Mandamus in Texas and the Green Case


[M]andamus relief is available only when the relator can establish two things: first, that no other adequate remedy at law is available; and second, that the act he seeks to compel is ministerial. An act is ministerial “when the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment.”

That’s the Texas Court of Criminal Appeals, in State ex rel Healey v. McMeans.

In State ex rel Lykos v. Fine the Tissue Court of Criminal Appeals issued a stay so that it could reconsider, in light of the admission of evidence that the State argued was irrelevant, whether to order Judge Fine to stop having a hearing on the unconstitutionality of Texas’s death-penalty procedure.

Here are the cases in which the Texas Court of Criminal Appeals has mandamused a trial court judge at the State’s request (followed by the judge’s action that the Court of Criminal Appeals barred):

  1. State ex rel. Guerra v. Robles, Not Reported in S.W.3d, 2004 WL 3093489, Tex. Crim. App., December 15, 2004 (NO. AP-75,059) (removal of DA from office);
  2. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, Tex. Crim. App., February 12, 2003 (NO. 74,515) (videotaping of jury deliberations);
  3. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, Tex. Crim. App., September 14, 1994 (NO. 71,596) (prohibiting assistant AGs from serving as ADAs);
  4. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 22 Media L. Rep. 1705, Tex. Crim. App., April 13, 1994 (NO. 71,715) (quashing subpoenas for news reporters’ original footage);
  5. State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, Tex. Crim. App. October 30, 1991 (granting extradition defendant’s habeas petition);
  6. State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, Tex. Crim. App., October 28, 1987 (NO. 69,852) (granting motion for new trial out of time);
  7. State ex rel. Turner v. McDonald, 676 S.W.2d 375, Tex. Crim. App., September 19, 1984 (NO. 69,264) (“inspecting presentence investigative reports prior to determination of guilt and issuing proposed assessments of punishment prior to convening and receiving evidence at punishment hearing”);
  8. State ex rel. Bryan v. McDonald, 662 S.W.2d 5, Tex. Crim. App., December 14, 1983 (NO. 69,137) (“viewing presentence investigation report prior to determination of guilt or innocence and issuing a proposed assessment of punishment”);
  9. State ex rel. Bryan v. McDonald, 642 S.W.2d 492, Tex. Crim. App., November 03, 1982 (NO. 69048) (granting defendant’s motion for shock probation out of time);
  10. State ex rel. Vance v. Hatten, 600 S.W.2d 828, Tex. Crim. App., May 28, 1980 (NO. 62392) (granting shock probation where defendant ineligible); and
  11. State ex rel. Vance v. Hatten, 508 S.W.2d 625, Tex. Crim. App., May 08, 1974 (NO. 48690) (granting shock probation where unauthorized).

And here are the cases in which the Texas Court of Criminal Appeals has mandamused a trial court judge at the request of the defense:

  1. De Leon v. Aguilar 127 S.W.3d 1, Tex.Crim.App. January 21, 2004 (failing to recuse himself; bias against defense counsel) (Keller, J. dissented without opinion);
  2. Winters v. Presiding Judge of Criminal Dist. Court Number Three of Tarrant County, 118 S.W.3d 773, Tex.Crim.App. October 22, 2003 (denying motion for DNA testing);
  3. Neveu v. Culver, 105 S.W.3d 641, Tex. Crim. App. May 21, 2003 (denying counsel for DNA testing);
  4. Berry v. Hughes, 710 S.W.2d 600, Tex. Crim. App., June 04, 1986 (ignoring CCA’s habeas order);
  5. Curry v. Ater, 648 S.W.2d 10, Tex. Crim. App., April 06, 1983 (denying legislative continuance); and
  6. Haley v. Lewis, 604 S.W.2d 194, Tex. Crim. App., September 10, 1980 (trying to set aside dismissal).

Is there anything in that list that even remotely resembles “conducting a hearing” or “admitting irrelevant evidence”?

No, of course not.

Whether to hold a hearing is the quintessential trial-court decision. The appellate courts don’t hear evidence, so trial-court hearings are necessary to build a record on appeal, even—especially—on bleeding-edge legal questions that have never been adjudicated, questions like, “does the Texas death-penalty procedure violate the Eighth Amendment because it creates an unreasonable risk that an innocent person will be executed?” If the record winds up being unnecessary or irrelevant, nobody is harmed.

Assuming that the judge has discretion to have a hearing, the admission of evidence is not subject to mandamus because a) it’s also mostly discretionary; and b) the parties have an adequate remedy on appeal when inadmissible evidence is admitted—the court of appeals can disregard the inadmissible evidence.

Mandamus is reserved for cases in which someone will somehow be irreparably harmed if the writ does not issue. Unless having the public learn the truth of capital punishment somehow harms the State, Harris County District Attorney Pat “Transparency” Lykos’s petition for mandamus should fail.

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