CHAPTER 6 Petitions for Writ of Mandamus

• Jurisdiction: United States

CHAPTER 6

Petitions for Writ of Mandamus

6-1 Introduction

In the Texas state court system, when review is desired before the entry of a final judgment, but none of the statutes authorizing an interlocutory appeal apply, appellate court review may be available by filing an original proceeding in a court of appeals or the Texas Supreme Court petitioning for the issuance of a writ. By far, the most common of these writs, and the only one addressed in depth in this book, is the writ of mandamus.

The issuance of a writ of mandamus is discretionary. To be entitled to the writ, the requesting party must show a clear abuse of discretion for which there is no adequate remedy by appeal.¹

Generally, the odds of getting a petition for writ of mandamus granted are extraordinarily slim. If the decision is made to proceed with the mandamus action, exacting care must be taken to survive the initial screening process employed by the various courts of appeals and the Supreme Court of Texas. The appellate courts in Texas have experienced staff attorneys who act as gatekeepers in screening mandamus filings and separating those filings that are procedurally defective and of dubious merit from those that have a chance. Given this practice, a principal concern in preparing a mandamus filing is avoiding summary denial on the basis of a technical noncompliance with the rules.

6-2 Preliminary Considerations

6-2:1 Verify Jurisdiction

6-2:1.1 Court of Appeals

The mandamus jurisdiction of the court of appeals is set forth in section 22.221 of the Texas Government Code.² Section 22.221(a) confers jurisdiction on each court of appeals to issue a writ of mandamus to enforce the jurisdiction of the court. This provision permits, for example, a court of appeals to order a court reporter to prepare a reporter's record when the reporter's record is necessary for the court to exercise its jurisdiction to decide a pending appeal over which it has jurisdiction.³

Section 22.221(b) provides that a court of appeals may issue a writ of mandamus against a judge of a district or county court in the court of appeals' district.⁴ But, like the Supreme Court, the intermediate appellate courts lack jurisdiction against those not listed in the statute, such as county and district clerks, except when issuing mandamus against court officers is necessary to enforce the jurisdiction of the court of appeals.⁵

Various statutes and rules also provide the appellate courts (and sometimes only the Supreme Court) with authority to grant mandamus relief in specific situations, including:

• to enforce mandatory venue requirements under chapter 15 of the Texas Civil Practice and Remedies Code; ⁶

• in connection with the holding of an election or political party convention, even if the respondent is not a public officer; ⁷ and

• in connection with the granting of injunctive relief under certain Natural Resource Code provisions when a trial court does so without the statutorily required notice and hearing. ⁸

When a statute, such as those listed in these examples, specifies that mandamus is available from a particular type of order, the relator is relieved of the obligation of demonstrating the second prong of mandamus relief—that the remedy by appeal is inadequate.⁹

6-2:1.2 Texas Supreme Court

The Texas Constitution provides that the Supreme Court and its justices have the power to issue writs of mandamus to enforce the Supreme Court's jurisdiction and "to issue writs of . . . mandamus in such cases as may be specified, except as against the Governor of the State."¹⁰ In fact, the Texas Supreme Court's "original jurisdiction is derived solely from Article V, Section 3(a) of the Texas Constitution, which provides that '[t]he Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.' "¹¹

In addition, section 22.002(a) of the Texas Government Code confers jurisdiction on the Supreme Court to issue writs of mandamus against a statutory county court judge, a statutory probate court judge, a district judge, a court of appeals or a justice of a court of appeals, or any officer of state government except the governor, the court of criminal appeals, or a judge of the court of criminal appeals.¹² Section 22.002(a) authorizes the Texas Supreme Court to "review a court of appeals' issuance of a writ of mandamus to determine if it constituted a clear abuse of discretion."¹³ When the Texas Supreme Court reviews a court of appeals' issuance of the writ, "however, [the Supreme Court's] 'focus remains on the trial court's order.' "¹⁴

Only the Texas Supreme Court has jurisdiction to issue a writ of mandamus against any of the officers of the executive departments of the government of the state, such as the Lieutenant Governor and the Comptroller of Accounts.¹⁵

Other than when it is necessary to protect its own jurisdiction,¹⁶ the Texas Supreme Court generally does not have jurisdiction to issue a writ of mandamus directed to those not specifically listed by statute. For instance, the Texas Supreme Court does not have jurisdiction to mandamus district clerks, justices of the peace, sheriffs and constables, and court reporters.¹⁷

Jurisdiction to mandamus a statutory county court judge or statutory probate court judge was extended to the Supreme Court by an amendment to section 22.002(a) of the Texas Government Code, which remedied a long-standing anomaly that prohibited parties from seeking mandamus relief against a statutory county court judge beyond the court of appeals.¹⁸ However, the amendment does not completely wipe out the anomaly. The amendment extends the Supreme Court's mandamus jurisdiction only to statutory county court judges and statutory probate court judges.¹⁹ The amendment does not extend the Supreme Court's mandamus jurisdiction to constitutional county courts.²⁰

Various statutes and rules also provide the appellate courts (and sometimes only the Supreme Court) with authority to grant mandamus relief in specific situations. Like the appellate courts, the Supreme Court may issue mandamus to enforce mandatory venue requirements under chapter 15 of the Texas Civil Practice and Remedies Code;²¹ in connection with the holding of an election or political party convention, even if the respondent is not a public officer;²² and in connection with the granting of injunctive relief under certain Natural Resource Code provisions when a trial court does so without the statutorily required notice and hearing.²³ Examples of the statutes that provide for review by mandamus, but only to the Texas Supreme Court, include:

• to enforce the rule on judgments in attorney disciplinary proceedings; ²⁴

• to require performance of duties by the Legislative Redistricting Board; ²⁵ and

• to enforce obligations of state officials with respect to public debt. ²⁶

Again, when a statute, such as those listed in these examples, specifies that mandamus is available from a particular type of order, the relator is relieved of the obligation of demonstrating the second prong of mandamus relief—that the remedy by appeal is inadequate.²⁷

6-2:2 Develop Proper Record in Trial Court

The mandamus petition will not survive scrutiny if the relator—the party seeking relief—has failed to develop a proper record in the trial court.

6-2:2.1 Make Sure Record Reflects Right to Relief and Preservation of Complaint

Any break in the chain of preserving the complaint at issue will permit the appellate court to summarily deny the mandamus petition. For example, if relator is complaining of an order compelling discovery, but the record reflects that the objection to discovery was asserted outside the time limits permitted by the rules, the appellate court may deny the petition even though opposing counsel never complained of the delay. Indeed, the appellate court may deny the petition on that basis even though opposing counsel actually agreed to the late filing of objections, if that agreement was not incorporated into a Rule 11 agreement that was on file with the trial court and included in the mandamus record.

6-2:2.2 Safeguard Documents Submitted for In Camera Review

As a general rule, trial courts will safeguard documents submitted under seal for in camera review. But what happens when the trial court compels production of the documents tendered for in camera review and mandamus relief is sought in the court of appeals? If the documents are forwarded to the appellate court as part of the mandamus record but no sealing order is in place, the clerk of the appellate court might permit your opponent to view the documents upon request, under the rationale that the documents are nothing more or less than unsealed court records within the meaning of Rule 76a.

To safeguard against the inadvertent unsealing of documents that had been submitted for in camera review, ask the trial court to forward them to the appellate court under seal and to return them to the appropriate party. Failing that, ask the court of appeals to order the trial court to forward the documents to the court of appeals for its in camera review. A relator who does not possess the documents should follow the latter course or have the party in possession of the documents deliver the documents to the appellate clerk for in camera review or arrange for the trial court clerk to do so.

When the documents are actually transferred from the trial court to the court of appeals, make sure the clerk of the court of appeals understands that the documents are under seal and protected by an appropriate court order. Most courts of appeals will return in camera documents to the party who tendered them but some courts require a motion to withdraw exhibits after the court has disposed of the mandamus.

Practices may vary from court to court. If in doubt, contact the clerk of the reviewing court and ascertain the local practice.

6-2:2.3 Make Sure Trial...