in Re Ruben Barbalena ( 2011 )

Opinion issued June 23, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00458-CR

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in re Ruben Barbalena, Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

          Ruben Barbalena has filed a pro se petition for writ of mandamus, complaining that he filed an application for writ of habeas corpus, more than 35 days have elapsed, and the application has not yet been forwarded to the Court of Criminal Appeals.[1]  He asks that this Court order the Galveston County District Clerk to forward his application to the Court of Criminal Appeals.[2] 

          This Court cannot grant the relief Barbalena requests.  A court of appeals has no general writ power over a person—other than a judge of a district court or county court—unless issuance of the writ is necessary to enforce the court’s jurisdiction.  See Tex. Gov’t Code Ann. § 22.221 (West 2004).  Thus, we cannot issue a writ of mandamus against the district clerk unless necessary to enforce our jurisdiction.  See id.; see also In re Washington, 7 S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).  Barbalena has not shown that a writ of mandamus directed to the district clerk is necessary to enforce our jurisdiction because this Court has no jurisdiction over matters related to post-conviction habeas corpus proceedings.  See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).  Jurisdiction in such proceedings rests exclusively with the Court of Criminal Appeals. See Ater, 802 S.W.2d at 243.  

          Accordingly, Barbalena’s petition for writ of mandamus is dismissed for lack of jurisdiction.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           Relator has identified the underlying case as Ex parte Barbalena, No. 07CR2318-83, in the 56th District Court of Galveston County, Texas.

[2]           Barbalena’s petition for writ of mandamus is procedurally defective.  By rule, all documents presented to this Court must be served on all parties to the proceeding and must contain a proof of service. See Tex. R. App. P. 9.5. Barbalena’s petition lacks proof of service on the respondent.  See id.  The petition also lacks a certified or sworn record, as required by Rules 52.3(k) and 52.7(a)(1).  See Tex. R. App. P. 52.3(k), 52.7(a)(1).  In light of our diposition of the petition and to expedite its consideration, however, we will suspend these rules.  See Tex. R. App. P. 2.