In re Thompson.

• Decision Date: 21 December 2010
• Docket Number: No. 03–10–00689–CV.,03–10–00689–CV.
• Citation: 330 S.W.3d 411
• Parties: In re R. Lowell THOMPSON.
• Court: Texas Court of Appeals

330 S.W.3d 411

In re R. Lowell THOMPSON.

No. 03–10–00689–CV.

Court of Appeals of Texas, Austin.

Dec. 21, 2010.Rehearing Overruled Jan. 28, 2011.

R. Lowell Thompson, Criminal District Attorney, Navarro County, Corsicana, TX, Pro Se for Relator.Alan R. Glickman, Christopher H. Giampapa, Yocheved Cohen, Daniel L. Greenberg, Schulte, Roth & Zabel, LLP, Barry Scheck, The Innocence Project, Inc., New York, NY, Gerald Harris Goldstein, Goldstein, Goldstein and Hilley, San Antonio, TX, for Real Party in Interest.Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.

OPINION

J. WOODFIN JONES, Chief Justice.

Relator R. Lowell Thompson, acting in his official capacity as the district attorney of Navarro County, Texas, filed a motion to recuse Respondent, the Honorable Charlie Baird, Judge of the 299th District Court of Travis County, Texas, in a proceeding styled In re: Cameron Todd Willingham and given Cause No. D–1–DC–10–100069. Judge Baird declined to rule on the motion, concluding that Thompson lacked standing to file a motion to recuse because he was not a party to the proceeding. In this original proceeding before this Court, Thompson seeks a writ of mandamus to compel Judge Baird to follow the recusal procedure outlined in Texas Rule of Civil Procedure 18a by either recusing himself or referring the motion to the presiding judge of the administrative judicial district. We will conditionally grant the writ.

FACTUAL AND PROCEDURAL BACKGROUND

Real Parties in Interest Eugenia Willingham and Patricia Willingham Cox (“the Relatives”) are some of the surviving relatives of Cameron Todd Willingham, a Navarro County man convicted of murder in 1992 and executed by the State in 2004. Asserting that Willingham was innocent of the crime for which he was convicted and that “officials of the State committed the offense of official oppression” by, among other things, “endeavoring to prevent the truth from emerging following [Willingham's] execution,” the Relatives filed a petition requesting that the trial court

convene a Court of Inquiry, pursuant to Texas Code of Criminal Procedure Article 52.01(a), to investigate whether offenses against the laws of Texas have been committed, and issue a declaration that Mr. Willingham was wrongfully convicted and that otherwise repairs the injury done to his reputation, as provided by Article 1, Section 13 of the Texas Constitution and Section 71.021(a) of the Texas Civil Practice and Remedies Code.

See generally Tex.Code Crim. Proc. Ann. art. 52.01–.09 (West 2006) (describing Court–of–Inquiry procedure).

Thompson, the current district attorney of the county that prosecuted Willingham, filed a motion to recuse Judge Baird, asserting that he was biased. In response, the Relatives argued that Thompson lacked standing to bring a recusal motion because the Court–of–Inquiry proceeding that their petition invoked was “ ex parte,” ¹ and, consequently, that Thompson was not a “party” as required by Rule 18a. See Tex.R. Civ. P. 18a(a) (“[A]ny party may file ... a motion stating grounds why the judge ... should not sit.” (Emphasis added.)). After considering arguments from Thompson and the Relatives, Judge Baird concluded that Thompson was not a party and thus lacked standing to file a motion to recuse. In light of that conclusion, Judge Baird declined to rule on the merits of the motion and immediately proceeded to commence an evidentiary hearing. The exact nature of that evidentiary hearing is not clear, but the Relatives describe it to this Court as a pre-Court-of-Inquiry proceeding being conducted for the purpose of gathering facts to determine whether Judge Baird would issue an affidavit requesting the commencement of a Court of Inquiry.² See Tex.Code Crim. Proc. Ann. art. 52.01(a) (requiring judge to make affidavit evidencing probable cause that “an offense has been committed” before requesting that presiding judge of administrative judicial district appoint different district judge to commence Court of Inquiry). Thompson filed a petition for writ of mandamus and emergency motion for stay in this Court seeking to compel Judge Baird to rule on the recusal motion and otherwise comply with the requirements of Rule 18a. See Tex.R. Civ. P. 18a (requiring that, on filing of motion to recuse, judge must take no further action in case and either (1) recuse himself, or (2) forward motion to presiding judge of administrative judicial district for hearing). We temporarily stayed the proceedings below pending our decision here.

DISCUSSION

Mandamus Jurisdiction

As a threshold issue, the Relatives argue that we lack jurisdiction to issue a writ of mandamus because, they assert, Judge Baird “is not acting in his capacity as a judge of a district court, but rather in his capacity as a magistrate.” Section 22.221 of the government code defines and limits our mandamus jurisdiction. It provides, in pertinent part:

(b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a:

(1) judge of a district or county court in the court of appeals district; or

(2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure, in the court of appeals district.

Tex. Gov't Code Ann. § 22.221(b) (West 2004). The Relatives argue that

although section 22.221(b)(2) authorizes the Court to exercise mandamus jurisdiction against a judge acting as a magistrate, that mandamus jurisdiction is explicitly limited to a judge acting as a magistrate “at a court of inquiry.” Here, no court of inquiry has been convened.... The Relatives argue that article 52.01(a) of the code of criminal procedure contemplates a two-step procedure in Court–of–Inquiry proceedings. See Tex.Code Crim. Proc. Ann. art. 52.01. They assert that the proceedings below were merely part of the first step, in which Judge Baird was acting as a magistrate in a proceeding that was not itself a “Court of Inquiry” as that term is defined by the code of criminal procedure and used in subsection 22.221(b)(2) of the government code. Accordingly, they contend that section 22.221(b) of the government code does not authorize this Court to issue a writ of mandamus in the present circumstances because Judge Baird was neither acting in his capacity as a district judge nor acting as a magistrate at a Court of Inquiry.

We need not decide whether the Relatives are correct in asserting that the proceedings below, as they depict them, are not a “Court of Inquiry,” because the record establishes our mandamus authority over the case pursuant to subsection 22.221(b)(1), without regard to subsection (b)(2). The Relatives' original petition, labeled “Petition to Convene a Court of Inquiry and for a Declaration to Remedy Injury to Mr. Willingham's Reputation Under the Texas Constitution,” asked for the following specific relief:

A. Find, pursuant to Texas Code of Criminal Procedure Article 52.01(a), that there is probable cause to believe that offenses against the laws of Texas have been committed;

B. Enter into the minutes of the Court, pursuant to Article 52.01(b)(1), a sworn affidavit stating the substantial facts establishing probable cause that one or more offenses against the laws of Texas were committed;

C. File, pursuant to Article 52.01(b)(2), a copy of the affidavit with the District Clerk;

D. Declare that Mr. Willingham was wrongfully convicted, and that all legal disabilities attaching to him or his survivors as a result of that conviction are forever removed;

E. Request, pursuant to Article 52.01(b)(2), the Presiding Judge of the Administrative Judicial District to appoint a judge to commence a Court of Inquiry to investigate these matters further....

Thus, the petition sought two different forms of relief. Under subparagraphs A, B, C, and E, the Relatives sought to initiate the process set forth in article 52.01. In subparagraph D, however, the Relatives sought a declaration that “Mr. Willingham was wrongfully convicted.” This second type of request is in the nature of a declaratory-judgment claim, which is necessarily addressed to the court in its judicial, rather than magisterial, capacity. In other words, the claim sought relief that Judge Baird could only have granted while acting in his capacity as a district judge, not while acting in his capacity as a magistrate. Thompson's motion to recuse sought to have Judge Baird recuse himself from the entire case, which necessarily included the request for declaratory relief. Accordingly, the Relatives' prayer for declaratory relief brings this case within our mandamus jurisdiction over a judge of a district court in our appellate district. See Tex. Gov't Code Ann. § 22.221(b)(1); see also Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001–.011 (West 2008) (declaratory-judgment statute). We disagree with the Relatives' attempt to characterize their request for declaratory relief as part of or incident to a Court–of–Inquiry proceeding, because such relief is not available from a Court of Inquiry. See Tex.Code Crim. Proc. Ann. arts. 52.01, .08 (sole end of Court of Inquiry is to determine whether “an offense has been committed” and, if so, to “issue a warrant for the arrest of the offender as if complaint had been made and filed”). Accordingly, we conclude that we have jurisdiction to issue a writ of mandamus in the present case under subsection 22.221(b)(1) of the government code. We now turn to the question of whether mandamus relief is warranted under the present circumstances.

Thompson's Party Status Under Rule 18a

The Relatives argue that Thompson is not a party to the case below and thus does not have “standing” under Rule 18a to file a motion to recuse. Rule 18a states in pertinent part:

At least ten days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any part...