explaining that the extraordinary remedy of prohibition is available only to one who can show both that (1) he has “a clear right to the relief sought because the facts and circum *414 stances dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal principles,” and (2) he has no adequate remedy at law
How later courts described this case
- explaining that the extraordinary remedy of prohibition is available only to one who can show both that (1) he has “a clear right to the relief sought because the facts and circum *414 stances dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal principles,” and (2) he has no adequate remedy at law
- explaining that “ ‘an issue of first impression can sometimes qualify for mandamus relief when the factual scenario has never been, precisely addressed but the principle of law has been clearly established’ ”
- explaining that the extraordinary remedy of prohibition is available only to one who can show both that (1
- recognizing that Lagrone applies “even if a defendant merely plans to introduce” expert testimony
Written by the judges who cited it.
The opinion
CONCURRING OPINION
Johnson, J.,
filed a concurring opinion.
I join the Court’s opinion. Because, in a hearing on, his application for a writ- of habeas corpus, relator was granted immunity for use and derivative use of his testimony and the trial court indicated that it would narrowly limit the state’s questioning of relator, relator has not established that he has a clear right to the relief he seeks. In different circumstances and with different facts, the appropriate holding might be different.
I write separately because I am troubled by language in many of our cases that demotes the Fifth Amendment right to remain silent and not to “be compelled in any criminal case to be a witness against himself’ to a “privilege.”' Fortunately, the Court’s opinion in this case gives the Fifth Amendment its due.
We have long been extraordinarily loose in using “privilege” to describe a constitutional right, 1 and we need to consistently give the Fifth -Amendment its proper place as a right under both the United States Constitution and the Constitution of the State of Texas. Under the standards of Marin, 2 , it is a waivable, type-2 right, but a right nevertheless. A privilege is a statutory creation and can be revoked by the legislature at its discretion; 3 the right not *309 to be forced to testify against oneself is enshrined in the United States Constitution’s Bill of Rights, and we ought, not conflate the two.
. Marin v. State, 851 S.W.2d 275 (Tex.Crim. App.1993).
. See, e.g., Villareal v. State, 2014 WL 6602439 (Tex.Crim.App.2014) (rehearing pending) (driver's license is a privilege); Dansby v. State, 448 S.W.3d 441 (Tex.Crim, App.2014) (probation is a contractual privilege); Comeaux v. State, 445 S.W.3d 745 (Tex. Crim.App.2014) (peremptory challenges are a privilege granted to the accused); . In re McCann, 422 S.W.3d 701 (Tex.Crim.App.2013) (attorney-client privilege); Ex parte Miles, 359 S.W.3d 647 (Tex.Crim.App.2012) . (privilege derived from the work-product doctrine); Sanchez v. State, 365 S.W.3d 681, 685 (Tex.Crim.App.2012) ("while district court judges are allowed to exchange benches without geographical restrictions, the Legislature - has not extended that same privilege to statutory county court judges.”); Vennus v. State, 282 S.W.3d 70 , 72 n.l (Tex.Crim.App.2009) ’ ("except with respect to privileges, the rules of evidence do not apply to suppression hear- *309 tags.”); Landers v. State, 256 S.W.3d 295 (Tex.Crim.App.2008) (protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence, Rule 5.03 of the Texas Rules of Criminal Evidence, or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence); Boyle v. State, 820 S.W.2d -122, 145 (Tex. Crim.App.1991) (not designated for publication) (absolute disqualification of defendant’s spouse as a witness pursuant to former Art. 38.11 was removed, and privilege may now be asserted only by defendant’s spouse).