IN RE: TODD WARREN ALTSCHUL

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Court of Appeals of Texas, Houston (14th Dist.).

IN RE: TODD WARREN ALTSCHUL, Relator

NO. 14-17-00032-CR

Decided: January 26, 2017

Panel consists of Justices Chief Justice Frost and Justices Brown and Jewell.

MEMORANDUM OPINION

On January 12, 2017, relator Todd Warren Altschul filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Ben Hardin, presiding judge of the 23rd District Court of Brazoria County, to rule on relator's motions to convene a court of inquiry pursuant to Chapter 52 of the Code of Criminal Procedure. We deny the petition.

Relator was convicted of the felony offense of possession of a deadly weapon in a penal institution and sentenced to confinement for fifteen years in the Texas Department of Criminal Justice.

Relator filed a motion for a court of inquiry alleging that an illegal sentence was assessed in his conviction for possession of a weapon and that he is unlawfully restrained. Relator filed an appeal from this conviction, but withdrew his appeal before this court issued an opinion. See Altschul v. State, No. 14-97-00478-CR; 1997 WL 312286 at *1 (Tex. App.—Houston [14th Dist.] June 12, 1997, no pet.)(mem.op.)(not designated for publication).

To obtain mandamus relief in a criminal case, a relator must demonstrate that relator does not have an adequate remedy at law to redress an alleged harm and that the act relator seeks to compel is ministerial, that is not involving a discretionary or judicial decision. See State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). If the relator fails to satisfy either aspect of this two-part test, mandamus relief should be denied. Id. When a motion is properly filed and pending before a trial court, the act of considering and resolving it is ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).

When a district judge, acting in his capacity as magistrate, has probable cause to believe an offense has been committed against the laws of this state, the district judge may request that the presiding judge of the administrative judicial district appoint a district judge to commence a court of inquiry. Tex. Code Crim. Proc. Ann. art. 52.01(a) (West 2006). A court of inquiry is a criminal proceeding authorized by and conducted according to Chapter 52 of the Texas Code of Criminal Procedure. See id. arts. 52.01–.09 (West 2006).

The motion relator filed in the trial court is entitled “Application to Hold and Conduct Court of Inquiry Pursuant to Art. 52.01 Tex. Code Crim. Proc.” Although relator phrases his request for relief as seeking to enforce the performance of a ministerial duty, the substance of his petition constitutes a collateral attack on his final felony conviction and is not an appropriate basis for mandamus relief. Such an attack falls within the scope of a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 § 3 (West 2015). Article 11.07 provides the exclusive means to challenge a final felony conviction. Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S. W.2d 481, 483 (Tex. Crim. App. 1995). While the courts of appeals have mandamus jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has jurisdiction over matters related to final post-conviction felony proceedings. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. 1991). This court has no authority to issue a writ of mandamus to compel a district court to rule on matters seeking post-conviction relief in felony convictions in which the judgment is final. See In re McAfee, 53 S.W .3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).

Accordingly, we dismiss relator's petition for lack of jurisdiction.

PER CURIAM

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