Opinion
NO. WR-74,472-06
05-18-2016
IN RE MICHAEL CHRISTOPHER WADE, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS FROM CAUSE NO. 41983 GRAYSON COUNTY
JOHNSON, J., filed a concurring statement in which ALCALÁ, RICHARDSON, and NEWELL, JJ., joined. CONCURRING STATEMENT
Relator asserts that he has placed a motion for expunction in the legal mail box at the Stevenson Unit for delivery to the District Clerk of Grayson County and that the District Clerk has not filed the motion. In an original application for a writ of mandamus, he asks this Court to order the District Clerk to file his motion for expunction and to set a hearing. While a writ of mandamus may be appropriate in this case, I agree that we must deny his motion for leave to file his application for a writ of mandamus.
The filing by a court clerk of a pleading is a ministerial act, and mandamus will lie if relator has no adequate remedy at law if the clerk fails to file a pleading. Benson v. District Clerk, 331 S.W.3d 431 (Tex. Crim. App. 2011).
In similar circumstances, this Court declined, absent a "compelling reason," to exercise its original mandamus jurisdiction because the court of appeals had concurrent jurisdiction, thus the mandamus application in that case should have first been filed in the lower court. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003). While the holding in Padilla refers specifically to the court of appeals, a general principle may be derived and applied to cases such as this one: applications for mandamus relief should, absent a compelling reason, be filed in the lowest-level court that has concurrent jurisdiction over the matter at issue.
Texas Constitution Article V, § 8, states,
Sec. 8. District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. District Court judges shall have the power to issue writs necessary to enforce their jurisdiction.See also TEX. GOV'T CODE § 24.011. I conclude that a district court may appropriately grant a writ of mandamus that orders the appropriate clerk to perform the ministerial act of filing a pleading.
The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.
"A judge of a district court may, either in termtime or vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas and all other writs necessary to the enforcement of the court's jurisdiction."
Jurisdiction over writs of mandamus is also granted to the Court of Criminal Appeals in the Texas Constitution, Article V, § 5(c), and in the Code of Criminal Procedure, Article 4.04, § 1. This Court does have the authority to compel a clerk to take an action, and we have done so. And we have the authority to order the district court to hold a hearing. Even so, when we do not have exclusive jurisdiction, we generally follow Padilla and require a relator to first apply to the lowest court with concurrent jurisdiction so that that court may make the necessary determinations of fact.
"Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments. The court shall have the power upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction."
"The Court of Criminal Appeals and each judge thereof shall have, and is hereby given, the power and authority to grant and issue and cause the issuance of writs of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. . . ." --------
Here, at least two levels of courts have concurrent jurisdiction to issue mandamus and order the clerk to file relator's motion for expunction. Thus, under the generalized principle from Padilla, absent a "compelling reason," his application for a writ of mandamus should be filed in the lowest court with concurrent jurisdiction, which in this case is the district court. If, as relator alleges, the clerk has received his motion and has not filed it, relator should first address his request for mandamus relief to the district court. If the district court denies his request, or fails to respond, relator may then pursue mandamus in a higher court. Filed: May 18, 2016
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