Collins v. Kegans

• Citation: 802 S.W.2d 702
• Decision Date: 30 January 1991
• Docket Number: No. 71166,71166
• Parties: James A. COLLINS, Director of the Texas Department of Criminal Justice, Institutional Division, Relator, v. The Honorable Joe KEGANS, Judge of the 230th Judicial District Court of Harris County Texas, Respondent.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 702

802 S.W.2d 702

James A. COLLINS, Director of the Texas Department of

Criminal Justice, Institutional Division, Relator, v. The Honorable Joe KEGANS, Judge of the 230th Judicial

District Court of Harris County Texas, Respondent.

No. 71166.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 30, 1991.

Jim Mattox, Atty. Gen., & Mary F. Keller, Lou McCreary, Michael P. Hodge, Ann Kraatz & William C. Zapalac, Asst. Attys. Gen., Austin, for relator.

Stanley G. Schneider & Judge Joe Kegans, Houston, for respondent.

Tom Moran & Kimberly De La Garza, Houston, for real party in interest.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

This is an original mandamus proceeding. The Relator is James A. Collins, Director of the Texas Department of Criminal Justice, Institutional Division (hereinafter "DOJ"), and the Respondent is the Honorable Joe Kegans, Judge of the 230th Judicial District Court of Harris County. Relator is seeking a writ of mandamus from this Court compelling Respondent to rescind a judgment and sentence issued in the case styled, "The State of Texas v. Patricia Michelle Manuel," Cause No. 540349, in which Respondent found Manuel guilty of injury to a child and ordered that she be placed in the newly created "Alternative Incarceration Probation" (boot camp program) of the DOJ. We will deny the writ.

On August 2, 1990, during the punishment phase of a criminal trial, Respondent declared Article 42.12, Section 8(a)(2), V.A.C.C.P., unconstitutional. That Article is entitled "Alternative Incarceration Probation" and in relevant part reads:

"Sec. 8. (a) For purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction of a felony shall continue for 90 days from the date the execution of the sentence actually begins. After the expiration of 75 days but prior to the expiration of 90 days from the date the execution of sentence actually begins, the judge of the court that imposed the sentence may suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge, the defendant would not benefit from further incarceration in a penitentiary.... Probation may be granted under this section only if:

"(1) the defendant is otherwise eligible for probation under this article;

"(2) the defendant is a male 17 years of age or older but younger than 26 years and does not have a physical or mental handicap that precludes strenuous physical activity; and

"(3) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony.

"(b) On the date the execution of a sentence begins for a defendant placed on probation under this section, the probationer shall begin participation in a program in the Texas Department of Corrections under Article 6203c-9, Revised Statutes." ¹

Thus, by its terms, the boot camp program is limited to male defendants. Respondent, after finding Manuel guilty of injury to a child, but before pronouncing her sentence, declared that the portion of Section (a)(2) relating only to male defendants was unconstitutional in that it violated Article I, Section 3a of the Texas Constitution and the Equal Protection Provision of the Fourteenth Amendment to the United States Constitution. ² However, instead of finding the statute unconstitutional in its application to all persons and thus incapable of enforcement, Respondent in this case entered Findings of Fact and Conclusions of Law which in part found that despite her sex, Manuel would benefit from the boot camp program. Citing the Severability Clause of the Code of Criminal Procedure, Article 54.01, V.A.C.C.P., as authority for her actions, Respondent severed the words "a male" from the statute and declared the remainder constitutional. Whereupon, under this judicially rectified statute, Respondent sentenced Manuel "to be placed in the S.A.I.P. (Boot Camp) program in the Texas Department of Criminal Justice pursuant to Article 6203(c)-9/Article 42.12, Sec. 8."

On December 6, 1990, Relator filed his application for writ of mandamus to have this Court compel Respondent to withdraw her sentence and the Findings of Fact and Conclusions of Law. He bases his application on two grounds: first, Relator asserts that the trial court's actions violate the Separation of Powers Doctrine under Article II, Section 1 of the Texas Constitution; ³ and second, he argues that Respondent has "exceeded the bounds of her authority" in that she has issued an order that is "so arbitrary, unreasonable, or based upon so gross and prejudicial an error of law as to establish abuse of discretion." ⁴ Relator avers that he is without an adequate remedy and that mandamus should lie to correct the trial court's actions. We disagree.

It is observed that Relator is before this Court in his capacity as Director of the DOJ. ⁵ He seeks to insulate himself from a judgment and sentence that was issued in a case where he was not a party and at a time when no action has been taken to force him to comply with Respondent's orders. Essentially, Relator is seeking to protect himself from possible contempt actions. ⁶ The general rule is that before this Court will issue a writ of mandamus the relator must demonstrate two things: (1) The act sought to be compelled must be purely ministerial (as opposed to discretionary) in nature, see State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex.Cr.App.1990); State ex rel. Thomas v. Banner, 724 S.W.2d 81, 83 (Tex.Cr.App.1987), and (2) there is no other adequate remedy. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 423 (Tex.Cr.App.1990); Smith v. Flack, 728 S.W.2d 784, 794 (Tex.Cr.App.1987); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). ⁷ In the case before us, Relator has failed to show why habeas corpus would be an inadequate remedy if and when Respondent pursues contempt proceedings as a means of enforcing her orders. Indeed, it is axiomatic that mandamus will not issue during the pendency of contempt proceedings and that the validity of a contempt judgment can be attacked "only by way of habeas corpus." Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 827 (1960); Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884, 887 (1957); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); The State v. Thurmond, 37 Tex. 340, 341 (1872); Tims v. Tims, 204 S.W.2d 995 (Tex.App.--Amarillo, 1947, writ ref'd); Dallas County by Commissioners Court v. Mays, 747 S.W.2d 842, 845 (Tex.App.--Dallas) reversed for other reasons sub nom, Mays v. Fifth Court of Appeals, 755 S.W.2d 78 (Tex.1988); Jackson v. Crawford, 727 S.W.2d 628, 631 (Tex.App.--Dallas 1987, no writ); Haskett v. Harris 567 S.W.2d 841, 845 (Tex.App.--Corpus Christi 1978, no writ); Doss v. Doss, 521 S.W.2d 709, 711 (Tex.App.--Houston [14th Dist.] 1975, no writ); Garcia v. Garcia, 469 S.W.2d 920, 921 (Tex.App.--San Antonio 1971, no writ); Ex parte Henderson, 300 S.W.2d 189, 190 (Tex.App--Beaumont 1957, no writ). See also Ex parte Williams, 690 S.W.2d 243 n. 1 (Tex.1985).

In Deramus, the Texas Supreme Court refused to mandamus a trial court which had threatened the Relator with contempt actions. The Supreme Court wrote:

"We do have authority to correct the action of a trial judge in the abuse of his discretion, or in violation of his clear duty under the law, where there is no adequate remedy by appeal, and even to direct a trial judge to enter an order of dismissal where that is the only proper judgment that can be rendered on undisputed facts.... Therefore this matter becomes not so much a question of jurisdiction to entertain this application for mandamus, but rather the consideration of long-established policy. Nevertheless, in view of the unbroken line of authorities we are reluctant to depart from a judicial path so well landmarked, especially so since the claimed inadequacy of habeas corpus [ (the stigma of arrest and confinement) ] in this instance is one common to all cases where escape is sought from the penalty of a contempt judgment. This in itself, we think, is sufficient to justify our refusal of this application. To do otherwise would completely change the procedure long followed in this State and allow in every case an attack by way of mandamus." 333 S.W.2d at 827.

In the instant case, as in Deramus, habeas corpus provides Relator with an adequate remedy. To grant his application for writ of mandamus in this case would establish precedent allowing any party facing contempt proceedings to mount preliminary attacks in any higher appellate court. As stated by the Supreme Court in Deramus, and applicable to the case at bar, we decline to so "completely change the procedure long followed in this State" to allow such to happen. This is not to say that we cannot use our mandamus powers to compel Respondent to withdraw her orders. In this case, however, where Relator has asserted viable, factual reasons for not being able to comply with Respondent's orders, it should be Respondent to first rule upon the adequacy of these reasons and if possible and desirable on her part, Respondent should be the first to fashion alternative remedies allowing for reasonable time limitations under V.T.C.A., Gov't Code, Section 21.002(g)(2). See generally Ex parte Krupps, 712 S.W.2d 144, 151-152 (Tex.Cr.App.1986) (Onion, P.J., concurring). But as Relator readily acknowledged during oral arguments and we now stress, Respondent possesses the discretion and authority to declare the aggrieved statute unconstitutional and, notwithstanding any statute to the contrary, see V.T.C.A., Gov't Code, Section 21.002(g)(1), she is constitutionally empowered "to issue writs necessary to enforce [her] jurisdiction." Tex.Const. Article V, Section 8.

The application for writ of mandamus is denied.

CLINT...