Walker v. Packer18 established the two-prong test that courts apply to petitions for writ of mandamus.19 Under this standard, the trial court must have abused its discretion, and as a result, the relator must have been left without an adequate remedy on appeal.20
A “reviewing court may not substitute its judgment for that of the trial court” with regard to resolving matters committed to the trial court’s discretion of factual issues.21 The relator must establish there is only one result that the trial court could have reasonably reached.22 Because reasonable minds differ, the fact that one court would have decided the case differently will not give rise to an abuse of discretion “unless it is shown to be arbitrary and unreasonable.”23 “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.”24 To satisfy the abuse of discretion standard on a factual issue, the relator must show there is only one result that the trial court could have reasonably reached.25 Furthermore, the court abuses its discretion when the court misapplies the relevant law.26
Mandamus relief will not issue when “the law has provided another plain, adequate, and complete remedy.”27 It is a “‘fundamental tenet’ of mandamus practice” that an alternative appellate remedy must not exist before a court may grant mandamus relief.28
The general rule is that mandamus relief will not issue to correct a mere incidental trial court ruling when relator has an adequate remedy by appeal.29 “The reluctance to issue extraordinary writs to correct incidental trial court rulings can be traced to a desire to prevent parties from attempting to use the writ as a substitute for an authorized appeal.”30
Since the supreme court issued Walker, intermediate appellate courts have employed a more categorized approach to determining whether mandamus relief is available.31 Under this approach, the question of whether a trial court’s ruling qualifies for mandamus relief depends on whether the ruling falls within a category identified by the supreme court as lacking an adequate appellate remedy.32 In In re Prudential Insurance Co. of America,33 the supreme court distinguished between mandamus review of incidental interlocutory trial court rulings and significant rulings; the court explained that mandamus review of incidental rulings “unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation.”34 The court has consistently maintained that mandamus relief seeks to avoid interlocutory appeals of harmless trial court errors.35
In 2004, the court instituted a balancing test to determine whether a party has an adequate remedy by appeal, and it recognized that the adequacy of an appeal depends heavily on the facts involved in each case.36 In conducting the balancing test, courts should look to a number of factors, including whether mandamus will: (1) preserve a relator’s “substantive and procedural rights from impairment or loss[;]” (2) “allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments[;]” and (3) prevent the waste of public and private resources invested in proceedings that would eventually be reversed.37
The supreme court expressly rejected the application of rigid rules in deciding whether a remedy on appeal is adequate.38 The court reasoned that any formulaic rules or categorizations contradict the purpose of mandamus—to provide flexibility to parties and courts.39 Overall, the message from Prudential is that the determination of whether an appellate remedy is adequate depends heavily on the circumstances of each case.40
The supreme court echoed this sentiment after Prudential when it provided: “There is no definitive list of when an appeal will be ‘adequate,’ as it depends on a careful balance of the case-specific benefits and detriments of delaying or interrupting a particular proceeding.”41 Thus, the court declined to provide a definitive explanation of what constitutes an adequate remedy by appeal.42
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As the parties seeking relief, the Walkers had the burden of providing this Court with a sufficient record to establish their right to mandamus relief. Since an evidentiary hearing was held, the Walkers had the burden of providing us not only a petition and affidavit, see Tex.R.App.P. 121(a)(2)(C) and (F), but also a statement of facts from the hearing. See, e.g., Cameron County v. Hinojosa, 760 S.W.2d 742, 744 (Tex.App.—Corpus Christi 1988, orig. proceeding); Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d 170, 177 (Tex.App.—Waco 1987, writ denied); see also Western Casualty & Surety Co. v. Spears, 730 S.W.2d 821, 822 (Tex.App.— San Antonio 1987, orig. proceeding).[3] Having failed to meet this burden, the Walkers have not provided us with a record upon which they can establish their right to mandamus relief against St. Paul…
Having concluded that the trial court erred in denying the discovery based solely on Russell, we now must determine whether the appropriate remedy lies by writ of mandamus. "Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).[7] We therefore examine whether the trial court's error in the present case constituted a clear abuse of discretion and, if so, whether there is an adequate remedy by appeal.
Traditionally, the writ of mandamus issued only to compel the performance of a ministerial act or duty. See Wortham v. Walker, 133 Tex. 255, 277, 128 S.W.2d 1138, 1150 (1939); Arberry v. Beavers, 6 Tex. 457 (1851); Helen A. Cassidy, The Instant Freeze-Dried Guide to Mandamus Procedure in Texas Courts, 31 S.Tex. L.Rev. 509, 510 (1990); Comment, The Expanding Use of Mandamus to Review Texas District Court Discovery Orders: An Immediate Appeal Is Available, 32 Sw. L.J. 1283, 1288 (1979).
Since the 1950's, however, this Court has used the writ to correct a "clear abuse of discretion" committed by the trial court. See, e.g., Joachim v. Chambers, 815 S.W.2d 234, 237 (Tex. 1991); Jampole v. Touchy, 673 S.W.2d 569, 574 (Tex. 1984); West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978); Womack v. Berry, 156 Tex. 44, 50, 291 S.W.2d 677, 682 (1956). See generally, David W. Holman & Byron C. Keeling, Entering the Thicket? Mandamus Review of Texas District Court Witness Disclosure Orders, 23 St. Mary's L.J. 365, 390 (1991); Cassidy, 31 S.Tex.L.Rev. at 510; Note, The Use of Mandamus to Review Discovery Orders in Texas: An Extraordinary Remedy, 1 Rev.Litig. 325, 326-27 (1981); Comment, 32 Sw.LJ. at 1290.
A trial court clearly abuses its discretion if "it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d at 917. This standard, however, has different applications in different circumstances.
With respect to resolution of factual issues or matters committed to the trial court's discretion, for example, the reviewing court may not substitute its judgment for that of the trial court. See Flores v. Fourth Court of Appeals, 111 S.W.2d 38, 41-42 (Tex.1989) (holding that determination 840*840 of discoverability under Tex.R.Civ.P. 166b(3)(d) was within discretion of trial court); Johnson, 700 S.W.2d at 918 (holding that trial court was within discretion in granting a new trial "in the interest of justice and fairness"). The relator must establish that the trial court could reasonably have reached only one decision. Id. at 917. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Johnson, 700 S.W.2d at 918.
On the other hand, review of a trial court's determination of the legal principles controlling its ruling is much less deferential. A trial court has no "discretion" in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. See Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex. 1991) (trial court abused discretion by misinterpreting Code of Judicial Conduct); NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989) (trial court abused discretion by failing to apply proper legal standard to motion to disqualify counsel); Eanes ISD v. Logue, 712 S.W.2d 741, 742 (Tex.1986) (trial court abused discretion by erroneously finding constitutional violation).
In determining whether the trial court abused its discretion in the present case, we treat the trial court's erroneous denial of the requested discovery on the sole basis of Russell as a legal conclusion to be reviewed with limited deference to the trial court. This is consistent with our approach in previous mandamus proceedings arising out of the trial court's interpretation of legal rules. Cf. Axelson, Inc. v. Mcllhany, 798 S.W.2d 550, 555 (Tex. 1990); Barnes v. Whittigton, 751 S.W.2d 493, 495-96 (Tex.1988); Terry v. Lawrence, 700 S.W.2d 912, 913-14 (Tex. 1985). Under this analysis, the trial court's erroneous interpretation of the law constitutes a clear abuse of discretion.
In order to determine whether the writ should issue, however, we must further decide whether the Walkers have an adequate remedy by appeal.
Having concluded that the parties' contractual jury waiver is enforceable, we turn to whether Prudential is entitled to relief by mandamus. Prudential must meet two requirements. One is to show that the trial court clearly abused its discretion.[44] We have concluded as a matter of law that Prudential was entitled to enforcement of the jury waiver. Since "[a] trial court has no `discretion' in determining what the law is or applying the law to the facts",[45] even when the law is unsettled,[46] the trial court's refusal to enforce the jury waiver was a clear abuse of discretion. Thus, Prudential has met the first requirement.
The other requirement Prudential must meet is to show that it has no 136*136 adequate remedy by appeal.[47] The operative word, "adequate", has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. These considerations implicate both public and private interests. Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation. Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. An appellate remedy is "adequate" when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.
[44] E.g., Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).
[46] Huie v. DeShazo, 922 S.W.2d 920, 927-928 (Tex.1996) (quoting Walker v. Packer, 827 S.W.2d at 840).
[53] See also 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3934.1, at 572, 574 (1996) (stating that "[w]rit review that responds to occasional special needs provides a valuable ad hoc relief valve for the pressures that are imperfectly contained by the statutes permitting appeals from final judgments and interlocutory orders", and that "[i]mportant questions of procedure often are difficult to review by appeal, and at times may demand appellate intervention to secure uniformity between different judges, or simply to bring the balancing perspective that appellate review is intended to provide in controlling the practices as well as the substantive decisions of trial courts.").
[54] See also George C. Pratt, Extraordinary Writs, in 19 MOORE'S FEDERAL PRACTICE § 204.01[2][b], at 204-7 (3d ed. 2004) ("In order to meet the demands of justice in individual cases, discretionary review is preferable to enlarging by judicial interpretation the categories of interlocutory orders that are appealable as of right. General categories of orders that are appealable as of right often include many orders that should not be appealable at all. Review by extraordinary writ allows the circuit courts to retain the final judgment rule and avoid piecemeal appeals, yet be able to respond to the exceptional case that should be reviewed prior to final judgment. Thus, [mandamus] affords an avenue of relief to litigants and a tool for the courts to supervise the proper administration of justice.").
To be entitled to mandamus relief, Ford must show that the trial court committed a clear abuse of discretion and that it has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court abuses its discretion if "`it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law'" or if it clearly fails to correctly analyze or apply the law. Walker, 827 S.W.2d at 839, 840 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). Although this Court has acknowledged that the second requirement for mandamus relief "has no comprehensive definition," we have explained that determining whether a party has an adequate remedy by appeal requires a "careful balance of jurisprudential considerations" that "implicate both public and private interests." In re Prudential, 148 S.W.3d at 136. "When the benefits [of mandamus review] outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate." Id.
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TRAP 52 discusses all original proceedings and sets out the procedural requirements that must be met when a relator files a petition for writ of mandamus.43 Failure to comply with TRAP 52 can result in the denial of the petition.44
The most common reason for a court to deny a petition based on a procedural defect is the failure to provide an adequate record.45 It is the lawyer’s responsibility to assemble an adequate record in a timely fashion. First, the rules specifically require that the relator must provide a copy of the order at issue.46 While there are some occasions in which it might be appropriate to review a trial court’s oral ruling, the general rule is the relator must present the court with a signed order from the trial court.47 The court of appeals in In re Bledsoe48 explained that while parties are not encouraged to file a petition for writ of mandamus based on a trial court’s oral ruling, an oral ruling may be considered if the record reflects there was an enforceable order.49 TRAP 52.7(a) requires a relator to file with the petition “a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding.”50 For practical purposes, this usually refers to motions, orders, and other documents that are relied on or discussed in the petition for writ of mandamus.
Also, TRAP 52.7(a)(2) requires the filing of “a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.”51 Although this rule only specifically requires that a transcript be provided of any relevant testimony, courts have relied upon this rule to impose sanctions when a reporter’s record has not been filed in part or in whole, and a party has misled the court in the absence of the reporter’s record.52 Parties are generally encouraged to file at a minimum the reporter’s record from the hearing complained of because this gives direct insight into the arguments made at the hearing and the trial court’s concerns or reasoning for a ruling, even if testimony was not actually adduced at the hearing.
TRAP 52.3(j) requires relator to file a separate certification indicating that the person filing the petition reviewed it and established all factual statements are supported by competent evidence either in the appendix or the record.53 The relator must comply with the requirement of TRAP 52.3(j), or the petition may be denied on that basis alone.54
Mandamus relief will not issue if the right to relief turns on an issue of fact.55 However, appellate courts are not prevented from issuing mandamus relief if the existence of a question of fact is wholly irrelevant to any issue before the court or is a matter that cannot be litigated in the case.56
As a general rule, mandamus is not available to compel a trial court to act if the action has not first been requested and then refused by the trial court.57 When the request to the trial court would be futile, parties are excused from this requirement because the refusal would be a mere formality.58
An unexplained delay in seeking relief from a trial court’s order can result in a summary denial of a petition.59 “Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable
principles.”60 When determining whether relator’s delay in seeking relief prevents the award of mandamus relief, courts often analogize to the doctrine of laches.61 “A party asserting the defense of laches must show:
(1) unreasonable delay by the other party in asserting its rights, and (2) harm resulting to the party as a result of the delay.”62 If there has been a delay between the date the trial court entered the order complained of and the filing of the petition, relator should explain why there was a delay.63
As previously mentioned, for a mandamus to be issued, a relator must have no other adequate remedy at law.64 Often, mandamus filings are denied because other remedies are available, such as filing an interlocutory appeal.65 Likewise, if the relator is responsible for the inadequacy of its appeal, mandamus relief will not be available.66
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A defendant may use a pretrial writ of habeas corpus only in very limited circumstances.[8] First, the accused may challenge the State's power to restrain him at all.[9] Second, the accused may challenge the manner of his pretrial restraint, i.e., the denial of bail or conditions attached to bail.[10] Third, the accused may raise certain issues which, if meritorious, would bar prosecution or conviction.[11]
Although there is sometimes little difference between a pretrial writ of habeas corpus and a pretrial motion as a vehicle to raise legal issues in the trial court, there is a vast difference between the two in terms of appellate rights. The denial of relief on a pretrial writ of habeas corpus may be appealed immediately, but the denial of a pretrial motion may be appealed only after conviction and sentencing.[12] Because the denial of habeas corpus relief, based on fundamental constitutional principles, permits an interlocutory appeal, appellate courts are careful to ensure that a pretrial writ is not misused "to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage."[13] A 802*802 pretrial writ of habeas corpus generally may not be used to test the sufficiency of a complaint, information, or indictment.[14] A pretrial writ of habeas corpus may be used, however, to challenge the jurisdiction of the court if the face of the indictment shows that any prosecution is barred by the statute of limitations.[15] This is because the defect is incurable and irreparable. Limitations is an absolute bar to prosecution.[16] There is no point in wasting scarce judicial and societal resources or putting the defendant to great expense, inconvenience, and anxiety if the ultimate result is never in question.[17] Thus, in Ex parte Dickerson,[18] this Court held that when the face of the pleading shows that the offense charged is barred by limitations, that pleading "is so fundamentally defective that the trial court does not have jurisdiction and habeas relief should be granted."[19]
[8] See generally, Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001) (stating that "[n]either a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal," and discussing cognizability of issues on pretrial writ of habeas corpus). In Weise, this Court concluded that Pretrial habeas should be reserved for situations in which the protections of applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory appeal.
13] Id. Interlocutory appeals are generally not permitted in Texas criminal proceedings. See, e.g., Ex parte Rathmell, 717 S.W.2d 33, 48 (Tex.Crim.App.1986). In Rathmell, this Court stated: Appeals are normally limited to a person convicted of offenses and those denied release under writ of habeas corpus. It has been said that without a sentence or a final judgment of conviction in a criminal case, the Court of Criminal Appeals is without jurisdiction to entertain an appeal. Generally the Court of Criminal Appeals will not review, before trial, conviction and an appeal, any ruling of the trial court. Interlocutory appeals are not permitted.
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As the supreme court stated, there is no definitive or exhaustive list of situations when mandamus relief is appropriate and when an appeal may be inadequate because “it depends on a careful balance of the case-specific benefits and detriments of delaying or interrupting a particular proceeding.”67 However, this Article attempts to serve as a guide for litigants and practitioners to recognize issues that courts have recently determined warrant mandamus relief. The following section will provide a non-exhaustive list of issues, spanning across different areas of the law, where courts have deemed mandamus relief is appropriate.
Generally, the trial court has the discretion to determine the scope of discovery; however, the trial court must impose reasonable discovery limits.68 A trial court’s discovery order that requires production beyond what the procedural rules permit is an abuse of discretion.69 In a discovery context, there are general categories of rulings that courts have found to lack an adequate remedy on appeal when the trial court abuses its discretion.70
The first category is when the appellate court is unable to correct a trial court’s discovery error.71 For instance, such relief is available when a trial court erroneously orders the discovery of trade secrets absent a showing of necessity.72 Additionally, “when the trial court erroneously allows the disclosure of privileged” documents, mandamus relief is warranted because the trial court’s error cannot later be remedied on appeal.73 However, the supreme court has clarified that mandamus review may not be appropriate when the privileged or confidential information is “so innocuous or incidental that the burden of reviewing an order to produce them outweighs the benefits of such a review.”74
Likewise, an appellate court would not be able to cure the trial court’s discovery order when the trial court orders the production of “patently irrelevant or duplicative documents[,]” which constitutes harassment or inflicts such a burden on the producing party that it far outweighs any benefit the requesting party may obtain by the discovery.75 Also, within this same category is an order compelling discovery that is overly broad.76 Finally, some courts have permitted mandamus review of a trial court’s ruling on the location of a deposition.77
The second category of mandamus relief in the discovery context is when a “party’s ability to present a viable claim or defense is severely compromised or vitiated by the [trial court’s] erroneous discovery ruling.”78 This occurs when the party “is effectively denied the ability to develop the merits of its case.”79
Finally, mandamus relief is granted when the trial court denies a party discovery and the missing discovery is omitted from the appellate record, thereby preventing the appellate court from being able to determine whether the trial court’s error was harmful or not.80
When a trial court, without good cause, sets aside an agreement entered
into by the parties and defines the scope of permissible discovery¾limiting the cost and accountability of litigating a dispute¾the court has abused its discretion.81 The supreme court has concluded that mandamus review is warranted in this situation because delaying review until appeal—when one party relied on the agreed discovery procedure
and had partially performed its obligations—would defeat the purpose of the discovery agreement.82 In furtherance of its analysis of why mandamus relief is warranted in such a case, the court relied on public policy interests such as encouraging parties to resolve discovery conflicts without court orders and concluded the benefits to mandamus relief outweigh the detriments.83
In In re Van Waters & Rogers, Inc.,84 the supreme court held that the trial court’s order abating virtually all discovery in a seven-year-old mass tort case warranted mandamus relief.85 The court concluded that the order denied the defendants “discovery that goes to the heart of the litigation,” and the prolonged abatement of discovery threatened the loss of critical evidence.86 Therefore, the court held there was no adequate remedy by appeal from the order abating the discovery.87
Generally, a party has an adequate remedy by appeal from a trial court’s order awarding attorney’s fees or sanctions related to discovery because Texas Rule of Civil Procedure (TRCP) 215.2 provides that such an award is subject to review on appeal from a final judgment.88 However, an appeal is not adequate when a trial court “imposes a monetary penalty on a party’s prospective exercise of its legal rights.”89 In In re Ford,90 the court
held that Ford lacked an adequate remedy by appeal from an order imposing discovery sanctions against Ford for seeking mandamus relief.91 The court concluded:
A monetary penalty for seeking mandamus relief takes something that cannot be restored by appeal: the unfettered right to seek any relief that may be available by mandamus. The most [an] appeal can restore is the penalty improperly imposed; it cannot free the party of the chilling effect the penalty has on the exercise of the party’s legal rights.92
Mandamus relief may be available to parties when the court orders discovery sanctions to be paid prior to the final judgment.93 However, when the court defers payment of discovery sanctions until the final judgment in the case, the party has an adequate remedy by appeal because it presents no barrier to continuing the current suit.94 The court noted a just discovery sanctions order (1) must be directed toward remedying the prejudice caused to the innocent party, and (2) “should fit the crime.”95
Mandamus relief is available when a trial court orders a pre-suit deposition without making the findings required by TRCP 202.4.96 TRCP
202.4(a) requires the trial court to find that:
allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.97
If the trial court fails to make the required findings, it is an abuse of discretion to order the pre-suit deposition, and mandamus relief is available because the party to a TRCP 202 proceeding lacks an adequate remedy by appeal.98
There are various reasons why a trial court judge may be removed from a case, such as a constitutional or statutory disqualification, a statutory strike, or recusal.99 However, not all of these rulings are subject to mandamus review.100 When a trial court judge continues to sit in violation of the Constitution, or when the judge is statutorily disqualified, mandamus relief is available to compel the judge’s mandatory disqualification without showing the party lacks an adequate remedy by appeal.101 However, mandamus relief is not available to review an order
denying a motion to recuse a trial court judge.102 Instead, TRCP 18a(j)(1) expressly provides for appellate review of an order denying the motion to recuse only after a final judgment.103
The supreme court has continuously held that mandamus relief is appropriate to correct an erroneous order disqualifying counsel because there is no adequate remedy by appeal to correct the error.104 In National Medical Enterprises v. Godbey,105 the court held that waiting to appeal an order denying a party’s motion to disqualify counsel does not adequately remedy the injury to the party that must defend the litigation or the injury to the legal profession.106
…
A temporary injunction is an appealable interlocutory order.152 The supreme court held that mandamus is appropriate to review a temporary injunction when an accelerated appeal153 would be inadequate.154 In In re Francis,155 the court stated that “[w]hen a candidate has been denied a place on the ballot due to official error,” the court typically grants mandamus relief.156 The court conditionally granted the petition for writ of mandamus and directed the trial court to vacate the temporary injunction order that excluded the candidate from the ballot.157
Ordinarily, the denial of a motion for continuance is an incidental trial court ruling that is not reviewable by mandamus.158 Occasionally, courts review a trial court’s ruling on a motion for continuance.159 For example, in General Motors Corp. v. Gayle,160 the court acknowledged that a trial court’s order denying a motion for continuance is an incidental trial ruling that is not reviewable by mandamus, and in the absence of any other error, the court “would not grant extraordinary relief merely to revise a trial judge’s scheduling order, however perverse.”161 Nonetheless, the court concluded the case presented “special circumstances” because the court already had to remedy another trial court error subject to mandamus review in the same action before it.162 As a result, the court concluded that it should correct the trial court’s error in denying the motion for continuance in order to promote judicial efficiency and use of resources.163
Additionally, in In re Ford Motor Co.,164 the supreme court granted mandamus relief from the trial court’s denial of a legislative continuance.165 TCPRC section 30.003 requires a trial court to grant a motion for continuance if a lawyer-legislator is retained more than thirty days before the date a civil case is set for trial, and the lawyer-legislator will
be attending the legislative session.166 A party will not have an adequate appellate remedy when a trial court abuses its discretion “by denying a motion for legislative continuance.”167
Furthermore, the court granted mandamus relief when a party’s attorney was in federal court, and the hearing in state court could not proceed without an attorney.168 The court noted the trial court’s denial of the motion for continuance effectively deprived the relator of representation at the temporary orders hearing in the divorce proceeding.169 The court concluded that, under the facts of the case, mandamus relief was appropriate because “the trial court’s issuance of temporary orders” following the denial of the motion for continuance was not subject to interlocutory appeal.170
Mandamus relief may issue to force a trial court to perform the ministerial act of considering and ruling on a party’s properly filed
motion.182 In order to be entitled to mandamus relief, the relator “must establish the trial court: (1) had a legal duty to perform a nondiscretionary act[;] (2) was asked to perform the act[;] and (3) failed or refused to do so.”183 Mandamus relief is only available if the record indicates that a properly filed motion has awaited disposition by the trial court for an unreasonable amount of time.184 What courts consider a reasonable amount of time is dependent on the circumstances of each case.185 Such considerations can include the trial court’s actual knowledge of the pending motion, the trial court’s overt refusal to rule on the motion, the volume of the trial court’s docket, and the “existence of other judicial and administrative matters that the trial court must first address.”186 Clearly, a trial court has the “inherent authority to control its own docket,” and it need not set hearings according to a party’s request.187
Only an order holding a party in contempt that involves confinement can be reviewed by writ of habeas corpus; therefore, the only possible relief from a contempt order that does not involve confinement is by way of a petition for writ of mandamus.217 Nevertheless, the supreme court held that mandamus review is appropriate when the relator is confined, but the Texas Court of Criminal Appeals has declined to exercise jurisdiction, leaving the relator without an adequate remedy by appeal.218
In Texas, there has been a long-standing practice of trial courts maintaining significant authority to grant a new trial without the necessity of explaining the reason.219 In 2009, the court issued In re Columbia,220 the first opinion in a trilogy of Supreme Court of Texas cases that began modifying mandamus relief from the grant of a motion for new trial following a jury trial.221 For the first time in Columbia, the supreme court held that a trial court must specify the reasons for disregarding the jury’s
verdict in the order granting a motion for new trial.222 Specifically, the court explained that “[t]he reasons should be clearly identified and reasonably specific. Broad statements such as ‘in the interest of justice’ are not sufficiently specific.”223 Accordingly, when a trial court fails to specify the reasons for granting a new trial in the order, mandamus relief is appropriate to require the trial court to do so.224
In 2012, the supreme court issued its second opinion in the trilogy; in In re United Scaffolding, Inc.,225 the court analyzed its holding in Columbia and provided further guidance regarding the review of a trial court’s order granting a new trial.226 But again, the court focused on the specificity of the order, not whether the substance of the trial court’s reasons should be reviewed.227 The court provided that in determining “how detailed a trial court’s” order granting a new trial needs to be, in addition to the “level of review” to be used, “we must both afford jury verdicts appropriate regard and respect trial courts’ significant discretion in these matters.”228 The court noted that in Columbia, it “focused not on the length or detail of
the reasons a trial court gives, but on how well those reasons serve the general purpose of assuring the parties that the jury’s decision was set aside only after careful thought and for valid reasons.”229
The court acknowledged Columbia only “touched on the substance of” the trial court’s reason for ordering a new trial by explaining what that reason cannot be¾the trial court’s substitution of its “judgment for that of the jury.”230 The court continued:
In light of these considerations, we hold that a trial court does not abuse its discretion so long as its stated reason for granting a new trial
(1) is a reason for which a new trial is legally appropriate (such as a well-defined legal standard or a defect that probably resulted in an improper verdict); and (2) is specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived
the articulated reasons from the particular facts and circumstances of the case at hand.231
It gave examples of when an order granting a new trial may rise to the level of an abuse of discretion: (1) “if the given reason, specific or not, is not one for which a new trial is legally valid,” (2) “if the articulated reasons plainly state that the trial court merely substituted its own judgment for the jury’s,” or (3) “if the order, though rubber-stamped with a valid new-trial rationale, provides little or no insight into the judge’s reasoning.”232 The court imposed a two-part test: “The order must indicate that the trial judge considered the specific facts and circumstances of the case at hand and explain how the evidence (or lack of evidence) undermines the jury’s findings.”233 The court concluded that a new trial order will not be sufficient if it merely recites a legal standard, such as the statement that one of the jury’s findings is against the great weight and preponderance of the evidence, or if it fails to provide “no more than a pro forma template rather than” an actual analysis.234
The supreme court recently decided the third case in the trilogy.235 In re Toyota Motor Sales, Inc.236 addressed the issue of whether mandamus review extended to reviewing the validity of the trial court’s reasons for granting a new trial.237 The order granting a new trial contained facially- valid reasons for granting a new trial after the jury trial had concluded.238 Until the issuance of Toyota, courts had declined to conduct a merit-based review of new trial orders.239 The court concluded, “[H]aving already
decided that new trial orders must meet these requirements and that noncompliant orders will be subject to mandamus review, it would make sense to conclude now that the correctness or validity of the orders’ articulated reasons cannot also be evaluated.”240 It determined that disallowing a merit-based review would work against the requirements in Columbia and render them “mere formalities, lacking any substantive ‘checks’ by appellate courts to ensure that the discretion to grant new trials has been exercised appropriately.”241 The court concluded that even if the order complies with procedural requirements, the order cannot stand so long as the trial court’s reasoning is not supported by the record.242 The decision in Toyota finalizes the trilogy regarding new trial orders after a
jury trial¾a merit-based review of such orders is now subject to mandamus review.243
Availability of mandamus relief in criminal cases is quite limited. To obtain such relief, the relator must establish: (1) the act sought to be compelled is ministerial, and (2) there is no other adequate remedy at law.253 Thus, the standard is different from that in civil cases because it
requires that the act sought to be compelled is ministerial rather than discretionary. The ministerial duty requirement “is satisfied if the relator can show he has a clear right to the relief sought¾that is to say, when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.”254
However, the Court of Criminal Appeals recently departed from the historically stringent standard when it granted a petition for writ of mandamus filed by the State regarding the trial court’s rulings on a jury charge.255 In granting mandamus relief, the court ordered the trial court to submit an appropriate jury charge.256 The court’s opinion was extraordinary not only because it interfered with “an ongoing capital murder trial,” but also because it stated that there would be no adequate appellate remedy because “it would be too speculative.”257 The court also held that it could review on mandamus a “trial court’s non-ministerial act of deciding what jury charges should be given in light of the evidence.”258 While this particular decision favored the State, it also has beneficial implications for the defense side of a criminal case.259
Considering the evolving trends regarding petitions for writ of mandamus in Texas, attorneys now have more options for remedying a trial court’s error prior to appeal. However, the decision of when and whether to pursue a petition for writ of mandamus should be considered before an attorney attends a hearing that could result in an erroneous ruling by the trial court. Knowing the burden that will be imposed on a party when seeking such mandamus relief prior to a hearing with the trial
court is essential to both guiding the trial court to make the correct ruling and to protect the record for a potential petition for writ of mandamus.260 As with an ordinary appeal, a proper record and an appropriate order are essential to obtaining mandamus relief. Finally, timely seeking such relief from a trial court’s ruling is a necessity. As a result, “[w]hen these situations present themselves, it is crucial to at least begin planning for the possibility of a mandamus proceeding.”261 While preparation for the potential of filing a petition for writ of mandamus is important, it is usually a better tactic to not threaten the trial judge that mandamus relief will be sought if you do not receive the ruling you want.
Finally, knowledge of the availability of mandamus relief is equally valuable to both plaintiff and defense attorneys and can be utilized to varying degrees in both civil and criminal cases. As the Supreme Court of Texas expands the availability of mandamus relief, it creates more opportunities for litigants to construct strong arguments for mandamus relief on issues that the court has not previously granted. As previously discussed, recent decisions by the court have changed more than 150 years of precedent and “have [had] implications for Texas trial practice at both the trial and appellate [court] levels.”262 As courts continue down this path of expanding mandamus relief, practitioners with knowledge of the availability of such relief will be in a far better position than those without.
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The takeaway from this case should be straightforward for prosecutors: (1) If a trial court excludes evidence without a written order, it is not ripe for the state to appeal under Texas Code of Criminal Procedure Article 44.01(a)(5) & (d); (2) The Court of Criminal Appeals is not going to allow for a judicial change in Texas Code of Criminal Procedure Article 44.01(d) anytime soon; and (3) If the state can show that the act is ministerial (e.g., the trial court has already made a decision and will simply not perform the act of transcribing it to paper), it must follow the mandamus route before it can win on appeal.
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o be entitled to mandamus relief, a relator must show (1) the relator has no adequate remedy at law for obtaining the relief sought; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 636*636 S.W.3d 381 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding) (per curiam). "A trial court is required to rule on a motion within a reasonable time after the motion has been submitted to the court for a ruling or a ruling on the motion has been requested." In re Foster, 503 S.W.3d 606, 607 (Tex. App.-Houston [14th Dist.] 2016, orig. proceeding).
As the party seeking relief, relator has the burden of providing this court with a sufficient record to establish relator's right to mandamus relief. See Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J. concurring); Tex. R. App. P. 52.7(a)(1) (relator must file with petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding"); Tex. R. App. P. 52.3(j) (relator must certify "that every factual statement in the petition is supported by competent evidence included in the appendix or record").
To be entitled to mandamus relief for a trial judge's failure to rule on a motion within a reasonable time, the record must show both that the motion was filed and brought to the attention of the judge for a ruling. See In re Wigley, No. 14-17-00102-CV, 2017 WL 642109, at *1 (Tex. App.-Houston [14th Dist.] Feb. 16, 2017, orig. proceeding) (per curiam) (mem. op.); In re Foster, 503 S.W.3d at 607.
To establish that the motion was filed, relator must provide either a file stamped copy of the motion or other proof that the motion was in fact filed and is pending before the trial court. See In re Bishop, No. 14-06-00636-CV, 2006 WL 2434200, at *1 (Tex. App.-Houston [14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam) (mem. op.); In re Henry, 525 S.W.3d at 382 (denying petition to compel ruling on motion because "[t]he documents attached to relator's petition for writ of mandamus do not reflect a file stamp establishing that they were filed in the trial court."); In re Molina, 94 S.W.3d 885, 886 (Tex. App.-San Antonio 2003, orig. proceeding) (denying petition to compel ruling on motions for DNA testing because relator failed to provide a record showing the alleged motions had been filed).[1]
Relator is not entitled to mandamus relief because he has not provided this court with any mandamus record, much less a record showing that (1) he has filed a motion requesting the trial court to hold a hearing and make a finding, as provided for by Article 64.04 of the Code of Criminal Procedure, and (2) the trial court has refused or failed to rule on such a motion within a reasonable time.
[1] See also In re Edwards, No. 04-14-00463-CV, 2014 WL 3612679, at *1 (Tex. App.-San Antonio July 23, 2014, orig. proceeding) (mem. op.) (denying petition to compel ruling on motion because relator "has not provided this court with a file stamped copy of the motion or any other documents to show that a properly filed motion is currently pending before the court and has been properly brought to the court's attention."); In re Bustillo, No. 03-13-00090-CV, 2013 WL 1570941, at *1 (Tex. App.-Austin Apr. 11, 2013, orig. proceeding) (mem. op.) (denying petition to compel ruling on motion because relator "has not provided this Court with a file-stamped copy of his motion or any other document showing that his motion has been properly filed. Without this record, we cannot determine whether the motion was properly filed or, if it was, the date on which it was received by either the clerk's office or the judge.").
While I concur in the denial of relator's petition for a writ of mandamus, I write separately because the court does not address the real issue underlying this original proceeding: What is the minimum evidentiary threshold that a relator must meet in an original proceeding to justify the appellate court either (1) requesting a response or (2) granting the requested relief after requesting a response? See Tex. R. App. P. 52.3(g), (j), (k)(1)(A)[1]; see also Tex. Gov't Code Ann. § 22.221(b) (Supp.) (writ power of court of appeals). In this mandamus action, relator has not met his burden of coming forward with any evidence.
[1] The subdivision of Texas Rule of Appellate Procedure 10 "Motions in the Appellate Court," Rule 10.4 "Power of Panel or Single Justice or Judge to Entertain Motions" applies to Rule 52 "Original Proceedings." Under the current Texas Rules of Appellate Procedure, a relator filing a petition for a writ of mandamus need not verify the petition, but must instead certify that every factual statement in the petition is supported by competent evidence included in the appendix or record. Compare Tex. R. App. P. 121(a)(2)(F), 49 Tex. B.J. 585 (Tex. & Tex. Crim. App. 1986, amended 1997), with Tex. R. App. P. 52.3(j). This change in the original proceedings rule may preclude a non-attorney from using Texas Rule of Appellate Procedure 10.2 to verify statements in a Rule 52 petition as competent evidence.
A district court has exclusive original jurisdiction over mandamus proceedings except when the Texas Constitution or a statute confers original jurisdiction in another tribunal. In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 775 (Tex. 1999) (orig. proceeding). The Texas Constitution empowers trial courts to issue writs of mandamus to compel public officials to perform ministerial acts. TEX. CONST. art. V, § 8; Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) ("A writ of mandamus will issue to compel a public officialto perform a ministerial act."); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) ("[I]t is clear that suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity.").
An original proceeding in a trial court for a writ of mandamus is a civil action subject to trial and appeal on substantive legal issues and rules of procedure like any other civil action. See Anderson, 806 S.W.2d at 792 n.1. Texas law generally authorizes mandamus relief to compel a public official either to perform a ministerial duty or to correct a clear abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). The movant typically must establish that (1) a public official failed to perform a ministerial duty or committed a clear abuse of discretion and (2) there is no adequate remedy at law. See Republican Party v. Dietz, 940 S.W.2d 86, 88 (Tex. 1997) (orig. proceeding); City of Hous., 466 S.W.3d at 187.
An act is ministerial, or nondiscretionary, when "the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion." See Anderson, 806 S.W.2d at 793. A writ of mandamus may issue when the facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. In re Amos, 397 S.W.3d 309, 312 (Tex. App.-Dallas 2013, orig. proceeding). When a public official has a legal duty to perform a nondiscretionary act, a demand for performance of that act has been made, and the official refuses to perform, a party is entitled to mandamus relief against the official or body. See id.; Sheppard v. Thomas, 101 S.W.3d 577, 581 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). Whether a statute creates a ministerial duty is a question of law. City of Hous., 466 S.W.3d at 188.
Mandamus may also issue to correct an abuse of discretion that deprives someone of their due process rights. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (holding court of appeals abused its discretion by issuing writ of mandamus directing trial court to vacate sanctions order where sanctioned counsel was afforded due process by being given notice of trial court's intent to consider sanctions and opportunity to respond); see also CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (holding relator had right to mandamus relief because "trial court exceeded the limitations imposed by the Due Process Clause of the federal Constitution.").
o be entitled to mandamus relief on the merits, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks and (2) a clear right to the relief sought. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). When the conduct of a court is involved, a relator must demonstrate that what the relator seeks to compel involves a ministerial act, rather than a discretionary act. Id. at 495. A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding).
Relator's petitions, however, are deficient on procedural grounds for three reasons. First, relator has not certified that "he or she has reviewed the petition[s] and concluded that every factual statement in the petition[s] is supported by competent evidence included in the appendix or record." See Tex. R. App. P. 52.3(j). Second, relator has not provided (1) "a certified or sworn copy of any order complained of, or any other document showing the matter complained of," or (2) filed "a certified or sworn copy of every document that is material to the relator's claim[s] for relief and that was filed in any underlying proceeding," and third, relator has not provided "a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter[s] complained." See Tex. R. App. P. 52.3(k)(1) (appendix), 52.7(a) (record).[2] 138*138 Simply put, there is no evidence properly before this court and not even a certification that the petitions are supported by competent evidence.
To obtain mandamus relief in a criminal case, the relator must show that he does not have an adequate remedy at law and the act he seeks to compel is ministerial (not involving a discretionary or judicial decision). State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). If the relator fails to satisfy either prong of this test, mandamus relief should be denied. Id. Generally, courts of appeals do not have authority to issue writs of mandamus regarding complaints that may only be raised by a post-conviction habeas corpus proceeding. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also In re McAfee, 53 S.W.3d 715, 718 (Tex. App.-Houston [1st Dist.] 2001, orig. proceeding). However, "when there is no pending application for habeas corpus filed under Article 11.07 of the Code of Criminal Procedure, the appellate court is not without jurisdiction to rule on mandamus petitions relating to a motion requesting access to material that could be used in a future habeas application." Padieu v. Court of Appeals of Tx., Fifth Dist., 392 S.W.3d 115, 118 (Tex. Crim. App. 2013).
The record demonstrates that Relator seeks access to the record to pursue a future Article 11.07 application for writ of habeas corpus and there is no indication in the record that such an application is pending. However, an indigent criminal defendant is not entitled—either as a matter of equal protection or of due process—to a free record of prior proceedings for use in pursuing postconviction habeas corpus relief. United States v. MacCollom, 426 U.S. 317, 327-28, 96 S. Ct. 2086, 2092-93, 48 L. Ed. 2d 666 (1976); In re Strickhausen, 994 S.W.2d 936, 937 (Tex. App.-Houston [1st Dist.] 1999, orig. proceeding). A free record is available for that purpose only if the defendant shows that (1) the habeas corpus application is not frivolous, including a specific showing of the issues to be raised in the habeas proceeding, and (2) there is a specific need for the trial records that are sought, including a showing of the inability to pay for the record. In re Coronado, 980 S.W.2d 691, 693 (Tex. App.-San Antonio 1998, orig. proceeding); see In re Dunn, No. 06-08-00005-CV, 2008 WL 191257, at *1 (Tex. App.-Texarkana Jan. 24, 2008, orig. proceeding) (mem. op.).
In his petition, Relator alleges "prejudicial error," that his "guilty" plea was not knowing or voluntary, prosecutorial misconduct, vindictiveness, and ineffective assistance of trial counsel. He further complains of an improper enhancement, comments and bias by Respondent, and a victim impact statement given before sentencing. All of these complaints could have been asserted on appeal from his 2010 convictions. Moreover, with respect to his allegation of ineffective appellate counsel, Relator makes no more than a naked assertion. Accordingly, Relator has not made the required showing to obtain access to the record for use in his anticipated habeas proceeding. See In re Pallm, No. 12-11-00376-CR, 2011 WL 6091791, at *1 (Tex. App.-Tyler Dec. 7, 2011, orig. proceeding) (mem. op., not designated for publication). Because Relator failed to establish that Respondent violated a ministerial duty by denying his motion to review the record, he fails to demonstrate an entitlement to mandamus relief.