stating that “[j]urisdiction over seized property extends to different courts at different times and for different purposes: for example, . . . to the judge of the court in which the indictment is presented, for any matter concerning the property”
How later courts described this case
- stating that “[j]urisdiction over seized property extends to different courts at different times and for different purposes: for example, . . . to the judge of the court in which the indictment is presented, for any matter concerning the property”
- stating that TRO had not expired because court of appeals stayed the order with the intention of staying the expiration date; the court went on to hold that the capable of repetition yet evading review exception to the mootness doctrine applied
- holding that Chapter 18 of the Texas Code of Criminal Procedure provides procedures for parties who believe their property was seized unreasonably to seek relief from the magistrate who issued the search warrant
- noting that relators would face similar orders in the immediate future because the trial court “had scheduled another contempt hearing and a temporary-injunction hearing that were actively pursued until our stay issued”
Written by the judges who cited it.
The opinion
MURRY B. COHEN, Justice,
concurring. 1
The facts of this case cry out for relief— for both parties.
It is intolerable for two courts with the same jurisdiction to exercise judicial power simultaneously over the same property, enter conflicting orders, and enforce them by contempt. It is also intolerable, under these facts, for a court exercising civil jurisdiction to interfere with a criminal investigation. Thus, the State must have the legal relief it seeks.
Despite that, the Monetize parties may well obtain from the warrant magistrates the equitable, discretionary relief that Judge Hancock found they deserved. Judge Hancock was obviously concerned, with good reason, that a presumptively legal enterprise should be put out of business by a search warrant without ever having been accused, much less convicted, of anything. At this stage, the Monetize parties do not need even a “presumption of innocence” because no grand jury or district attorney has claimed they are guilty. Despite this, the State insists it has the right to keep their property for three years — until the statutes of limitations for these suspected crimes expire — even *339 though the State may never even take its evidence to a grand jury. 2
Judge Hancock crafted a wise order that carefully protected both the State’s right to investigate crime and the Monetize parties’ right to their property. She gave the State a reasonable time to copy what it needed and then return the property. If the State needed more time, she agreed to consider that. The State never asked for more time, and by now, it has had far more than Judge Hancock granted. Acting in their broad discretion, Judges Bacon, Beck, Kitzman, and Krocker may find this order a model to follow if, like Judge Hancock, they are persuaded by the evidence presented to them of the need for relief. Thus, it may be possible in this ease to (1) preserve order within the judicial system, (2) respect property rights, and (3) grant appropriate scope to investigate suspected crime.
This is a case of first impression. Because we are writing on a clean slate, some guidance is appropriate. In our opinion, we state “... that an order under articles 18.10 to 18.13 may be unappealable to a higher court....” As a general rule, the right to appeal interlocutory orders is statutory, and no statute authorizes an appeal from orders under articles 18.10-13. Orders affecting property under those statutes resemble interlocutory orders in an in rem proceeding; they are not final judgments because the magistrate could change his mind and grant relief if a new request and different proof were presented.
Relief might be available by mandamus, however. It is well settled that mandamus will lie to protect a civil party from discovery of privileged materials or from production of discoverable materials under terms that are oppressive. See Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex.1992). The “discovery” the State has obtained in this criminal case may be comparable to those categories, especially the latter. If, as Judge Hancock found, the State can meet its legitimate needs by copying the materials, it could be an abuse of discretion to allow the State to hold that material indefinitely, while putting the owners out of business, all without the necessity of even an accusation by a grand jury or a prosecutor. 3 The standard of review for such a mandamus would be abuse of discretion. Walker, 827 S.W.2d at 839 . Interestingly, that is the same standard of review by which Judge Hancock’s temporary injunction would have been reviewed, if she had granted one. See Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993). Thus, the magistrates undoubtedly have the power to grant the relief that Judge Hancock granted, and a court of appeals, on mandamus, might be able to afford a remedy.
To get relief from the magistrates, however, it appears that the Monetize parties may have to litigate the issue five times, in four district courts, located in three counties. That burden on the parties and the courts might be avoided, however, if the parties and the warrant magistrates agreed to try all the issues simultaneously before one magistrate (as occurred before Judge Hancock) and have the others be bound by the result. That would avoid much repetitive litigation. If the parties do not agree to that, but the magistrates do, it might be possible, in the interest of judicial economy, for them to adopt a joint order appointing one of them to serve for all of them in a capacity similar to that of a civil master in chancery (see Tex.R. Civ. P. 171) or a criminal law master, similar to the way trial judges (or their appointees) act as masters for the Court of Criminal *340 Appeals in post-conviction habeas corpus proceedings. See Tex.Code Crim. P. Ann. art. 11.07, § 3(d) (Vernon Supp.2000) (also allowing for appointment of private attorney or magistrate for this purpose). In this way, prompt, efficient relief may be made available, as it should be.
. We take the unusual, but not unprecedented, step of concurring to our own opinion. See Vargas v. State, 838 S.W.2d 552, 557-58 (Tex.Crim.App. 1992) (Benavides, J., concurring); Bell v. State Dep't of Highways & Pub. Transp., 902 S.W.2d 197, 200 (Tex.App.— Houston [1st Dist.] 1995, no writ) (Cohen, J., concurring). Although two justices join this opinion, it does not constitute the panel's holding; that is found only in the opinion of the entire panel. The purpose of this concurring opinion is to encourage desireable growth in the law.
. The State could hold the property for the limitations period even without ever presenting the case to a grand jury, or even if the grand jury refused to indict or adjourned without any action.
. The Attorney General does not represent the State of Texas as a prosecutor. That power is vested in District Attorneys and County Attorneys. Tex.Code Crim. P. Ann. arts. 2.01, 2.02 (Vernon Supp.2000).