September-October 2013

From the prosecutor’s tool shed, the writ of mandamus

Carolyn D. Thurmond

Assistant District ­Attorney in Midland County

The purpose of this seldom-employed tool—and when you might need to use it

“The judge did what?’ I asked the agitated prosecutor who burst into my office at 3 o’clock on what had been a quiet Friday afternoon.

    “He did not have any authority to make that decision and I told him so,”1 the trial prosecutor replied. “He can’t do that, can he?”

    “He should not have done that,” I agreed.

    “Well,” my exasperated coworker replied, “what are you going to do about it?”

    Thus was my introduction to the rarely used tools in the prosecutor’s tool shed, the writ of mandamus and writ of prohibition. I have worked as the appellate attorney for felonies at the Midland County District Attorney’s Office for only a couple of years. The prosecutors in the office didn’t have much familiarity with the extraordinary writs, and our form bank was bare of writs filed by the State. So I dove in to do my own research on these two writs, and I’ve been asked to share what I learned with other prosecutors. In this article, I will not cover all of the details of the writ of mandamus, but rather I’ll offer some suggestions for your consideration before you employ this tool.

Where to begin?

I needed an instruction manual for this mandamus, so I reached out to colleagues for advice and forms. The State Prosecuting Attorney’s Office (SPA)2 represents the State in all proceedings before the Court of Criminal Appeals, and I thought maybe they had dealt with extraordinary writs. I learned the SPA does not customarily become involved in mandamus proceedings because they need to be filed quickly, are fact-intensive, and are required to be sworn—but the attorneys at the SPA are willing to assist by consulting on the legal issues, research, or editing.

    I next contacted TDCAA’s research attorney, Lauren Marfin, and I explained the situation to her. She provided a copy of the section about mandamus from the State’s Appellate Manual.3 It is a useful manual about the nuts and bolts of the mandamus petition and a great starting point for research. Lauren also put me in touch with David Newell, an assistant district attorney in the appellate division of the Harris County District Attorney’s Office. David provided invaluable advice as a consultant about procedure and ideas.

Writs of mandamus and of prohibition

The writ of mandamus and writ of prohibition are seldom-used tools; but, unlike a chainsaw or garden tiller, which sits in the corner of the shed collecting dust and rust until the change of season necessitates their use, the mandamus is comparable to the fire extinguisher: “a drastic remedy, to be invoked only in extraordinary situations.”4 The formal definition of a writ of mandamus is “a judicial writ issued by the proper court to the individual, official, or board to whom it is addressed, to perform some specific legal duty to which the party applying for the writ is entitled under legal right to have performed.”5 Generally, if you want to undo something the trial court or the lower court should not have done, or to compel such a court to do something it should have done—and the duty is compelled by law—the remedy is mandamus.6

    In contrast, a writ of prohibition issues to prevent the commission of a future act by the court.7 It does not undo, nullify, or review an act already performed.8 A writ of prohibition directs a lower court to refrain from doing some act, while a writ of mandamus commands a lower court to do some act.9 A writ of mandamus is more common than a writ of prohibition. (In the case presented to me on that Friday afternoon, the trial judge pronounced an order but had not yet prepared the paperwork to enter the order. I considered filing a writ of prohibition prior to entry of the order, but the trial court completed the paperwork before I finished my research. Thus, the writ of mandamus became my tool of choice.)

    One should keep in mind in the course of preparing the writ and research on a particular issue that the issuance of a writ is never a matter of right but rests with the sound discretion of the court.10 The Court of Criminal Appeals discourages the writ of mandamus except in the extraordinary situation.11

Requirements for a writ of mandamus

Mandamus relief may be granted if the relator can demonstrate that 1) the act sought to be compelled is purely ministerial, and 2) the relator has no other adequate legal remedy.12 The Court of Criminal Appeals further defined the ministerial act requirement to be one in which the relator “has a ‘clear and indisputable right to the relief sought,’ and the merits of its legal position are ‘beyond dispute.’”13
No adequate remedy at law. While the existence of a “ministerial act” is the first prong of the mandamus test, I recommend starting any analysis by first determining whether another tool is available—that might typically be the appeal route. As appellate courts abhor the use of the extraordinary writ, they are inclined to say the remedy is via appeal, so the mandamus applicant must convince the appellate court that there is no other legal remedy available based on the facts of the case.

    The State’s right of appeal is authorized only in limited situations. Article 44.01 of the Code of Criminal Procedure allows the State to appeal a court order in a criminal case if the order:

•    dismisses an indictment or any portion of an indictment,
•    arrests or modifies a judgment,
•    grants a new trial,
•    sustains a claim of former jeopardy,
•    grants a motion to suppress evidence in certain cases,
•    is issued for forensic DNA testing, or
•    pronounces an illegal sentence.14

Under appropriate circumstances, the statute may not authorize the appeal, and a prosecutor may proceed with the writ of mandamus.

    Another approach to consider, even if you have a remedy at law, is whether the remedy at law is adequate in the circumstances of your case. A remedy at law, though it technically exists, “may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective to be deemed inadequate.”15 For example, in Bowen v. Carnes,16 the Court of Criminal Appeals held that the respondent judge abused his discretion to deprive the defendants of their Sixth Amendment right to counsel of choice and that the ordeal of trial and appeal were a waste of public resources. The mandamus article in the State’s Appellate Manual contains several cases in which the Court of Criminal Appeals granted mandamus relief as the remedy at law was inadequate in the circumstances.

    You may even consider filing a writ of mandamus and a notice of appeal to pursue both routes concurrently. Simply acknowledge in the writ that you also filed a notice of appeal so as not to waive appellate rights if the appellate court denies the writ. Filing the notice of appeal may undercut your argument of no adequate remedy at law, but if the writ is denied, you are still in the game.17

Ministerial act requirement. On first look, the ministerial act requirement seems like a straightforward proposition. The Court of Criminal Appeals has stated that an act is “ministerial” if it does not involve the exercise of any discretion:
[A] “ministerial” act is one which is accomplished without the exercise of discretion or judgment. If there is any discretion or judicial determination attendant to the act, it is not ministerial in nature. Nor is a ministerial act implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution.18

    However, when one begins research through the Westlaw or Lexis databases, it quickly becomes apparent that the ministerial act is an elusive concept. The additional definition of a “clear right” is also somewhat unsettled. “A clear right to relief is shown when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or caselaw sources), and clearly controlling legal principals.”19 The Court of Criminal Appeals has engendered some controversy in recent years when it added “a clear right to the relief sought” in its articulation of the ministerial act.20 There are some who believe this has liberalized the exercise of mandamus authority.21 The point is that prosecutors must do thorough research to support the argument that we have a ministerial act or clear right to relief in a given situation. Anticipate the counterpoints and give the responses in the petition.

    Although the Court of Criminal Appeals has on occasion suggested a legal issue’s status as one of first impression means the law is not well-settled, it has since clarified that an issue of first impression can sometimes qualify for mandamus relief.22 So do not give up if you are plowing new ground.

In which court should I file the petition?

If there is a clear right to relief and no adequate remedy at law, the next question is in which court to file the petition for writ of mandamus. Both the Court of Criminal Appeals and courts of appeals have jurisdiction to preside over writs of mandamus and other extraordinary writs. The state constitution is the source of the Court of Criminal Appeals’ jurisdiction:

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 as fact as may be necessary to the exercise of its jurisdiction.23

     The jurisdiction for the courts of appeals to issue writs of mandamus emanates from Tex. Const. art. V, §6, which provides, “Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.” Additionally, Government Code §22.221(b)(1) authorizes writs: “Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principals of law regulating those writs, against a judge of a district or county court in the court of appeals district.”

    There is an inclination to go through all of this effort to prepare the petition for writ of mandamus one time and just get an answer “straight from the top.” However, the Court of Criminal Appeals discourages this practice, so when a court of appeals and the Court of Criminal Appeals have concurrent, original jurisdiction over a petition for a writ of mandamus against the judge of a district or county court, the petition should be presented first to the court of appeals, unless there is a compelling reason not to do so.24 For example, in State ex rel. Lykos v. Fine,25 the respondent district court judge commenced a pretrial evidentiary hearing to declare the death penalty unconstitutional in a capital murder case. As the Texas Constitution provides the appeal of all cases in which the death penalty is assessed shall be in the Court of Criminal Appeals,26 the most judicious choice was to file that petition for writ of mandamus in the Court of Criminal Appeals.27

    If one does not get a satisfactory response from the court of appeals, then a prosecutor may file a petition for writ of mandamus against the court of appeals in the Court of Criminal Appeals. There is no remedy for a petition for discretionary review from an adverse ruling in an original mandamus proceeding.28 A court of appeals abuses its discretion when it grants a writ of mandamus absent a proper basis.29

Does anybody have a form?

For those who have made it this far, the next step is to put it all together in proper form to present the case in the best possible light—or at least avoid the petition getting tossed on a technicality. One quickly discovers there is a lack of specificity as to form, content, and procedures for a petition for writ of mandamus for a criminal matter in the Texas Rules of Appellate Procedure (TRAP). TRAP 52 provides rules for original proceedings of civil matters in the court of appeals and Texas Supreme Court, which include writs of prohibition and mandamus. Use TRAP 52 for guidance to the essential components of a petition for writ of mandamus. You may also look to a form book such as the Texas Criminal Practice Guide30 or call on a colleague who has plowed this ground before and ask for a form.

    TRAP 72 governs extraordinary matters in the Court of Criminal Appeals. If the writ of mandamus is filed in the Court of Criminal Appeals, one must also include a “motion for leave to file” a writ of mandamus as instructed in TRAP 72. This rule does not contain any guidance as to the content, form, or procedure for the motion for leave to file, but TRAP 10 contains the requisites of a motion filed in an appellate court.31 As to the form of the petition for writ of mandamus to file in the Court of Criminal Appeals, use the guidance in TRAP 52.

    You will also need to gather supporting documents to attach to the petition. This will include certified copies of any order, motion, exhibit, etc., as necessary for the facts of the case.32 An affidavit is required to verify the facts alleged in the petition and the pleadings of the documents attached as exhibits.33

    In addition, attach a reporter’s record of the hearing if pertinent to the claim for relief. Contact the court reporter to discuss how quickly the record can be transcribed, format options, and costs. You may need the transcript only of the hearing proceedings if you pursue just the petition for writ of mandamus. However, if you intend to pursue a writ of mandamus and the appeal tracks concurrently, then you may want the appeals court format, which includes a master index and exhibits attached to the reporter’s record. This second method may cost more for the initial copy, but it may be cheaper for both if the appeal route must be pursued as well.

Filing the petition

As a practical matter, check the appeals court or Court of Criminal Appeals website for basic information about filing the petition for writ of mandamus, such as number of copies, docketing statement, etc. You may also wish to contact the clerk’s office as a courtesy to let them know the petition is on its way and to clarify any of your questions. Serve copies of the petition and appendix on all the parties, including the real party in interest, i.e., the defendant.34 Remember to include a certificate of compliance as it is required for all documents filed with an appellate court.35

The appeal: a well-used tool

Much to my surprise, in the course of my research for the mandamus petition, I discovered a few recent cases that showed the Court of Criminal Appeals’s preference for the subject matter of my case to be handled via the appeals process. In other words, there appears to be an adequate remedy at law without resorting to a mandamus, so I did not get to make use of it. However, I am better prepared for the next time a judge steps outside his or her authority.

    If you decide to pursue a petition for writ of mandamus, do so judiciously. Remember that it is to be used only in extraordinary circumstances and not just with every disagreement you have with a judge. Prosecutors are charged with seeking justice, and a judge takes an oath to uphold the laws and constitution of this state36 in every case. A judge does not get holiday from that responsibility.


1 I hate to give away the ending in the first paragraph, but this case is pending on appeal so my vagueness is necessary until the outcome is final.
2 The State Prosecuting Attorney’s Office website address is
3 Although the State’s Appellate Manual was a grant-funded publication and is no longer available for purchase, in early 2014, TDCAA will publish Writs by Andréa Jacobs, which will cover all non-capital writs.
4 Landford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex. Crim. App. 1993).
5 State’s Appellate Manual, 2007-2009, “Mandamus” (2007), page 257; citing 38 Tex. Jur. 3d Extraordinary Writs, §167 (1998).
6 State’s Appellate Manual, 2007-2009, “Mandamus” (2007), page 257.
7 Id. at 258.
8 Id., citing Garcia v. State, 596 S.W.2d 524, 529 (Tex. Crim. App. 1980).
9 See Tilton v. Marshall, 925 S.W.2d 672, 676 n. 4 (Tex. 1996).
10 State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex. Crim. App. 1994).
11 Id.
12 Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim. App. 2003) (citing State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003)).
13 State ex rel. Lykos v. Fine, 330 S.W.3d 904, 907 (Tex. Crim. App. 2011) (citation omitted); State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927-28 (Tex. Crim. App. 2001).
14 Tex. Code Crim. Proc. Ann. art. 44.01.
15 In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (citations omitted).
16 Bowen v. Carnes, 343 S.W.3d 805, 813 (Tex. Crim. App. 2011).
17 See In re State ex rel. De Leon, 89 S.W.3d 195, 197 (Tex. App.—Corpus Christi 2002, no pet.) (writ denied because State had an adequate remedy at law, “which it failed to exercise in a timely manner”).
18 State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d at 927 (quoting State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987)).
19 In re State ex rel. Tharp, 393 S.W.3d 751 (Tex. Crim. App. 2012) (citations omitted).
20 See State ex rel. Young v. Sixth Judicial District Court of Appeals at Texarkana, 236 S.W.3d 207, 211 (Tex. Crim. App. 2007) (citations omitted).
21 Id.
22 In re State ex rel. Weeks, 391 S.W.3d 117, 122, n. 18 (Tex. Crim. App. 2013) (citing State ex rel. Rosenthal v. Poe, 98 S.W.3d 194-199-203 (Tex. Crim. App. 2003); State v. Patrick, 86 S.W.3d 592, 594-96 (Tex. Crim. App. 2002)).
23 Tex. Const. art. V, §5.
24 Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003).
25 330 S.W.3d 904 (Tex. Crim. App. 2011).
26 Tex. Const. art. V, §5(b).
27 See Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex. Crim. App. 2003).
28 Landford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 586 (Tex. Crim. App. 1993).
29 Id. (citations omitted).
30 See Texas Criminal Practice Guide, §4:90B.100 (Matthew Bender).
31 Tex. R. App. P. 10.
32 See Tex. R. App. P. 52.3 & 52.7(a)(1).
33 State’s Appellate Manual, 2007-2009, “Mandamus” (2007), page 269; see Tex. R. App. P. 52.3 & 52.7(a)(1).
34 State’s Appellate Manual, 2007-2009, “Mandamus” (2007), page 269.
35 Tex. R. App. P. 9.4.
36 Tex. Const. Art. XVI, §1.