# in Re Coy Reece

> Texas Supreme Court · May 27, 2011

URL: https://www.frixlaw.com/law-library/cases/2829338

## Case

- **Court:** Texas Supreme Court
- **Decided:** May 27, 2011
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2829338

## How later opinions describe it (automated extraction)

- explaining the Supreme Court had no jurisdiction over a habeas petition where “[the] only contention is that the imprisonment is illegal”

## Opinion text

IN THE SUPREME COURT OF TEXAS
════════════
No. 09-0520
════════════
In re Coy Reece, Relator
════════════════════════════════════════════════════
On Petition for Writ of Mandamus
════════════════════════════════════════════════════
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2829338. Public record. Not legal advice.