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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, April 8, 2013

What Are Extraordinary Writs?

Practicing law was more difficult about 70 years ago than it is now. Before the Federal Rules of Civil Procedure, which arose in the 1930s, there wasn't just one form of "civil action". To get any kind of relief in a court, you had to apply under the form of one of the medieval common-law writs. The forms of these writs were complicated and exacting. Their forms and regulations had been established by common-law judges who basically made stuff up as they felt they needed it. To a great extent, when the feds got rid of the ordinary writs,  the states followed suit and got rid of most of their writs. Even these days, lawyers who must work with old precedents have to have some understanding of the ordinary common law writs, and nearly every state has a few of them hanging around.

The writs that remain today are generally called extraordinary writs. The main ones in Texas are:

  • certiorari,
  • habeas corpus,
  • mandamus,
  • procedendo,
  • prohibition, and
  • quo warranto.

The most important ones for our purposes are habeas corpus and  mandamus. Let's get through the others briefly. Generally, certiorari is a writ by which a superior court takes a matter from an inferior court. This is the manner in which the vast majority of cases get to the United States Supreme Court. Texas county courts can also do it to justice courts in the county. In certain circumstances, especially probate matters, district courts can take cases from the county courts provided over by the county judge, who may not be a lawyer. Procedendo is the writ by which a higher court can force a  lower court to proceed to judgment, etc.  in a matter. Prohibition keeps a court, usually a lower court, writ considering a matter being considered by another court. Quo warranto allows acts of a corporation or public official to be attacked as being beyond that entity or person's powers.

By far, the most important extraordinary writs are mandamus and habeas corpus. We party had some discussion of habeas corpus in this blog, and will have some discussion of mandamus a little later

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