in Re Coy Reece

IN THE SUPREME COURT OF TEXAS

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No. 09-0520

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In re Coy Reece, Relator

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On Petition for Writ of Mandamus

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Justice Willett, joined by

Justice Johnson as to Part IV , dissenting.

Intrepidity at the Alamo; entering the United States as the Republic of

Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and

George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles

(sadly none this millennium); Dr Pepper and the “little creamery” in Brenham;

deep-fried anything at the State Fair; a spirit of daring and rugged

independence—the sources of Lone Star pride are innumerable.

Unfortunately, the juris -imprudent design of

the Texas judiciary does not make the list. Today’s case is a byproduct of that

recondite web, sparking a game of jurisdictional hot potato between us and our

constitutional twin, the Court of Criminal Appeals. Truth be told—and this

particular truth has been told repeatedly—the State’s entire Rube

Goldberg-designed judicial “system” is beyond piecemeal repair; it should be

scrapped and rebuilt top-to-bottom. That said, and however labyrinthine the

jurisdictional maze often is, the answer in today’s case seems straightforward:

This dispute belongs with our sister court. It arrived on our doorstep because

of a simple yet pivotal misunderstanding: the Court of Criminal Appeals’

mistaken belief that we have unfettered habeas jurisdiction and are thus equally

able to grant habeas relief. 1 We do not , 2 and the Court today is unified 9-0 on

that point (though the Court does not explicitly mention our sister court’s

misinterpretation). We part ways 7-2 on whether we should make lemonade out of

jurisdictional lemons by wiring around our habeas limitation and relabeling the

relief sought “mandamus.”

The mandamus remedy turns on two findings: legality and practicality. 3 On both scores, I would return this case

to the court that conceded two years ago that it “does have the authority to act

in this case.” 4 Statute and precedent strongly suggest we

cannot hear this case, but even if we can , practical

considerations advise we should not . Neither refusing nor resisting, the

Court today yanks tighter a Gordian knot that should be cut clean through. I

respectfully dissent, and, for good measure, exhort the Legislature to propose a

judiciary worthy of Texas.

I. This Case Illustrates (Again) Our Abstruse

Judicial “System.”

“An artificial and arbitrary system, as age creeps on, gets

hardened arteries.” 5

The history of Texas courts is indeed a sclerotic one. But all’s well

that ends well, and even a helter-skelter judicial structure might be worth the

strife if it still managed, despite itself, to produce efficiency. Ours

hasn’t.

A. We Have Arrived Here Through Historical

Happenstance.

Like many things of Texas lore, the story of our court system begins with

its size. During the colonization of Texas, judicial power was vested in the

“municipal alcalde , an elected official who held

executive, legislative and judicial duties,” 6 and Stephen F. Austin was himself the

court of last resort. 7 After winning our independence, “Texas

began with a unified judiciary system,” 8 and both the Republic of Texas and the

early State had a single high court with both civil and criminal jurisdiction. 9 From statehood through Reconstruction,

every appeal from a trial court went directly to the state’s Supreme Court,

which at varying times had three or five members. 1 0

“Forty years and five constitutions later,” 1 1 and responding to this Court’s congested

docket, the Constitution of 1876 created a three-judge court of appeals for

criminal matters and limited this Court’s jurisdiction to civil matters. 1 2 The court of appeals, which despite its

name was not an intermediate court, had final say in criminal appeals, and could

also hear civil matters involving less than $1,000. 1 3 The flow of cases continued unabated,

however, and in 1879, the Legislature fashioned another judicial Band-Aid with

the creation of a Commission of Appeals. 1 4 But even doubling the number of

commissioners provided scant docket relief, and in 1891 (just fifteen years

after the Constitution was adopted), the citizens of Texas tried another

approach, a massive overhaul that scrapped the entire Judiciary Article of the

Constitution. 1 5 This kitchen-sink reform abolished the

court of appeals and Commission of Appeals, gave criminal jurisdiction to a new

Court of Criminal Appeals, and created three new intermediate courts of civil

appeals 1 6 (in Galveston, Forth Worth, and

Austin). 1 7 Our Court would maintain its civil-only

docket and focus chiefly on resolving conflicts in the courts of

appeals. 1 8

The Legislature was also charged with the task of dividing the state into

judicial districts, each with its own court of civil appeals. 1 9 In 1913, this Court’s jurisdiction grew

to include all cases from the courts of civil appeals, 2 0 and in 1980, a constitutional

amendment bestowed criminal jurisdiction on the renamed courts of

appeal. 2 1 Efforts to create a separate body of

criminal-only intermediate courts were defeated. 2 2 So while the two highest courts in the

state maintain specialized dockets, the feeder courts beneath them do not.

Generally speaking, under our bifurcated structure, litigants file

civil matters in the Supreme Court and criminal matters in the Court of Criminal

Appeals. People frequently get misdirected, though—lawyers included—and the

courts’ front offices regularly redirect lost litigants to the “other” high

court. In fact, this Court’s clerk’s office has a stock letter it sends—every

single day—to lost litigants, steering them to our sister court and noting that

the Supreme Court “does not have jurisdiction over criminal cases” and “does not

review the decisions of the Court of Criminal Appeals.” 2 3

Our dual high courts are largely meant to be co-equals—constitutional

twins. This is anomalous among court systems, even in the only other

two-court state, Oklahoma. Like Texas, Oklahoma has a Supreme Court that hears

civil appeals and a Court of Criminal Appeals that hears criminal

appeals. 2 4 But

there are two key differences. First, the Oklahoma Court of Criminal Appeals is

“subject to the power of the Legislature to change or abolish.” 2 5 Second, the Oklahoma Supreme

Court is truly supreme; if there is a jurisdictional clash, the Supreme Court

“shall determine which court has jurisdiction and such determination shall be

final.” 2 6 In other words, there are two states in

the nation with two courts of last resort. But only one state—the Lone Star

State—has a non-supreme Supreme Court. 2 7

B. Our Fragmented Structure is Much Maligned,

and Deservedly So.

The convoluted make-up of the Texas judiciary—“one of the most

complex in the United States, if not the world” 2 8 —does not lack for critics, from the

litigants who endure it, the lawyers who navigate it, and the judges who lead

it. In 1991, this Court’s appointed Citizens’ Commission on the Texas Judicial

System reached a stark but unsurprising conclusion: “Texas has no uniform

judicial framework to guarantee the just, prompt and efficient disposition of a

litigant’s complaint. . . . With the passage of time, the

organization of the courts has become more, not less cumbersome.” 2 9 That critique mirrors one that same year

from the Texas Research League (“TRL”), which former Chief Justice Phillips had

asked to scrutinize our judicial structure and suggest concrete improvements.

The system’s mind-numbing complexity led TRL to lament in May 1991 that the

Texas judiciary was in “disarray” and “ill-equipped to meet the needs of the

21st century,” adding, “Texas does not have a court system in the real sense of

the word.” 3 0 Indeed, “assigning the appellation

‘system’ to our state courts might require a long stretch of the

imagination.” 3 1 Nothing has

improved, and interestingly, the most strenuous critics, it seems, are those who

know the system best: the judges.

First, trial courts . “Texas has some

3,241 trial courts within its 268,580 square miles.” 3 2 The complexity at the lower-court level

is dizzying, as the attached chart (meant to simplify things)

illustrates. 3 3 In his 2007 State of the Judiciary

address, Chief Justice Jefferson

urged the Legislature to modernize our patchwork trial-court system,

calling on lawmakers to start “examining whether Texans are best served by the

current (and often redundant) complex system of county courts at law, district

courts and statutory probate courts, or whether streamlining some of these

courts may create a simpler system.” 3 4 Three members of this Court recently

branded our jurisdictional mishmash “unimaginably abstruse,” a tangle that has

“gone from elaborate to Byzantine.” 3 5 A former member of this Court politely

called our system “the opposite of a coordinated judiciary.” 3 6 One former state appellate judge

bemoaned our “maze of jurisdiction and procedure” that “[o] nly a puzzle-maker could appreciate.” 3 7

In 1993, the Court-appointed Citizens’ Commission on the Texas Judicial

System commented that “[n]o one person understands or can hope to understand all

the nuances and intricacies of Texas’ thousands of trial courts.” 3 8 Yet another report bemoaned that

“current judicial districts are so fundamentally unfair and so irrationally

configured as to shock the conscience of all Texans who familiarize themselves

with the present system.” 3 9 This

long-derided irrationality persists.

As one might imagine, our bizarre structure has generated some fanciful

factoids—practical problems and offbeat jurisdictional oddities that clog the

everyday inner workings of our judiciary. Consider:

•

Texas has at least nine different types of trial courts, “although

that number does not even hint at the complexities of the constitutional

provisions and statutes that delineate jurisdiction of those courts.” 4 0 Whether a given

trial court has jurisdiction is a five-step inquiry. 4 1

•

As Chief Justice

Jefferson has pointed out: “Some counties share a multi-county district

court, while others have multiple districts within the county. And some counties

are part of more than one district, creating a shifting target for litigants who

may not know which court’s rules prevail. Overlapping geographical jurisdiction

creates confusion for litigants and increases the risk of conflicting rulings in

a single area.” 4 2

•

At least one county court has no civil jurisdiction

whatsoever. 4 3

•

Only eight percent of Texas’s justices of the peace are lawyers,

even though they can hear cases involving multimillion-dollar claims. 4 4

•

A civil suit that would be tried before a twelve-person jury in

district court would be tried before a six-person jury if filed in a county

court. 4 5

•

District court vacancies are filled by appointment by the

Governor 4 6 but statutory county court vacancies are

filled by appointment by the county commissioners, even though those courts

frequently have jurisdiction over the same matters. 4 7

•

Whether there is a minimum monetary limit on the State’s district

court jurisdiction actually remains an open question. 4 8 While the

Constitution has been amended to eliminate a monetary minimum, there is some

argument that it is still implied. 4 9

•

Generally, jurisdictional limits on statutory county courts range

widely by county—from $500 to $100 ,000 5 0 —and some such courts have no monetary

limits at all. 5 1

•

“Appellate rights can vary depending on which court a case is

filed in, even among trial courts with concurrent jurisdiction, and even when

the same judge in the same courtroom presides over two distinct courts.” 5 2

Second, intermediate appellate courts . Texas is the only state in the

nation in which trial judges answer to more than one intermediate appellate

court; 5 3 that is, no other state has overlapping

appellate jurisdictions. 5 4 Fifteen counties are in overlapping

districts. 5 5 This Court has lamented the “manifest”

problems inherent in overlapping districts: “uncertainty from conflicting legal

authority,” “the potential for unfair forum shopping,” and “jurisdictional

conflicts.” 5 6 In fact, the two Houston-based courts of

appeals have even reached polar-opposite outcomes on the same

facts 5 7 —allowing three passengers in a car

accident to sue but not the fourth. 5 8 The following year, in 2002, we exhorted

the Legislature that “[n]o county should be in more than one appellate

district.” 5 9 I suspect we will do so again next year

when we issue our required plan to the Legislature on whether any appellate

courts should be added, eliminated, consolidated, or reallocated. 6 0

The Attorney General’s current chief legal counsel recently bemoaned

problems inherent in our overlapping intermediate-court structure: “Much of the

problem—and most of the opportunity for reform—lies in the antiquated structure

of the lower courts”; 6 1 likewise, our appellate courts “are

struggling to overcome a structure ill-suited to modern caseloads.” 6 2 Created to ease high-court docket

congestion, our “heavily fractured intermediate court structure,” if anything,

has created a system “more primed for generating conflicts” than any other state

in the nation. 6 3

Third, courts of last resort . Coy Reece’s

case is but one more cautionary Texas tale. As it illustrates, our dichotomized

system invites inter-court confusion, and as Texas history shows, inter-court

clashes. The Citizens’ Commission report from 1993 noted that conflicts between

the dual courts have arisen over the conclusivity of

the courts of appeals’ factual determinations, the constitutionality of the

“Pool Hall Law,” and whether journals of the House and Senate can be used to

contradict an enrolled bill. 6 4

In fact, members of the two courts have themselves sometimes highlighted

the friction that occasionally befalls a bifurcated system. A Court of Criminal

Appeals judge once lamented the split-system’s tendency to shuffle parties

needlessly about as he sent an “appellant on his way to begin yet another search

for the proper forum.” 6 5 In another case, three members stated

that they were “concerned that this State’s bifurcated judicial process could

sometimes generate conflicting decisions at the highest level on identical

questions of law . . . . If

there is a problem, it lies with the lines dividing the constitutional

jurisdiction of this Court and the Texas Supreme Court.” 6 6 The Texas system’s decentralized nature

has been blamed for a “lack of coordination” 6 7 that is apparent here. Even the Office

of the Attorney General—“the law firm of Texas” itself—is not wholly immune from

the jurisdictional confusion. In 1992, the Attorney General’s Office took the

rare step of appealing a lower-court ruling striking down the State’s

anti-sodomy law to both courts because, as the lead attorney explained,

“We want to make sure we’re not locked out of an appeal. It was either file with

both or roll the dice.” 6 8 The Court of Criminal Appeals declined

jurisdiction , 6 9 and this Court eventually ruled that it

too had no jurisdiction. 7 0 The (non)decision was roundly

criticized. One might wonder, as did an editorial board, “What’s the point of

having not one, but two final state appellate courts if neither of them has the

authority to rule on the constitutionality of a Texas criminal statute?” 7 1 Lawyers ought not be forced to litigate “on a guess and a gamble.” 7 2

Up north in Oklahoma, that Supreme Court could decide this jurisdictional

quandary swiftly. Not so here, though one court-reform study, mindful of the

potential for jurisdictional confusion, proposed a Sooner-like solution whereby

“the supreme court should determine which court has jurisdiction, and those

determinations should be final.” 7 3

C. A Century of Pleas for Structural Reform Have

Failed .

The urgency of sweeping judicial reorganization was “a perennial

theme” 7 4 throughout the twentieth century.

Earnest reformers like Roscoe Pound 7 5 and blue-ribbon studies galore urged a

sweeping restructuring of our hodgepodge judiciary. Throughout the 1900s, “in

virtually every decade of [the] century,” 7 6 there were regular calls in the

Legislature, the academy, and the profession for structural reforms at every

level, including high-court merger. 7 7 There have been periodic small-bore

reforms, yet even those piecemeal tweaks were “inexorably tedious and

protracted”; 7 8 ad hoc is the rule—evolutionary rather

than revolutionary.

The 1970s were particularly reform-minded. The Judicial Section of the

State Bar of Texas pushed for substantial changes to our judicial structure

during the 1971 legislative session. 7 9 That same year, the Legislature proposed

a constitutional amendment, eventually adopted by voters in 1972, directing the

Legislature to form a Constitutional Revision Commission to “study the need for

constitutional change” and then convene in 1974 as a constitutional

convention. 8 0 Also that same year, in October 1971,

then-Chief Justice Calvert formed the Chief Justice’s Task Force for Court

Improvement to rewrite Article V, the Judiciary Article of the Texas

Constitution. In September 1972 the Task Force proposed, among other things,

simplifying the trial-court maze, investing the courts of civil appeals with

criminal jurisdiction (which happily happened in 1980), reforming judicial

selection, and merging our twin high courts. 8 1 The Calvert Task Force coincided with a

court-reorganization report by the House Judiciary Committee, which in 1972

called for extensive changes in the judicial branch. 8 2

In early 1973, the thirty-seven members of the Texas Constitutional

Revision Commission began nine months of study and public hearings, culminating

in a proposed new state constitution. 8 3 (The Revision Commission was chaired by

then- former Chief Justice Calvert, who had left the Court the previous

October, one month after his Task Force unveiled its proposed Judiciary

Article). Essentially, the Calvert-led Revision Commission adopted the

recommendations of the Calvert-led Task Force. 8 4 Notably, though, the Revision

Commission, unlike the Task Force, wrestled with modernizing the entire

Texas Constitution, not just Article V. And the document it presented to the

Legislature in November 1973 was the first comprehensive effort to draft a new

constitution for Texas since the Constitutional Convention of 1875. 8 5

The following January, the Legislature convened unicamerally in the House chamber as the Constitutional

Convention of 1974. Like the Revision Commission, the Constitutional Convention

favored a wholesale overhaul of the entire Constitution, and many of the

proposed reforms, especially a right-to-work provision, provoked raucous

debate. 8 6 The Convention dissolved seven months

later, falling three votes shy of submitting a new constitution to Texas

voters. 8 7 That October, the House Judiciary

Committee submitted a report calling on the Legislature to submit to voters the

revision of Article V that the 1974 Constitutional Convention

considered. 8 8

The Legislature reconvened in January 1975, and this time, acting as a

regular legislature and not as a constitutional convention, it approved what

became a package of eight separate amendments, including a new Article V, which

resurrected the recommendations for a combined high court, courts of appeals

with both civil and criminal jurisdiction, and substantial trial-court

unification. 8 9 For the first time in a century, Texans

had an opportunity to consider a revised constitution. It was not to be. As in

the Constitutional Convention the previous year, fierce opposition arose over

various non-judiciary proposals (like annual legislative sessions, a

right-to-work provision, and taxation and education reforms) and each and every

proposed revision was defeated, including the modernized Article V (which

received more votes than any other amendment). 9 0

A 1976 interim study of the House Judiciary Committee submitted fifteen

piecemeal recommendations, 9 1 six of which the Legislature enacted

(like the creation of the Office of Court Administration). 9 2 In 1979, then-Chief Justice Greenhill

championed in his State of the Judiciary address the rifle-shot reform of giving

criminal jurisdiction to the courts of civil appeals, 9 3 and voters agreed in 1980. 9 4

The call for broader reforms persisted throughout the 1990s—from

TRL, 9 5 to the Comptroller, 9 6 to the Court-appointed Citizens’

Commission. 9 7 In May 1991, TRL urged a totally new

Judicial Article, saying our courts are so “fragmented” that “[t]he Texas court

system really is not a system at all.” 9 8 In 1991, we

directed an eighty-four-member Citizens’ Commission on the Texas Judicial System

to “study and recommend any necessary or desirable improvements in the courts of

Texas.” 9 9 Given our

constitutional responsibility “for the efficient administration of the judicial

branch,” 10 0 the Court invited common-sense reforms,

predominantly those related to the “jurisdiction and title of the trial and

appellate courts of Texas.” 10 1 Believing “a sound organizational and

administrative structure is essential to a well-regarded judiciary,” the

Commission proposed a system that simplified general-jurisdiction trial courts

and unified our dual high courts, though the new Supreme Court would have “two

divisions, civil and criminal, each with seven justices.” 10 2

In the 1990s, the Citizens’ Commission proposals did draw support as part of broader efforts to streamline our ungainly

constitution down to something approaching comprehensibility. 10 3 No such luck; the efforts sputtered.

Our unwieldy constitution lives, including our crazy-quilt court system, a

top-to-bottom mess. The push for modernization has continued apace in the 2000s.

Many observers, including members of this Court , 10 4 have continued pushing for lower-court

simplification, and other voices urge high-court merger as part of a broader

restructuring. 10 5

Against this bizarre background I turn to Reece’s petition for writ of

habeas corpus. It determines the procedural posture that so interestingly

animates this case, and channels the kinds of cases this Court can and cannot

hear. The issue of jurisdiction—deciding to decide—may sound like a

meta-interest floating in the jurisprudential ether, but its importance as a

threshold issue cannot be overstated. The matter of to whom

the courts are open—and for which claims—colors our bifurcated high-court

system, and ultimately disposes of this case. Sections II and III

discuss, respectively, the statutory and precedential evidence that suggests we

are not permitted by law to hear this case. Section IV explains that even if we

do maintain jurisdiction, it would be unwise to exercise it. The former is a

matter of a legal directive, the latter a matter of judicial discretion, but

both yield the same conclusion: There is no compelling case to hear this

case.

II. The Clear Statutory Prohibition that Prevents this Court

from Hearing this Case as a Habeas Petition Suggests it Cannot be Cleverly

Restyled as Mandamus .

There is no argument that this Court is statutorily hamstrung when it

comes to habeas jurisdiction. The Texas Constitution gives us the “power to

issue writs of habeas corpus, as may be prescribed by law.” 10 6 That law is Section 22.002(e) of the

Government Code, which limits such jurisdiction to times “when a person is

restrained in his liberty by virtue of an order, process, or commitment issued

by a court or judge on account of the violation of an order, judgment, or decree

previously made, rendered, or entered by the court or judge in a civil

case.” 10 7 Despite the jurisdictional thicket that

has sprouted kudzu-like around us, the path out is rather linear.

A. There is No Debate that Habeas May Not Issue

Here.

As applies here, this Court has the authority to issue a habeas writ only

if Reece both seeks release from custody and appeals from an order of contempt

based on a violation of an order, judgment, or decree “previously made” by the

court or judge in a civil case. 10 8 Otherwise, we have no statutory

authority to act: If the basis for contempt is not the violation of a

previously issued order, we do not have jurisdiction to review a sentence

of confinement via habeas corpus. 10 9 While Reece does seek release from

custody, there is no argument—either by the Court, 11 0 the trial court below, or the very

parties before us—that the contempt order here was based on such a violation.

Therefore, this Court lacks power to issue habeas relief.

To say this is a rule grounded in statute and in precedent would be an

understatement. This Court has been in the business of reviewing habeas

petitions based on statutory language similar to Section 22.002(e) for more than

100 years. 11 1 We have denied jurisdiction over habeas

petitions not arising from the violation of a previously made order for just as

long. 11 2 The Court of Criminal Appeals was,

respectfully, incorrect when it stated that “[e] ffective 1981, Article 5, § 3(a) of the Texas Constitution

was amended to give the Texas Supreme Court and the Justices thereof the

authority to issue writs of habeas corpus.” 11 3 The amendments

of 1980 (effective 1981) did no such thing. Instead, they rewrote the first

paragraph of the section, but retained the language that “[t]he Supreme

Court and the Justices thereof shall have power to issue writs of habeas

corpus, as may be prescribed by law . . . .” 11 4 And here, law

prescribes that habeas may not issue in this case.

B. There Should Be No Debate that Relabeling

the Remedy “Mandamus” Cannot Circumvent this Rule.

The strength of this rule should be heeded as a sign—both from the Texas

Legislature and our many decisions construing its enactments—that we are not

meant to hear appeals from contempt cases where the basis for contempt is not

the violation of a previously issued order, and therefore, we are not meant to

ad-lib the means to arrive at the same forbidden end. It is undisputed that we

cannot hear this case as a habeas petition. Why, then, should we be permitted to

hear it under another name?

This statutory prohibition—the only legislatively mandated anchor in a

sea of confused and overlapping jurisdiction—should and does provide a

comprehensive sense of this case. By issuing mandamus when we are clearly not

permitted to issue habeas, we do a disservice to the framework differentiating

the two, as well as to the jurisdictional structure which (for better or worse)

we are charged with upholding.

The Court contends “our constitutional and statutory grant of mandamus

jurisdiction is broad,” and not limited in the way I suggest here, explaining

that “this Court possesses general original jurisdiction to issue writs

of mandamus.” 11 5 But the Court is forced to qualify that

proposition by citing to the Texas Constitution: “ See Tex. Const. art. V, §

3(a) (granting the Court power to issue writs of mandamus as specified by the

Legislature ).” 11 6 The exception

nullifies the rule. Our mandamus jurisdiction is undoubtedly circumscribed by

law. Where the Legislature has spoken clearly and removed the kind of case now

before us from our jurisdiction, it is disingenuous to circumvent the rule by

renaming the remedy.

III. Precedent Further Indicates this Court

Cannot Issue Mandamus.

The statutory prohibition against habeas is but one reason to dismiss the

case. There are others grounded in our mandamus (rather than habeas)

jurisprudence. We have at least suggested—if not stated plainly—that the habeas

prohibition precludes our ability to hear a case like this, explaining that

“[o] ur original habeas corpus jurisdiction is limited

thereby to cases in which a person has been confined for violating an order,

judgment or decree in a civil cause , and we are

without power to inquire into the legality of restraint imposed for some other

reason .” 11 7

A. Our Deramus

Decision Demonstrates—Rather Than Disproves—that Habeas is Inappropriate Here.

Both Reece and the Court 11 8 rely heavily upon one sentence in Deramus v. Thornton , in which we preserved the

possibility that there might be contempt-related situations where mandamus, not

habeas, would be the proper remedy: “We are not to be understood as saying,

however, that there may not arise conditions involved in contempt matters where

the writ of habeas corpus would not be adequate and where mandamus would be the

proper remedy.” 11 9 The cautious words of wise jurists

intent on protecting a hypothetical situation, however, should not be read to

apply to and permit any series of facts that follow.

Deramus was held in contempt for violating an

injunction. He sought a writ of mandamus ordering his trial judge to vacate the

contempt judgment and dismiss the contempt proceedings. There, as here, we noted

that the usual avenue for such a situation was habeas, explaining: “Had the

District Judge not suspended the judgment of contempt the normal course would

have followed, and the remedy adopted by the relator

could necessarily have been an application for a writ of habeas

corpus.” 12 0 Contrary to Reece’s urgings, in Deramus we noted that mandamus was not proper,

buttressed in large part by the reasoning that “[w]e have uniformly held in this

State . . . that the validity of a contempt judgment can be

attacked only collaterally and that by way of habeas corpus.” 12 1 Even when we noted that this question

was arguably a matter of policy—a view that seems to pervade the Court’s looser

approach to the issue—we still remained “reluctant to depart from a judicial

path so well landmarked, especially so since the claimed inadequacy of habeas

corpus . . . [was] one common to

all cases where escape is sought from the penalties of a contempt

judgment.” 12 2 We went on to

explain that “[t]his in itself, we think, is sufficient justification for our

refusal of this application. To do otherwise would completely change the

procedure long followed in this State and allow in every case an attack on the

order of contempt by way of mandamus.” 12 3

Reece has not violated a previously issued order, meaning this Court may

not issue habeas. If the Court in Deramus

found that habeas—not mandamus—was appropriate where contempt was the result

of the violation of a previously made order, then the Court should find here

that neither habeas—nor mandamus—is proper where there is no such violation. The

dissent in Deramus acknowledged that

habeas was the usual remedy in cases where a relator

seeks a release from confinement, but maintained the view that the import of the

cases suggested a different principle: “[W]here a judge, as in the instant case,

has determined to commit and fine a relator on a void

contempt judgment, this court has the power to issue writs of mandamus and

prohibition to prevent the enforcement of a void act.” 12 4 It is unclear why the Court has

essentially taken up the Deramus dissent

without explicitly overruling Deramus .

In sum, what was true in Deramus

remains true today: Granting mandamus “would completely change the procedure

long followed in this State and allow in every case an attack on the order of

contempt by way of mandamus.” 12 5 Deramus imagined scenarios in which the

inadequacy of habeas would render mandamus the proper route. But Deramus itself demonstrates that this is not

such a scenario.

B. In re Long Indicates Mandamus

Specifically May Not Issue Here, Where Contempt Sanctions Involve

Confinement .

In re Long 12 6 reinforces this conclusion. There we

held mandamus would be proper in the review of contempt sanctions not involving

confinement. 12 7 But because

Reece challenges a criminal contempt action involving confinement, not based

upon a previously issued order, In re Long is not directly controlling.

Therefore, Reece fits into neither category. The Court’s assertion that because

we have “declined to read the limitations in our habeas statute as a legislative

prohibition against our exercise of mandamus jurisdiction” in fine-only cases,

we can rightly “decline to do so here as well” 12 8 is a non sequitur. Reece was confined,

so cases about non-confined persons cannot support the leap made by the Court

today. There is simply no precedent establishing that mandamus is the

appropriate remedy in this case.

In fact, quite the opposite is true. It can be inferred from In re

Long that contempt sanctions that do involve confinement may not

be reviewed through mandamus—otherwise, the distinction that case makes

would be meaningless. We have applied this kind of logic to the habeas cases

discussed earlier, in which we reasoned from the statute permitting

issuance of the habeas writ where there is a violation of a previous

court order that we were prohibited from issuing the writ where there was

no such order. It makes sense to do the same here. Under a simple

corollary of the In re Long rule, we are prohibited from issuing mandamus

because Reece was subject to contempt sanctions that involved confinement. Even

foregoing this inference as the Court would, however, it is clear that mandamus

has never been permitted where there was no violation of an order and

confinement was involved.

C. The Court Misconstrues the Mandamus

Remedy.

The Court’s defense of its decision is based largely on four contentions:

(1) mandamus is generally flexible; (2) no law announces that habeas is the

exclusive remedy; (3) mandamus has often been used to “gap-fill” where there is

no remedy; and (4) our sister court tends to defer to us on matters such as

these. The first two stem from a more general view about the mandamus and habeas

remedies, respectively. The second two are rooted in case law. I address each in

turn.

First, it is true, as the Court points out, that mandamus is available to

review rulings in “exceptional cases,” and that “rigid rules . . . are

necessarily inconsistent with the flexibility that is the remedy’s principal

virtue.” 12 9 But we have regularly deferred to the

Legislature’s determinations of when mandamus is appropriate. 13 0 And the remedy has been largely used in

obviously civil cases with no criminal element, and generally has not been used

to trump other, independent limitations that work to bar the mandamus

remedy. 13 1 This case is distinguishable on both

counts: It presents an underlying civil case with a criminal penalty and

is independently limited by precedent that confines the mandamus remedy when it

comes to criminal contempt.

Consider, as an illustration, Betts v. Johnson . 13 2 There, the Court determined that an

independent statutory limitation prevented it from issuing mandamus, and

consequently overruled a motion to file a mandamus petition. 13 3 The statutory

limitation was an article that permitted the Court to issue mandamus against an

“officer of the state government.” 13 4 But since the writ applied for was

against a board of officers, not against an officer , the Court

reasoned that it could not issue mandamus. 13 5 The text of

the statute prevented it from doing so. As recently as 2001, some justices of

this Court refused mandamus on the same logic—not as a matter of practicality,

but instead as a matter of legality. 13 6

Similarly, we have determined mandamus may not issue to controvert a

prior injunction 13 7 or to compel an officer to act outside

the bounds of the law. 13 8 In both instances, the existence of law

that would conflict with the mandamus remedy functions as an independent

limitation upon it. We have also found ourselves powerless to issue mandamus

where a collection of statutes suggested we lacked jurisdiction to hear the case

in the first place. 13 9 While this is,

to be sure, different from a prohibition specifically against mandamus, it still

reinforces the general rule that independent statutory limitations channel the

mandamus power.

Second, it is also true that no statutory or constitutional provision

states that habeas is the only vehicle in this circumstance, and this Court has

previously granted mandamus relief in quasi-criminal cases. The first point is a

cat’s game, in which neither side wins: While there may not be a provision

limiting the possibilities in this case to habeas, there is certainly not

one explicitly permitting mandamus. To the contrary, In re Long at

least suggests that mandamus is inappropriate where confinement is

involved. 14 0 This and the fact that there is a

statutory provision in Section 22.002(e) specifically limiting this

Court’s habeas jurisdiction to certain instances—none of which are presented

here—are at least two thumbs on the scale for the view that this Court lacks

jurisdiction in this instance. As to the second point, having granted mandamus

relief in other quasi-criminal cases does not make it appropriate here. Neither

party seems to be able to point to a case where this Court granted mandamus on

facts such as these, and in the teeth of an independent statute and precedent

circumscribing our ability to do so.

Third, according to the Court, many cases support the view that mandamus

is a statutory “gap-filler” that may issue here. But in none of these

cases did an independent statutory prohibition suggest that mandamus was

inappropriate as it does here. Instead, we simply fashioned a remedy because

there was a lack of available alternatives. In other words, we are not claiming

that express statutory permission is required to issue mandamus; we are

simply asking that the Court refrain from issuing mandamus where there seems to

be an express statutory prohibition against doing so.

Contrary to the Court’s understanding of my position, I do not believe

that “if a statute grants jurisdiction in only a limited circumstance, it must

follow that we are forbidden from exercising our mandamus jurisdiction in a

situation falling outside the parameters of that limitation.” 14 1 We have

certainly gap-filled properly in the past. This case is distinguishable because

there is no gap (the Court of Criminal Appeals can still act, as Reece’s motion

for rehearing remains pending there) and because there is statutory evidence not

only that our jurisdiction is limited, but also that our jurisdiction is

explicitly prohibited in this context.

“Gap-filling” is just that—a decision to act when there is no other

avenue open to the parties. Today the Court does something more akin to

“needle-threading” than “gap-filling.” It attempts to gap-fill where there is

not clearly a gap—where there is, instead, a law.

For this reason, the Court’s citations to various arbitration cases are

off-point. In Jack B. Anglin Co. v.

Tipps , 14 2 the Court determined that mandamus was

appropriate to review a trial court’s denial of a motion to compel arbitration

under the Federal Arbitration Act (“FAA”). 14 3 But because of an independent statutory

limitation—Texas procedural rules—those claiming a right to arbitration under

the Texas Arbitration Act (“TAA”) and alternatively the FAA were required to

file both an interlocutory appeal under the TAA and a writ of mandamus under the

FAA. 14 4 Was this dual requirement a model of

efficiency? Clearly not. But the Court recognized

then—as it should realize now—that the form of the remedy was circumscribed by

legislative mandate. 14 5 We reaffirmed

that principle in the next case, too. 14 6

We gap-filled because without the mandamus remedy the essence of the

appeal would vanish, and the arbitration-seeker would be left without the very

thing for which he contracted ex ante. 14 7 But we did not

ignore law suggesting or stating we could not do so. Here, there is a

wealth of law tending to show the mandamus remedy is not permitted. There is not

a gaping hole that suggests oversight, but a narrow cranny that suggests

deliberation. In other words, despite the Court’s argument, a “specific

allowance for interlocutory appeal under the TAA in the absence of a law

allowing for the same under the FAA” 14 8 is not the same as the presence of an

independent statute explicitly suggesting interlocutory appeal is not allowed

under the FAA. I doubt we would have permitted mandamus if there had been

such a limitation.

This Court has similarly stepped in 14 9 where the Court of Criminal Appeals

could not issue mandamus except as necessary to protect its own

judgments. 15 0 This line of cases only reinforces my

own view. We have granted mandamus where the Court of Criminal Appeals was

constitutionally prohibited from doing so. We should not short-circuit the Court

of Criminal Appeals from issuing habeas where we are statutorily prohibited from

doing so.

It is also worth noting that the Legislature eventually intervened to

fill in the “gap” for each of these cases. 15 1 That pattern only demonstrates that if

the Legislature determines that the failure to give our Court jurisdiction over

cases such as these was mere oversight, it knows well how to correct the

error. Unless and until it does so, however, it makes little sense to take the

lid off this jurisdictional can of worms, particularly when the can belongs to

another.

Fourth and finally, the Court claims that the Court of Criminal Appeals

has “preferred to defer” to this Court where contempt proceedings arise from

civil cases. In support, it points to a case in which the Court of Criminal

Appeals, after doing so, was forced to take the case back after a Supreme Court

justice explained that this Court did not have jurisdiction. 15 2 That example should be followed today.

The essence of this question is not in how often the Court of Criminal Appeals

may err in attempting to pass a case like this to us, but in how often we have

erred in accepting it. That we have never done.

Were we the Oklahoma Supreme Court, sorting out jurisdictional spats like

this one by simply taking the case might be a more tenable position. But in Texas, it is the Legislature that designs

and divvies up the dockets. And the Legislature has not given us the authority

to hear this case—whether we call it habeas or mandamus.

D. The Court’s Reliance on Legislative History

is Both Unnecessary and Unwise.

My skepticism of legislative history is well known, and well informed. It

is a wariness borne of many years participating in the legislative process at

both the state and federal levels, and confirmed by six years on the bench,

where I see firsthand the perils of “embarking on a scavenger hunt for extratextual clues prone to contrivance.” 15 3 Any imagined

gains from rummaging around in legislative minutiae, particularly absent any

textual ambiguity, are more than dwarfed by multiple realities.

One such reality, unfortunate but also undeniable, is that legislative

history is prone to manipulation (by lawyers, judges, and legislators alike) and

often cited inaccurately, selectively and misleadingly. More fundamentally, the

statute alone is what constitutes the Legislature’s collective will, and

isolated snippets along the way lack the authoritative imprimatur of a

Legislature that, we must presume, intended precisely what it enacted.

That said , one need not necessarily subscribe to

this view to find the Court’s reliance on legislative history unsettling. For

this case demonstrates yet another disadvantage to reading through the

often-distorting lens of legislative history: It is really no aid at all.

The Court attempts to guess at what the Legislature of 1905 could have

meant. The Court’s determination to wrestle with the ghost of Section 22.002(e)

reveals, perhaps not surprisingly, that wrestling with ghosts is unsatisfying.

After reading the House Judiciary Committee’s report on Senate Bill 36, the

Court can only suggest that “ perhaps [the Legislature] simply did

not envision contempt in civil cases extending beyond [a contemnor’s violation

of a court order], and so crafted this Court’s habeas jurisdiction

accordingly.” 15 4 It can only note that the Court of

Criminal Appeals has “ suggested the same purpose.” 15 5

That shaky assumption is the basis for the Court’s assertion that Reece’s

case has “ fall[ en] inside the statutory loophole

created by the particular division of habeas jurisdiction between the Court of

Criminal Appeals and this Court.” 15 6 This is a

loophole, of course, but only if one looks beyond the text of the statute—and

not clearly even then. As another matter, “loopholes” are usually passageways

through which unaddressed matters threaten to escape. Here, the text of Section

22.002(e) limits habeas jurisdiction to exceedingly specific instances with the

kind of precision that suggests the Legislature was drawing lines, not holes. If

it wasn’t, then the Legislature remains free to clarify matters—especially in a

case that springs from a judicial maze that lawmakers are best positioned to

simplify.

IV. Granting Relief Poses Few Practical Benefits

and Many Potential Practical Burdens.

Even if we can issue mandamus here, it is doubly clear that we

should not . Even if it is legal, it is certainly impractical. Most

peculiar about the Court’s decision to accept this appeal is the lack of any

compelling practical reason to do so. The Court of Criminal Appeals itself

acknowledged two years ago—before the case even arrived on our doorstep—that it

has jurisdiction to hear the case. 15 7 If we dismiss, Reece will return to our

sister court, where a motion for reconsideration remains pending—presumably

awaiting our action. This renders untrue the Court’s statement that Reece has

“no other procedure to challenge his confinement in our state courts” 15 8 and “no adequate remedy by

appeal.” 15 9 The Court of Criminal Appeals has not

refused to act; it has instead deferred final action until we act

first. 16 0 I agree that “mandamus is a proper

vehicle for this Court to correct blatant injustice that otherwise would elude

review by the appellate courts,” 16 1 but that scenario simply does not exist

here. As discussed above, the Court has utilized mandamus as a flexible remedy

only where all other meaningful roads were blocked. If adequate appellate relief

is available elsewhere, mandamus should not be used as judicial duct tape to

cover “gaps” that simply do not exist. Where our sister court has conceded its

own authority to act, we should be doubly disinclined to intervene.

A. Hearing Reece’s Case Implies a Lack of Equal

Sisterhood with Our Supposed Sister Court.

If the instant case offers no reason to seize jurisdiction, the specter

of future cases more strongly militates against our doing so. Hearing the case

implies that the Supreme Court and the Court of Criminal Appeals are not

co-equals. Accepting mandamus jurisdiction when the Court of Criminal Appeals

has exclusive habeas jurisdiction over these types of contempt orders would

violate the mandated separation with that court. It would evince more respect

for an institution we call our equal, and those who created it, to allow it to

hear its rightful docket than to encroach pointlessly upon it.

B. Hearing Reece’s Case Will Disorient Deciders,

Confusing the Two High Courts and Courts of Appeals Alike.

Similarly, this case leaves open the question of whether and when a

petitioner may seek review in both courts, and in what order. Such confusion

could lead to an unnecessarily increased docket in either court, or at least

wasted resources spent shuffling cases between the two systems (or discussing

whether to do the shuffle in the first place). While the Court seems concerned

that dismissing Reece’s case would constitute “a potential waste of judicial and

litigant resources as the case travels between [both courts], with neither court

exercising jurisdiction to consider the merits of Reece’s petition,” 16 2 that small, one-time shuffle will save

us far more than it will cost. Ignoring the reality that our jurisdiction is

limited will only make the ping pong match longer, and with more balls in the

air.

The confusion caused in hearing this case will affect both litigants and

the courts of appeals below that have understood and applied for years the rule

that today the Court contravenes. The court of appeals in the instant case

certainly believed it was following that rule when it dismissed Reece’s

habeas petition for want of jurisdiction. It would be strange to tell those

courts that a relator need only style his petition as

mandamus to merit jurisdiction, especially when—as the Court

acknowledges 16 3 —those courts have been operating under

the assumption that mandamus was the only proper remedy. 16 4 Even Reece himself assumed this was the

rule, as indicated by his decision to file “a motion for reconsideration in the

Court of Criminal Appeals, explaining that this Court lacks habeas jurisdiction

because the contempt order does not emanate from a violation of an order,

judgment, or decree.” 16 5

Further, this issue is before us largely because of the Court of Criminal

Appeals’ mistaken view that this Court has habeas jurisdiction. 16 6 Making it a policy to grant cases that

arise out of error instead of correcting the error will make neither our court

nor our sister court as careful or as diligent in reviewing cases as we ought to

be; it will only encourage punting cases—likely, the most difficult cases

deserving of the most attention—back and forth between us. Reece claims that

these are “unique circumstances” warranting mandamus as a matter of policy; but,

contradictorily, Reece also warns that “the next case might involve a party to a

civil case sentenced to six months in jail for contempt.” It certainly might.

But that would be a matter for the Court of Criminal Appeals.

C. Hearing Reece’s Case May Manufacture

Manipulation.

A lack of jurisdictional clarity threatens to encourage forum shopping.

An astute attorney may determine that his client stands to receive a more

favorable ruling at one court rather than the other, and arrange

jurisdiction-manipulative arguments accordingly. After this case, for example,

petitioners seeking an audience with the Supreme Court would be advised to style

their petitions as mandamus; with the Court of Criminal Appeals, habeas.

D. Hearing Reece’s Case Draws a Blurry, Rather than Bright-Line, Rule.

Finally, the Court’s suggestion that today’s decision draws helpful lines

of clarity between the civil and the criminal is unpersuasive. Today the Court

may ostensibly limit itself by allowing this Court to grant mandamus in

“situations where the underlying dispute is civil in nature, and the Court of

Criminal Appeals declines to exercise its habeas jurisdiction.” 16 7 This has the semblance of a bright-line

rule—we hear appeals arising from underlying civil matters, and the Court of

Criminal Appeals from underlying criminal matters. But that is misleadingly

simplistic, and contravenes prior precedent in which we explained that case

categorization does not dispose of this issue.

In other words, it is still true that “[u] nder

the provisions of the Texas Constitution and the pertinent Texas statutes

relating to the original jurisdiction of this Court and the Court of Criminal

Appeals, the circumstance that the cause out of which a restraint of a person’s

liberty arises may be classified as a civil case, is not sufficient to vest this

Court with habeas corpus jurisdiction.” 16 8 Further, hearing this case, and perhaps

future cases like it, may force us to handle appeals from civil cases with

criminal penalties, and force us at least in part to take on quasi-criminal

matters. An unnecessary, duplicative upsurge in this Court’s docket is alarming

enough on its own; but one comprised of quasi-criminal cases when there is a

separate court designated for criminal matters is even more insupportable.

It is easy to draw a line based upon the nature of the underlying case,

but this case alone demonstrates that the line is somewhat meaningless. Even the

Court acknowledges that “the distinction between criminal and civil contempt

does not turn on whether the underlying litigation is civil or criminal,

but rather on the nature of the court’s punishment.” 16 9 The instant

case, then, demonstrates that the cases—like the courts that hear them—are not

always cleanly bifurcated. Here, the Court finds constructive criminal contempt

even though it was imposed in a civil trial and not for the violation of a court

order. 17 0

The world is not nearly as tidy as the approach the Court has designed

for it. In those blurry instances, it seems best to follow precedent.

And a bright-line rule is particularly without its usual benefits where it

comes at the expense of precedent that prohibits such a rule. “[W]e are seldom

presented with the opportunity to give a jurisdictional statute a reasonable

construction that results in more uniformity and simplicity (even if only

slightly more), and given that opportunity in this case, I would seize

it.” 17 1 The

simplest—and most defensible—approach is not to attempt to create a bright-line

rule but to refrain from hearing the case whatsoever. The brightest line is the

one drawn between these two courts. After all, the Court of Criminal Appeals has

called its original jurisdiction to issue writs of habeas corpus

“unlimited.” 17 2

V. Conclusion

No amount of head-tilting and eye-squinting can manufacture jurisdiction

where there is none. Where mandamus relief would mirror the effect of a

statutorily prohibited habeas writ, we should not hear the case. We should be

particularly hesitant where our own mandamus jurisprudence precludes such

relief. We should be triply wary where our sister court concedes it “does have

the authority to act in this case.” 17 3

I understand the Court’s commendable desire to correct an erroneous

trial-court ruling, but where our labyrinthine judicial structure curbs our

ability to hear certain cases, we must obey that limitation. This is not a case

where either—or neither—high court has jurisdiction. This case belongs at the

Court of Criminal Appeals, and that court is apparently awaiting our decision

before ruling on Reece’s motion for rehearing.

It makes little sense for us to expand, without clear delineations, our

own jurisdiction where our sister high court has already declared it has the

power to take action. By inventing jurisdiction without practical or legal

reasons for doing so, the Court today further muddles the two-court system in

which we find ourselves. We may have inherited a jurisdictional house of cards,

but it is imprudent to build more intricate towers upon it.

I would dismiss this petition, and in doing so urge my own: The fastest

growing state in the nation requires a modernized top-to-bottom judicial

structure fit for the twenty-first century and worthy of our great State. At the

very least (and it grieves me to use these six words) Texas should be

more like Oklahoma, where one high court is truly supreme and empowered to

decide jurisdictional squabbles inherent in a bifurcated scheme. I respectfully

dissent.

______________________________

Don R. Willett

Justice

OPINION DELIVERED: May 27, 2011

1 See In re Reece , No.

WR-72,199-02, slip op. at 2 (Tex. Crim. App. June 29, 2009) (per curiam ) (not designated for publication) (“Although this

Court does have the authority to act in this case pursuant to Article 5,

§ 5, of the Texas Constitution, we decline to do so. Effective 1981,

Article 5, § 3(a) of the Texas Constitution was amended to give the Texas

Supreme Court and the Justices thereof the authority to issue writs of habeas

corpus.”). The Court of Criminal Appeals also offers the civil/criminal

distinction as a basis for deference, id. , an

issue I address below. See infra IV.D. Even so, it is difficult to

imagine our sister court lateraling to us had it

realized we lack habeas jurisdiction to hear in this case.

2

See

Tex. Const . art. V, §

3(a) (limiting the habeas jurisdiction of the Texas Supreme

Court).

3

Though it is discussed explicitly throughout this

opinion, the legality prong has often been implicit: As a general rule, the

Legislature determines our jurisdiction. See Tex. Gov’t Code § 22.001(a). This

principle applies no less strongly to the issuance of mandamus. The practicality

prong—namely, that the requesting party must show it has “no adequate remedy by

appeal”—has received more judicial attention. See, e.g. , In re

Prudential Ins. Co. of America , 148 S.W.3d 124 , 135–36 (Tex. 2004) (orig.

proceeding) (“The operative word, ‘adequate’, has no comprehensive definition;

it is simply a proxy for the careful balance of jurisprudential considerations

that determine when appellate courts will use original mandamus proceedings to

review the actions of lower courts.”).

4

In re Reece , No. WR-72,199-02, at 2 (“Although this Court does have

the authority to act in this case pursuant to Article 5, § 5, of the Texas

Constitution, we decline to do so.”).

5

Rhodes S. Baker, The Bar Association’s Legislative Program—Judicial

Control of Procedure , 2 Tex. L.

Rev . 422, 429–30 (1924).

6

Adrienne Sonder , Tarlton Law Library, Jamail Center

for Legal Research, Timeline of the Texas Supreme Court and Court of Criminal

Appeals (Nov. 2006), http://tarlton.law.utexas.edu/justices/timeline.html

[hereinafter “ Sonder ,

Timeline ”].

7

Texas Research League,

Texas Courts: Report One, The Texas Judiciary: A Structural-Functional

Overview , at xiii and 2 (1990) (citation

omitted) [hereinafter “ Texas Research

League, Texas Courts: Report I ”].

8

Joe R. Greenhill, The Constitutional Amendment

Giving Criminal Jurisdiction to the Texas Courts of Civil Appeals and

Recognizing the Inherent Power of the Texas Supreme Court , 33 Tex. Tech L. Rev. 377 , 378 (2002)

(citation omitted) [hereinafter “Greenhill, The Constitutional

Amendment ”].

9 Id .

10 James T.

Worthen, The Organizational & Structural

Development of Intermediate Appellate Courts in Texas, 1892 – 2003 , 46

S. Tex. L. Rev. 33 , 34 (2004)

(citation omitted) [hereinafter “Worthen, The Organizational & Structural

Development ”]; Leila Clark Wynn, A History of Civil Courts in Texas ,

60 Sw. Hist. Q. 1, 4–5

(1956).

11 Texas Research League, Texas

Courts: Report I ,

at xiii.

12 Id. This

was itself “the sixth judicial structure implemented in Texas within 40 years.”

H. Comm. on the

Judiciary, A Proposal for the Comprehensive Revision of Article V, 63rd

Leg., R.S., at 3 (1974) [hereinafter “ H.

Comm. on the Judiciary, A Proposal ”].

13 Worthen,

The Organizational & Structural Development , at 34 (citation

omitted) .

14 Id. (citation

omitted).

15 Id.

at 34–35 (citation

omitted).

16 Tex. Const.

art. V, §

4–5 (amended 1891).

17 Second Court

of Appeals, History and Jurisdiction , Texas Courts Online ,

http://www.2ndcoa.courts.

state.tx.us/court/history.asp (last

updated Sept. 2, 2008).

18 Tex. Const.

art. V

§ 3 (amended 1891).

19 Id. §

6.

20 Act of March

26, 1913, 33rd Leg., R.S., ch . 55, § 1, 1913 Tex. Gen.

Laws 107 . Incidentally, the Commission of Appeals, created in 1879 and

eliminated in 1891, was reestablished in 1918 to ease this Court’s still-crowded

docket, and in 1925, the Legislature created a two-person Commission of Appeals

to help the Court of Criminal Appeals. These two commissioners were folded into

the formal Court of Criminal Appeals when its membership grew from three to five

in 1966. But just three years later, in 1969, the Commission was reestablished

to help the Court of Criminal Appeals meet its workload. See Sonder , Timeline .

21 See

Worthen, The Organizational &

Structural Development , at 39–40 (citations omitted).

22 See

id. at 40–41

(citations omitted).

23 Letter from

Blake A. Hawthorne, Clerk of the Supreme Court of Texas (May 9, 2011) (citing

Tex. Gov’t Code §§ 22.001–.002) (on file in the clerk’s office

of the Supreme Court of Texas).

24 The Supreme

Court of the State of Oklahoma, Bringing a case before the Appellate Courts,

http://www.oscn.net./oscn/schome/appelcase.htm (last visited Mar. 28, 2011).

There are 52 state courts of last resort (50 state courts, the criminal courts

in Texas and Oklahoma), plus the District of Columbia Court of Appeals).

National Center for State Courts, Many states outpace U.S. Supreme Court on

gender diversity (Apr. 21, 2010),

http://www.ncsc.org/newsroom/backgrounder/2010/gender-diversity.aspx.

25 Okla. Const.

art. VII,

§ 1.

26 Id. § 4.

27 Nearly one

hundred years ago, the Alabama Supreme Court explained why this might be a bad

idea:

There must be in every state a court capable of

exercising ultimate judicial power. In this state that is the Supreme Court. If

it were otherwise, there would be no organ of government capable of

authoritatively settling judicial questions; and there must be such an organ

there can be no doubt, for the judicial department is an independent one, and

the element of sovereignty delegated to that department must, as in the case of

the executive and legislative, reside, in its last and highest form, in one

tribunal, one officer, or body of officers.

Williams v. Louisville &

Nashville R.R. , 58

So. 315, 316 (Ala.

1912).

28 George D. Braden et al., The

Constitution of the State of Texas: An Annotated and Comparative Analysis

367 (1977).

29 Citizens’ Commission on the

Texas Judicial System , Report and Recommendations: Into the

Twenty-First Century 3 (1993) [hereinafter Citizens’ Commission, Report and

Recommendations ].

30 Texas Research League, Texas

Courts: Report Two, The Texas Judiciary: A Proposal for Structural-Functional

Reform, at iii, xi (1991) (emphasis

omitted) [hereinafter “ Texas Research

League, Texas Courts: Report II ”].

31 Texas Research League, Texas

Courts: Report I , at

5.

32 In re

United Servs . Auto Ass’n , 307 S.W.3d 299, 302

(Tex. 2010) (citations omitted).

33 Texas Courts

Online, Court Structure of Texas (Mar. 1, 2001),

http://www.courts.state.tx.us/.

34 Wallace B.

Jefferson, The State of the Judiciary in Texas: Presented to the 80th

Legislature by Chief Justice Wallace B. Jefferson (Feb. 20, 2007), in 70

Tex. B.J. 314,

316 (2007) [hereinafter “Jefferson, The State of the

Judiciary”].

35 Sultan v.

Mathew , 178 S.W.3d 747, 753 (Tex. 2005)

(Hecht, J., dissenting) (describing the jurisdictional system in a case

regarding jurisdiction over claims originally filed in small claims

court).

36 Thomas M.

Reavley , Court Improvement: The Texas Scene , 4

Tex. Tech L. Rev . 269, 270 (1973) (citations

omitted).

37 Ed Kinkeade , Appellate Juvenile Justice in Texas: It’s a

Crime! Or Should Be , 51 Baylor L.

Rev. 17 , 59 (1999) (explaining the jurisdictional overlap between Texas’s

two courts of last resort as it applies to questions of juvenile

appeals).

38 Citizens’ Commission, Report

and Recommendations

17.

39 H. Comm. on the Judiciary, To

the Speaker and Members of the Texas House of Representatives, 72nd Legislature,

71 st Leg., R.S., at 8 (1990) .

40 In re

United Servs . , 307 S.W.3d at 303 (citations

omitted).

41 Id.

at 303–04 (“[R] ecourse must be had first to the Constitution, second to the

general statutes establishing jurisdiction for that level of court, third to the

specific statute authorizing the establishment of the particular court in

question, fourth to statutes creating other courts in the same county (whose

jurisdictional provisions may affect the court in question), and fifth to

statutes dealing with specific subject matters (such as the Family Code, which

requires, for example, that judges who are lawyers hear appeals from actions by

non-lawyer judges in juvenile cases).” ( citation

omitted)).

42 Jefferson,

The State of the Judiciary, at 316.

43 See, e.g. ,

Tex. Gov’t Code § 26.321 (“The County Court of Taylor County has the

general jurisdiction of a probate court and juvenile jurisdiction as provided by

Section 26.042(b) but has no other criminal or civil

jurisdiction.”).

44 Office of Court

Administration, 2010 Annual Report for the Texas Judiciary 13

(2010).

45 Jose A. Berlanga and Diana P. Larson, Six is Not Enough: Why Six

Person Juries in Concurrent Jurisdiction Cases in County Courts are Not

Constitutional , 51 S. Tex. L. Rev.

1 , 1 (2009).

46 Tex. Const.

art. V, § 28.

47 Tex. Gov’t Code

§ 25.0009(a).

48 See

Sultan , 178 S.W.3d at 756 (Hecht, J.,

dissenting).

49 See id.

at 756 n.24.

50 Tex. Gov’t Code § 25.0003(c )( 1); see also In

re United Servs . , 307 S.W.3d at 303 (“Statutory

county courts (of which county courts at law are one type) usually have

jurisdictional limits of $100,000, unless, of course, they do not.”) ( citations omitted).

51 Sultan , 178

S.W.3d at 756 (Hecht, J., dissenting).

52 In re

United Servs . , 307 S.W.3d at 303 (citations

omitted).

53 See

Worthen, The Organizational &

Structural Development , at 63–64 (“Texas has the only intermediate appellate

system in the nation with overlapping geographical appellate districts.”) ( citation omitted).

54 See

Scott Brister, Is It Time to Reform

Our Courts of Appeals ? , 40 Hous. Law . 22, 25 (Mar.–Apr. 2003)

(citations omitted) [hereinafter “Brister, Is It Time to

Reform? ”].

55 Andrew T.

Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger

Stare Decisis , 37 St. Mary’s L. J. 417, 451–52 (2006)

(citations omitted). In five of these counties, the appellant may choose to file

an appeal in either intermediate court. Id. at 451,

453. In the ten Houston-area counties, the intermediate court is randomly

assigned. See id. at 451; Tex. Gov’t Code § 22.202(h).

56 Miles v. Ford Motor Co. , 914 S.W.2d 135 , 139–40 (Tex.

1995).

57 See Montes

v. City of Houston , 66 S.W.3d 267 ,

267–68 (Tex. 2001) (Hecht, J., concurring).

58 Compare

Reyes v. City of Houston , 4 S.W.3d 459, 462 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied) with Montes v. City of Houston , 2000 WL

1228618 , at *4 n. 3 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied).

59 Tex. Sup.

Ct., Recommendations for Reallocation of Courts of Appeals , Misc. Docket

No. 02-9232 (Dec. 17, 2002).

60 See Tex. Gov’t Code § 74.022.

61 David J.

Schenck , Are We Finally Ready to Reshape Texas

Appellate Courts for the 21st Century ? , 41 Tex. Tech L. Rev . 221, 223

(2009).

62 Id . at

222.

63 Id . at

225–26.

64 Citizens’

Commission , Report and Recommendations

11–12.

65 Bretz

v. State , 508 S.W.2d 97, 98 (Tex. Crim.

App. 1974) (Roberts, J., concurring).

66 State ex

rel. Holmes v. Third Court of Appeals ,

885 S.W.2d 389 , 418–419 (Tex. Crim. App. 1994) (Meyers, J.,

dissenting).

67 Keith Carter,

The Texas Court of Criminal Appeals , 11

Tex. L. Rev. 455 , 470 (1933)

(“This lack of coordination extends throughout the courts. To the writer it

seems clear that the existence of two independent ‘supreme courts’ can not be justified on either theoretical or practical

grounds.”).

68 Janet

Elliott, State Appeals Twice in Sodomy Case, But Neither High Court May Want

‘Hot Potato’ , Tex. Lawyer, May 18, 1992, at

1.

69 State v.

Morales , 869 S.W.2d 941 , 948 n.16 (Tex. 1994) .

70 Id. at

947.

71 Editorial ,

Texas’ Top Courts Dodge Decision , San Antonio Express-News , Jan. 15,

1994, at 40.

72 See Brister,

Is It Time to Reform ? , at 26. Former Governor Bill Clements,

who helped Chief Justice Greenhill promote giving criminal jurisdiction to the

courts of appeals, once speculated that a majority of Texans “have no idea that

we have a parallel system of courts, and the Supreme Court is, in fact, not

supreme . . . . We can have a better court system, if

we start right at the top and combine these two courts into one court.” See

G. Robert Hillman, Clements Wants One Texas Supreme Court , Dallas Morning News , Mar . 18, 1987, at 1A.

73 Texas Research League, Texas

Courts : Report II, at

25.

74 Clarence A.

Guittard , Court Reform, Texas Style , 21 Sw. L. J. 451, 451 (1967) [hereinafter

“ Guittard , Court Reform ”].

75 Dr. Roscoe

Pound, Address Before the Thirty-Seventh Annual

Proceedings of the Texas Bar Association , 37 Tex. Bar Ass’n 205–16 (1918) (J.A. Lord,

rep.) [ hereinafter “ L ord , Tex. Bar. Ass’n ”].

76 Texas Research League, Texas

Courts : Report I , at

xvii.

77 The Texas Bar

Association saw an urgent need for judicial reorganization and responded by

recommending an ambitious Article V overhaul. See L ord , Tex. Bar. Ass’n 69. Over the years,

numerous distinguished lawyers and jurists pushed continually for system-wide

reforms. See Guittard , Court Reform ,

at 453 (citing several calls for reform). In 1933, the Texas Civil Judicial

Council, a longtime proponent of broadbased judicial

reform, advocated a single, nine-member Supreme Court to handle both civil and

criminal matters. Texas Judicial

Council 1929–1997, at 63 (Aug. 31, 1997), reprinted from Texas Judicial Council 50th Annual Report

60, 63 (1978). In 1941, then-Chief Justice Alexander exhorted the Council

that “[w]e need a reorganization of our judicial system,” prompting the Council

to propose a wholesale revision of Article V, which later died in a House

subcommittee. Guittard , Court Reform , at 453–54 (citation omitted). In 1943,

then-Dean of the University of Texas Law School, Charles McCormick, echoed the

call for reform, including a single high court. Charles T.

McCormick, Modernizing the Texas Judicial System , 21 Tex. L. Rev . 673, 695 (1943). A decade

later, in the early 1950s, State Bar President Cecil Burney led another

ill-fated effort to rewrite Article V, including judicial selection and

high-court consolidation, proposals favored by a first referendum of state bar

members but rejected by a second referendum. Guittard ,

Court Reform , at 454. In 1964, a conference sponsored by the state

bar and the Joint Committee for the Effective Administration of Justice, derided

our “unorganized and fragmented courts,” calling it “archaic” and calling for “a

single and unified court system.” Lawyers, Laymen Urge Modernization of

Texas’ Antiquated Judicial System , 27 Tex. B.J . 299, 305

(1964).

78 Texas Research League, Texas

Courts : Report I, at

66.

79 See Tex. H.B.

Nos. 1372–1376, 62nd Leg., R.S. (1971); Tex. H.R.J. Res. Nos. 77–80, 62nd Leg.,

R.S. (1971).

80 Tex. H.R.J. Res. 61, 62nd Leg., R.S., 1971 Tex. Gen.

Laws 4140 .

81 Task Force for Court

Improvement, Proposed Judiciary Article of the Texas Constitution (1972) [hereinafter “ Task Force: Proposed Judiciary

Article ”]. See also Greenhill, The Constitutional

Amendment , at 379–80 (citations omitted).

82 H. Comm. on the

Judiciary , Streamlining the Texas Judiciary: Continuity

with Change, 62 nd Leg., R.S. (1972). This report prompted consideration

in the 63rd Legislature, Regular Session of 1973 of Tex. H.B. Nos. 725, 1401–07,

and 1600; Tex. H.R. Res. Nos. 48 and 96; and Tex. H.R. Con. Res. 129. See

H. Comm. on the Judiciary, A

Proposal , at 3 n.5 .

83 Greenhill,

The Constitutional Amendment , at 383 (citation omitted). Chief Justice

Calvert had also once served as Speaker of the Texas House of

Representatives.

84 Compare The Texas Constitutional Revision

Commission : A New Constitution

for Texas 109–22, with Task Force: Proposed Judiciary Article

1–5.

85 Texas State

Historical Association, Constitutional Convention of 1974 , Handbook of Texas Online ,

http://www.tshaonline.org/handbook/online/articles/mjc07 (last visited May 25,

2011).

86 Id .

87 Id.

88 See

generally H. Comm. on the Judiciary, A

Proposal .

89 Greenhill,

The Constitutional Amendment , at 384 (citations

omitted).

9 0 Id. at

384–85.

91 H. Comm. on the Judiciary,

The Texas Court System: Manpower, Resources, and Management, 65th Leg., R.S., at 2–5 (1976).

92 Citizens’

Commission , Report and Recommendations 4

n.9.

93 Joe R.

Greenhill, State of the Judiciary: Address By the Texas

Supreme Court Chief Justice to the 66th Texas Legislature (Jan. 31, 1979),

in 42 Tex. B.J.

379 , 380

(1979).

94 Greenhill,

The Constitutional Amendment , at

396.

95 Texas Research League, Texas

Courts: Report I ,

at xvii.

96 Citizens’ Commission, Report

and Recommendations 3

n.4.

97 Id. at

9–12.

98 Texas Research League, Texas

Courts: Report II , at 1. TRL’s earlier

report in 1990 reached a similar conclusion: “Because the courts are so

decentralized and because individually they are quite independent, it is

difficult to call the Texas judiciary a system.” Texas Research League, Texas Courts: Report

I , at xvii.

99 Citizens’ Commission, Report

and Recommendations

47.

100 Tex. Const . art. V, § 31.

101 Citizens’ Commission, Report

and Recommendations

5.

102 Id . at

1. This two-courts-in-one proposal

resembles one first proposed by Charles De Morse, a delegate at the Texas

Constitutional Convention of 1875. Debates in the Texas Constitutional Convention

of 1875 , at 384–85 (Seth Shepard McKay ed.,

1930).

103 Editorial,

Texas Constitution: State should overhaul this outmoded relic , Dallas Morning News , Nov. 12, 1995, at

2J.

104 See

Sultan , 178 S.W.3d at 753 (Hecht, J.,

dissenting); Jefferson, The State of the Judiciary, at 316.

1 05 Editorial, Improve Texas justice by combining

courts , Austin

American-Statesman , Feb. 18, 2003, at A10.

106 Tex. Const . art. V, § 3(a).

107 Tex. Gov’t

Code §

22.002(e).

108 See Ex

parte Morris , 349 S.W.2d 99, 101 (Tex.

1961) (orig. proceeding) (“[T]he statute limits our power in the language just

stated, and we may inquire only into restraint brought about by an order or

process of the court issued because of the violation of some order, judgment or

decree in a civil case.”) (citation omitted); see also Ex parte Jackson ,

252 S.W. 149 , 149–50 (Tex. 1923) (orig. proceeding) (“It is apparent that Judge

Duncan [in his role as an attorney in another case] was held in contempt by the

trial court, not for violating any order made by the court in a civil case, but

because of certain language used in a brief filed in the case. From this

statement it appears that, although the alleged contempt arose out of a civil

case, yet, since it did not arise by reason of a violation of the court’s order,

the Supreme Court declined to take jurisdiction. The Court of Criminal Appeals, as shown by the

report of the case, did take jurisdiction, and discharged the relator .”). Ex parte Jackson was decided under a

precursor to Section 22.002(e)—article 1529—which limited habeas jurisdiction to

times when “any person is restrained in his liberty by virtue of any order,

process or commitment, issued by any court or judge, on account of the violation

of any order, judgment or decree theretofore made, rendered or entered by such

court or judge in any civil cause.” 252 S.W. at 149 .

Ex parte Morris was decided under article 1737, a precursor to Section

22.002(e) with the same wording as article 1529. 349 S.W.2d at 100 ; Act of Oct.

7, 1895, 24th Leg., R.S., ch . 53, § 1, 1895 Tex.

Gen. Laws 79 (amended 1905, 1909, 1927, 1933, 1941, 1943, 1963, 1981, 1983),

repealed by Act of June 12, 1985, 69th Leg., R.S., ch . 480, § 26(1), 1985 Tex. Gen. Laws 1720 ,

2050.

109 See Ex

parte Morris , 349 S.W.2d at

101 .

110 The Court

cites to a case in which this Court, without discussing the statutory limits of

our habeas jurisdiction, upheld a contempt judgment against an attorney. __

S.W.3d __, __ (Tex. 2011); (citing Ex parte Fisher , 206 S.W.2d 1000 (Tex.

1947) (per curiam ) (orig. proceeding)). It also cites

to a case in which this Court found it possessed jurisdiction without discussing

whether the contemnor’s acts involved the violation of a court order. __ S.W.3d

at __ (citing Ex parte Calhoun , 91 S.W.2d 1047 , 1048–49 (Tex. 1936)

(orig. proceeding)). But Ex parte Fisher did note that “[ i ]n a habeas corpus proceeding of this character this court

has only limited powers.” 206 S.W.2d at 1003 . And the

Court in Ex parte Calhoun did not need to address whether a violation of

a court order was involved since—as the Court notes—it did not find that there

was restraint. 91 S.W.2d at 1048 .

111 See,

e.g. , Ex parte Allison , 90 S.W.

870, 872 (Tex. 1906) (denying a habeas writ resulting from contempt for

violation of an injunction); Ex parte Gonzalez , 238 S.W. 635, 636 (Tex.

1922) (orig. proceeding) (granting habeas relief where contempt judgment was

void because trial court lacked jurisdiction to find contemnor in

contempt).

112 See,

e.g. , Ex parte Reid , 89 S.W.

956, 956 (Tex. 1905) (explaining the Supreme Court had no jurisdiction over a

habeas petition where “[the] only contention is that the imprisonment is

illegal”); Ex parte Jackson , 252 S.W. at 149 (“[W]e may inquire only into

the restraint brought about by an order or process of the court issued because

of the violation of some order, judgment, or decree in a civil

case.”).

113 In re

Reece , No. WR-72,199-02, at 2.

114 See

Tex. S.J. Res. 36, 66th Leg., R.S.,

1979 Tex. Gen. Laws 3223 . The 1980 amendments were adopted at the Nov. 4, 1980

election, and became effective Sept. 1, 1981. See Tex. Const . art. V,

§ 3.

115 __ S.W.3d at __.

116 __ S.W.3d at

__ (emphasis added). The Court subsequently cites to Tex. Gov’t Code § 22.002(a) (permitting the Court to issue

writs of mandamus “agreeable to the principles of law regulating those

writs”). This Court should not issue mandamus where, as

here, it is dis agreeable to principles of law—those clearly stated in our

statutory prohibition against hearing this case styled as

habeas.

117 Ex parte

Morris , 349 S.W.2d at 101 (emphasis

added).

118 See

__ S.W.3d at __ (“[W]e have also left

open the possibility of circumstances ‘where the writ of habeas corpus would not

be adequate and where mandamus would be the proper remedy.’”) ( quoting Deramus v.

Thornton , 333 S.W.2d 824, 827 (Tex. 1960) (orig.

proceeding)).

119 Deramus ,

333 S.W.2d at 827 .

120 Id.

121 The opinion

then goes on to note several then-recent decisions to that effect. Id.

(citing Tims v. Tims , 204 S.W.2d 995 (Tex. Civ. App.—Amarillo 1947, writ

ref’d ); Wanger v.

Warnasch , 295 S.W.2d 890 (Tex. 1956); Ex parte

Arapis , 306 S.W.2d 884 (Tex.

1957)).

122 Deramus ,

333 S.W.2d at 827 .

123 Id.

124 Id. at 830

(Smith, J., dissenting) (citations omitted) (emphasis omitted).

125 Deramus ,

333 S.W.2d at 827 .

126 984 S.W.2d

623 (Tex. 1999) (per curiam ) (orig.

proceeding).

127 See In re

Long , 984 S.W.2d at 625 (“Contempt

orders that do not involve confinement cannot be reviewed by writ of habeas

corpus, and the only possible relief is a writ of mandamus.”) ( citing Rosser v. Squier , 902

S.W.2d 962, 962 (Tex. 1995) (per curiam ) (orig.

proceeding)).

128 __ S.W.3d at __.

129 __ S.W.3d at __ (quoting In re Prudential , 148

S.W.3d at 136 ) (quotation marks omitted).

130 See,

e.g. , In re Watkins , 279 S.W.3d

633, 634 (Tex. 2009) (Noting as dispositive whether “granting mandamus to

review . . . would subvert the Legislature’s limit on such

review.”); Teat v. McGaughey , 22 S.W. 302, 303

(Tex. 1893) (“The bill of right secures the right of trial by jury, and, while

the people doubtless could amend the constitution so as to modify or limit the

right, we do not think any modification was intended by the provision in the

late amendments which authorized the legislature to confer jurisdiction upon

this court to issue the writ of mandamus in certain specified

cases.”).

131 See,

e.g. , In re AIU Ins. Co. , 148

S.W.3d 109, 110 (Tex. 2004) (granting mandamus in the arbitration context);

In re CSX Corp. , 124 S.W.3d 149, 151 (Tex. 2003) (per curiam ) (granting mandamus in the discovery context); In

re Ford Motor Co. , 165 S.W.3d 315, 322 (Tex. 2005) (per curiam ) (granting mandamus in the legislative-continuance

context).

132 73 S.W. 4 (1903).

133 Id. at

5.

134 Act of Apr.

13, 1892, 22nd Leg., C.S., ch . 14, § 1, art. 1012,

1892 Tex. Gen. Laws 19 , 21, repealed by Act of May 12, 1939, 46th Leg.,

R.S., ch . 25, § 1, 1939 Tex. Gen. Laws

201 .

135 Betts , 73 S.W.

at 5 (“But the writ applied for in this case is against a board of officers, and

not against an officer. It seems that, if it had been the purpose to empower

this court to issue the writ as well against a board of officers as against a

single officer, the language would have been, ‘any officer or board of officers

of the state government.’”).

136 See In re

TXU Elec. Co. , 67 S.W.3d 130, 136 (Tex. 2001) (per curiam ) (Baker, J., concurring) (“Because I believe this

Court does not have jurisdiction to mandamus a state board or commission, I can

only concur in the Court's judgment that TXU is not entitled to mandamus

relief.”).

137 “The rule

is, of course, an elementary one that mandamus will not lie to an inferior court

where proceedings therein have been enjoined.” Sterling v. Ferguson , 53

S.W.2d 753, 757 (Tex. 1932) (quotation marks and citations omitted); 2 Thomas Carl Spelling, Extraordinary

Relief § 1402, at 1159 (1893) (“It is a familiar principle that

mandamus does not lie to compel a party to violate an injunction; and the

principle is as applicable where the writ is sought in a superior court as in

other cases.”).

138 “[M] andamus cannot issue to compel a public officer to do an act

which is not clearly prescribed by law.” Horton v. Pace , 9 Tex. 81, 84

(Tex. 1852) (citations omitted) (emphasis omitted).

139 See

Kidder v. Hall , 251 S.W. 497, 498 (Tex.

1923) (citing to various statutes and concluding that mandamus could not issue

in part because “[f] rom a consideration of all the

articles named,” jurisdiction fell within the district court, and therefore this

Court had no jurisdiction).

140

See 984 S.W.2d

at 625.

141 __ S.W.3d at __.

142 842 S.W.2d

266 (Tex. 1992) (orig. proceeding).

143 Id. at

273.

144 Id. at

272.

145 Id . (“Although

we can conceive of no benefit from such an unnecessarily expensive and

cumbersome rule, we may not enlarge appellate jurisdiction absent legislative

mandate.”).

146 In re D.

Wilson Constr. Co. , 196 S.W.3d 774 , 780

n.4 (Tex. 2006) (“While we continue to see no benefit in requiring parties to

pursue parallel proceedings that are ‘unnecessarily expensive and cumbersome,’

we remain mindful that ‘we may not enlarge appellate jurisdiction absent

legislative mandate.’”) ( quoting Jack B. Anglin Co. , 842 S.W.2d at 272 ).

147 Jack B.

Anglin Co. ,

842 S.W.2d at 272 .

148 __S.W.3d at __.

149 See,

e.g. , Fariss v. Tipps , 463 S.W.2d 176, 180 (Tex.

1971) (orig. proceeding); Lawrence v. State , 412 S.W.2d 40, 40

(Tex. 1967) (per curiam ) (orig. proceeding); Wilson

v. Bowman , 381 S.W.2d 320, 321 (Tex. 1964) (orig. proceeding); Cooper v.

State , 400 S.W.2d 890 , 890–92 (Tex. 1966) (orig. proceeding). While it is

true, as the Court points out, that the Court “occasionally entertained” these

petitions, __ S.W.3d at __, it ultimately issued mandamus in only one of these

four cases. See Fariss , 463

S.W.2d at 177 .

150 See

Tex. Const.

art. V, § 5

(amended 1977 and 1980); Thomas v. Stevenson , 561 S.W.2d 845, 847 (Tex.

Crim. App. 1978) (en banc).

151 See

Tex. Civ.

Prac. & Rem. Code § 51.016 (enacting a

law authorizing interlocutory appeals under the FAA in Texas courts); Tex. S. J.

Res. 18, 65th Leg., R.S., 1977 Tex. Gen. Laws 3359 (amending the Constitution to

provide the Court of Criminal Appeals with mandamus jurisdiction over all

criminal law matters).

152 __ S.W.3d at

__ (citing Ex parte Duncan , 182 S.W. 313, 313 (Tex. Crim. App. 1916)). It

also cites to a case in which the Court of Criminal Appeals simply noted that it

will not act until we determine whether we have habeas jurisdiction. Id.

(citing Ex parte Cvengros , 384 S.W.2d 881,

882 (Tex. Crim. App. 1965)). That seems to be what has happened here, and we

should rule that we do not have jurisdiction.

153 Entergy Gulf States, Inc. v.

Summers , 282 S.W.3d

433, 475 (Tex. 2009) (Willett, J., concurring) (footnote omitted). See also,

e.g. , Alex Sheshunoff Mgmt. Servs ., L.P. v. Johnson , 209 S.W.3d 644 , 652 n.4 (Tex.

2006) (“[W]e are mindful that over-reliance

on secondary materials should be avoided, particularly where a statute’s

language is clear. If the text is unambiguous, we must take the Legislature at

its word and not rummage around in legislative minutiae.”); Summers , 282

S.W.3d at 475 (Willett, J., concurring) (“Laws exist to guide behavior, and by

resting on statutory language rather than embarking on a scavenger hunt for

extratextual clues prone to contrivance, we ensure

that everyday Texans struggling to decode the law and

manage their affairs consistent with it can rely on a statute ‘to mean what it

says,’ without having to hire lawyers to scour the legislative record for

unexpressed (and often contradictory) indicia of intent.”) (footnotes and

citations omitted); AIC Mgmt. v. Crews , 246 S.W.3d 640, 650 (Tex. 2008)

(Willett, J., concurring) ( “The

statute itself is what constitutes the law; it alone represents the

Legislature’s singular will, and it is perilous to equate an isolated remark or

opinion with an authoritative, watertight index of the collective wishes of 181

individual legislators, who may have 181 different motives and reasons for

voting the way they do.”) ( footnote omitted); Ben

Bolt- Palito Blanco Consol. Indep . Sch. Dist. v. Tex. Political Subdivisions Prop ./ Cas . Joint Self-Ins.

Fund , 212 S.W.3d 320 , 330 n.1 (Tex. 2006) (Willett, J., concurring in

part and dissenting in part) (“These dueling snippets of legislative history illustrate the peril of placing undue reliance on

secondary materials. Anyone looking for a preferred interpretation can usually

find a ready ally lurking in the legislative record, even if the statute’s

literal text points the opposite direction. I do not reject out of hand the

principled use of legislative history to unearth reliable guidance (unless the text’s

plain language is unequivocal), but it certainly merits a jurisprudential grain

of salt. The enacted, voted-on text is what constitutes the law.”) ( citation omitted).

154 __ S.W.3d at

__ (emphasis added).

155 __ S.W.3d at

__ (emphasis added).

156 __ S.W.3d at __.

157 In re

Reece , No. WR-72,199-02, at 2

(“Although this Court does have the authority to act in this case pursuant to

Article 5, § 5, of the Texas Constitution, we decline to do

so.”).

158 __ S.W.3d at __.

159 __ S.W.3d at __.

160 That the

strange Texas jurisdictional system offers Reece a remedy via the Court of

Criminal Appeals easily disposes of his reliance on a United States Supreme

Court case for the notion that this scenario is “of such a character as to be an

exception to the rule of procedure that other available sources of judicial

power may not be passed by for the purpose of obtaining relief by resort to the

original jurisdiction of this court.” Ex parte Hudgings , 249 U.S. 378, 379

(1919).

161 __ S.W.3d at __.

162 __ S.W.3d at __.

163 See id.

at __ (“[S] everal courts of

appeals have presumed mandamus is limited to the review of fine-only contempt

orders, but not orders that result in confinement.”) ( citations omitted).

164 See,

e.g., In re M.J. , 227 S.W.3d 786, 793

(Tex. App.—Dallas 2006, pet. denied [ mand . denied])

(“Contempt orders involving confinement must be challenged by writ of habeas

corpus.”); Cadle Co. v. Lobingier , 50 S.W.3d 662, 671 (Tex. App.—Fort Worth

2001, pet. denied) (en banc) (“A contempt judgment is reviewable only via a

petition for writ of habeas corpus (if the contemnor is confined) or a petition

for writ of mandamus (if no confinement is involved).”); In re Zenergy , Inc ., 968 S.W.2d 1, 12 (Tex. App.—Corpus

Christi 1997, orig. proceeding) (reasoning that because the contempt judgment in

the case involved confinement, mandamus relief was improper, and any relief

“will come through habeas corpus review.”).

165 __ S.W.3d at __ (citation

omitted).

166 In re

Reece , No. WR-72,199-02, at 2

(“Effective 1981, Article 5, § 3(a), of the Texas Constitution was amended to

give the Texas Supreme Court and the Justices thereof the authority to issue

writs of habeas corpus.”). The Court does not acknowledge this

mistake.

167 __ S.W.3d at __.

168 Ex parte

Hofmayer , 420

S.W.2d 137, 138 (Tex. 1967) (orig. proceeding).

169 __ S.W.3d at __ (citation

omitted).

170 __ S.W.3d at

__ (citations omitted).

171 Sultan , 178

S.W.3d at 753 (Hecht, J., dissenting).

172 State v.

Briggs , 351 S.W.2d 892, 894 (Tex. Crim.

App. 1961).

173 In re

Reece , No. WR-72,199-02, at 2

(“Although this Court does have the authority to act in this case pursuant to

Article 5, § 5, of the Texas Constitution, we decline to do

so.”).

APPENDIX