In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-036 CV
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IN RE WILLIAM FOSTER
William Foster filed a petition for writ of mandamus, amended March 2, 2005, in which he complains the trial court violated a ministerial duty when it failed to conduct an evidentiary hearing on Foster's application to reduce bail. The relator alleges he is being held on an indictment for injury to a child and the trial court set bail at $200,000. Seeking a bond reduction, Foster filed an application for writ of habeas corpus and requested an evidentiary hearing. On August 23, 2004, the trial court denied the application without conducting an evidentiary hearing. Foster attempted to appeal the order, but this Court held the order was not appealable and dismissed Foster's appeal for lack of jurisdiction. Ex parte Foster, No. 09-04-405 (Tex. App.-Beaumont Feb. 16, 2005, no pet. h.) (memo. op.); Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983).
"In general, the absence of the right of appeal satisfies the mandamus requirement that the relator have no legal remedy." In re Piper, 105 S.W.3d 107, 109 (Tex. App.-Waco 2003, orig. proceeding). Petition for writ of habeas corpus to a court having jurisdiction, however, is an adequate remedy that will preclude mandamus relief in the intermediate appellate court. Id. The trial court ruled on Foster's motion; therefore, the relief sought in this proceeding is an order commanding the trial court to vacate its order denying the application for writ of habeas corpus and to either issue the writ or conduct an evidentiary hearing on the merits of the application. Otherwise, this case is indistinguishable from Piper. Assuming Foster established both the trial court's duty to issue the writ of habeas corpus and the trial court's violation of that duty by denying the application without providing Foster with an opportunity to present evidence, Foster may file a petition for writ of habeas corpus with any of the courts provided with original jurisdiction in habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 1977); Piper, 105 S.W.3d at 110.
The petition for writ of mandamus is denied.
WRIT DENIED.
PER CURIAM
Opinion Delivered March 31, 2005
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. Tex. R. App. P. 47.4.