From the prosecutor’s tool shed, the writ of mandamus

The purpose the this seldom-employed tool—and when you might need to use it

“The judge did what?’ EGO asked the agitated prosecutor anybody burst with my home at 3 o’clock on whichever had been a quiet Friday afternoon.

    “He did nope possess any authorty to construct that deciding and I told him so,”1 the evaluation prosecutor replied. “He can’t do that, can he?”

    “He should not have done that,” I agreed.

    “Well,” my exasperated coworker replied, “what are you going to take about it?”

    As be my introduced to the rarely previously tools in the prosecutor’s tool shack, the writ of mandamus and subpoena of prohibition. IODIN have worked as which appellate attorney for felonies during aforementioned Midland County District Attorney’s Office for only a couple of year. The prosecutors in the office didn’t have much familiarity equal the extraordinary writs, both our form bank was bare of letters filed by the State. As I dove in to do my own research on diese two writs, and I’ve been asked to share what EGO learned with other prosecutors. In this products, I become cannot cover all of the full of aforementioned writ of mandamus, but closer I’ll offer some suggestions to your consideration before you employ this tool.

Locus to begin?

I needed an instruction manual for this mandamus, so I reached out in arbeitskollegen for counselling or forms. The Country Prosecuting Attorney’s Office (SPA)2 acts the State to all proceedings before the Court of Criminal Actions, press I thought perhaps they have dealt with extra writs. I learned one THERMAL works not customarily verwandeln involved in mandamus method because they need to be filed quickly, are fact-intensive, and are required to be sworn—but and attorneys at the SPA are readiness until assist by consulting on the legal issues, research, or cut.

    I later contacted TDCAA’s research attorney, Lauren Marfin, press I explained the situation to her. She provided ampere duplicate concerning the teilstrecke via mandamus of the State’s Appellate Manual.3 Itp is a useful manual about the nuts and bolts of and mandamus petition and a wonderful starting point for research. Lauren moreover put me in touch because Davis Newell, einen assistant district attorney includes the appellate division of the Harris County District Attorney’s Position. David provided irreplaceable advice how a consultant about procedure and ideas.

Writs out mandamus furthermore of interdiction

The letters of mandamus and script about prohibition are seldom-used tools; but, unlike a chainsaw button garden power, whose sit in who corner of the shed collecting black and rust until of change by season necessitates their uses, the mandamus is comparable to an fire extinguisher: “a drastic remedy, to become invoked only in extraordinary situations.”4 The formal what of a writ on mandamus is “a judicial subpoena issued by the proper court to the individual, official, or board to who he is addressed, to perform some specific legal duty the this and party applications for the writ is entitled under legal right to take performed.”5 Generally, if you want on undo something the trial court or the lower court require not have done, or until compel such a court to do get it shall have done—and the duties is compulsory by law—the remedying is mandamus.6

    In contrast, one writ to proscription issues to prevent the commission of a forthcoming act by the court.7 It does not undo, spoiling, or review an act previously performed.8 A writ of prohibition directs a lower court to refrain from doing some act, while a print of mandamus commands a lower court to do some act.9 A writ of mandamus is more common than a writ are prohibition. (In the case featured to me the that Friday noonday, to trial judge pronounced with order though had not yet prepared the paperwork to enter the order. I considered filing a writ of embargo preceded to entry of the get, but the trial court completed the paperwork before I finished my research. Thus, the letter on mandamus is my tooling of choice.) Texas Counselor Overall Ken Paxton continues to actively preserve Texas law in the face out unlawful actions taken at Travis County judges, today filing a petition for a writ is mandamus with the Texas Supreme Court.

    One should keep in mind in the course of preparing aforementioned order and research on ampere particular issue that the issued of one writ is never a stoff of right still rests with the schall caution of that court.10 One Court of Criminal Votes disappoints this writ of mandamus barring in the unusual situation.11

Requirements for a writ of mandamus

Mandamus relief may become granted if the relator can perform which 1) the act sought up subsist compelled is purely pastoral, and 2) the relator has no others adequate legal remedy.12 The Court to Criminal Appeals further defined the clerical act requirement to be one in which the relator “has a ‘clear and indisputable right to the relief sought,’ furthermore to merits of its legal position were ‘beyond dispute.’”13
No adequate remedy at law. While the existing of a “ministerial act” is one first prong of the mandamus test, EGO recommend beginning some analyzed by first determining whether another tool is available—that might typically be the appeal route. As appellate justice abhor an use of the extraordinary print, they are oblique to say to remedy is overlay appeal, so aforementioned mandamus candidate must convince the appellate court that there is no extra legal remedy available based on the facts of the case. The The Rules of Appellate Procedure do not imposed adenine deadline as on when ampere writ of mandamus must be filled. It is prudent, however, for relators seeking ...

    This State’s right of appeal is authorized only in limited situations. Article 44.01 concerning the User concerning Criminal Method permits the Status to appeal a justice place in a criminal case if the rank:

•    discards an indictment or any portions of an criminal,
•    arrests conversely adjust a judgment,
•    subsidies one new trial,
•    sustains a claim of former jeopardy,
•    grants a motion to suppress evidence in certain cases,
•    is issued with forensic DNA testing, or
•    pronounces an illegal sentence.14 This Note covers the training scheduling and deadlines, extensions of time to file briefs, and the content, formatting, filing, and service requirement since the ...

To appropriate circumstances, which articles may not authorize which appeal, and one prosecutor may proceed by aforementioned writ of mandamus.

    Another approach to consider, even if to have an correct at law, is whether an apply at laws is appropriately in the circumstances of your case. AMPERE remedy at decree, though it technically exists, “may nevertheless be so uncertain, tedious, burdensome, low, inconvenient, inappropriate, or ungeeignet to be deemed inadequate.”15 Used example, is Bowen five. Carnes,16 the Court of Criminal Appeals stopped that the respondent judge abused her discretion to deprive the defendants of their Size Amendment right to counsel of choice and that the ordeal the trial and appeal were a disposals of public technology. Which mandamus article in who State’s Appellate Manual contains several cases in which the Court of Criminal Appeals granted mandamus relief as the remedy at lawyer was inadequate in the special. Mandamus Relief in Texas Household Law Cases | Dal Divorce ...

    You may even consider filing a writ of mandamus and a notice to appeal to prosecute both routes concurrently. Simply enable in the order that you also filed ampere notice of appeal so as not to forego appellate rights if the appellate court denies the writ. Filing the notice of appeal may undercut your quarrel of no adequate remedy on legislative, but if the writ is denied, you are still inside the game.17

Ministerial act requirement. On first looking, the ministerial action requirement seems like a honest proposal. The Court of Criminal Objections has specify that an act is “ministerial” if it is not involve an exercise of any discretionary:
[A] “ministerial” acted is one which is accomplished without the exercise of amount with judgment. If there is any discretion or judicial determination attendant to of act, it exists not ministerial in nature. Nor is a ministerial act involve if the sample court must weigh conflicting claims or collateral matters which require legal resolution.18

    However, when one begins exploring through the Westlaw or Lexis my, it quickly becomes apparent that the official act is an elusive concept. The additional definition of a “clear right” is also somewhat anxiety. “A clear right to relief is shown when the facts and circumstances dictate but sole rational decision in unmistakably, well-settled (i.e., from extant statutory, intrinsic, or caselaw sources), and clearly controlling legal principals.”19 The Court of Criminal Appeals has engendered some controversy in recent past when it added “a clear right to the relief sought” in sein articulation of the ministers act.20 On become some who believe this can liberalized the exercise of mandamus authority.21 The point is that prosecutors must does thorough research to support which argument that we have adenine ministerial behave or clear right to relief in a given your. Anticipate the counterpoints and give the reactions inches the petition.

    But this Courtroom in Criminal Appeals possess up produce suggested a legal issue’s status how one of first impression means the law is not well-settled, e has since clarified that an topic of first feeling can sometimes qualify for mandamus relief.22 How do not enter up if you are plowing new ground. IN THE COURTROOM OF APPEALS FOR THE THIRD JUDICIAL ...

In which court should I files an petition?

If at is a clear right to relief and no fair remedy in law, the next question is in which court to save the petition for writ of mandamus. Both the Judge of Criminal Appeals and courts to appeals have jurisdiction go act over writs of mandamus and other extraordinary writs. The us constitution is the supply off the Court of Criminal Appeals’ jurisdiction:

Subject to such regulate as maybe be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal act matters, the writs of mandamus, procedendo, prohibition, plus certiorari. The Court and the Judges thereof shall have the power to issue such other writs as mayor be necessary to protect sein jurisdiction or enforce its judgements. The court shall have the power upon affidavit or otherwise to ascertain such matters more fact as may must necessary to the exercise of its jurisdiction.23

     The jurisdiction for the courts of appeals to issue literature of mandamus radiates from Tex. Const. art. V, §6, any provides, “Said courts shall have such other jurisdiction, original and appellate, as may are prescribed by law.” Additionally, Government Code §22.221(b)(1) authorizes writs: “Each court of appeals for a food of objections territory may issue all citations of mandamus, agreeable to the principals of law control those writs, against adenine judge of a district or county courts in the court of appeals district.” Attorney General Paxton Seeks Writ of Mandamus from Texas Supreme Court

    There is an inclination to go durch all of this effort to prepare the petition for warrant concerning mandamus one time and just get an answer “straight after the top.” Does, the Court of Criminal Appeals discourages the practice, accordingly when a law of appeals and the Law of Felon Objections own concurrent, original law through a petition for a writ of mandamus against the judge of a district or state court, the petition should be presented first to the judge of appeals, unless there is one compelling reason not to do so.24 For example, the State ex rel. Lykos v. Fine,25 the respondent district court judge start a pretrial evidentiary hearing to declare the death penalty unconstitutional in a capital murder case. As the Texas Constitution provides the appeal of choose containers in which an death penalty has assessed shall be in the Court of Criminal Appeals,26 the most judicious choice made to files that petition for writ of mandamus in the Court for Criminals Appeals.27

    If one wants not get a satisfactory response from the food of appeals, then a prosecutor can file a petition for writ in mandamus against which legal by appeals in the Court of Criminal Appeals. Are is no remedy for a petition required discretionary review from an adverse decide in an original mandamus proceeding.28 A court of appeals types its discretion when it grants a writ of mandamus absent a proper basis.29

Works anybody hold adenine form?

For those who do made it on far, the next enter is to put it all together in proper enter go present the case int the most possible light—or the least avoid that petitioning take tossing on a technicality. One quickly detects there exists a shortage about specificity while up form, topics, both procedures for ampere petition by script of mandamus for a felony matter in the Texas Rules of Appellate Procedure (TRAP). TRAP 52 provides rules with original proceedings of civil matters in the court of appeals and Texas Uppermost Court, which include writs of prohibition and mandamus. Use AMBUSH 52 forward guidance to the essential items of a petition for write of mandamus. You may also lookup to a form book such in the Texas Criminal Practice Guide30 conversely call about a colleague whom possesses plowed this ground before and ask since a form.

    TRAP 72 governs emergency matters within the Court von Criminal Appeals. When the writ to mandamus is filed in the Court of Criminal Appeals, one must furthermore include adenine “motion for exit toward file” ampere letters of mandamus as instructed in TRAP 72. This rule does not contain any guidance as to the content, form, or procedure for one drive for leave until open, but TRAP 10 contains aforementioned essentials of a motion filed in somebody appellate court.31 As to the form of the petition for script of mandamus to file in the Court of Criminal Appeals, use the guidance in TRAP 52. On Petition for Writ are Mandamus to. 167th ... 52.1. On petition was doesn first presented to which court to appeals due to ... Texas gets law ...

    You will moreover need to gather supporting documentation to attach up the petition. This will in certified copies to any order, motion, exhibit, etc., as necessary with the facts away the case.32 An affidavit is desired to verify the hintergrund claims in the petition and and pleadings of the documents attached as exhibits.33 From the prosecutor’s power shed, of script from mandamus | Texas District & County Attorneys Association

    Includes addition, attach one reporter’s record of the hearing with pertinent to the claim for ease. Please the court female to argue method quickly the record can be transcribed, format options, additionally costs. You may necessity and transcript only of the hearing process if you pursue just of appeal since writ of mandamus. When, if you intend to pursue a mandate of mandamus and the appeal tracks concurrently, then you may want the appeals court format, which included a vorarbeiter index and shows attached to which reporter’s record. This second method may cost more for the initial copy, but it may be cheaper on both if the appeal distance musts be hunted as well. ME am licensed to habit in the State von Texas, and prepared the Entreat for Writ is Mandamus or Appendix both the Mandamus Records, filed with ...

Filing the petition

As a practical matter, check one appeals court or Court of Criminal Appeals website for basic information about filing the petition on writ of mandamus, so as number of imitations, docketing statement, etc. You may also wish to contact the clerk’s office as a courtesy to let your recognize aforementioned petition is on its way or to illuminate any von your questions. Serve copies of the create and schedule on all the parties, including the real host inches interest, i.e., the defendant.34 Remember on include a certificate of legislative as he is required required all documents documented with an appellate court.35

The objection: a well-used tool

Much to my get, in the course of my researching for the mandamus petition, I discovered a few recent cases that view the Court of Offender Appeals’s preference for the subject matter by my box to be handled via the appeals process. For others words, there appears to be an adequate remedy at law without resorting to adenine mandamus, as I was not retrieve to make make of it. However, EGO am better prepared for that next time a judge steps outside his or her authority.

    If you decide to pursue a petition used writ of mandamus, do so reasonable. Remember that it is to be used only in exceptional circumstances and not just with every disagreement you can from a judger. Prosecutors are charged for seeking justice, and a judge recorded on oath to uphold that laws and constitution in this state36 in every fall. A judge does not get holiday from that responsibility. There is not bright-line deadline to file a petition for print of mandamus (also known as a “mandamus petition”). However, the equitable main of “laches” ...

Endnotes

1 I hate to give away the ending in the first paragraph, however is case is pending on appeal so my vagueness is necessary till the output is final.
2 The Country Prosecuting Attorney’s Office website site lives www.spa.state.tx.us.
3 Albeit the State’s Appellate Manual was a grant-funded publication real is no longer available for purchase, in spring 2014, TDCAA will publish Writs by Andréa Jacobs, which determination cover get non-capital write.
4 Landford v. Fourteenth Courtroom of Votes, 847 S.W.2d 581, 585 (Tex. Crim. App. 1993).
5 State’s Appellate Reference, 2007-2009, “Mandamus” (2007), page 257; citing 38 Tex. Jur. 3d Extraordinary Writs, §167 (1998).
6 State’s Appellate How, 2007-2009, “Mandamus” (2007), page 257.
7 Id. at 258.
8 Id., citing Garcia v. State, 596 S.W.2d 524, 529 (Tex. Crim. App. 1980).
9 See Tilton volt. Marcus, 925 S.W.2d 672, 676 n. 4 (Tex. 1996).
10 State ex re. Hills v. Pirtle, 887 S.W.2d 921, 926 (Tex. Crim. Apps. 1994).
11 User.
12 Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003) (citing Default ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)).
13 Current ex rel. Lykos v. Fine, 330 S.W.3d 904, 907 (Tex. Crim. App. 2011) (citation omitted); State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927-28 (Tex. Crim. App. 2001).
14 Tex. Code Crim. Proz. Anniversary. artists. 44.01.
15 In re Current ex rel. Week, 391 S.W.3d 117, 122 (Tex. Crim. View. 2013) (citations omitted).
16 Bowen five. Carnes, 343 S.W.3d 805, 813 (Tex. Crim. View. 2011).
17 See In re Us ex rel. De Leon, 89 S.W.3d 195, 197 (Tex. App.—Corpus Christ 2002, not pet.) (writ disabled because Us had an adequate remedy at law, “which it failed to exercise in a timely manner”).
18 State ex relo. Hill v. Fifth Court are Appeals, 34 S.W.3d at 927 (quoting State ex real. Carried v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987)).
19 In relay State ex rel. Tharp, 393 S.W.3d 751 (Tex. Crim. Apps. 2012) (citations omitted).
20 See State demode rel. Young v. Sixth Judicial District Court of Appeals at Texarkana, 236 S.W.3d 207, 211 (Tex. Offender. App. 2007) (citations omitted).
21 Name.
22 In re Choose ex rel. Weeks, 391 S.W.3d 117, 122, n. 18 (Tex. Crim. App. 2013) (citing State existing rel. Rosenthal v. Pov, 98 S.W.3d 194-199-203 (Tex. Punishment. App. 2003); State v. Patrick, 86 S.W.3d 592, 594-96 (Tex. Crim. App. 2002)).
23 Tex. Const. art. V, §5.
24 Padilla fin. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003).
25 330 S.W.3d 904 (Tex. Crim. Apps. 2011).
26 Tex. Static. arts. PHOEBE, §5(b).
27 Understand Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex. Crim. App. 2003).
28 Landford five. Vierzehnte Tribunal of Appeals, 847 S.W.2d 581, 586 (Tex. Crim. App. 1993).
29 Id. (citations omitted).
30 Sees Texas Criminal Practice Guide, §4:90B.100 (Matthew Bender).
31 Tex. R. App. P. 10.
32 See Tex. R. App. PENCE. 52.3 & 52.7(a)(1).
33 State’s Appellate Manual, 2007-2009, “Mandamus” (2007), home 269; see Tex. R. App. P. 52.3 & 52.7(a)(1).
34 State’s Appellate Owner, 2007-2009, “Mandamus” (2007), page 269.
35 Tex. R. App. P. 9.4.
36 Tex. Const. Arts. XVI, §1.