Interlocutory Texas State Discovery Appellate Court Relief

Texas state trial courts are less open to interlocutory (that is, non-final) appeals than their federal counterparts. A common way for an appellate issue to arise in a Texas state civil trial is a party to seek to mandamus the trial about a discovery matter-- usually a defendant's fighting disclosure. The final judgment rule prevents straight-up interlocutory appeal about this kind of thing. In order for mandamus relief to be warranted the law has to be so clear in favor of the party seeking mandamus, that the judge's duty is not one that requires any judicial discretion. The judge's duty needs to be a ministerial one-- a clerical act more than a judicial one. Additionally, the judge's failure to follow the law needs to be irreparably harmful to the party. If it is not, then there is no reason to get a mandamus-- the party could just wait until after the trial. This kind of mandamus is subject to the challenges and weirdnesses that I have discussed in at least four other blog posts.

The Nines Split a Decision re Adequacy of an Attempt to Contest a Will

Mr. Adrian V. Newman executed a will April 11, 2012 in which he disinherited one of his sons-- Kenneth L. Newman. Adrian Newman died June 17, 2012. Letters testamentary were issued as to this will per an order dated July 10, 2012. The proponent of that will caused a certificate to be filed that Adrian Newman had five children-- one of them- the proponent-had appeared in court, one of the other children waived notice and no one else needed notice. Kenneth contested the will January 31, 2013. The proponent's response to this contest had the file mark of January 10, 2013. The trial judge overruled Kenneth's contest in an order dated January 31, 2013-- the same day that Kenneth's contest was filed- saying that Kenneth's contest was wrong on the merits, that his contest lacked evidence and was "not . . . timely." Chief Justice McKeithen and Justice Horton held that Kenneth's contest was filed within the two year period for will contests and that Kenneth did not have to produce evidence in his pleading, because he had the right to a jury trial. Justice Gaultney dissented, saying Kenneth had not supported his argument that the trial judge was wrong, nor his claim of timely filing In the Estate of Adrian V. Newman, No. 09-13-00076-CV (Tex. App.-- Beaumont, July 11, 2013) (mem. op.) (McKeithen, C.J. and Horton, J.)

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July 1, 2013 Is When the New SCOTUS Rules Went into Effect

The new rules of the Supreme Court of the United States took effect July 1, 2013. Don't forget to check for changes if you have business with them.

If You Win a Mandamus, You Would Likely Get a Weird Remedy.

Okay, let's say that you have filed in an appeals court for a writ of mandamus, and you have won. The appeals court says that the trial judge or other governmental actor has to do what you told the appeals court that that person should have done. Will the appeals court issue an order for that actor to do what it told that actor to do? Almost certainly not!
Appeals courts often think that it is disrespectful to mandamused people-- elected officials, including trial judges-- to issue a written order to them like they were flunkies. So in their opinions they simply say what the order would be if it were issued. They then say that the the mandamus order will only issue if the official-- normally a trial judge-- does not correct the action on their own soon after the opinion. This is commonly called conditional issuance of the writ.
If an appeals court issues a writ of mandamus unconditionally, that means that it is angry at the ordered person. I remember having seen one, but I haven't found the case again yet.

Lawyerless Meeting Not Reversible Error As Against the Poster Child for Harmless Error

A sexually-violent-predator supervisor met with a person jailed for violating civil commitment. No lawyer was present even though the inmate had invoked his right to counsel. The Ninth Court of Appeals held that mention of that non-cooperation at his trial did not rise to the level of Sixth Amendment harmful error beyond a reasonable doubt.
Quite commonly, this kind of holding is very frustrating to a criminal defense lawyer. In this case, though, the discussion was only mentioned only once in the State's argument, and since the State plead and proved-- six, count 'em, six-- prior offenses such that he got a life sentence, and the rest of the case was pretty clearly proved, to hold that the error harmless isn't crazy. Still, I would not be surprised if the Office of Violent Sexual Offender Management never met with a represented defendant without the defendant's lawyer or a waiver ever again.
Defendant also complained of overuse of the term of "sexually violent predator" during the trial and in the jury charge. Chief Justice Steve McKeithen wrote for a panel including Justices David Gaultney and Charles Kreger.
Hat tip for this to the estimable Jim Skelton.

Malone v. State, ___ S.W.3d ___(No. 09–12–00511–CR, Tex. App.--Beaumont (Jun. 26, 2013) (no pet. h.)

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.