State Ex Rel. Healey v. McMeans

BAIRD', Judge,

concurring to the Denial of Motion for Rehearing.

Relator, Fort Bend County District Attorney, subpoenaed the real parties in interest, four television news reporters, and certain evidence in their possession, hereinafter “newsmen.” The newsmen moved to quash the subpoenas contending the First Amendment and Tex. Const, art. I, § 8 provide a qualified journalistic privilege. Respondent, a County Court at Law Judge in Fort Bend County, heard evidence on the motion and quashed the subpoenas. Relator sought mandamus from this Court setting aside respondent’s order quashing the subpoenas. On original submission we conditionally granted the requested relief but withheld the issuance of the writ of mandamus to allow respondent an opportunity to conform his actions to our opinion. The newsmen now seek rehearing contending: 1) our failure to recognize a qualified reporter’s privilege violated rights held by the newsmen under the First Amendment of the United States Constitution and art. I, § 8 of the Texas Constitution; and, 2) mandamus may not lie because respondent’s actions were discretionary and not in conflict with clear, binding precedent from this Court. Motion for Rehearing pg. 2. I believe our opinion on original submission adequately considered and addressed the constitutional issues raised by the newsmen and no further discussion is warranted here. However, I write separately to address the questions that have arisen concerning our mandamus authority.

I.

Our authority to issue writs of mandamus is derived from Tex. Const, art. V., § 5 (“... the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, proce-dendo, prohibition and certiorari.”) and Tex. Code Crim.Proc.Ann. art. 4.04(1). To be entitled to mandamus relief, relator must demonstrate: 1) there is no other adequate remedy at law available; and, 2) the act sought to be compelled is a ministerial act. Braxton v. Dunn, 808 S.W.2d 318, 320 (Tex.Cr.App.1991); State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1990); and, Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr. *781 App.1989). 1 Neither respondent nor the newsmen contend relator had an adequate remedy. Therefore, relator has satisfied the first requirement. However, whether respondent’s actions were ministerial or discretionary is an issue which has not only divided the parties, but this Court as well.

II.

In Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987), Judge Gray granted a motion to dismiss a capital murder prosecution after finding the prosecution was barred by the prohibitions against double jeopardy. Relator sought a writ of mandamus to set aside Judge Gray’s order. Id, 726 S.W.2d at 126-127 . We denied the application holding Judge Gray’s order was a discretionary act and not ministerial:

Deciding how to rule after considering a motion to dismiss, however, is not a ministerial act ... Although the court may be compelled to consider a motion, mandamus or prohibition is not available to require that the judge rule a certain way on that motion.

Id., 726 S.W.2d at 128 .

In the instant case, Judge Meyers and the newsmen believe that the instant order quashing the subpoenas is the equivalent of Judge Gray’s dismissal order. Thus, they believe our opinion on original submission constituted a departure from Gray , and that we have deleted the requirement that the acts sought to be compelled be ministerial. According to the newsmen, mandamus will now lie to correct any legal error committed by a trial judge. See, Motion for Rehearing pp. 4-5. I disagree.

In Gray , we acknowledged that the trial judge:

... had to consider the sufficiency of the motion, the facts supporting the motion, and decide whether the law applied to those facts. The particular ruling made on the motion was clearly a discretionary/judicial act, and not an act compelled by law. 2

Id., 726 S.W.2d at 128 . Thus, Judge Gray was required to determine the applicable facts, research and determine the applicable law, and apply that law to the facts. Such an act is clearly discretionary.

III.

While Gray recognized a trial judge’s limited right to be wrong in his discretionary judgment, Id., 726 S.W.2d at 128 , Gray is inapplicable to the instant case. An act which is theoretically discretionary “may nonetheless be ‘ministerial’ in application if the facts and circumstances of a given case lead to but one rational course of action.” Buntion v. Harmon, 827 S.W.2d 945 , 947 n. 2 (Tex.Cr.App.1992) (emphasis in original). A trial judge has the discretion to determine facts at issue and the law which governs those facts, but a trial judge has no discretion to ignore the Texas Rules of Evidence or controlling precedent from this Court. When a trial judge is presented with an issue where there is no factual dispute, and clear, binding and unequivocal precedent compels resolution of the issue in only one manner, the trial judge has a ministerial duty to resolve that issue in that manner; the trial judge’s actions are compelled by law. Perkins v. Court of Appeals, 738 S.W.2d 276, 284 (Tex.Cr.App.1987) (‘We agree with the court of appeals that ‘A trial court may be directed by mandamus to enter a particular judgment if it is the only proper judgment that can be rendered in the circumstances ...’ ”). As we stated in Texas Dept, of Corrections, Etc. v. Dalehite, 623 S.W.2d 420 (Tex.Cr.App.1981):

... An act is said to be ministerial where the law clearly spells out the duty to be performed ... and does so with such certainty that nothing is left to the exercise of discretion or judgment.

Id., 623 S.W.2d at 424 (citing Forbes v. City of Houston, 356 S.W.2d 709 (Tex.Civ.App.1962).

*782 In the instant ease, the facts underlying the issue presented to the trial judge were not disputed. Further, resolution of the issue presented, whether the news reporters held a qualified journalistic privilege under either the First Amendment or Tex. Const, art. I, § 8, required no judicial or legal reasoning. Tex.R.Crim.Evid. 501 provided:

Except as otherwise provided by these rules or by Constitution, statute, or court rule prescribed pursuant to statutory authority, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

As we stated on original submission, no constitutional provision, statute or court rule provided the newsmen with a “privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution.” State ex rel. Healey v. McMeans, 884 S.W.2d 772, 775 (Tex.Cr.App.1994); and, Tex.Code Crim.Proc.Ann. Chapter 5. Indeed, in Ex parte Grothe, 687 S.W.2d 736 (Tex.Cr.App.1984), we considered the relationship between the “free press in our society” and the society’s interest in the production of all relevant evidence at a criminal trial. Id., 687 S.W.2d at 739 . Nevertheless, we rejected the journalistic privilege, finding “[t]he need to develop all facts in an adversarial system of criminal justice is fundamental and comprehensive.” Id., 687 S.W.2d at 739 . Therefore, respondent was presented with clear, binding and unequivocal precedent which compelled rejection of the journalistic privilege claimed by the newsmen; respondent had no discretion to consider and create such a privilege.

For these reasons, I join in the denial of the motion for rehearing.

. In several recent opinions our focus on whether the act was ministerial appeared to change slightly when we considered whether the relator held a "clear right” to the relief sought. However, this apparent change did not alter our traditional mandamus approach. As we held in State ex rel. Sutton v. Bage, 822 S.W.2d 55 (Tex.Cr. App.1992):

... [W]e have repeatedly held that [mandamus] is available when the relator can establish two things: first, 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”. ...

Id., 822 S.W.2d at 57 .

. All emphasis is supplied unless otherwise indicated.