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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.

Thursday, July 4, 2013

Reasons Why Texas State Litigants Who Seek Mandamus Often Don't Get It

Mandamus is one of the extraordinary writs by which a higher court can mandate to a lower court. To seek it is an original proceeding, not an appeal. It's form is that it is a lawsuit against a trial judge, an appeals court or a government agency. Applying for mandamus can really anger a trial judge because the judge is a respondent, acting in the proceeding pro se or through counsel. A party can apply for a writ of mandamus even though it has not gotten a final judgment. The party seeking the mandamus is the applicant or movant, and a party affected by the application that did not seek it is called a real party in interest. The respondent in an application to Texas Supreme Court or the Texas Court of Criminal Appeals is either a court of appeals or a government agency.
From In re TXU Elec. Co., 67 S.W.3d 130,132 (Tex. 2001)Mandamus is an extraordinary remedy available "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994). Thus, mandamus will not issue absent "compelling circumstances." Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996).
What does this mean? First of all, if what the party is complaining about could be adequately remedied by appeal, then mandamus should not issue. A mandamus will issue for an important discovery dispute, but not for an improper jury charge, for example. Second, what the party wants the court or agency to do must be something that it is absolutely clear that the court must do. It is not for complaining about bad judgment calls by courts, but for complaining about things that it is clear that the court has a duty to do.
If a higher court grants a writ of mandamus, it often does so in an unusual way that we will discuss in a later post.

17 comments:

  1. A friend pointed out that the unusual case of In re State of Texas ex rel. David P. Weeks the Court of Criminal Appeals granted mandamus to let totally plugged-in Walker County District Attorney David P. Weeks (County Seat Huntsville) to get the jury charge he wanted from District Judge Kenneth Keeling in a high-profile prison-escape capital-murder trial.

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  2. Does that mean that in a case where I have requested records under the Texas Public Information Act, and the gov't entity is not providing them, that I would have to show why I needed these records so urgently that I could not utilize the established complaint procedure? And if the reason for the urgency is that I need them to be able to convince an attorney to take my case, and the SOL is about to run, do you think that would be good enough?

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    1. No. It is extremely rare that the reason a person needs records under the Texas Public Information Act affects the production of the records. Your rights under the Act are statutory, neither federally constitutional nor state constitutional nor equitable. If the Texas agency's denial of records conforms to the statute, then that agency does not have to produce them. If the agency denies them in a way contrary to the statute, you have recourse to a court. But the issue there will be whether or not the agency followed the statute. And mandamus-- what the post above is about-- is hardly ever the proper vehicle for relief like this, because-- at least in theory-- mandamus is only available for a government agent who has failed to execute a clear duty. In a case like yours, it is near certain that the agency is going to say either that you clearly have no right to the documents, or that your right to have them is not clear, and therefore needs to be litigated in a straight-up trial.

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    2. They are ignoring the request. That is a violation of statute, and creates a presumption that they are public records. There are two avenues of recourse, provided by law. One, a writ of mandamus, or two, file a complaint with the county/district court, give them 31 days to act, then file it with the OAG, give them 31 days to act, then if either of them decide to take the case, they then give the entity 4 days to cure the complaint. If an agency wants to legally withhold records, they need to file a request for an opinion with the OAG, with strict time limits. They know this, but failed to do so. So, given that the statute provides two remedies, and you are saying that mandamus is only for those with no other recourse, I was wondering if, in a case such as this, where mandamus is listed as one of two possible remedies, if the courts would reject a mandamus action. thank you.

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    3. You are right. If the statute provides for mandamus, then it is more likely that the expansive view of mandamus would be taken, and a relator would not be pressed hard to show that there were no other options to get the relief. If I had the time-- and I understand that you may not-- I would generally be inclined to use mandamus as a last resort, because there is authority that mandamus is very limited, and I'd be concerned that a hostile judge would just invoke that old language, and I'd just be out of luck, where declaratory relief, and, to a lesser extent, injunctive relief doesn't have that problem.

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  3. Thanks for sharing your thoughts with us about the texas they are really interesting.. I would like to read more from you.
    Disaster Relief Texas

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  4. Would a writ of Mandamus be appropriate to stop the PUCT from dismissing complaints for failure to grant relief. Subchapter M 13.505 specifically grant the PUC enforcement authority to grant relief including civil penalties to tenants in contested cases against their landlords, but the PUC simply dismiss the cases siting they lack enforcement authority. The statue clearly express and imply the PUC has enforcement authority. The PUCT is writting their own law rather than enforcing the law written by Legislature.

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    1. It does not seem unreasonable to me that the PUC's authority is limited to utility rate changes and other regulatory actions (Tex. Util. Code Ann. § 13.003(a) (West 2016), matters that a landlord qua landlord has no more power over that a tenant would. To be enforced under mandamus, a state actor's duty must be ABSOLUTELY clear. A straight up civil suit against the landlord for a tort or a contract breach makes more sense to me.

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  5. What is your option if the situation is the same as above, but the entity is not a governmental agency - not subject to the PIA? It's a subdivision POA that doesn't fall under Government Code 552.

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    1. An equitable action or lawsuit against the POA. No mandamus jurisdiction against a nongovernmental actor. Corporations, etc. are subject to a writ called quo warranto, which, in some cases, may provide parallel relief to mandamus or prohibition.

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  6. Can you file a petition for writ of mandamus prior to the completion of the trial transcript--like a shell petition? And if so, can you request emergency relief on the basis of that petition?

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    1. Yes, though it doesn't seem to me like a shell petition. In a petition for a writ of mandamus, affidavits or unsworn declarations under penalty of perjury are the "record." The opinion can be pretty well get you immediate relief.

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  7. There are a number of so-called sanctuary cities which refuse to apply Federal immigration laws and do not allow their police authorities to enforce the laws. Can a third party, or even the Federal Government apply for a writ of mandamus to require the laws be followed and what are the penalties if there is continued refusal.

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    1. Mandamus doesn't appear to me to be the vehicle for this. Mandamus is only supposed to be available for a ministerial act, an act where the duty to act is so clear, forcing execution of that duty should not be controversial.
      What peace officers ought to do any given situation may be disagreed about by reasonable people, and a number of actions might be legally appropriate. Prosecutors also have broad discretion about how to discharge their duties.
      One maxim of equity would be that generally equity will not require enforcement of law, since that would be supererogatory. The law already commands obedience to the law, and equity may be in tension with law, but does not really contravene it. There are sometimes statutes which punish failure to enforce the law, but the real relief is supposed to be in electing executives (law enforcement officials) who will do their jobs.

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  9. Bob,

    What do you think about writs of mandamus vs declatory judgement in this situation below?

    I was erroneously charged and arrested by an agency for an F3 UCW. I was NOT a felon and my FFL from BATFE (amongst other evidence) proved this. I pulled all the records and the detective used his "good faith" statement in an obvious later report supplement to avoid 1983. To add insult to injury, he then brought me up on an MA UCW. While that was dismissed, the agency wrapped up all reports into the MA and left me hanging with an F3 arrest with no disposition or court data to apply for expunction. While I'm confident I'll win the 1983, it's not about money - I just want the F3 to get expunction but the agency that brought it forth had a municipal magistrate sign it, rescind it and left it in limbo without sending it to DA intake. I need to file an expunction and I'm wondering which will be more effective in this - a writ of mandamus perhaps or a declaratory judgement. It's seems bizarre that any agency can leave someone where they can't file an expunction in a county court as it wasn't presented or filed; and it's not because there's any "skin in the game here" but only because the county handles F3 cases and this municipal magistrate and his city court only handle MC cases. How nuts is this?

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    1. I'm very concerned that I don't know enough to tell you more than that a petition for expunction or nondisclosure is a trial court proceeding. I would never advise anybody with a case like yours without looking at all the papers in all relevant matters (In this blog I do not give anybody any legal advice in any way.).

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