESS RELATOR'S 

APPLICATION FOR WRIT OF HABEAS CORPUS 

PURSUANT TO V. A; C. C. P., ART. 11. 0 7 

TO THE HONORABLE J~DGES OF SAID APPEAL COURT: 

COMES NOW, JOSB J.·· RBYBS, TDC Ro.· 821821, Relator, 

and files this his Application for Writ of Mandmaus requesting this court to direct the 283th Judicial District 

Court of: .HJ;Jrris county, Texas, to process his application 

for writ of Habeas Corpus pursuant to v.-A.c.c.P., art. 11.07 

in the above number and cause, presently pending before 

the Respondent. In support thereof, Relator will show the 

following: 

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I. 

JURISDICTION 

This court has jurisdiction to issue a "Wr~f of Mandamus 

in this case pursuant to article 5 § v of the Texas Constitution, 

Landford v. Fourteenth Court of Appeals, 847 s.w. 581 (Tex. 

Cir. 1993). Moreover, purpose of (1978) Amendment to provision of Texas Constitution governing power of Court of 

Criminal appeals to issue extrraordinary writs; was to confer 

upon the Court of Criminal Appeals additional power to grant 

e~tra~rdinary WE1ts in cases regarding "Criminal matters." 

Vernon 's Ann. Cons t. , Art. I § v., State ExRel. Vance .v. 

Routt, 571 s.w. ~8.' 903 (Tex. Crim. App.·1978). 

II. 

STATEMENT OF THE CASE 

Upon receipt of an application for writ of Habeas Corpus 

challenging a final felony conviction, the attorney representing th~ State has (15) days to respond. See, Tex. Code Crim. 

Proc., Art. 11.07, § (b). After the expiration of the time 

allowed for the State to respond, the trial court is allowed 

(20) days to determine whether the application contains 

allegations of controverted, previously unresolved facts 

material to the legality of ~he applicant's c~nfinement. 

Art. 11;07, § 3(c). If the trial court determine that the 

application for writ of Habeas Corpus presents such issues 

it "shall enter .an order within 20 days of the expiration 

o£ the time allowed for the state to reply, designating 

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issues of fact to resolved~ Id. Thus,the trial court has 

(35) days to enter an order designating issue after the 

filing date of an 11.07 application for writ of Habeas Corpus. 

Article 11.07 does not authorize the trial court ttO extend 

the time limitation imposed by the statute, other than by 

a "timely" entry of an ord~r designating issues. McCree v. 

Hampton, 824 s. w. 2d• 578, 579 (Tex. Crim.· App. 1992) (emphasis added). Without a timely entry of an order designating 

issue, article 11.07 imposed a duty upon the clerk of the 

trial court to immediately transmit to this court the record 

from the application for a writ of Habeas Corpus, deeming 

the trial court-'s inaction a finding that no issue of fact 

require further resolution. Article 11•07 § 3(c). 

In this case, In November 2014, Relator filed his writ 

of habeas corpus in the trial court• On December 12, 2014, 

the Court filed a Affidavit of JJJJDITH JOHNSON dated December 

10, 2014. On January 5, 2015 the State filed their State's 

Proposed Findings of fact, Conclusion of law, and Order. 

On January 15,' 2015, Relator filed his Objection to State:, s 

Proposed Finding of fact, conclusion of law' and Order-.· In 

• r ~ , • • • . . • 

Relator's objection, he clearly showed the court that they 

cannot finds, based on the credible affidavit of Johnson, 

. . -- that due to the Relat,or being convicted to of the two afore-

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mentioned offense he was not enti'tled to a Preliminary Hearing 

as P.rovided by Tex;~• Gov'•t Code § 508.· 2811, BECAUSE HE DID 

ROT SIGN A WAIVED.· "See, Tex.· Gov·•t Code § 508.2811, which 

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clearly states that a Parole Panel or a des1gnee of the 

Board shall prov1de w1th1n a reasonable t1me to ~ 1nmate 

~person descr1bed !!f. sect1on 508.·281 (a), !!. Prel1m1nary 

Hear1ng to determ1ne whether probable cause ~ reasonable 

. . . - . . 

grounds ex1st to bel1eve that the t1me ~ person has comm1tted 

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an act that would const1tute a v1olat1on of a cond1t1on 

of release, "UNLESS" the 1nmate person comm1tted the follow1ng: 

a) wa1ves the prel1m1nary Hear1ng 

b) 

Relator never signed a waived, waives his Prel i11.:Jnary 

Hearing. See, Morrissey v. Brewer, 408 u.s. 471, 484 (1972). 

The "State's Propsed Findings of Fact, Conclusi6n of law, 

and Order was filed on January 5, 2015." It being over 

(35) days after the filing of the "STate's Propsed Finds 

of Facts Conclusion and Order. 

On February 23, 2015, Relator wrote a letter of delay 

to the Court explaining to the Court if :jhey selects addition 

time but failed to notify the Court of Criminal Appeals 

and enquiry is made to the Court .. _,'without mention of the 

previously entered order designating issue a "delay Writ 

leter" may well be sent :td'-the -·1:~11!'1 court. SEE EXHIBIT 

u A • ATTACHED.· 

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These untimely orders interferred with the District Clerk's 

duty to transmit these writ to ~h$§ Court and are therefore 

without effect. See, Martin v. Hamlin, 25 s. W• 3d. 718 (Tex. 

Crim; App. 2000). The District Clerk has rio authority to 

continue to hold Relator's application for writ of Habeas 

corupus, and is under a ministerial duty to immediately 

forward the application and related reocrd in the above 

number and cause to the Court of Criminal Appeals, and the 

record. See, Dejean v.District Clerk, Dallas County, 159 

s.w. 2d. 183 (Tex.Crim. 2008). 

Relator alleges bh~t the Respondeat has a clear "ministerial 

duty" prescribed by v.A.C.C.P., article 11.07, to make a 

finding of fact, conclusion of law, and recommendation 

on his writ within a reasonable period of time and fo~ward 

the same to this court. See, Dejean, supra. 

III. 

BRIEF IN SUPPORT 

Act is ministerial for purpose of request for writ 

Mandmaus, if it cgnst.!tute duty clearly fixed and required 

-by law, without exercise of discretion or judgment. Engle 

v. Locker, 820 S.W. ell. 47 (1991); Curry v. Gray, 728 S.W. 

2d. 128 (Tex. Crim. App. 1997).While it is b~e general rule 

that a mandamus will not be issue to control b~e action 

of an inferrior court or Public Officer in a matter involving discretion. HOwever, the writ may issue "in a proper 

case" to correct a clear abuse of discretion;" See, Crane 

v. Turnks, 160 Tex. 182, 328 s.w. 2d. 434, 440 (1959). 

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The Supreme Court ~as recognized that adaption of this 

exception is particularly important "where f:he remedy by 

way of appeal 1s 1nadequaf:e •.· west v. Soli tos, 56 3 s. w. 

2d 240, 244 (Tex. 1978). In re-iterating this standard, 

in Johnson v. Fourth Court of Appeals, 700 s. w. 2d. 916, 

917 (Tex. 1985 ). The Supreme Court stated, "Mandamus 1ssues 

only f:o correct: clear abuse of d1scref:1on or f:he v1olaf:1on 

of a duf:y 1mposed by law when there 1s no of:her adequate 

remedy by law. Id~ af: 917. 

IV. 

ABUSE OF DISCRETION 

The Relator further coa~ends the Respondent's failure 

to apply the law with respect to article 11.07, V.A.C.C.P., 

has constituted a clear abuse of discretion; when article 

11.07, explicitly enumerate that the Respondent process 

Relator's Habeas Corpus action within specified time limitation and forward bhe application to this court. In view 

thereof, the Respondent has but one choice, and it is the 

duty prescribe by article 11.07, the failue to perform 

this duty constitutes a clear and prejudicial abuse of the 

Respondent aut y .fi xea by 1 a,,_. consequently, R~latori•:S·_ 

right of access to the courts; and to be heard on his 

Habeas Corpus action; has quite stringently been impaired 

by th• action of the Respondent. 

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Therefore, WRit of Mandamus will issue when under the 

circumstances, law ana facts permit trial court to make 

but one decision and it refuses to make ~~at decision. 

Proffer v. Yates, 734 s.w. 2d. 671, 673 (Tex. Cir. 1987}. 

In, Walker v. Packey, 827 s. w. 2d. 833 (Tex. 1992}. 

The Supreme Court stated: "~r1al cour~ clearly abuses 1~'s 

d1scre~1on, for purposes of mandamus, v1~h respec~ ~o 

resolu~1on of fac~ual Jssues or ma~~ers comm1~~ed to ~r1al 

. . ~ . . .. 

cour~•s d1scre~1on, only 1f ~r1al court could reasonably 

have reached only one dec1s1on~· Id. Also see, State v. 

Walker, 679 s. w. 2d. 484 (Tex. Cir. 1984} (Mandamus will 

lie to correct an action of trial judge who:comidf:s abuse 

of discretion, or violation of clear auty under law and 

when there is no other adequate remedy at law"} Ayres v. 

Canoles, 790 s. w. 2d. 54 (Tex. 1990} ("Writ of Mandamus will 

issue to correct ~rial court actions when there has been 

clear abuse of discretion particularly where remedy by law 

of appea 1 is inadequate. "} 

v.-

APPEAL IS NOT AN ADEQUATE REMEDY 

- . . 

The Relator contends ~hat bhe issue o£ the trial court ,. 

to apply the dictates of v. A. c. c. p., Article 11. 07, is not 

an appealable issue. 

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VI. 

PRAYER OF RELATOR 

WHEREFORE, Premises considered the Relator, prays that 

this court issue an order directing the Respondent to 

forward th~~r recommendations, finding of facts and conclusion of law, and forward the same to this within thirty 

( 30) days. 

cConnell Unit 

3001 S; Emily Dr. 

Beeville, Texas 78102 

CERTIFICATE OF SERVICE 

I, JOSE J.· REYES, TDC No. 821fS21, certf~y that a true 

and correct copy of uee foregoing application for Writ of 

Mandamus has been served by placing same 

mail on this _d__ day of j/[///)ft,? 

to: 

District Clerk 

Harris County, Texas 

P. o. Box ~4651 

Houston, Texas 77210-4651 

J 

8JJ 'j ... ! 

' 

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in the United States 

, 2015, addressed 
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j ---t-t_ t .; 

23 February 20'1's 

.. · ' 

'· ·• 

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Mr; Abel Aco~~a,: Clerk . 'J.i ., 

Court'~f Cr1m1nal Appeals 

P. ;o. "Box 12 30!8', · Cap1 tol st. 

Aus.t1n, Texas·:-.,8.'1 11 

Re• ci.vse Bo.· 752079-A (Count 2) 

BxParte Retyes 

Deay wr1~; etter 

., ' 

De~r fr· Acosfa, Appeal Clerk: 

Jose J. Reyes 

'I'DC No. 821821 

McConnell Un1t 

3001 s. Bm1ly Dr. 1 

Beev1lle, 'I'exas 78102 

~. 

On Januarg, S, 201S, the State's Proposed F1nd1ng~ 

of f!lct, conc1.us1ons of law and order was f1led w1th the 

court. In tha~~ same Mot1dn, the State cla1med the mot1on 

wa~ s~nt to th~ tourt of Cr1m1nal Appeal. 

~ .. : . 

Here 1t ~~ ~ebruary 23, 2015, ~nd I haven't rece1ved 

a nwh1te Card\ from the Court of Cr1m1nal Appeal 1nform1ng 

me th{Jt the wr·1t was now pend1ng 1n that court. ~. 

':i_-; I 

i underst1:ind to ga1n IJome t1me the court entered order 

ektend1ng the:statutory t1me 11m1ts a pract1ce condemned 

1n · McCree v. :H·ampton, 8 24 S. W. 2d. 5 78 (Tex. Cr. App. 1 992). 

Ho~evpr, that~case set out a method whereby the tr1al ~ourt 

can e1ther on mot1on of the State ~r 1ts o•n 1n1t1at1v~, 

ga1n more t1me'''to 1nvest1gate the allegations ra1sed w1th1n 

a wr1t appl1qation. 

If .the tr'lal court selects th1s opt1on but falls to 

not1f} the Cou~t of Cr1m1nal Appeals and enqu1ry 1s made 

to the Court ·w1 thout ment1on of the prev1ousl y entered 

order des1gna~Jng 1ssue a "delayed wr1t lettern may well 

be sent to th~·tr1al court w1th cop1es to the D1str1ct 

clerktand d1st~1ct attorney enqu1r1ng 1nto the alleged delay. 

·.it 

i 

. I herebif·request that you conduct a 1nvest1gat1on ~nto 

these matters ... an·d order the f1les to those f1nd1ngs and 

trans~1t the~~.long w1th the wr1t transcr1pt to the Cl~rk 

of th~ Court of Cr1m1nal Appeals as requ1red by law. 

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REYES·. l '· 

TDC No. 82182. · 

McConnell Un11t 

3001 s. Em1ly .:,,Dr. 

Beev1'l}e, Texas 78102 

f11es 

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cc.: ~r. Chr1s ,Dan1e1 

D1str.f.ct Clerk 

Harr1s C.()unty D1str1ct Clerk 

1201 Fran·k11n 

P. o. ;;Box 4651 

Houston, .Texas 77210-4651 

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