Opinion
14-24-00821-CR
11-05-2024
IN RE THE STATE OF TEXAS EX REL KIM OGG, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS 230th District Court Harris County, Texas Trial Court Cause No. 1859840
Panel Consists of Justices Spain, Poissant, and Wilson.
ORDER
PER CURIAM
On Wednesday, October 30, 2024, relator The State of Texas, Ex Rel Kim Ogg, filed a petition for writ of mandamus in this court. Relator asks this court to order the Honorable Chris Morton, Judge of the 230th District Court, in Harris County, Texas, to vacate his October 14, 2024 order granting real party in interest's motion for production of Brady information, entered in trial court number 1859840.
Relator has also filed a motion for temporary stay of proceedings below. See Tex. R. App. P. 52.8(b), 52.10. On October 30, 2024, relator asks this court to stay the October 14, 2024 order granting real party's in interest motion for production of Brady information in the trial court pending a decision on the petition for writ of mandamus.
It appears from the facts stated in the petition and motion that relator's request for relief requires further consideration and that relator will be prejudiced unless immediate temporary relief is granted. We therefore GRANT relator's motion and issue the following order:
We ORDER the October 14, 2024 order granting real party's in interest motion for production of Brady information in trial court cause number 1859840, STAYED until a final decision by this court on relator's petition for writ of mandamus, or until further order of this court.
In addition, the court requests Brian Bermudez, the real party in interest, to file a response to the petition for writ of mandamus on or before November 19, 2024. See Tex. R. App. P. 52.4.
MEMORANDUM CONCURRING OPINION ON ORDER
Charles A. Spain, Justice
I concur in granting the State's motion for temporary relief.
After the motion was filed, this court-by letter from the clerk of the court-inquired if the State had requested a stay from the trial court until this court ruled on the petition for a writ of mandamus. The State responded and seemingly assumed that this court thinks that granting temporary relief is predicated on preservation in the trial court. It is not, the State is correct, and that is not the point.
Speaking generally, a party that seeks a stay of a trial court's order while an original proceeding is filed in the appellate court should ask for a stay from the trial court before requesting temporary relief from the appellate court. Why? Because the trial court is in a far better position to determine the scope of the stay having-if necessary-the ability to conduct an adversarial hearing on that matter and resolve disputed facts.
What the appellate court does not know about the underlying litigation before the appeal is submitted is legion. And it is not the appellate court's job to look for facts to support arguments that the movant did not make.
Much harm can result when the appellate court unthinkingly grants too broad a stay. And it is ultimately the job of the trial court-not this court-to reach a final disposition in the underlying litigation.
From the perspective of an effective advocate, if the trial court denies a reasonable request for temporary relief during the pendency of an original proceeding, then the trial court should not be surprised when the appellate court grants a stay. And it certainly makes a compelling argument when the advocate states that the trial court either denied a reasonable stay or the record demonstrates that requesting a stay would be pointless.
Good advocacy would be to ask the trial court for a stay before coming to an appellate court for relief, even if the rules do not require it.