State ex rel. Holmes v. Honorable Court of Appeals for Third Dist.

• Decision Date: 20 April 1994
• Docket Number: 71765,Nos. 71764,s. 71764
• Citation: 885 S.W.2d 389
• Parties: STATE of Texas ex rel. John B. HOLMES, Jr., District Attorney, Relator, v. The HONORABLE COURT OF APPEALS FOR the THIRD DISTRICT, Respondent. TEXAS BOARD OF PARDONS AND PAROLES, et al., Relator, v. The HONORABLE COURT OF APPEALS FOR the THIRD DISTRICT, Respondent.
• Court: Texas Court of Criminal Appeals

Page 389

885 S.W.2d 389

STATE of Texas ex rel. John B. HOLMES, Jr., District Attorney, Relator, v. The HONORABLE COURT OF APPEALS FOR the THIRD DISTRICT, Respondent.

TEXAS BOARD OF PARDONS AND PAROLES, et al., Relator, v. The HONORABLE COURT OF APPEALS FOR the THIRD DISTRICT, Respondent.

Nos. 71764, 71765.

Court of Criminal Appeals of Texas En Banc.

April 20, 1994.

Rehearing Denied June 8, 1994.

John B. Holmes, Jr., Dist. Atty., and Calvin A. Hartmann and Roe Wilson, Asst. Dist. Attys., Houston, Charles Palmer, Asst. Atty. Gen., Austin, for relators.

James C. Harrington, Austin, for real party in interest Gary Graham.

Before the court en banc.

OPINION ON RELATORS'

APPLICATION FOR WRIT

OF MANDAMUS

BAIRD, Judge.

Relators, Harris County District Attorney John B. Holmes and the Texas Board of Pardons and Paroles by and through the Attorney General, seek a writ of mandamus and/or prohibition directing respondent, the Third Court of Appeals, to withdraw its order enjoining the execution of death row inmate Gary Graham. We will conditionally grant relief.

I.

A recitation of the procedural history of this case is in order. Graham was convicted of capital murder in the 182nd District Court of Harris County. Tex.Penal Code Ann. § 19.03(a)(2). We affirmed. Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). We denied Graham's first application for writ of habeas corpus, Ex parte Graham (Tex.Cr.App. No. 17,568-01, delivered February 19, 1988) (not published), and Graham unsuccessfully petitioned the federal courts for relief. Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc); and, Graham v. Collins, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). Although we ultimately denied Graham's second writ application, we stayed his execution pending the resolution of Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993); and, Ex parte Graham, 853 S.W.2d 565 (Tex.Cr.App.1993). Our stay expired by its own terms and the Supreme Court denied certiorari. Graham v. Texas, 508 U.S. 945, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993).

The Texas Board of Pardon and Paroles, hereafter the Board, denied Graham's first request for executive clemency and Governor Richards granted Graham a thirty day reprieve. Graham requested executive clemency a second time but the Board did not act on that request because of our aforementioned stay of Graham's execution. Graham, 853 S.W.2d at 567.

Upon expiration of our stay, the judge of the 182nd District Court ordered Graham's execution before sunrise on August 17, 1993. On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County seeking an order compelling the Board to hold a hearing on his request for clemency. Graham contended art. I, §§ 13 and 19, and art. IV, § 11 of the Texas Constitution required a hearing. The judge of the 299th District Court agreed and entered a temporary injunction requiring the Board to hold a hearing on or before August 10, 1993, or to reschedule Graham's execution until such a hearing could be held. ¹

On August 10, 1993, the Board filed notice of appeal to respondent, Third Court of Appeals. On Graham's motion, respondent entered a writ of injunction enjoining relators from proceeding with the execution. Writ of Injunction, pg. 2. Respondent held the injunction was necessary to preserve its jurisdiction over the appeal. ²

The Board filed a motion for leave to file original applications for writ of prohibition and mandamus in this Court requesting that we vacate the injunction, prohibit respondent from taking further action and address Graham's claims. ³ Relator Holmes filed a motion for leave to file petition for writ of mandamus and request for emergency stay requesting that we vacate respondent's injunction. ⁴ On August 16, 1993, we denied leave to file but, on our own motion, stayed Graham's execution. State ex rel. Holmes v. Third Court of App., 860 S.W.2d 873 (Tex.Cr.App.1993).

On November 9, 1993, we re-considered each motion, granted leave to file and consolidated the motions. The contentions before us are:

1. Whether respondent's order illegally vacates a previously existing order of a court of equal and competent jurisdiction thereby usurping that court's original jurisdictional authority over Graham's case;

2. Whether respondent's order violates the original jurisdiction of this Court under art. V, § 5 of the Texas Constitution;

3. Whether respondent had no jurisdiction to issue an injunction which is in effect a stay of Graham's execution;

4. Whether Graham has failed to present his complaint to the trial court by means of exclusive post conviction habeas corpus remedy set forth within Tex.Code Crim.Proc.Ann. art. 11.07; and,

5. Whether this Court should assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham.

We will address contentions one, two, and, three in part II of this opinion; contention four in parts III, IV, and V; and, contention five in part VI.

II.

A. Mandamus

Our power to issue writs of mandamus is derived from art. V, § 5 of the Texas Constitution and Tex.Code Crim.Proc.Ann. art. 4.04. ⁵ Mandamus is an extraordinary remedy to be invoked sparingly. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992). To be entitled to a writ of mandamus, the relator must demonstrate: 1) the act sought to be compelled is purely ministerial (as opposed to discretionary); and, 2) the relator has no other adequate remedy. Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991). See, State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1990); Collins v. Kegans, 802 S.W.2d 702 (Tex.Cr.App.1991); and, Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989). ⁶

B. Criminal Law Matter

Our mandamus power is limited to "criminal law matters." Tex. Const. art. V, § 5. See, n. 5, supra. See also, Dickens v Court of Appeals, 727 S.W.2d 542, 545 (Tex.Cr.App.1987). Therefore, the threshold issue is whether respondent's injunction is a criminal law matter.

While no rule precisely defines the limits of a criminal law matter, we enunciated a general rule in Curry v. Wilson, 853 S.W.2d 40 (Tex.Cr.App.1993). Curry was acquitted in his criminal trial. After the trial, Wilson, the trial judge, believing Curry was no longer indigent, sought to recoup the legal fees incurred by Tarrant County for Curry's representation. See, Tex.Code Crim.Proc.Ann. art. 26.05(e). Curry sought a writ of prohibition to prevent the recoupment. Wilson challenged our jurisdiction to hear the case, contending it was not a criminal law matter. Id., at 43. We explained that criminal law matters are those:

... Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution.... ⁷

Id. We noted respondent's authority to order recoupment arose from the Code of Criminal Procedure. Id. We further observed that the legal services were incurred in the course of Curry's criminal trial. Id. We concluded the "dispute [was] a criminal law matter and this Court [had] jurisdiction to hear the case and determine whether a writ of prohibition should issue." Id.

Similarly, in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex.Cr.App.1993), we considered whether a former judge may preside at a criminal trial over the State's objection. Lanford, who had resigned as a district judge, was assigned to sit as a visiting "former judge." Tex.Gov't Code Ann. § 74.054. Lanford, 847 S.W.2d at 583. The State's objection to Lanford's assignment was overruled. Id. The State then sought and received a writ of mandamus from the Fourteenth Court of Appeals ordering Lanford to not preside in a criminal case over the State's objection. Id. Lanford sought a writ of mandamus from this Court ordering the Court of Appeals to rescind its writ of mandamus. Id., at 584. The State contended we lacked jurisdiction to decide the matter because "[t]he orderly assignment of judges [was] a concern which [was] peculiarly within the province of the Texas Supreme Court," i.e., a civil law matter. Id.

In addressing the jurisdiction issue, we noted that the primary goal in interpreting constitutional provisions was to "ascertain and give effect to the apparent intent of the voters who adopted it." Lanford, 847 S.W.2d at 585 (citing Edgewood I.S.D. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989); and, Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 265 (1922)). We concluded:

... [the] average voters reading the phrase "criminal law matters" at the time of [art. V, § 5's] adoption would probably have interpreted it to encompass, at a minimum, all legal issues arising directly out of a criminal prosecution. Thus, we conclude without difficulty that the constitutional phrase "criminal law matters" does encompass, and this Court does have jurisdiction over, the issue presented in Lanford's application.

Lanford, 847 S.W.2d at 585.

Further, in Smith v. Flack, 728 S.W.2d 784 (Tex.Cr.App.1987), we considered whether the payment of attorney's fees was a criminal law matter. See, Tex.Code Crim.Proc.Ann. art. 26.05. The relators, four court-appointed criminal defense attorneys, sought a writ of mandamus to compel the Harris County Auditor and Commissioner's Court to pay attorneys' fees awarded by a trial judge. Id., at 787-788. To determine whether we had jurisdiction to issue the writ, we observed: "[W]hen read as a whole, Article V, § 5 ... grants this Court the power to issue writs of mandamus when a criminal law is the subject of the litigation." Id., at 788. Concluding the litigation was grounded upon art. 26.05, we held the writ application directly involved a criminal law matter. Id., 788-789. See also, Collier v. Poe, 732 S.W.2d 332, 334 (Tex.Cr.App.1987) (denial of motion for legislative continuance during criminal trial was a criminal law matter within Court's...