State Ex Rel. Healey v. McMeans

MEYERS, Judge,

dissenting.

The Court here says, as it has so often in the past, that the writ of mandamus is available exclusively to compel the performance of a ministerial duty which cannot be enforced by other available means. This is the traditional and conservative view of mandamus, and it is the one to which I subscribe. But it is not the only view supportable by this Court’s recent case law, and it is not the one actually applied by the Court in this case. Indeed, it is apparent to me that the Court has, during its relatively brief period of general mandamus jurisdiction, begun to transform the law of mandamus in ways which fundamentally alter its historic purpose and threaten to damage the orderly procedure of appellate review promulgated by the Legislature. The instant case is yet another example of this disturbing trend.

In my estimation, the best expression of mandamus law to-appear from this Court in recent years, at least as regards the “ministerial duty” requirement, is the opinion in State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Crim.App.1987) (opinion on rehearing). In that case, the Criminal District Attorney of Tarrant County asked this Court to order the Judge of Tarrant County Criminal District Court Number Four to withdraw his pretrial order sustaining a plea of former jeopardy in a pending criminal prosecution. We declined to do so. Elaborating the requirement that mandamus will lie only to compel ministerial duties, we concluded that:

If a trial judge has jurisdiction over a particular issue, he is empowered to decide that issue in any way he has authority to do so; however, he cannot be required, by extraordinary writ of mandamus or prohibition, to decide that issue “correctly.” This is one reason why extraordinary relief is not available to compel a particular outcome where deciding that outcome involves a discretionary or judicial act. The law confers the authority to decide upon the judge, and the correctness of his or her decision may not be supervised at every step by appellate courts.

The question is not whether respondent made an incorrect decision regarding the motion. The question is did the respondent have the authority to rule in any way he believed proper. In the ease before us, respondent had the jurisdiction and the complete authority to consider and rule upon the motion presented by Battie regarding collateral estoppel, regardless of the propriety of the actual ruling made.

726 S.W.2d at 128-29 (citations omitted) (emphasis in original).

Barely a month later, however, the Court carved out a dramatic exception to this rule. Jealous of its own supremacy in matters of criminal law, and unable to stomach the possibility that some criminal law matters might be finally resolved in the lower appellate courts, this Court announced that “the traditional two-part test for determining whether mandamus should issue ... is altered [only by] adoption today of the clear abuse of discretion standard in reviewing the mandamus actions of the courts' of appeals.” Dickens v. Second Court of Appeals, 727 S.W.2d 542, 550 (Tex.Crim.App.1987). The Court’s entire explanation for adoption of this admittedly new rule in criminal law matters is as follows:

[UJnder this Court’s present test for issuance of original mandamus in criminal law matters, we would never be able to review mandamus actions of the courts of appeals because those actions could always be characterized as discretionary in nature. *777 Such a circumstance, if allowed to continue, would allow the courts of appeals to interpret criminal law in writs of mandamus independent of any review by this Court. This unusual circumstance requires that we use our original mandamus jurisdiction in criminal law matters to determine whether issuance of mandamus by a court of appeals constitutes a clear abuse of discretion.

Id, at 550 (footnote omitted) (emphasis added). In this way, the Court set a rather clear precedent for openly amending its own constitutional and statutory jurisdiction to correct the mistake made by Texans and their elected representatives when they opted to provide that certain decisions of the lower appellate courts not be subject to further judicial review.

Since Dickens the Court has continued to insist that the “clear abuse of discretion” exception only applies under limited conditions to supervision of the lower appellate courts. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App.1991). Yet in spite of these assurances and its unambiguous adherence to the traditional rule in Gray , the Court has nevertheless declined to follow its own precepts in practice. Take, for example, Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Crim.App.1989), decided only two years later, holding that mandamus will lie to force withdrawal of a trial judge’s order removing appointed counsel. The Court speaks at great length about the rights of indigent defendants to be represented by vigorous advocates and about the lack of judicial authority arbitrarily to remove a defense attorney. But it openly acknowledges that trial judges do have authority to remove appointed counsel, albeit they err to do so except under certain narrowly defined circumstances. Nevertheless, the Court grants mandamus relief in Steames upon the patently fictional ground that respondent judge “acted without authority.” 780 S.W.2d at 223 . This is like saying that no one has authority to do the wrong thing, that everyone has a ministerial duty to do what’s right. In a sense, of course, it’s true. But it’s not what traditional mandamus law means by “ministerial duty,” and it is clearly inconsistent with the holding in Gray .

Similarly, in State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Crim.App.1990) (plurality opinion), the Court holds that mandamus will lie to compel vacation of a district court order removing the District Attorney’s Office from prosecution of a criminal case. Holding that mandamus is available, not only to compel a ministerial duty, but also “to nullify a void order,” 793 S.W.2d at 5 , the Court then proceeds to reason that the order disqualifying the District Attorney in that case was void because, among other things, it did not appear that any of the three statutory grounds for removal had been proved. In short, the judge, who undoubtedly had authority to prevent conflicts of interest by attorneys practicing in his court, merely erred so do so in Edwards , and was accordingly made to withdraw his order. Compare State ex rel. Thomas v. Banner, 724 S.W.2d 81 (Tex.Crim.App.1987) (mandamus will lie to force withdrawal of an order granting shock probation entered before the trial judge acquired jurisdiction to do so); State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Crim.App.1990) (mandamus will lie to compel withdrawal of void order prohibiting prosecutors from seeking an indictment until after completion of an examining trial); State ex rel. Cobb v. Godfrey, 739 S.W.2d 47 (Tex.Crim.App.1987) (mandamus will lie to force withdrawal of an order granting a new trial after a motion for new trial has been overruled by operation of law); State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539 (Tex.Crim.App.1991) (mandamus will he to direct rescission of order granting habeas corpus relief from extradition warrant when habeas judge adjudicated ah disputed facts in a manner favorable to the extradition warrant, but refused extradition anyway); State ex rel. Curry v. Carr, 847 S.W.2d 561 (Tex.Crim.App.1992) (mandamus will he ordering trial court to empanel jury when prosecuting authorities refuse to approve jury waiver).

These cases are merely examples of irregular apphcation by the Court. They do not, by any means, exhaust the list of inconsistent holdings. But they have led ultimately to an even more profound difficulty. The vocabulary of mandamus law is itself changing, apparently to accommodate the more relaxed *778 attitude of the Court toward its extraordinary original jurisdiction. Thus, in State ex rel. Sutton v. Bage, 822 S.W.2d 55 (Tex.Crim.App.1992), which holds that mandamus will not lie to compel a court of appeals clerk to file an untimely notice of appeal, the Court identifies the first prerequisite for mandamus relief as requiring relator to show “that under the relevant law and facts, he has a clear right to the relief sought, i.e., the act he seeks to compel is ministerial!.]” 822 S.W.2d at 57 (internal quotation marks omitted). The Court apparently accepts, without really addressing the issue, that clerks are not. obliged to receive for filing papers which have not been timely tendered. Given the Court’s conclusion that the papers were not. timely tendered in this case, it is apparent, that the clerk had no duty, ministerial oi otherwise, to accept them. Thus, the Bage Court does not illuminate the “ministerial duty” requirement at all, at least not so as tc distinguish it from other legal duties, and is interesting only because, without further elaboration, it equates this prerequisite to the Court’s exercise of its mandamus jurisdiction with “a clear legal right to the relief sought,” citing Braxton v. Dunn, 803 S.W.2d 318 (Tex.Crim.App.1991) and State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex.Crim.App.1985).

But neither Braxton nor Mays actually supports the equation. Braxton , for example, merely observes in passing that “[m]an-damus will.issue where there is but one proper order to be entered!,]” relying oddly enough on Gray . This proposition is very different, however, both as an historical matter and as applied in Gray , from the “clear legal right” formulation now gaining currency. Thus, in Gray , the Court describes a duty as ministerial if it is “clearly fixed and required by law[,] ... unequivocal, unconditional and present.” Likewise, Mays only employs the language “clear legal right,” citing Wortham, v. Walker, 133 Tex. 255 , 128 S.W.2d 1138 (1939), to demonstrate that legal disputes, as well as factual controversies, are not cognizable by the Court in an application for mandamus relief unless the action sought to be compelled is “manifestly ministerial ... as opposed to judicial or discretionary.” 689 S.W.2d at 898 (internal quotation marks omitted). Wortham , in turn, found the phrase in an old-legal treatise and made use of it to argue that “[t]he office of mandamus is to execute, not to adjudicate.” 128 S.W.2d at-1151.

Thus, until fairly recently, the ease law would not support use of the phrase “clear legal right” in place of “ministerial duty” to describe the limits of a court’s mandamus jurisdiction. Indeed, the phrase is still commonly used to identify an additional prerequisite to mandamus relief which imposes a standing-like requirement on the relator which is distinct from the requirement that respondent have a ministerial duty. See, e.g., Collins v. Kegans, 802 S.W.2d 702 , 704 n. 7 (Tex.Crim.App.1991). To the extent that analogous terminology was actually employed in earlier eases, it was plainly not to suggest that a duty should be considered ministerial whenever the relator would clearly have been entitled to prevail on the merits of his claim in an ordinary legal action. Rather, it has traditionally been available only to enforce nonjudicial, nondiscretionary compliance with strictly ministerial duties.

Nevertheless, two years ago in Buntion v. Harmon, 827 S.W.2d 945 (Tex.Crim.App.1992), the Court held that mandamus will lie to force withdrawal of an order appointing new counsel to represent an indigent defendant on appeal. In the process, it purported to complete transformation of the second ■prerequisite to mandamus relief from a requirement that the respondent have a “ministerial duty” to perform a certain act into a requirement that the relator have a “clear right to the relief sought.” 827 S.W.2d at 947 . In a footnote, the Court explains that a “discretionary function may become ministerial when the facts and circumstances dictate but one rational decision!.]” 827 S.W.2d at 948 n. 2. The Court then proceeds to hold that, while replacement of appointed counsel is ordinarily within discretion of a trial judge, “[t]here must be some principled reason, apparent from the record, to justify the trial judge’s sua sponte replacement of appointed counsel!.]” 827 S.W.2d at 949 . Because the judge did not give a “principled reason” in Harmon , the Court held that relator had a clear right to set aside the removal order.

*779 Thus, Harmon not only reaches a result inconsistent with Gray in exactly the same way as Steames and Edwards do, but supports its rationale with an altogether new standard for determining the availability of mandamus relief. See also Curry v. Wilson, 853 S.W.2d 40, 43 (Tex.Crim.App.1993); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 (Tex.Crim.App.1993). All of this has apparently happened, and continues to happen, without any serious debate of the issue, either in briefs of the parties or among the judges of this Court. Yet, it represents a profound shift of focus which, if pursued further, will ultimately supplant much of the existing appellate process and permit an appeal in cases which, by law, are not appeal-able.

It is a symptom of these changes that, in recent years, our mandamus jurisprudence has often focussed on the other prerequisite to mandamus relief, that is the inadequacy or unavailability of ordinary legal remedies to vindicate important interests of litigants in criminal eases. Most of this law has been written in context of mandamus applications from prosecuting authorities who may have no review of adverse trial-level rulings at all if not by writ of mandamus because the rulings about which they wish to complain are often not of a kind which they have a right to appeal. Accordingly, it has been established that the absence of a right to appeal from a judicial order is enough to meet the prerequisite to mandamus relief that there be no other adequate remedy. E.g., State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 541-42 (Tex.Crim.App.1991) (mandamus will lie to direct rescission of an order granting habeas corpus relief from an extradition warrant).

This proposition is, if anything, even more problematic than the “clear right to relief’ rule because it implicates separation-of-powers issues. Plainly, it is the policy of our Legislature that the State not be permitted to appeal judicial rulings in criminal cases except under those circumstances expressly permitted by statute. See Tex.Code Crim. Proc.Ann. art. 44.01 (West Supp.1993). If a statute does not allow the appeal of a ruling, then the exercise of our extraordinary writ jurisdiction to review it frustrates the evident design of our statute law, brazenly seizing from the legislative department ultimate authority to determine what is appealable. Such a practice is fundamentally at odds with our form of government. Rather than circumvent the ordinary appellate process, we should instead insist that mandamus not lie merely to evaluate the correctness of court decisions which are not reviewable on appeal, no matter how plainly erroneous those ruling may seem. Since mandamus is not available to force a particular result in matters calling for the exercise of judgment or discretion anyway, the Court should not invoke absence of an appellate remedy to justify use of its original jurisdiction as a convenient vehicle for the judicial review of otherwise unappealable orders.

.Although, in the instant cause, the Court pays lip service to these precepts, its behavior once again parts company with its principles. Acknowledging that “mandamus may not be used to give the State a right to appeal that was not granted by the Legislature,” the Court then blinks reality in its next sentence by pretending that statutory limitations on the right to appeal pose “no impediment to the State’s use of mandamus to correct judicial action that is clearly contrary to wellsettled law.” Slip Op. at 3 (emphasis in original). Surely, no one is really expected to believe this. Even on direct appeal, this Court and the lower appellate courts may not reverse or reform the judgments or orders of trial courts unless those courts have acted contrary to existing law, probably not unless they have clearly done so. Yet, it is upon the basis of this distinction that we are expected to recognize a significant difference between mandamus proceedings and direct appeals. The expectation is really nothing but wishful thinking, for there is no difference in fact. Everyone knows that the judgment of a court should not be set aside by any method, including mandamus and direct appeal, unless there is error in it.

The writ of mandamus is supposed to be an extraordinary remedy, exercised only when the law imposes a clear ministerial duty upon a public official which" cannot be *780 judicially enforced by any other means. Having a legal remedy does not mean 'winning on the merits. It means having access to the courts. Assuming that Respondent in the instant cause had refused to perform a ministerial duty of his office and that Relator was clearly entitled to the performance of that duty on his behalf or for his benefit, then mandamus would undoubtedly be available to compel its performance, assuming that no ordinary and adequate legal avenue for obtaining the same relief was available. But because Relator was given a full and fair hearing of his position on the question of constitutional privilege by an impartial judge, and because that question was resolved by the exercise of judicial and discretionary authority, it follows not only that Relator’s application in the instant cause fails to seek performance of a ministerial duty, but also that his legal remedy in the trial court was adequate, whether or not the judge’s ruling might have been erroneous in fact. Because ' Relator was legally disentitled to appeal that ruling, the absence of an appellate remedy is no basis, standing alone, for extraordinary relief.

Our mandamus jurisprudence is greatly in need of coherent principles and consistent application. The present body of case law, written by this Court during the last ten years, inexplicably fails to meet this need, and the Court’s opinion in this case only exacerbates the problem by encouraging invocation of its mandamus authority for the review of ordinary judicial errors. What we are left with is a system perilously close to full appellate supervision of lower court decision-making by means of mandamus and prohibition. The only pretext which still inhibits review of all such errors through the extraordinary writ process is the undefinable, and ultimately indefensible, notion that some decisions of the lower courts are more obviously wrong than others. I cannot join in such a cavalier dismantling of the appellate process.

CLINTON, MILLER and OVERSTREET, JJ., join.