# in Re Charles W. Bishop II

> Texas Court of Appeals, 3rd District (Austin) · February 8, 2012

URL: https://www.frixlaw.com/law-library/cases/2956072

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** February 8, 2012
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2956072

## How later opinions describe it (automated extraction)

- holding that claim of illegal sentence is cognizable on post-conviction writ of habeas corpus

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00016-CV

In re Charles W. Bishop II

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator Charles W. Bishop II was convicted of the offense of unauthorized use of a

motor vehicle, a state jail felony. See Tex. Penal Code Ann. § 31.07 (West 2011). Punishment was

assessed at fourteen years’ imprisonment, within the punishment range for a second-degree felony,

after Bishop pleaded true to enhancement paragraphs alleging prior felony convictions. This Court

affirmed Bishop’s conviction on appeal. See Bishop v. State, No. 03-08-00710-CR, 2010 Tex. App.

LEXIS 7056 (Tex. App.—Austin Aug. 26, 2010, pet. ref’d) (mem. op., not designated for

publication). Bishop has now filed a petition for writ of mandamus with this Court, claiming that

his sentence is illegal because the punishment assessed exceeds the punishment amount authorized

by law and asking this Court to order the convicting court to reverse his sentence.1

A claim of an illegal sentence for a felony conviction is not an appropriate basis

for mandamus relief, but instead is a matter for habeas-corpus relief. See Tex. Code Crim. Proc.

Ann. arts. 11.01 (West 2005), 11.07 (West Supp. 2011); see also Ex parte Rich, 194 S.W.3d 508,

1
This issue was not raised by Bishop’s counsel on appeal.
511 (Tex. Crim. App. 2006) (holding that claim of illegal sentence is cognizable on post-conviction

writ of habeas corpus). Jurisdiction to grant post-conviction habeas relief in felony cases rests

exclusively with the Texas Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07,

§ 3; Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth District,

910 S.W.2d 481, 483 (Tex. Crim. App. 1995). We are therefore without jurisdiction to consider

Bishop’s petition. See In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001,

orig. proceeding). Accordingly, we dismiss the petition for want of jurisdiction.2

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Filed: February 8, 2012

2
We note that the court of criminal appeals has already considered Bishop’s petition and,
upon recommendation of the trial court, granted relief. See Ex parte Bishop, No. AP-76,712, 2012
Tex. Crim. App. Unpub. LEXIS 20 (Tex. Crim. App. Jan. 11, 2012) (per curiam).

2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2956072. Public record. Not legal advice.