Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 72062

• Citation: 910 S.W.2d 481
• Decision Date: 28 June 1995
• Docket Number: No. 72062,72062
• Parties: BOARD OF PARDONS & PAROLES ex rel Henry B. KEENE, Chairman and State of Texas, ex rel Jaime Esparza, District Attorney, 34th Judicial District, Relators, v. The COURT OF APPEALS FOR the EIGHTH DISTRICT, the Honorable Edward Marquez, Judge, 65th District Court, and the Honorable James Carter, Magistrate, El Paso County, Respondents.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 481

910 S.W.2d 481

BOARD OF PARDONS & PAROLES ex rel Henry B. KEENE, Chairman and State of Texas, ex rel Jaime Esparza, District Attorney, 34th Judicial District, Relators, v. The COURT OF APPEALS FOR the EIGHTH DISTRICT, the Honorable

Edward Marquez, Judge, 65th District Court, and

the Honorable James Carter, Magistrate,

El Paso County, Respondents.

No. 72062.

Court of Criminal Appeals of Texas,

En Banc.

June 28, 1995.

Kim B. Vernon, Staff Counsel, Austin, John L. Davis, Asst. Dist. Attorney, El Paso, for relators.

Michael Gibson, El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

PER CURIAM.

This is an original action concerning various orders entered by the Honorable Edward Marquez, Judge, 65th District Court and the Honorable James Carter, Magistrate, El Paso County, in a habeas corpus proceeding styled Ex parte Victor Michael Delgado, Cause No. 77294, in the 65th District Court of El Paso County. Relators also seek to challenge the authority of the court of appeals to entertain an appeal in Cause No. 08-95-00089-CR, styled Victor Michael Delgado v. The State of Texas.

On January 5, 1981, Delgado was convicted in the 120th District Court of El Paso County of the offense of murder. Punishment was assessed at 25 years. Delgado was released on parole on June 2, 1989.

On December 15, 1994, the Parole Division of the Texas Department of Criminal Justice issued a "blue warrant" against Delgado. The warrant alleged Delgado had violated the conditions of his parole by failing to report an arrest and committing the offense of indecency with a child. A hearing officer for the Board of Pardons and Paroles conducted a preliminary hearing on the allegations contained within the "blue warrant." The officer found probable cause existed on both allegations to hold Delgado for a final revocation hearing.

The Board of Pardons and Paroles voted to proceed with the final revocation hearing. The hearing was held and resulted in a finding sustaining both alleged violations of parole. Delgado's parole was revoked by the Board of Pardons and Paroles on March 17, 1995.

On February 15, 1995, Delgado, through counsel, filed an application for writ of habeas corpus with Respondent Judge Marquez. Delgado complained of certain alleged irregularities in connection with the revocation of his parole. Judge Marquez referred the matter to Magistrate Carter.

A hearing on the application was held before Magistrate Carter on February 24, 1995. On March 8, 1995, Magistrate Carter signed Findings of Fact, Conclusions of Law and an order granting partial habeas corpus relief. The following day, Magistrate Carter signed an order setting bond for Delgado.

On March 9, 1995, Delgado gave notice of appeal to the Eighth Court of Appeals from that portion of Magistrate Carter's order denying habeas corpus relief. Respondent Eighth Court of Appeals has docketed the appeal under their Cause No. 08-95-00089-CR.

On March 24, 1995, the Board of Pardons and Paroles and District Attorney appeared before Judge Marquez. They argued the application filed by Delgado should be characterized as an Article 11.07, V.A.C.C.P., action and therefore Magistrate Carter was without jurisdiction to grant relief. It was further urged the attempted appeal to the Eighth Court of Appeals was improper because the habeas corpus application was returnable as a matter of law to this Court. Judge Marquez rejected the arguments presented by the Board of Pardons and Paroles and District Attorney.

On March 27, 1995, Magistrate Carter entered additional orders. First, he directed the Sheriff of El Paso County not to transfer Delgado to the Institutional Division pending the appeal in the Eighth Court of Appeals. Magistrate Carter further instructed the Sheriff to only release Delgado upon posting of bail. Finally, an order was entered setting aside the Board of Pardons and Paroles' revocation of Delgado's parole and quashing the "white warrant."

The Board and District Attorney seek relief from this Court on the basis Judge Marquez and Magistrate Carter lacked authority to grant Delgado relief and the Court of Appeals lacks jurisdiction to entertain an appeal from their orders. Specifically, it is urged the only authority to grant relief, if any, to Delgado is vested in this Court by means of a post conviction application for writ of habeas corpus under Article 11.07, V.A.C.C.P.

To obtain mandamus relief from this Court, a Relator must make a two-fold showing. First, no other adequate remedy at law must be available to seek redress of the alleged error. Second, the act a Relator seeks to compel must be ministerial. State ex rel Healey v. McMeans, 884 S.W.2d 772 (Tex.Cr.App.1994). A failure to demonstrate either of the required showings will result in the denial of relief.

As to the first prong, Relators maintain they are required to resort to the instant proceedings because they have no adequate remedy at law. Respondents Marquez and Carter urge the Relators have an adequate remedy at law by presenting the instant complaints to the Court of Appeals. ¹

Ordinarily, a Respondent in a habeas corpus proceeding cannot appeal from a judgment discharging the applicant. State v. Gonzales, 459 S.W.2d 947 (Tex.Civ.App.--San Antonio, 1970, no writ). Generally, only the unsuccessful applicant is entitled to the right of an appeal. In State ex rel Holmes v. Klevenhagen, 819 S.W.2d 539 (Tex.Cr.App.1991), this Court recognized that mandamus was appropriate because the State had no adequate remedy at law, since it could not appeal an adverse ruling in a habeas proceeding.

The arguments presented by Respondents Marquez and Carter are disingenuous at best. As noted above, Relators have no right to appeal to the Court of Appeals. If Relators successfully obtained a dismissal of Delgado's appeal for want of jurisdiction, such dismissal would have no effect on the challenged actions of Respondents Marquez and Carter. Relators have satisfied the first requirement by demonstrating the unavailability of an adequate remedy at law.

The question now remains whether the act sought to be compelled by Relators is a ministerial act. Relators seek to have this Court issue a writ of mandamus directing Respondents Marquez and Carter to set aside their alleged invalid orders partially granting Delgado relief and setting bail. Relators maintain Respondents were without authority to grant relief to Delgado because such authority is exclusively vested in this Court under Article 11.07, V.A.C.C.P. Respondents in turn urge they have jurisdiction to grant Delgado relief because his parole had not been finally revoked at the time relief was granted.

Provided a Relator has no adequate remedy at law, mandamus will issue to compel a trial court to set aside an order which it had no authority to enter. State ex rel Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984). This Court has frequently granted mandamus relief upon finding a district judge has acted without jurisdiction. See State ex rel Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1991); State ex rel Cobb v. Godfrey, 739 S.W.2d 47 (Tex.Cr.App.1987); State ex rel Thomas v. Banner, 724 S.W.2d 81 (Tex.Cr.App.1987); Whitsitt v. Ramsay, 719 S.W.2d 333 (Tex.Cr.App.1986).

Article 11.07 provides the exclusive means to challenge a final felony conviction. Jurisdiction to grant post conviction habeas corpus relief on a final felony conviction rests exclusively with this Court. Ex parte Hoang, 872 S.W.2d 694 (Tex.Cr.App.1993). Any other proceeding shall be void and of no force and effect in discharging the prisoner. Article 11.07, Section 3, supra.

Parole is a form of restraint which allows an applicant to pursue the remedies afforded under Article 11.07, V.A.C.C.P. Ex parte Elliott, 746 S.W.2d 762 (Tex.Cr.App.1988). A claim that parole or other form of administrative release has been unlawfully revoked must be brought to the attention of the convicting court under Article 11.07, V.A.C.C.P. See Ex parte Henson, 731 S.W.2d 97 (Tex.Cr.App.1987); Ex parte Woodward, 619 S.W.2d 179 (Tex.Cr.App.1981). This Court frequently entertains challenges to parole...