State ex rel. Holmes v. Salinas, 70954

• Citation: 784 S.W.2d 421
• Decision Date: 14 February 1990
• Docket Number: No. 70954,70954
• Parties: STATE of Texas ex rel. John B. HOLMES, Jr., Applicant, v. The Honorable Lupe SALINAS, Judge, 351st District Court of Harris County.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 421

784 S.W.2d 421

STATE of Texas ex rel. John B. HOLMES, Jr., Applicant, v. The Honorable Lupe SALINAS, Judge, 351st District Court of Harris County.

No. 70954.

Court of Criminal Appeals of Texas En Banc.

Feb. 14, 1990.

John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann, Asst. Dist. Atty., Houston, for applicant.

Ted Doebbler, Stanley G. Schneider, W. Troy McKinney, Thomas D. Moran, Robert Huttash, Houston, for respondent.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

This is an original application for writ of mandamus by which the District Attorney of Harris County, as relator, seeks to have an order entered by respondent trial judge set aside. TEX.CONST. art. V, Sec. 5; Art. 4.04, V.A.C.C.P.

Relator alleges respondent exceeded his authority as a magistrate by entering orders relating to two pending prosecutions directing the district attorney not to present either case to a grand jury prior to completion of an examining trial ordered by respondent in each pending case. Relator contends and respondent concedes the State has no adequate remedy at law. Relator requests that this Court issue a writ of mandamus directing respondent to vacate his orders in Cause Numbers 527,238 and 526,361 in the 351st District Court of Harris County.

On April 5, 1989, a suspect was arrested for the offense of possession of a controlled substance. The case was directly filed in respondent's court. On May 5, 1989, respondent granted a defense motion for an examining trial and ordered the district attorney not to seek an indictment in the case.

On March 27, 1989, a defendant was arrested on a possession charge. On May 15, 1989, respondent granted the defense motion for an examining trial and again further ordered the State not to present the case before the grand jury until an examining trial had been held.

The State sought mandamus relief from the Court of Appeals for the Fourteenth Judicial District. The appeals court denied relief, construing Section 22.221(b) of the Government Code as requiring district and county judges to be functioning in that capacity, rather than as magistrates, in order for their actions to be subject to writs of mandamus by the courts of appeal. See TEX.GOV'T CODE Ann. § 22.221(b). Holding it lacked jurisdiction precisely because respondent was functioning in the capacity of magistrate rather than as district judge when the orders restraining the district attorney were made, the appeals court decided that relator's application had been improvidently granted. The orders by the court granting leave to file and granting a stay were therefore withdrawn and the petition for leave to file was denied. Rehearing was denied on August 17, 1989.

Thereafter relator filed his motion for leave to file this original application for writ of mandamus. On August 28, 1989, this Court entered an order directing Judge Salinas to respond to the allegations contained within the instant motion for leave to file. All proceedings were stayed. Judge Salinas' response has now been filed with the Court and may be summarized as follows:

(A) This Court has no jurisdiction over the instant matter because relator has not "sued" respondent in his proper capacity. While Judge Salinas is being sued in his capacity as district judge, he was not acting as a judge but as a magistrate at the time he issued the orders in question. Mandamus relief should be sought against relator, if at all, in his proper capacity. Since Judge Salinas lacks jurisdiction over the underlying causes until indictments are returned, he lacks the judicial authority to withdraw the order being challenged and cannot comply with an order from this Court. Therefore this Court lacks jurisdiction and relief should be denied.

(B) Relator's entire argument is based upon the mistaken premise that respondent exceeded his limited jurisdiction and authority as a magistrate sitting in an examining court. The Code of Criminal Procedure vests magistrates with specific authority, jurisdiction, duties and responsibilities, including a sole and exclusive jurisdiction and authority to conduct and preside at examining trials pursuant to Article 16.01, V.A.C.C.P. The relevant question is therefore whether Judge Salinas is presiding at an examining trial in the 351st District Court or in some other court. Clearly for purposes of an examining trial, respondent is presiding over an examining court and under TEX.GOV'T CODE Ann. § 21.001, has the authority and powers of a "court" for the exercise of its jurisdiction and enforcement of its lawful orders, including "authority to issue the writs and orders necessary or proper in aid of its jurisdiction." Id. Since any court has the power to prevent a party from taking any action that destroys or substantially impairs the res of impending litigation within the jurisdiction of the court, Judge Salinas, as magistrate of the examining court, has the power to enforce his order restraining the State from bringing the two underlying cases to the grand jury pending an examining trial in both cases.

(C) Relator's rights have not been impinged by respondent's orders. First, respondent's orders do not affect the independent grand jury's rights. Distinguished from federal practice, state law provides that a grand jury is an independent body with independent authority that may proceed independently of the prosecutor, who is reduced to a "mere scrivener." Article 20.03, V.A.C.C.P. does not impose a mandatory duty on the district attorney to present cases to the grand jury, but rather permits relator the discretionary power to appear before the grand jury and inform them of offenses liable to indictment. Second, relator's position that the right to an examining trial is not absolute is severely flawed in several respects. Judge Salinas never attempted to order the grand jury not to inquire into any offense on its own. Relator has no statutory right or duty to "inquire into the offense" in the same fashion as does the grand jury, and respondent has in no fashion attempted to restrain relator from inquiring into the offense for his own purposes.

This Court has jurisdiction to issue writs of mandamus pursuant to Article V, § 5 of the Texas Constitution. In order for mandamus to issue, the party seeking mandamus must show that there is no other adequate remedy available and that the act sought to be compelled is a ministerial act. Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989). Mandamus is not available to compel a discretionary act as distinguished from a ministerial act. State ex rel. Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984); Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979). Mandamus will issue where there is but one proper order. State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987); State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). Mandamus may also issue if a judge acts beyond his statutory authority. Denson, supra; White v. Reiter, 640 S.W.2d 586 (Tex.Cr.App.1982). If a district judge enters an order for which he has no statutory authority, mandamus will issue. Gray, supra; Denson, supra; Wilson v. Harris, 555 S.W.2d 470 (Tex.Cr.App.1977).

Relative to the first question whether the act is ministerial rather than judicial or discretionary in nature, the focus is upon "whether the respondent had the authority" to do what is the subject of the complaint. Clinton, supra, quoting State ex rel. Thomas v. Banner, 724 S.W.2d 81 (Tex.Cr.App.1987). In Clinton, supra, the district judge issued an order removing appointed counsel from the underlying case. A unanimous Court held the trial court was without authority to order said counsel removed under the circumstances of the case, and conditionally granted relief. In Thomas, supra, a district judge granted a defendant shock probation on four convictions. The district attorney sought mandamus relief, contesting the trial court's statutory authority to so act. Finding there was no statute authorizing the trial court to grant shock probation in such cases, and further finding the State had no other adequate remedy at law, relief was conditionally granted. See also State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980) (trial judge lacked authority to grant shock probation to defendant convicted of involuntary manslaughter since offense was one of excepted enumerated offenses).

The instant case presents a scenario differing from the above cited cases in that respondent is being sued in his limited capacity as magistrate rather than his general capacity as trial court judge of a district court. Two intertwined arguments are raised in response to the application. First, relator has not brought a proper suit since the activity sought to be restricted arises from a magistrate's order and not the order of a trial court. Second, a magistrate, presiding over a separate "examining court", is imbued with all authority inherent in other judicial courts, including the power to issue any and all orders protecting the jurisdiction of the examining court, with the result that the magistrate is authorized to restrain the district attorney from proceeding, in his official capacity, to bring such evidence as he may have regarding the two alleged underlying offenses in question before the grand jury for the purpose of seeking an indictment in either case. Thus, we are first asked to determine whether the proper parties have been joined, and next to determine, if necessary, the appropriateness of a mandamus action against a magistrate who has entered an order effectively preventing the district attorney from seeking an indictment.

It is agreed that respondent properly presides over the 351st District Court of Harris County. As is the custom with the judges in the county, Judge Salinas sits as a magistrate prior to the return of an indictment. This role is provided Judge Salinas solely through his office of district judge. See Art. 2.09, V.A.C.C.P. Thus, ...