Opinion
WR-94,066-01
09-01-2022
IN RE JACKI L. PICK, Relator
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS, MOTION TO SEAL PROCEEDINGS, AND MOTION TO STAY CAUSE NO. 05-22-00817CV IN THE FIFTH COURT OF APPEALS CAUSE NO. OSW-22-00030-H IN THE CRIMINAL DISTRICT COURT NO. 1 DALLAS COUNTY
Richardson, J., filed a concurring opinion.
I concur in this Court's decision to dismiss as moot Relator's motion for leave to file petition for writ of mandamus. Relator was served with a subpoena to appear in front of a Fulton County "Special Grand Jury" between July 12 and August 31, in Georgia. That subpoena has now expired. Because it has expired, the underlying legal arguments are now moot.
Chronology of Relevant Events
• On June 28, 2022, Superior Court of Fulton County Judge Robert C. I. McBurney issued a Certificate of Material Witness for Relator that compelled/required her attendance and testimony before a "Special Purpose Grand Jury" in the State of Georgia. Judge McBurney is the Georgian Judge supervising the special grand jury.
• On July 6, 2022, Special Prosecutor, Atlanta Judicial Circuit, Nathan Wade sent a hand delivered letter to Relator informing her that she was the subject of the special purpose grand jury's investigation.
• On July 11, 2022, Dallas County Assistant District Attorney, Ricardo Vela petitioned the Dallas County Criminal Court No. 1 to institute proceedings pursuant to Texas Code of Criminal Procedure Article 24.28, and order Relator to appear and show cause why an order should not be issued as requested by Judge McBurney. Dallas County Judge Rick Magnis, sitting by assignment, orders a show cause hearing to be held on July 28, 2022.
• On July 28, 2022, Relator filed a response in Criminal District Court No. 1 to the State's petition to secure her attendance as an out-of-state witness. Another show cause hearing date is scheduled.
• On August 15, 2022, Judge Magnis held a show cause hearing and ordered Relator to appear before the special purpose grand jury on August 25, 2022.
• On Thursday, August 18, 2022, Relator filed a petition for writ of mandamus and emergency motion to stay in the Dallas Fifth Court of Appeals.
• The Dallas Fifth Court of Appeals did not issue an opinion until Tuesday, August 23, 2022.
• On August 24, 2022, Relator promptly filed a mandamus and emergency motion with this Court. The pleadings filed were several hundred pages long.
I share the dissent's concern about whether a special grand jury constitutes the type of grand jury envisioned by the State of Texas when they entered into an agreement that could force a citizen of this State to the State of Georgia for a hearing or investigation beyond the scope of that Interstate agreement. Texas entered into the "Uniform Act to secure attendance of witnesses from without State" in 1951. It was renumbered from Texas Code of Criminal Procedure Article 486a to Article 24.28 in 1966. The Georgia statute did not create what they call a "special grand jury" until 1974.
The Certificate of Material Witness for Relator compelled/required her attendance and testimony before the "Special Purpose Grand Jury on July 12, 2022, and continuing through and until the conclusion of the Witness's testimony on or before August 31, 2022." As of this date, the subpoena has expired.
In light of the fact this is a mandamus and the subpoena expired on August 31, 2022, the avenues of relief are limited. At this juncture, relief is not warranted unless it is classified as an "exception to ordinary rules related to mootness." As a result, we simply dismiss as moot the motion for leave to file petition for writ of mandamus. As noted in Judge Newell's opinion:
This doctrine only applies in exceptional circumstances where two circumstances are simultaneously present: 1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and 2) there is a reasonable expectation that the same complaining party will be subject to the same action again.
Newell, J., Concurring Op. at *2. In the future, if the State of Georgia seeks to compel this witness's testimony under another subpoena, the application of those rules could be revisited, but that is for another day and time. For now, I join Judge Newell's opinion and would dismiss as moot the motion for leave to file petition for writ of mandamus.