## 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-74,190-04

IN RE DONIS LE MOND DENBY, Re lator

ON AP P LICATION FOR A WRIT OF M ANDAM US CAUSE NO. 8512 IN THE 259 DISTRICT COURT T H F ROM JONES COUNTY

Per curiam . O P I N I O N

Relator filed a m o t i o n for leave to file a writ of mandamus pursuant to the orig inal jurisdiction of this Court. I n it, he contende d that he filed an 11.07 application for a writ of habea s corpus in the convicting court on J uly 27, 2019. He al leg ed that more than 35 day s have elapse d since the f

iling date and that a ti mely order desig nating issues has not been e ntere d. He wa nts this Court to order the district c lerk to for war d his 11.07 application. On S eptember 25, 2019, this Court held Relator’s motion for leave to file in abey ance and order ed the district cler

k to respond with information conce rning any order s desig nating issues and the date the State was ser v ed with the writ application. I n response to this Court’s order , the2

responde nt District Clerk, throug h the offices of the County Attorney , responde d that a writ application was rec eived “on or about September 11, 2019,” that a judge has been assig ned to hear the ca se, and tha t no further order s have be en ente red. Upon rec eipt of an application for a writ of habea s corpus challeng ing a final felony conviction, the attorney repr esenting the State has 15 day s to respond. T E X . C O D E C R I M . P R O C . art. 1 1

. 0 7 § 3(b). After the expiration of the time allowed for the State to respond, the trial co u rt i s allowed 20 day s to deter mine whether the applicati on contains alleg ations of controve rted, previously unresolved fac ts materia l to the leg ality of the applicant’ s confine ment. T E X . C O D E C R I M . P R O C . art. 11.07 § 3(c)

. I f t he trial court determines t hat t he application for writ of habea s corpus prese nts such issues it “shall enter an order within 20 day s of the expiration of the time allowed for the s tate to re p l y , d es i gn ati ng issues of fact t o be resolved.” T E X . C O D E C R I M . P R O C . art. 11.07 § 3(d). “I f the convicting court enter s an order desig nating issues, the cler k shall immediately transmit to the Court of Criminal Appea ls a copy of that order and proof of the date t h e d i s t ri ct at torney

rec eived the ha

beas a pplication.” T E X . R. A P P . P. 73.4(b)( 1). Article 11.07 doe s not authorize the trial court to extend the time limit ations imposed by the statute, other tha

n by a timely issuance of an order designa ting issues. McCree v. Hampton , 824 S.W .2d 578, 579 (Tex. Crim. App. 1992). Wit hout a timely

entry of an or der de signa ting issues, Article 11.07 imposes a duty upon the cler k of the trial court to immediate ly transmit to this Court the rec ord from the applica tion for a writ of habea s corpus, deeming the trial court’s inaction a finding that no issues of fa ct re q u i re further resolution. T E X . C O D E C R I M . P R O C . art. 11.07 §3(c ). I n t h i s ca s e, Respondent say s she rec eived the application for a writ of habea s corpus on September 11, 2019. She sa y s no further

action has be en take n rela ting to the wr it application and3

has provided no order desig nating issues. The District Cle rk h as n o au thority to continue to hold Relator’s application fo r a writ of habea s corpus and is under a minist eria l duty to immediately forwa rd the application and rela ted rec ords in Cause No. 8512 filed in the 259 J udicial District t h Court of J ones County

to this C ourt. We g rant Relator leave to file and conditionally g rant mandamus relief and direc t the Respondent to comply with this opinion. The writ of mandamus will issue only in the event the Respondent fa ils to comply within thirty

day s of the date of this opinion.

Filed: Nove mber 20, 2019 Do not publish