Ex Parte Wolfgang Erbstoesser ( 2011 )

Petition for Writ of Habeas Corpus Dismissed for Lack of Jurisdiction and Memorandum Opinion filed June 16, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-11-00490-CR

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IN RE WOLFGANG ERBSTOESSER, Relator

ORIGINAL PROCEEDING

WRIT OF HABEAS CORPUS

COUNTY CRIMINAL COURT AT LAW NO. 5

HARRIS COUNTY, TEXAS

TRIAL COURT NO. 1743033

M E M O R A N D U M   O P I N I O N

            On June 6, 2011, relator, Wolfgang Erbstoesser, filed a petition for writ of habeas corpus.  See Tex. Gov’t Code Ann. § 22.221(d) (West 2004); see also Tex. R. App. P. 52.  Relator is confined pending two misdemeanor charges and complains the trial court violated his right to due process by setting a higher bail amount without adequate notice and proper service.  Relator requests we issue a writ of habeas corpus reinstating his original bond and ordering his release.

Article 11.09 of the Texas Code of Criminal Procedure provides:

If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed, or if there be no county judge in said county, then to the county judge whose residence is nearest to the courthouse of the county in which the applicant is held in custody.

Tex. Code Crim. Proc. Ann. art. 11.09 (West 2005).  The courts of appeals “do not have original jurisdiction over an 11.09 habeas corpus application; rather, we exercise appellate jurisdiction over a trial court’s ruling on such an application.”  Ex parte Bone, 25 S.W.3d 728, 730 (Tex. App. – Waco 2000, orig. proceeding).  The original habeas jurisdiction of the courts of appeals is limited to those cases in which a person’s liberty is restrained because the person has violated an order, judgment, or decree entered in a civil case.  Tex. Gov't Code Ann. § 22.221(d) (West 2004).  Therefore, courts of appeals do not have original habeas corpus jurisdiction in criminal law matters.  See id.  See also Watson v. State, 96 S.W.3d 497, 500 (Tex.App.-Amarillo 2002, pet. ref'd) (under Tex. Gov’t Code Ann. § 22.221(d), a court of appeals does not have original habeas corpus jurisdiction in a criminal case). 

Accordingly, relator’s petition is dismissed for want of jurisdiction.  Relator’s motion for bail pending resolution of this petition is denied.

                                                                        PER CURIAM

Panel consists of Justices Anderson, Brown, and Christopher.

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