Smith v. Flack

CLINTON, Judge,

concurring.

Regarding the power of this Court to issue writs of mandamus in “criminal law matters,” from but one of several definitions of “matter” found in a general law dictionary the opinion of the Court translates the term to mean “when a criminal law is the subject of the litigation.” Majority opinion, p. 788. 1 I cannot subscribe to that understanding of “matters” in the constitutional and statutory term “in criminal law matters.” Article V, § 5 and Article 4.04, § 1, V.A.C.C.P. And there is no need to resort to a compendium of decisions from other states when the correct construction may be drawn from our own sources.

Like all other similar remedies, the writ of mandamus is an extraordinary writ. 38 Tex.Jur.3d 40-41, § 7; former Tex.Cr.App. Rule 313; Tex.R.App.Pro. Rule 211 (a). When filed in a superior court, an application for the writ initiates an “original proceeding,” and the superior court exercises its original jurisdiction in determining whether to issue the writ. Tex.R.App.Pro. Rule 121(a). In common parlance of the legal profession such a proceeding, as well as others, is also known as a “matter.” 2 Indeed, in our own rules we have collectively denominated them “Extraordinary Matters.” Tex.R.App.Pro. Rule 211. So we have ample authority right here at home to support the proposition that the term contemplates original proceedings in this Court implicating the general criminal law, regardless of whether “a criminal law is the subject” of such extraordinary matters. 3

*795 That construction of § 5 is in line with views expressed by Judge Odom in Henson, supra, and more strongly supports our rejecting the contention of Judge Dial in Weiner, supra. 4

Accordingly, stoutly disagreeing with its interpretation, for reasons stated I conclude that in this criminal law matter this Court has plenary original jurisdiction, power and authority to determine whether to grant the extraordinary writ for which relators pray.

Furthermore, even the erroneous formulation out of a dictionary definition is flawed by vagueness and overbreadth. The interpretation is easily formulated in the instant proceeding because Article 26.-05, V.A.C.C.P., is directly implicated. However, in its vague terminology the translation is at once restrictive and overly broad, i.e., limited to “a criminal law,” yet in a wide context of “the subject of the litigation.”

The same dictionary cited in the majority opinion presently defines “litigation” as “a lawsuit” and “a suit at law:” “A contest in a court of law for the purpose of enforcing a right or seeking a remedy.” Black’s Law Dictionary (Fifth Edition) 841. The earlier edition specified, e.g., “civil actions.” Black’s Law Dictionary (Fourth Edition) 1082. Then as now, however, Black’s tell us that “suit” is a generic term “seldom applied to a criminal prosecution.” Id., Fifth Edition, at 1286; Fourth Edition, at 1603.

Most such definitions are drawn from civil cases in other jurisdictions and, in some instances, Federal Rules of Civil Procedure. They are not all that helpful in determining what is “a criminal law matter” under our own Constitution and statutes; the interpretation of the majority here is fraught with much difficulty, and is surely to cause a great deal of confusion— more than once found in our appellate judicial system. See, e.g., Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974) (Concurring opinion by Roberts, J.)

With little imagination one may conjure up civil actions in which “a criminal law” is “the subject of the litigation,” or “directly involve[d]” in it. Majority opinion, at p. 788. Take, for an example, the fertile field of civil actions for wrongful bodily injury or death in which the defense is justification under Chapter 9 of the Penal Code. Yet, because the majority would find that is a “criminal law matter” and the majority professes to protect the power of this Court from being “seriously eroded or elim- ' inated altogether,” majority opinion, at p. 789, arguably in “litigation” initiated here, this Court has jurisdiction, power and authority to issue a writ of mandamus against a trial judge in what is otherwise purely a civil action pending in trial court.

There is another problem in all this. In Texas a criminal prosecution is a criminal case — “a criminal action,” as defined in Article 3.02, Y.A.C.C.P., and elsewhere, viz:

“A criminal action is prosecuted in the name of the State of Texas against the *796 accused, and is conducted by some person acting under the authority of the State, in accordance with its laws.”

See also, e.g. Black’s (Fifth Edition) 27 and 336; Fourth Edition) 49 and 447, under Action and Criminal, respectively. Since the majority believes that “a criminal law [must be] the subject of the litigation,” its formulation does not réadily include an ancillary proceeding in “a criminal action” where “a criminal law” is not • “directly involved.” 5 Again, the problem lies in failure to accept the intended meaning of the term “in criminal law matters.”

Finally, the majority addresses a contention of respondents and amicus curiae that the Court Administration Act authorizes their scheme for setting fees at issue here, and for reasons given finds that the Legislature did not intend to authorize the manner in which that apparatus was setup. With that I do not disagree, but based on my understanding that the claimed authority for what was done here lies in ah order issued by Honorable Jon N. Hughes, in a capacity as “Administrative Judge of the District Judges Trying Criminal Cases,” I turn briefly to examine that notion.

Chapter 5 of the Act deals with administration by county. At the outset it declares, “There is a local administrative judge in each county,” and provides that in a county with two or more district or statutory county courts (as Harris County certainly is) “the judges of those courts shall elect a district judge as local administrative judge_” Section 5.001(a) and (b). Plainly that section authorizes but one local administrative judge in Harris County to perform the duties and functions listed in § 5.002.

When he signed and entered the order of June 4, 1986, as “Administrative Judge, District Judges Trying Criminal Cases,” Judge Hughes did not purport to act as the local administrative judge in Harris County, and we judicially know that on June 4, 1986, he did not and another district judge did hold that office. Nowhere in the Act is there a provision expressly or implicitly authorizing the position held by Judge Hughes or his issuing such an order to the County Auditor. That it was adopted by “Board of District Judges Trying Criminal Cases” in meeting assembled will not provide that authority; the Act does not create any such “board” and even if § 5.003(c) may be interpreted broadly enough to admit creating it in a “rule of administration,” no one contends and this record does not show any rule to that effect has been adopted by a majority vote of all “district and statutory county court judges [in Harris County],” as required by § 5.003(a). 6

Except as indicated, then, I agree with much of what the majority has to say and to find and to conclude. However, because I find its interpretation of Article V, § 5, and Article 4.04(a) so contrary to the meaning of “in criminal law matters,” I must join only its conditional grant of the application for writ of mandamus.

. Actually, the majority derives its formulation not from "matter” alone but from “Matter in controversy, or in dispute.” Omitting cases cited from other jurisdictions, the entire definition is as follows:

"Subject of litigation; matter on which action is brought and issue is joined and in relation to which, if issue be one of fact, testimony is taken. Rights which plaintiffs assert and seek to have protected and enforced."

(All emphasis is mine throughout unless otherwise noted.)

. As in, e.g., "jurisdiction of a cause, matter, or controversy,” former Tex.R.Civ.Pro. Rule 365a, promulgated by the Supreme Court of Texas in 1960, now Tex.R.App.Pro. Rule 16; or "an extradition mattet 1 ’ and "a bail matter, id., Rule 44(d), adopted and promulgated by this Court in December 1985 "to govern criminal cases and criminal law matters [Article V, § 5, and Article 4.04, C.C.P.]," and again with similar order simultaneously with the Supreme Court in April 1986. See also Order Adopting Texas Rules of Criminal Evidence dated December 18, 1985 "to govern criminal cases and criminal law matters [Article V, § 5, and Article 4.04. C.C.P.].” In those instances a "matter” is a "proceeding," not a law.

.Soon after the Court was empowered to issue certain writs "regarding criminal matters," it decided that because the Supreme Court of Texas had previously issued writs of mandamus to order speedy trials under constitutional mandates, the Court has like authority "to issue extraordinary writs of mandamus to compel a speedy trial in a criminal case.” Thomas v. *795 Stevenson, Judge, 561 S.W.2d 845 (Tex.Cr.App. 1978). Later, because “a bond forfeiture proceeding is ‘criminal in nature’” the Court had jurisdiction to issue a writ of mandamus to compel a district judge to set aside a final order of forfeiture in a bond case. State ex rel Vance v. Routt, Judge, 571 S.W.2d 903, 906 (Tex.Cr.App.1978). See also and compare Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978) and State v. Henson, 573 S.W.2d 548 (Tex.Cr.App. 1978) (Odom, J., dissenting, id., at 550-551 ); however, Judge Odom may have been vindicated when both decisions were overruled "to the extent of any conflict” by this Court in Weiner v. Dial, 653 S.W.2d 786, 787, n. 1 . (Tex.Cr.App.1983).

Thus, as used in former Article V, § 5, "regarding" meant with respect to an underlying "matter” and the nature of that proceeding. However, with the change of language to “in criminal law matters,” the "matter” alluded to is an original proceeding in this Court and its nature in relation to criminal law.

. That is, the original proceeding in Weiner is a "criminal law matter,” not because there are statutory provisions for appointment by trial judge and compensation of counsel in certain instances, id., at 787 , but in that upon his claim for fees in representing his client being denied by the trial court, Weiner moved for and this Court granted leave to file his application for writ of mandamus to compel the judge to authorize payment of his fees, thereby initiating an original proceeding and generating the original jurisdiction, power and authority of this Court to determine application of those statutory provisions to the facts of the matter.

. A criminal law is not the subject nor is one directly involved in, e.g., Knowles v. Scofield, 598 S.W.2d 854 (Tex.Cr.App.1980); at issue was whether the requirement in Article V, § 7, that a district court "shall conduct its proceedings at the county seat of the county in which the case is pending....," precluded trial of "a criminal action” in a structure relator alleged was not situated in the county seat. Similarly, when Judge Gordon Gray granted a defense motion invoking the doctrine of collateral estoppel and thereby reduced the charge in a criminal action from capital murder to murder, a legal doctrine — not a criminal law — was the subject and was directly involved. Curry v. Gray, Judge, 726 S.W.2d 125 (Tex.Cr.App.1987.)

. On February 4, 1987 the Supreme Court of Texas entered an order approving Rules of Judicial Administration, promulgated pursuant to Section 2.004 of Article 200a, V.T.C.S. 50 Tex.Bar J. (April 1987) 388 ff. In counties where courts have “divisions based on the types of cases generally heard," Rule 9.a. permits judges of “each division” to chose one of them as “the administrative judge of that division.” Rule 9.b. includes among other matters local rules may address "(5) County Auditors.” Rule 10 mandates each division to adopt a single set of local rules which "shall govern all courts in the division.”

One may anticipate that our decision in this extraordinary matter is not likely to settle for all time the underlying controversy.