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SUBORDINATING HABEAS CORPUS TO MANDAMUS IN THE CONTEMPT
CONTEXT
Taylor A. Horton*
I.
INTRODUCTION
On May 27, 2011, the Texas Supreme Court decided In re Reece.1 This
7–2 decision addressed two issues, one being an issue of first impression.2
The issue of first impression was “whether a trial court may hold a litigant
in contempt for perjury committed during a deposition.”3 The second (and
arguably more important) issue concerned the jurisdictional boundary
between the Texas Supreme Court and the Court of Criminal Appeals in
civil cases involving criminal contempt.4 As framed by the majority in
Reece, the second issue was “whether we should exercise our mandamus
jurisdiction to provide a forum for a civil litigant who is deprived of liberty
pursuant to a court’s contempt order, and [when] the Court of Criminal
Appeals has declined to exercise its habeas jurisdiction.”5 This Note makes
three assertions: (1) the majority correctly decided the substance of the
contempt issue; (2) the majority incorrectly decided the jurisdictional issue
by holding that the Texas Supreme Court could use its mandamus
jurisdiction to review the legality of Reece’s confinement; and (3) the
* J.D. Candidate 2013, Baylor Law School. My thanks go to Jim Chester and Greg White for
their insightful critiques of this Note. Special thanks go to my beautiful wife, Mackenzie Horton,
for her steadfast love and for gracing me with her intellect.
1
341 S.W.3d 360, 360 (Tex. 2011) (orig. proceeding). A cursory look at the underlying facts
of this case will sufficiently frame the legal issues in this Note. Reece and SB International, Inc.
(“SB”) were involved in a contract dispute. Id. at 363. Reece perjured himself during a deposition.
Id. He later admitted his actions. Id. The trial court held Reece in constructive criminal contempt
for having committed perjury during the deposition. Id. Reece challenged the confinement
imposed on him because of the contempt order. Id. This challenge spawned the Texas Supreme
Court’s opinion in In re Reece.
2
See id. at 362.
3
Id.
4
See id.
5
Id.
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majority opinion effectively obliterates the distinction between mandamus
and habeas corpus in the contempt context.
Part II briefly surveys Texas contempt law. This discussion establishes a
framework for analyzing the majority’s holding on the contempt issue. Part
II asserts that, jurisdictional questions aside, the majority’s holding on the
contempt issue is consistent with Texas and federal contempt law.
Part III takes up the jurisdictional issue and explores the contours of
the writ of mandamus as informed by the Texas Constitution, statutes, and
common law. Part III then examines the contours of the “Great Writ”:
habeas corpus. Part III ends by examining the extent to which each of
Texas’s courts of last resort possesses jurisdiction to use habeas corpus and
mandamus.
Part IV uses the context developed in Part III to analyze whether the
majority correctly decided that the Texas Supreme Court had jurisdiction to
afford relief through mandamus as a substitute for habeas corpus relief in
this case. Part IV concludes that the majority decided incorrectly.
Finally, Part V discusses the systemic issues that engendered this
controversy. These issues include: (1) the bifurcation of Texas’s courts of
last resort into civil and criminal fora; (2) the resulting division of
jurisdiction between the Texas Supreme Court and the Court of Criminal
Appeals; and (3) the Court of Criminal Appeals’ questionable choice to
“punt” this case to the Texas Supreme Court. Part V ends the Note by
suggesting some strategies for practitioners whose clients—or who
themselves—are facing jail time for criminal contempt.
II.
TEXAS’S LAW ON CONTEMPT OF COURT
A. Legal Basis and Framework for Contempt Orders
In Texas, both statutes and the common law authorize courts to use the
contempt power.6 Texas Government Code § 21.002 statutorily empowers
courts to use contempt and limits the maximum punishments a court can
impose through contempt.7 Significantly, this section does not define what
acts or omissions constitute contemptuous behavior.8 The lack of guidance
in section 21.002 regarding contemptuous behavior stands in stark contrast
6
See, e.g., TEX. GOV’T CODE ANN. § 21.002 (West 2004); Ex parte Browne, 543 S.W.2d 82,
86 (Tex. 1976) (orig. proceeding).
7
See TEX. GOV’T CODE ANN. § 21.002.
8
See id.
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to the section’s federal counterpart, 18 U.S.C.A. § 401, which provides that
contempt is only available in three general circumstances.9 The Texas
Supreme Court has suggested that even in the absence of statutory
authorization to use contempt, the remedy might still be available because
imposing contempt is “a broad and inherent power of a court.”10 Similarly,
the Texas Court of Criminal Appeals has noted that: “[C]ontempt power is
accorded wide latitude because it is essential to judicial independence and
9
See id.; 18 U.S.C.A. § 401 provides:
A court of the United States shall have power to punish by fine or imprisonment, or
both, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct
the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree,
or command.
18 U.S.C.A. § 401 (West Supp. 2012). Although the Code does not define “misbehavior,”
“disobedience,” and “resistance,” it nonetheless provides more guidance than is found in Section
21.002 of the Texas Government Code. Id.
10
See Browne, 543 S.W.2d at 86 (emphasis added). The idea that contempt is an inherent and
fundamental component of judicial authority in the federal courts has existed in American
jurisprudence for well over a century. See Ex parte Robinson, 86 U.S. 505, 510 (1873) (“The
power to punish for contempts [sic] is inherent in all courts . . . . The moment the courts of the
United States were called into existence and invested with jurisdiction over any subject, they
became possessed of this power.”); Bessette v. W. B. Conkey Co., 194 U.S. 324, 326 (1904)
(relying on Robinson for the proposition that the power to punish for contempt is an inherent
power of the federal courts); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450 (1911)
(relying on Bessette for the proposition that the power to punish for contempt is inherent in
judicial authority and noting that without this power courts are relegated to the position of “boards
of arbitration, whose judgments and decrees would be only advisory”). This old (and still valid)
line of cases articulates the reason that the power to punish by contempt is so important to both
federal and state judiciaries: without it, courts of whatever sovereign are impotent to enforce their
edicts, and judicial power becomes a “mockery.” See Gompers, 221 U.S. at 450. That the Texas
Supreme Court in Browne explicitly relied on the Gompers line of cases when saying that “[t]he
power to punish for contempt is an inherent power of a court” suggests that the Texas Supreme
Court adopts the reasoning that, even absent statutory authority, Texas courts would still possess
contempt power because it is inherent and exists independently of statutory authorization. See
Browne, 543 S.W.2d at 86; Robinson, 86 U.S. at 510–11 (noting that what appeared to be
statutory authorization to use contempt in the seventeenth section of the Judiciary Act of 1789
was, in reality, a legislative limitation on the federal courts’ pre-existing, inherent contempt
power).
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authority.”11 However, neither the courts’ broad latitude in exercising the
contempt power nor the Legislature’s failure to define contemptuous
behavior licenses unrestrained use of contempt.12
The Texas Supreme Court and the Court of Criminal Appeals require
Texas courts to exercise restraint in their use of contempt.13 As the Court of
Criminal Appeals has cautioned: “Contempt is strong medicine” fit for use
only as a “last resort.”14 Furthermore, both courts have incorporated into
Texas jurisprudence15 the Supreme Court of the United States’ admonition
that “courts no doubt must be on guard against confusing offenses to their
sensibilities with obstruction to the administration of justice.”16
Additionally, the need to treat contempt cautiously is not limited to issuing
courts. Rather, it also extends to the Texas courts that review challenges to
contempt orders through original habeas corpus proceedings. On review,
this caution manifests itself in a presumption against the existence of
contempt.17 This presumption works in favor of a relator who collaterally
challenges a contempt order through original habeas corpus proceedings.18
Therefore, although broad statutory and common law authority allow courts
11
Ex parte Daniels, 722 S.W.2d 707, 709 (Tex. Crim. App. 1987) (en banc) (orig.
proceeding) (emphasis added).
12
See In re Reece, 341 S.W.3d 360, 366 (Tex. 2011) (orig. proceeding).
13
See Ex parte Taylor, 807 S.W.2d 746, 748 (Tex. Crim. App. 1991) (en banc) (orig.
proceeding); Daniels, 722 S.W.2d at 709.
14
Ex parte Pink, 746 S.W.2d 758, 762 (Tex. Crim. App. 1988) (en banc) (orig. proceeding)
(internal quotation marks omitted); see also Willson v. Johnston, 404 S.W.2d 870, 873 (Tex. Civ.
App.—Amarillo 1966, orig. proceeding).
15
See Reece, 341 S.W.3d at 367; Ex parte Gibson, 811 S.W.2d 594, 596 (Tex. Crim. App.
1991) (en banc) (orig. proceeding) (finding that a trial judge erred by confusing “offenses to [a
court’s] sensibilities” with actual disruption of justice when he held a criminal defense lawyer in
contempt for having written a strongly worded letter to the court addressing alleged personal and
professional insults (citing Brown v. United States, 356 U.S. 148, 153 (1958))); Taylor, 807
S.W.2d at 749. Given the tendency of Texas’s highest courts to borrow from the federal law on
contempt, it is unsurprising that they would choose to import the federal limiting principles on
contempt into Texas’s jurisprudence. See supra note 10 (discussing another key example of
Texas’s importation of federal contempt law).
16
Brown, 356 U.S. at 153. The idea that the contempt power must be exercised cautiously is
longstanding in the federal system. See Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 451
(1911) (“[T]he very amplitude of the [contempt] power is a warning to use it with discretion, and
a command never to exert it where it is not necessary or proper.”).
17
See Taylor, 807 S.W.2d at 748; Ex parte Elmore, 342 S.W.2d 558, 561 (Tex. 1961) (orig.
proceeding); Ex parte White, 274 S.W.2d 542, 545 (Tex. 1955) (orig. proceeding).
18
See generally Taylor, 807 S.W.2d at 746.
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to use the contempt power, this authority is leavened by substantial
admonitions to all levels of Texas courts to use the contempt power with
restraint.19
However, these admonitions to use contempt judiciously certainly do
not obviate the wide latitude afforded courts in imposing contempt in
appropriate circumstances. Broadly stated, contempt is appropriate in
instances where a party disobeys or disrespects a court, or where his
conduct otherwise tends to impede, embarrass or obstruct the court in
discharge of its duties.20 Thus, “[t]he essence of contempt is that the
contemnor’s conduct obstructs or tends to obstruct proper administration of
justice.”21 In situations involving these types of conduct, courts may
appropriately assert their authority or protect their dignity by using the
contempt power. However, the ways in which a court may use that power
vary depending on where the disobedience or obstruction occurs. This is
why the law distinguishes between different types of contempt.
B. Distinguishing the Different Types of Contempt
Contempt orders are classified as either “civil” or “criminal” based on a
court’s motive in issuing the contempt order.22 If a court’s motive is
punitive, the contempt is classified as “criminal.”23 A court will hold
contemnors in criminal contempt when they have completed actions that
affront the court’s dignity or authority.24 However, if a court’s motive is to
coerce compliance with a court order, the contempt is classified as “civil.”25
19
See generally id.
Reece, 341 S.W.3d at 366; see also Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995)
(orig. proceeding) (broadly defining contempt as “disobedience to or disrespect of a court by
acting in opposition to its authority.”); Ex parte Krupps, 712 S.W.2d 144, 149 (Tex. Crim. App.
1986) (en banc) (orig. proceeding) (using the general definition of contemptuous behavior found
in Norton (citing Norton, 191 S.W.2d at 714)); Ex parte Norton, 191 S.W.2d 713, 714 (Tex. 1946)
(orig. proceeding) (stating that, generally, a person is guilty of contempt if his “conduct tends to
bring the authority and administration of the law into disrespect or disregard, interferes with or
prejudices parties or their witnesses during a litigation, or otherwise tends to impede, embarrass,
or obstruct the court in discharge of its duties.”).
21
Lee v. State, 799 S.W.2d 750, 752 (Tex. Crim. App. 1990) (en banc).
22
See, e.g., Ex parte Werblud, 536 S.W.2d 542, 545–46 (Tex. 1976) (orig. proceeding) (citing
Gompers v. Buck Stove & R. Co., 221 U.S. 418 (1910)).
23
Werblud, 536 S.W.2d at 546.
24
Id. at 545–46 (citing Shillitani v. United States, 384 U.S. 364, 368 (1966)).
25
See Lee, 799 S.W.2d at 752; Ex parte Padron, 565 S.W.2d 921, 924 (Tex. 1978) (orig.
proceeding).
20
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Civil contempt has long been described as contempt in which the
contemnor carries the keys to release in his own pocket.26 This is so because
compliance with the terms of the order purges the contempt and ends the
contemnor’s confinement.27 A court will generally hold contemnors in civil
contempt when the contemnors have disobeyed an order of the court, and
the court feels compelled to assert and protect its authority, rather than its
dignity.28 Thus the intent of the court, not the underlying civil or criminal
character of the case, determines the characterization of contempt as being
either civil or criminal.29
Contempt orders, whether civil or criminal, are further classified as
“direct” or “constructive” based on where the contemptuous behavior
occurred.30 Contempt occurring in the court’s presence is called “direct
contempt.”31 To hold a contemnor in direct contempt, the court must have
direct knowledge of the contemptuous behavior.32 In some narrow
instances33 involving direct contempt, a court may summarily hold a party
in contempt without that party having a right to notice or a hearing.34
Contempt occurring outside the court’s presence is called “constructive
contempt.”35 Because the court in a constructive contempt situation lacks
direct knowledge of contemptuous behavior (and because there is,
correspondingly, a lower likelihood of needing to summarily address an
exigent circumstance), greater procedural safeguards are afforded the
26
Werblud, 536 S.W.2d at 545 (citing Shillitani, 384 U.S. at 368).
See id.
28
See Lee, 799 S.W.2d at 752–54.
29
See In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding).
30
See id. at 364–65; Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding).
31
Chambers, 898 S.W.2d at 259.
32
See id.; see also Ex parte Norton, 191 S.W.2d 713, 714 (Tex. 1946) (orig. proceeding).
33
E.g., In re Bell, 894 S.W.2d 119, 129 (Tex. Spec. Ct. Rev. 1995) (“Summary punishment
for direct contempt is justified only when contempt is committed in the presence of the court and
there is an exigent situation . . . [,] which requires the judge to act immediately to quell the
disruption, violence, disrespect, or physical abuse.”). Thus, a court’s authority to punish contempt
summarily does not stem from a court’s observation of contemptuous behavior alone. Ex parte
Knable, 818 S.W.2d 811, 813 (Tex. Crim. App. 1991) (orig. proceeding). Rather, the observation
of contemptuous behavior must be coupled with an exigent circumstance for a court to dispense
with the normal trappings of due process. Id. If and when the exigency dissipates, so does the
court’s right to use contempt power in a summary manner. Id.
34
Reece, 341 S.W.3d at 365; Ex parte Daniels, 722 S.W.2d 707, 709 (Tex. Crim. App. 1987)
(en banc) (orig. proceeding); see Bell, 894 S.W.2d at 130.
35
Chambers, 898 S.W.2d at 259.
27
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constructive contemnor than are necessarily afforded the direct
contemnor.36 Therefore, classifying the type of contempt at issue in a case is
not an idle exercise. A party’s procedural rights and the proper forum in
which to challenge a contemnor’s confinement depend on proper
classification of the contempt at issue.37
C. The Court’s Analysis of the Substantive Contempt Issue in Reece
Although it was improper for the Texas Supreme Court to afford
relief in this case, it correctly analyzed the substance of the contempt issue.
First, the court determined that the contempt at play in Reece was
constructive criminal contempt.38 This determination was correct because
Reece’s perjury occurred during a deposition, i.e., outside the presence of a
court.39 The court then correctly classified the contempt as criminal because
the trial judge had issued the contempt order to punish Reece for his
misconduct.40 Characterization accomplished, the court analyzed Reece’s
arguments that the trial court’s contempt order should be set aside as
invalid.41
Reece argued that (1) “a court’s constructive contempt power is limited
to situations in which a person violates a court order”; and (2) that, even if
constructive contempt is more broadly defined, a party’s actions must tend
to “obstruct, impede or embarrass the court in the discharge of its duties”
before punishment through constructive contempt is appropriate.42 The
court easily brushed aside the first argument.43 It noted that while the most
common constructive contempt scenario involves violation of a court order,
Texas case law contains ample precedent suggesting that improper actions
other than violation of a court order could properly be remedied through
36
See Ex parte Krupps, 712 S.W.2d 144, 147 (Tex. Crim. App. 1986) (en banc) (orig.
proceeding). These safeguards take the form of notice and a hearing at which the contemnor can
explain his actions. Id.
37
See infra parts III–IV.
38
See Reece, 341 S.W.3d at 365 (noting that the trial court found Reece in constructive
criminal contempt and implicitly adopting that finding for purposes of analyzing the contempt
issue).
39
Id.
40
Id.
41
Id. at 365–68.
42
Id. at 365–66.
43
Id.
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constructive contempt.44 Therefore, the court “decline[d] Reece’s invitation
to limit the boundaries of a court’s constructive contempt power in the
manner he propose[d].”45 However, the court paid much closer attention to
Reece’s second argument involving obstruction as a necessary element of
constructive contempt.46
In analyzing Reece’s second argument, the court immediately addressed
SB’s counter argument that obstruction, although a necessary element of
constructive contempt in federal law, is not required in Texas contempt
law.47 The court disagreed with SB.48 It noted that while Texas’s statutory
authority does not define contemptuous behavior, the common law of Texas
indicates that “an act must impede, embarrass, or obstruct the court in the
discharge of its duties in order to constitute constructive contempt.”49 SB’s
contention, according to the court, was simply incorrect—obstruction is an
element of Texas contempt law.50 The real question was not whether
obstruction exists as an element of Texas contempt law, but rather whether
the nature of Reece’s perjury rose to the level of an obstruction for purposes
of a constructive contempt order.51
To answer that question, the court looked to federal case law,
specifically those cases interpreting the “obstruction” element where
perjury resulted in a finding of constructive contempt.52 As the court
declared: “It is axiomatic under federal law that perjury alone is not a
ground for contempt unless the conduct also obstructs the court in the
performance of its duties.”53 The court string-cited two Unites States
Supreme Court decisions and a Fifth Circuit decision, all of which
supported the proposition that perjury alone cannot be grounds for
contempt.54 Based on this direct support from federal law, the court held
44
Id.
Id. at 366.
46
See id. at 366–68.
47
Id. at 366. SB was Reece’s adversary in the underlying civil litigation that gave rise to this
case. Id.
48
Id.
49
Id. at 366–67.
50
See id.
51
See id. at 367–69.
52
Id. at 367.
53
Id.
54
Id. The cases that the Texas Supreme Court cites directly address whether perjury alone can
be the basis for a contempt order. See In re Michael, 326 U.S. 224, 228 (1945) (holding that
45
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that in Texas, “perjury committed during a deposition does not alone
constitute constructive contempt.”55 The majority held that the perjury had
to “actually obstruct a court in the performance of its duties” to serve as the
basis for constructive contempt.56
The majority’s decision begs a question: How can other behavior that
alone serves as grounds for contempt—violating a court order, for
instance—be reasonably distinguished from mere perjury during the
discovery process? Facially, it seems that mere perjury is as much of an
obstruction to a court’s duties as are other bases of contempt.57 However,
the court relies on an observation of the United States Supreme Court for
guidance in distinguishing mere perjury.58 The United States Supreme
Court has noted that:
All perjured relevant testimony is at war with justice,
since it may produce a judgment not resting on truth.
Therefore, it cannot be denied that it tends to defeat the sole
ultimate objective of a trial. It need not necessarily,
however, obstruct or halt the judicial process. For the
function of trial is to sift the truth from a mass of
contradictory evidence, and to do so the fact finding
tribunal must hear both truthful and false witnesses.59
Characterizing the duty of a court as “sifting” truth from falsehood
allowed the United States Supreme Court to distinguish mere perjury from
other misbehavior that, without more, can form the basis of contempt.60 If
the court’s duty is to sift truth from falsehood, how can falsehood in the
perjury alone does not constitute an obstruction that justifies contempt); Ex parte Hudgings, 249
U.S. 378, 382–83 (1919) (same); Matusow v. United States, 229 F.2d 335, 341 (5th Cir. 1956)
(finding it “well settled” that proof of perjury alone cannot support contempt). These cases imply
that there are two sorts of perjury: (1) perjury the nature of which does not rise to obstruction
(called “mere perjury” in this Note); and (2) perjury the nature and effect of which is
obstructionist (called “obstructionist perjury” in this Note). See Michael, 326 U.S. at 228;
Hudgings, 249 U.S. at 383; Matusow, 229 F.2d at 341. The key inquiry seems to be whether the
false swearing at issue effectively derails judicial proceedings.
55
Reece, 341 S.W.3d at 367.
56
Id.
57
For a discussion of the traditional bases of contempt, see generally 13 TEX. JUR. 3d
Contempt § 11 (2011).
58
See Reece, 341 S.W.3d at 368.
59
In re Michael, 326 U.S. 224, 227–28 (1945), quoted in Reece, 341 S.W.3d at 368.
60
See Reece, 341 S.W.3d at 368.
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form of mere perjury obstruct the court in its duties any more than
falsehood stemming from innocent mistake? The very purpose and duty of
the court is to process falsehood in the search for truth.61 However, behavior
such as defying a court order or engaging in obstructionist perjury hampers
the judicial system in a materially different way than does than mere
falsehood. The former behavior causes a breakdown in a court’s power and
procedure. When parties fail to carry out the commands of a tribunal or cut
off avenues of inquiry through obstructionist perjury, courts cannot function
procedurally or exert their power. This breakdown can obstruct or
completely halt the judicial process—the sifting of truth from falsehood.
This is the sort of obstruction rightly punishable by contempt. However,
mere perjury, like that at issue in Reece, simply does not rise to that level.62
III. A SURVEY OF TEXAS LAW GOVERNING THE WRITS OF
MANDAMUS AND HABEAS CORPUS
A. The Essence of the Jurisdictional Issue in Reece
Although Reece presented the Texas Supreme Court with a novel
question of contempt law, the most important aspect of the court’s decision
concerned the jurisdictional boundary between itself and the Court of
Criminal Appeals.63 The heart of the jurisdictional issue was quite simple:
which court had proper jurisdiction to decide the validity of the contempt
order issued against Reece, and which writ—habeas corpus or mandamus—
was the proper remedy?64 This seemingly simple question is a legal
minefield. Unfortunately, the Texas Supreme Court’s answer has raised
more questions than it has resolved.
61
See id.
See id. at 367 (holding that on the record before it, the court could not find that Reece’s
perjury was obstructionist).
63
See id. at 389–391.
64
Id.
62
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B. Mandamus, Texas Style: An Overview of Texas Law Governing
the Writ of Mandamus
The Texas Constitution of 1876 authorizes the Texas Supreme Court to
issue the writ of mandamus65 pursuant to the direction of the Texas
Legislature.66 Article V § 3 of the Texas Constitution states:
The Supreme Court and the Justices thereof shall have
power to issue writs of habeas corpus, as may be prescribed
by law, and under such regulations as may be prescribed
by law, the said courts and the Justices thereof may issue
the writs of mandamus, . . . as may be necessary to enforce
its jurisdiction. The Legislature may confer original
jurisdiction on the Supreme Court to issue writs of . . .
mandamus in such cases as may be specified, except as
against the Governor of the State.67
Thus, the Texas Supreme Court’s mandamus power has deep roots
anchored in Texas’s legal foundation.68
The Texas Legislature, exercising the power granted it in Article V
§ 3, lodged original mandamus jurisdiction in the Texas Supreme Court.69
This grant of jurisdiction is found in § 22.002(a) of the Texas Government
Code, which states:
65
“Mandamus” is Latin for “we command,” which is fitting since the writ’s purpose is
“compelling performance” of an act. STEVEN H. GIFIS, BARRON’S LAW DICTIONARY 325 (6th ed.
2010). However, because of the strong-arm nature of the writ—and sometimes because the
issuance of mandamus is affirmatively barred by law—some courts avoid issuing mandamus
outright. See, e.g., Reece, 341 S.W.3d at 377. Rather, these courts coerce the lower courts in a way
that allows the lower court judges to save face. Id. The issuing court will express its confidence
that the lower court will comply with the principles espoused in the issuing court’s opinion and
state that mandamus will only issue to compel obedience if the lower court does not honor the
opinion. See, e.g., id. (“We are confident the trial court will comply, and our writ will issue only if
it does not.”). For a discussion of this tendency in the federal system in the context of § 1292(b)
certification, see Mackenzie M. Horton, Note, Mandamus, Stop in the Name of Discretion: The
Judicial “Myth” of the District Court’s Absolute and Unreviewable Discretion in § 1292(b)
Certification, 64 BAYLOR L. REV. 976, 990 (2012).
66
TEX. CONST. art. V, § 3..
67
Id. (emphasis added).
68
See Oakley v. State, 830 S.W.2d 107, 109 (Tex. Crim. App. 1992) (en banc) (describing the
Texas Constitution as “the fundamental law of the State, i.e., the supreme law of the land.”).
69
See TEX. GOV’T CODE ANN. § 22.002 (West Supp. 2012)).
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The supreme court or a justice of the supreme court may
issue writs of . . . mandamus agreeable to the principles of
law regulating those writs, against a statutory county court
judge, a statutory probate court judge, a district judge, a
court of appeals or a justice of a court of appeals, or any
officer of state government except the governor, the court
of criminal appeals, or a judge of the court of criminal
appeals.70
By enacting this statute, the Texas Legislature exercised its power to
regulate the use of mandamus in two distinct ways. First, it specified the
governmental entities against which a writ of mandamus could and could
not be issued.71 Second, it circumscribed the issuance of mandamus;
however, it did not do so by listing explicit limitations.72 Rather, the
Legislature deferred to “the principles of law regulating those writs.”73
Many such principles of law have developed throughout the history of
Texas’s common law.
Originally, Texas’s common law relegated mandamus to compelling
“ministerial act[s].”74 Ministerial acts were those actions of a government
official that involved no discretion whatsoever and that were based on a
clear and definite duty.75 The party seeking mandamus to compel a
ministerial act bore the burden of proving that mandamus should issue.76 A
70
Id. (emphasis added). This is by no means the only Texas statute that speaks to the
availability of mandamus. There are numerous other statutes authorizing the issuance of
mandamus in such varied instances as:
enforc[ing] mandatory venue provisions, compel[ling] a cooperative association to file
a statutorily required report, enforc[ing] priority in setting hearings and trials in certain
multidistrict litigation, review[ing] an order appointing a guardian ad litem or directing
a guardian ad litem’s participation in litigation, or compel[ing] an employer’s
compliance with certain public employee benefit requirements.
38 TEX. JUR. 3d Extraordinary Writs § 213 (2008) (footnotes omitted). However, these statutes
are not relevant to the jurisdictional issue in Reece.
71
TEX. GOV’T CODE ANN. § 22.002.
72
See id.
73
Id.
74
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (citing Wortham v.
Walker, 128 S.W.2d 1138, 1150 (Tex. 1939) (orig. proceeding)); Anderson v. Crossenbacher, 381
S.W.2d 72, 74 (Tex. Civ. App.—San Antonio 1964, orig. proceeding [leave denied]) (per curiam).
75
See Wortham, 128 S.W.2d at 1150; Anderson, 381 S.W.2d at 74.
76
See Wortham, 128 S.W.2d at 1151.
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party met this burden by demonstrating to the courts that everything
required to trigger the official’s duty to act had been accomplished.77
Beginning in the 1950s, this narrow use of mandamus widened as Texas
courts began to conceive of the writ—if not theoretically then at least in
practice—as a flexible and powerful tool to correct “‘clear abuse[s] of
discretion’ committed by the trial court.”78
As Texas courts began to accept a more robust role for mandamus, the
common law regulating mandamus evolved.79 The case of Walker v.
Packer, decided in 1992, provides an excellent synopsis of both the
historical role of mandamus and the modern principles governing issuance
of the writ.80 The Walker court confirmed that in modern mandamus
practice both prongs of a two-pronged inquiry must be satisfied before
mandamus will issue.81 Within the judicial context, the first prong asks
whether a trial court has committed “clear abuse of discretion.”82 This
standard is met if “[the trial court] reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.”83 As the
Walker court observes: “This standard . . . has different applications in
different circumstances.”84 In the context of resolving factual issues or
issues within the trial court’s discretion, the relator satisfies this prong if it
“establish[es] that the trial court could reasonably have reached only one
decision,” but that it in fact reached a different one.85 The standard for
reviewing a trial court’s legal (as opposed to factual) determinations is far
less deferential to the trial court.86 This is because a trial court “has no
77
See Anderson, 381 S.W.2d at 74.
See Walker, 827 S.W.2d at 839.
79
See, e.g., id.
80
The court in Walker confronted a request for a writ of mandamus initiated by parents of a
brain-damaged child. Id. at 836. The parents had filed a medical malpractice action alleging that
their daughter’s brain damage was caused by defendants’ malpractice during the child’s delivery.
Id. The request for mandamus in Walker arose from the trial court’s discovery orders. Id. at 835–
36. Thus, the mandamus analysis in Walker is couched in terms of the discovery context that gave
rise to the analysis. Nevertheless, the analysis is instructive and elucidates the current use of and
two-prong test for mandamus.
81
See id. at 839–40.
82
Id. at 839.
83
Id. (quoting Johnson v. Fourth Ct. App., 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding)) (internal quotation marks omitted).
84
Id.
85
Id. at 840.
86
Id.
78
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‘discretion’ in determining what the law is or applying the law to the
facts.”87 Therefore, if the trial court clearly fails to analyze or apply the law
correctly, then it has committed an abuse of discretion that is reversible by
extraordinary writ.88 So, when a relator such as Reece seeks review of his
issue through mandamus, he will have an easier time satisfying the first
mandamus prong if he predicates his request on a perceived error of law
rather than fact.
The Walker court next addressed the traditionally problematic second
prong requiring no “adequate remedy at law, such as a normal appeal” for
mandamus to issue.89 The court affirmed that lack of adequate appellate
remedy remains a “fundamental tenet” of mandamus practice.90 Therefore,
because mandamus is an extraordinary writ, it will only issue “in situations
involving manifest and urgent necessity and not for grievances that may be
addressed by other remedies.”91 The court then addressed a part of the
second prong analysis that is highly relevant to the decision in Reece. The
court notes the existence of a lax standard articulated in Cleveland v. Ward
that courts have applied when defining “adequate” in the context of the
second prong analysis.92 The Cleveland court held that for a legal remedy to
be “adequate,” it must be “equally convenient, beneficial, and effective as
mandamus.”93 The Walker court expressly disapproved of Cleveland and all
subsequent cases applying the Cleveland standard to the extent that it was
applied to find that the added expense or delay involved with other legal
remedies justified issuing mandamus.94 Although the Walker court did not
specifically disapprove of the Cleveland standard itself, the court noted that
a literal interpretation of the Cleveland standard would have detrimental
effects on judicial system.95
87
Id.
See id.
89
Id. (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding)) (internal
quotation marks omitted).
90
Id.
91
Id. (quoting Holloway v. Fifth Ct. App., 767 S.W.2d 680, 684 (Tex.1989) (orig.
proceeding)) (internal quotation marks omitted).
92
See id. at 842; see Cleveland v. Ward, 285 S.W. 1063, 1068 (Tex. 1926) (orig. proceeding).
93
Walker, 827 S.W.2d at 842 (quoting Cleveland, 285 S.W. at 1068) (internal quotation
marks omitted).
94
See id.
95
See id.
88
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Though it provided an excellent synthesis and “clean up”96 of modern
Texas mandamus law, the court in Walker stopped one yard short of the
goal line: it failed to overrule the Cleveland standard.97 It is difficult to see
why the standard should survive. It seems to imply that as long as a legal
remedy does not have the key virtues of mandamus, then mandamus should
issue. Of course, if that were the case, the judiciary could hardly continue
calling mandamus an “extraordinary writ” because the number of instances
in which the writ could issue would increase dramatically. As long as the
Cleveland standard survives as a litmus test for the adequacy of alternative
legal remedies to mandamus, there is always the risk that it will be
imprudently applied to widen the scope of mandamus.98 In a practical sense,
this is exactly what the majority did when it decided Reece.
96
A majority of the court would later characterize Walker as an attempt to prune nearly two
centuries of Texas mandamus jurisprudence. See In re McAllen Med. Ctr., 275 S.W.3d 458, 467
(Tex. 2008) (orig. proceeding).
97
Walker, 827 S.W.2d at 842.
98
Since the court decided Walker, it has seemingly adopted another framework for testing the
adequacy of a remedy on appeal. That new framework appears to be a cost-benefit analysis in
which the costs of interlocutory review by way of mandamus are weighed against the benefits of
entertaining the petition and of affording mandamus relief. See McAllen Med. Ctr., 275 S.W.3d at
464–65 (citing In re Prudential Ins. Co. of Am., 128 S.W.3d 124, 136 (Tex. 2004) (orig.
proceeding)). The majority in Reece cited McAllen Medical Center twice; however, it did not do
so for the idea that adequacy of a remedy on appeal should be determined by a cost-benefit
analysis. The closest the majority gets to that sort of balancing test is to say that the inquiry
depends “heavily on the circumstances.” In re Reece, 341 S.W.3d 360, 372 (Tex. 2011) (orig.
proceeding) (citing McAllen Med. Ctr., 275 S.W.3d at 464)). The court in McAllen Medical
Center split on whether this cost-benefit analysis represented a break from the analysis established
in Walker. See McAllen Med. Ctr., 275 S.W.3d at 467. The majority saw this test as consonant
with the analysis in Walker, while the dissent saw it as a “sudden departure.” Id. Regardless, what
remains clear under both Walker and McAllen Medical Center is that the general two-pronged test
for affording mandamus relief is how Texas courts analyze a petitioner’s entitlement to the writ.
The court may continue to struggle with how to articulate a workable test for adequacy of a
remedy on appeal because the concept is amorphous. However, for purposes of this Note, the
analysis suggested in Walker has been developed on the assumption (arguable though it may be)
that the test articulated in McAllen Medical Center is not a departure from the one articulated in
Walker. See id.
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C. Habeas Corpus: The “Great Writ” in the Great State of Texas
The writ of habeas corpus99 holds a special place in Anglo-Saxon
jurisprudence.100 In forming a bulwark against official tyranny through
unlawful incarceration, it protects one of America’s most sacred values—
liberty. When the term “habeas corpus” is used without further
qualification, it refers to the writ of habeas corpus ad subjiciendum, one of
several writs of habeas corpus.101 It is the writ of habeas corpus ad
subjiciendum that has been reverently referred to as the “Great Writ,” and it
is that writ which is referred to in the Texas Constitution.102
Article I § 12 of the Texas Constitution highlights the Great Writ’s
importance by stating: “The writ of habeas corpus is a writ of right, and
shall never be suspended. The Legislature shall enact laws to render the
remedy speedy and effectual.”103 Article V § 5 of the Texas Constitution
lodges general habeas corpus jurisdiction with the Court of Criminal
appeals: “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
99
“Habeas corpus” is Latin for “you have the body,” which is fitting because this writ is
issued against a government entity holding an individual in custody. GIFIS, supra note 65, at
243.The writ works to compel the government actor to produce the incarcerated individual before
the court for a determination of the legality of his confinement. Id.
100
Blackstone described habeas corpus ad subjiciendum as “the great and efficacious writ, in
all manner of illegal confinement, . . . [which was] handed down to us from our Saxon
ancestors . . . [and] established on the firmest basis by the provisions of magna carta.” 4 ST.
GEORGE TUCKER, BLACKSTONE’S COMMENTARIES 131–32 (1803). The writ’s illustrious history
for purposes of Anglo-Saxon law can most certainly be traced to the Magna Carta, though some
scholars believe that analogous remedies existed as early as ancient Rome. See BRIAN R. MEANS,
POSTCONVICTION REMEDIES § 1:4 (2012).
101
38 TEX. JUR. 3d, supra note 70, § 34.
102
Id.; see TEX. CONST. art. I, § 12.
103
TEX. CONST. art. I, § 12. The Texas Legislature has taken seriously the constitutional
mandate to make the Great Writ “effectual.” For instance, the Legislature has provided that the
writ shall not be disregarded for want of form as long as it “substantially” appears to be “issued by
competent authority, and . . . show[s] the object of its issuance.” TEX. CODE CRIM. PROC. ANN.
art. 11.03 (West 2005). Furthermore, the Legislature has directed that all the provisions relating to
habeas corpus are to “be most favorably construed in order to give effect to the remedy, and
protect the rights of the person seeking relief under it.” Id. art. 11.04. The Legislature also
understood that a person’s pecuniary circumstances might impact the efficacy of the writ if a filing
fee were required; therefore, the Legislature has prohibited court clerks from demanding fees for
habeas corpus petitions. Id. art. 11.051.
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mandamus . . . .”104 As it did with the writ of mandamus, the Texas
Legislature heeded the Constitution’s call and implemented legislation
governing the Great Writ.105
The modern statutory framework regulating habeas corpus is located
in Chapter 11 of the Texas Code of Criminal Procedure.106 For purposes of
this Note, the definition of the writ of habeas corpus in Article 11.01 is
critical. The Legislature has defined the writ of habeas corpus as:
the remedy to be used when any person is restrained in his
liberty. It is an order issued by a court or judge of
competent jurisdiction, directed to any one [sic] having a
person in his custody, or under his restraint, commanding
him to produce such person, at a time and place named in
the writ, and show why he is held in custody or under
restraint.107
The Texas Legislature has further provided that “The Court of Criminal
Appeals . . . [has] power to issue the writ of habeas corpus; and it is [its]
duty, upon proper motion, to grant the writ under the rules prescribed by
law.”108
Article 11.01 confirms what has long been considered the role of the
writ of habeas corpus: compelling the production of an incarcerated
individual for a judicial inquiry into the legality of his confinement.109 It has
further authorized the Court of Criminal Appeals, in conformity with the
Texas Constitution, to issue the writ.110 In a contempt context such as the
one in Reece, a relator seeks habeas corpus review of his confinement as a
form of collateral attack against the validity of the original contempt
order.111 That order will be void if the trial court had no power to issue the
104
TEX. CONST. art. V, § 5.
See TEX. CODE CRIM. PROC. ANN. arts. 11.01–.051 (West 2005).
106
See id.
107
Id. art. 11.01 (emphasis added).
108
Id. art. 11.05.
109
See id. art. 11.01; GIFIS, supra note 65, at 243.
110
TEX. CODE CRIM. PROC. ANN. art. 11.05.
111
See Deramus v. Thornton, 333 S.W.2d 824, 827 (Tex. 1960) (orig. proceeding); see also In
re Taylor, 130 S.W.3d 448, 449 (Tex. App.—Texarkana 2004, orig. proceeding) (noting that
original habeas corpus proceedings are a collateral attack on the validity of the underlying
contempt judgment); In re Estrello, 130 S.W.3d 391, 393 (Tex. App.—Beaumont 2004, orig.
proceeding) (noting that an original habeas corpus proceeding is a collateral attack on the
105
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contempt order or if the trial court violated the contemnor’s due process
rights in issuing the contempt order.112
D. Division of Habeas Corpus and Mandamus Jurisdiction Between
the Texas Supreme Court and the Court of Criminal Appeals
Although it is true that original, general jurisdiction over mandamus and
habeas corpus lies with different high courts (mandamus with the Texas
Supreme Court and habeas corpus with the Court of Criminal Appeals),
there is, in fact, limited “crossover” jurisdiction.113 For instance, Article V
§ 3 of the Texas Constitution does more than authorize the Texas Supreme
Court to issue the writ of mandamus.114 It also states that “The Supreme
Court and the Justices thereof shall have power to issue writs of habeas
corpus, as may be prescribed by law.”115 The Texas Legislature has
authorized the Texas Supreme Court to issue the writ of habeas corpus in
situations where “a person is restrained in his liberty by virtue of an order,
process, or commitment issued by a court or judge on account of the
violation of an order, judgment, or decree previously made, rendered, or
entered by the court or judge in a civil case.”116 Therefore, the Texas
Supreme Court, in addition to enjoying original mandamus jurisdiction, also
enjoys a limited habeas corpus jurisdiction that has been tightly
circumscribed by the Texas Legislature.117 Similarly, the Court of Criminal
Appeals, though it has general habeas corpus jurisdiction, also enjoys a
limited mandamus jurisdiction.118 Article V § 5, in addition to housing
general habeas corpus jurisdiction with the Court of Criminal Appeals, also
authorizes that court to issue the writ of mandamus in criminal cases.119
With a general understanding of how mandamus and habeas corpus
function in Texas—and specifically which court has jurisdiction to issue
contempt judgment); In re Broussard, 112 S.W.3d 827, 831 (Tex. App.—Houston [14th Dist.]
2003, orig. proceeding) (citing Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967) (orig.
proceeding)).
112
See, e.g., Taylor, 130 S.W.3d at 449.
113
See TEX. CONST. art. V, §§ 3, 5.
114
See id. art. V, § 3.
115
Id. (emphasis added).
116
TEX. GOV’T CODE. ANN. § 22.002 (West Supp. 2012).
117
Id.
118
See TEX. CONST. art. V, § 5.
119
Id.
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which writ—it is appropriate to plunge into the jurisdictional thicket created
by Reece.
IV. THE JURISDICTIONAL ISSUE
A. The Majority Correctly Concluded that it Lacked Jurisdiction to
Issue Habeas Corpus
The easiest starting point—indeed the one used by the majority in
Reece—is to state what the parties and the court agreed on: the Texas
Supreme Court had no authority to review Reece’s confinement through
habeas corpus.120 Reece was confined because he was found in constructive
criminal contempt for lying during a deposition—not for violating a court
order.121 Because Reece was not “restrained in his liberty . . . on account of
the violation of an order,” the Texas Supreme Court had no authority to
exercise its limited habeas corpus jurisdiction to review the legality of
Reece’s confinement.122 This statutory language is clear and unambiguous
on its face.123 Therefore, the majority correctly interpreted the provision
using a “plain language” approach.124 Stripped of the traditional means of
reviewing a relator’s confinement, the majority found itself in a difficult
situation. So instead of directly flouting legislative intent by using habeas
corpus, the majority creatively sought to justify using mandamus to
accomplish what it was forbidden to do through the Great Writ.
B. The Majority Incorrectly Concluded that it Possessed
Jurisdiction to Issue Mandamus
The structure of the majority opinion in In re Reece is, on a macro-level,
an application of the two-pronged mandamus analysis elucidated in
120
In re Reece, 341 S.W.3d 360, 370–71 (Tex. 2011) (orig. proceeding).
Id. at 365.
122
See TEX. GOV’T CODE ANN. § 22.002 (West Supp. 2012).
123
See id.
124
See, e.g., Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002) (applying the canons
of statutory construction and noting that: “If the statute is clear and unambiguous, the plain
meaning of its words should be applied.”); Wind Mountain Ranch, LLC v. City of Temple 333
S.W.3d 580, 581 (Tex. 2010) (applying the canons of statutory construction and noting that:
“When the words of the statute are clear and unambiguous we interpret them according to their
plain and common meaning.”).
121
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Walker.125 The analysis of the substantive contempt issue forms the body of
the first-prong analysis.126 Here, the court correctly decided that the trial
court had incorrectly applied contempt law.127 So, within the mandamus
context, Reece satisfied the first-prong requirement by demonstrating the
trial court’s error of law.128 Walker deems that error an abuse of
discretion.129 For Reece, so far so good. However, to remain true to the
Walker analysis, the majority was bound to apply the second prong of the
mandamus test to determine whether Reece lacked an adequate remedy at
law.130 This is where the majority’s analysis becomes tenuous.
The most vocal dissenter, Justice Willett, accurately characterizes
the majority’s arguments for the use of mandamus in the second-prong
analysis:
(1) mandamus is generally flexible; (2) no law announces
that habeas is the exclusive remedy; (3) mandamus has
often been used to ‘gap-fill’ where there is no remedy; and
(4) our sister court [the Court of Criminal Appeals] tends to
defer to us on matters such as these [i.e., when the Court of
Criminal Appeals believes concurrent jurisdiction exists].
131
However, each of these arguments is, at best, only partially persuasive.
The majority’s arguments that mandamus is generally flexible and that
it has been used as a gap filler in Texas go hand-in-hand. The flexible
conception of the writ that has developed since the 1950s enables it to
function as a gap filler rather than solely as a stick to compel the
performance of ministerial duties.132 However, in order to appropriately use
mandamus as a gap filler, a gap must exist. Despite the majority’s
characterization of the situation in Reece, the case presented no such gap in
available remedies.133 The very definition of habeas corpus indicates that
125
See Reece, 341 S.W.3d at 364–77.
See id. at 364–69.
127
See id. at 369.
128
See id.
129
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
130
See discussion supra note 80.
131
Reece, 341 S.W.3d at 393 (Willett, J., dissenting).
132
See discussion supra n. 79.
133
See Reece, 341 S.W.3d at 364 & n.4. Justice Willett also focuses on the lack of gap in his
dissent by pointing out that the Court of Criminal Appeals can still act through habeas corpus
126
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the Great Writ is the exclusive remedy to challenge the legality of an
individual’s confinement.134 Habeas corpus was still potentially available to
Reece because his motion for rehearing on his petition for that writ was still
pending before the Court of Criminal Appeals when this case was
decided.135 Therefore, there simply was no gap to fill with mandamus.
Furthermore, contrary to the majority’s assertion, the statutory
definition of habeas corpus suggests that it is the exclusive remedy for
contempt resulting in confinement.136 The Texas Supreme Court has noted
that, “In construing statutes, the court’s primary objective is to give effect
to the Legislature’s intent.”137 In doing so, the court “rel[ies] on the plain
meaning of the text as expressing legislative intent unless a different
meaning is supplied by legislative definition.”138 The court “presume[s] the
Legislature selected language in a statute with great care and that every
word or phrase was used with a purpose in mind.”139 These words or
phrases are to be read “in context and constru[ed] . . . ‘according to the rules
of grammar and common usage.’”140 As previously discussed, the Texas
Legislature has codified the definition and function of the writ of habeas
corpus.141 That definition controls the interpretation of the term “habeas
corpus” and the functioning of that writ; furthermore, this definition trumps
any other understandings of what that writ might mean or do.142 The
language of that definition states that habeas corpus is “the remedy to be
used when any person is restrained in his liberty.”143 Courts should assume
that each word of this definition has meaning and was carefully selected by
the Legislature.144 Thus, when the Legislature described habeas corpus as
because Reece’s motion for reconsideration of his habeas petition was still pending before that
court. Id. at 395 (Willett, J., dissenting).
134
See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005).
135
Reece, 341 S.W.3d at 364 & n. 4.
136
See TEX. CODE CRIM. PROC. ANN. art. 11.01.
137
Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010);
see also Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (en banc) (when
interpreting statutes, the court sought “to effectuate the ‘collective’ intent or purpose of the
legislators who enacted the legislation.”).
138
Tex. Lottery Comm’n, 325 S.W.3d at 635.
139
Id.
140
Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009).
141
See discussion supra notes 99–112.
142
Tex. Lottery Comm’n, 325 S.W.3d at 635.
143
TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005) (emphasis added).
144
Tex. Lottery Comm’n, 325 S.W.3d at 635.
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“the” remedy—rather than as “a” remedy—courts should presume that the
Legislature consciously chose “the” instead of “a.” In common usage, “the”
is used to indicate exclusivity, while “a” or “an” connotes lack of
exclusivity.145 Furthermore, one of the established, non-technical definitions
of “the” is “a function word to indicate that a following noun . . . is a unique
or particular member of its class.”146 Thus, according to both common
usage and non-technical definition, the Legislature has clearly and
unambiguously indicated its intent that the Great Writ be the unique,
particular, and exclusive remedy for a person restrained in his liberty. This
argument, though simple, is nonetheless powerful. The Legislature is
entitled to be taken at its word, especially when its word is clear.
Unfortunately, the majority never undertook this analysis in Reece, and the
statutory analysis it did perform was incomplete.147
Rather than relying solely on its perceived statutory authority to do so,
the majority also tried to justify using mandamus by citing Texas case law.
However, the cases the majority cites in support of mandamus undercut its
position. The majority opinion relies on two cases: Deramus v. Thornton
and In re Long.148 The majority relies on Deramus because it “left open the
145
MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 1221, 1 (10th ed. 1997).
Id. at 1221.
147
The majority does undertake an abbreviated analysis of statutory language, but the targets
of their analysis are Texas Government Code § 22.002(a) and (e) (granting the court authority to
issue writs of mandamus and regulating the court’s power to issue habeas corpus to cases in which
a person is restrained in his liberty on account of a violation of a court order, judgment, or decree
rendered in a civil case, respectively) and not Texas Code of Criminal Procedure art. 11.01
(defining what the writ is). In re Reece, 341 S.W.3d 360, 374 (Tex. 2011). The majority cites MCI
Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 504 (Tex. 2010), for the proposition that the court
will not construe a remedy governed by statute as exclusive if such a limitation is not in the terms
of the statute at issue. Reese, 341 S.W.3d at 374 Using this logic, the majority in Reece decided
that the combined language of Texas Government Code § 22.002(a) and (e) did not prohibit the
Court from issuing mandamus in situations where a relator was restrained in his liberty. Id.
However, had the majority analyzed the statutory language of Texas Code of Criminal Procedure
art. 11.01, it might have come to a different conclusion. The limitation on the court’s power to use
mandamus to review the legality of a relator’s confinement is not rooted in the statutory grant of
authority to use mandamus or habeas as embodied in Texas Government Code § 22.002(a) and (e).
See supra notes 120–124. Rather, the controlling limitation is rooted in Texas Code of Criminal
Procedure art. 11.01, where the Legislature does make habeas corpus the exclusive remedy to
review the legality of a relator’s confinement. See supra notes 130–142. Therefore, it seems as
though the majority stopped one step short in its statutory analysis by failing to analyze Texas
Code of Criminal Procedure art. 11.01.
148
Reece, 341 S.W.3d at 370.
146
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possibility of circumstances ‘where the writ of habeas corpus would not be
adequate [to attack an order of contempt] and where mandamus would be
the proper remedy.”149 This idea, claims the majority, partially legitimates
affording Reece relief through mandamus.150 However, in the same breath,
the majority admits that previously the Texas Supreme Court had “indicated
that a petition for the writ of habeas corpus is generally the only method for
attacking an order of contempt.”151 For this contrary proposition, the
majority also cites to Deramus.152 Justice Willett aptly and abruptly pokes a
hole in the majority’s use of dicta from Deramus to justify mandamus when
he writes: “The cautious words of wise jurists intent on protecting a
hypothetical situation . . . should not be read to apply to and permit any
series of facts that follow.”153 This admonition is apt. A phrase of dicta in a
case whose ultimate holding is against the majority’s position—and in line
with other cases upholding habeas corpus as the exclusive remedy to
challenge a relator’s confinement—is likely not an appropriate foundation
for using the writ of mandamus in a novel way.
Furthermore, the majority’s reliance on In re Long is unhelpful for two
reasons: (1) the case is factually distinguishable from Reece; and (2) the
majority’s use of the case is simply an extension of its questionable reliance
on Deramus. The majority claims that the previously mentioned dicta in
Deramus had been used as the basis for issuing mandamus in contempt
cases not involving confinement.154 However, in fine-only contempt cases,
the contemnor’s liberty is not infringed upon through incarceration.
Therefore, by its own terms, the writ of habeas corpus is not at play; it
cannot issue, and it cannot be considered an alternate legal remedy when
conducting the second-prong of the mandamus analysis.155 Reece squarely
presents a different factual scenario, one in which the relator’s confinement
makes using the writ of habeas corpus possible. The majority expressly
admits this difference, which makes one wonder why the reference to Long
was necessary.156 Furthermore, the majority also concedes that appellate
courts after Deramus and In re Long had honed in on this key distinction
149
Id. (citing Deramus v. Thornton, 333 S.W.2d 824, 827 (Tex. 1960) (orig. proceeding)).
Id.
151
Id. (citing Deramus, 333 S.W.2d at 827).
152
Id.
153
Id. at 392 (Willett, J., dissenting).
154
Id. at 376 (majority opinion).
155
See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005).
156
Reece, 341 S.W.3d at 370.
150
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and held that in criminal contempt cases, habeas corpus was the proper
remedy while mandamus should be relegated to fine-only contempt
cases.157 This view is the better one because it respects the unique nature of
each writ.
The majority’s final justification for using mandamus is that the Court
of Criminal Appeals has traditionally “defer[red] to this Court in contempt
proceedings arising from civil cases before exercising its habeas
jurisdiction, even when it is less evident that this Court possesses
jurisdiction over the matter.”158 The majority is correct in its observation,
and the Court of Criminal Appeals has itself noted and embraced that
practice for policy-driven reasons.159 However, simply because the Court of
Criminal Appeals chooses to give the Texas Supreme Court the first bite at
certain apples does not mean that the Texas Supreme Court is authorized to
eat all the apples that come its way. In instances where the Court of
Criminal Appeals “punts” a case to the Texas Supreme Court because it
believes that latter court has concurrent habeas jurisdiction, it is still the
duty of the Texas Supreme Court to determine whether it does, in fact, have
157
Id.
Id. at 373.
159
Ex parte Cvengros, 384 S.W.2d 881, 882 (Tex. Crim. App. 1964) (orig. proceeding).
Cvengos cites Ex parte Mussett, 162 S.W. 846 (Tex. Crim. App. 1913) (orig. proceeding) for the
policy considerations driving this behavior. Id. In elaborating on the original policy behind
deferring to the Texas Supreme Court in cases of apparent concurrent jurisdiction, Mussett
discusses the interesting procedural history of a prior case, Ex parte Allison, 90 S.W. 492 (Tex.
Crim. App. 1905) (orig. proceeding). In Allison, the relator had been enjoined from using certain
premises in Waco, Texas as a gambling house. 90 S.W. at 493. Allison violated the injunction and
was held in civil contempt for having violated the injunction. Id. Allison sued out a writ of habeas
corpus in the Court of Criminal Appeals, but that court denied relief. See Mussett, 162 S.W. at
847. Allison then sought relief in the Texas Supreme Court, which was also denied. Id. The Court
of Criminal Appeals in Mussett notes that had the courts entered binding, but conflicting, orders
on this issue, it would have “marred” the jurisprudence of the state. Id. Therefore, the Court of
Criminal Appeals, while never disavowing its constitutional habeas corpus jurisdiction, thought it
a better policy to defer to the Texas Supreme Court in civil cases in which each Court appeared to
have concurrent habeas corpus jurisdiction. Id. at 847–48. That court noted that its actions would
not deprive the relator of his rights. Id. at 847. This logic was based, in part, on the Court of
Criminal Appeals’ reliance on a statute extremely similar to the modern Texas Government Code
§ 22.002 (e). Id. at 848. However, the Mussett court apparently failed to foresee a situation like
that presented in Reece in which a relator in a civil case is being confined, not for violating a court
order, but for behavior that constitutes criminal contempt and, thus, falls out of the Texas Supreme
Court’s habeas jurisdiction.
158
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jurisdiction to hear the issue.160 If it does not—as it did not in this case—it
must decline the case and send the litigants back to where they properly
belong.161
Ultimately, after offering the aforementioned justifications and perusing
legislative history, the Texas Supreme Court determined, incorrectly, that
mandamus was an appropriate vehicle for challenging Reece’s
confinement.162 This decision was: (1) made with no attempt to analyze the
specific language that defines habeas corpus and implicitly limits
mandamus; (2) based largely on a phrase of dicta in a case whose holding
was contrary to the majority’s position; and (3) arrived at over the wellfounded statutory arguments propounded by Justice Willett. Most
incredibly, the majority glossed over the fact that Reece had recourse to
habeas corpus through a pending petition for rehearing in the Court of
Criminal Appeals.163 Rather, it stated that Reece had “no other procedural
safeguards to challenge his confinement” and simply assumed that if it took
no action, the Court of Criminal Appeals would fail to exercise its
jurisdiction.164 So although the majority never says it, and despite the
court’s disapproval of the lax Ward test for “adequacy” of appellate
remedy, the spirit of that test seems very much alive in the way that the
majority approached their analysis in Reece.
V.
HOW TEXAS GOT HERE AND WHAT TO DO ABOUT IT
A. The Effect of Reece on Mandamus and Habeas Corpus
The decision in Reece works violence to the writ system. At least in the
context of contempt law, the majority’s holding obliterates the distinction
between mandamus and habeas corpus by allowing the former to subsume
the latter’s functions.165 The net effect of the majority’s decision is to
authorize the use of mandamus to challenge the legality of a relator’s
confinement. As discussed above, this is the legislatively established
160
See Reece, 341 S.W.3d at 401–02 (Willett, J., dissenting).
See id.
162
Id. at 374 (majority opinion).
163
The majority does mention this fact, but they bury it in a footnote and never take up the
issue again. Id. at 364, n.4.
164
Id. at 376.
165
See id. at 391 (Willett, J., dissenting).
161
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province of habeas corpus, not mandamus.166 Justice Willett hones in on
this key result of the decision when he writes: “[I]ssuing mandamus when
we are clearly not permitted to issue habeas . . . [does] a disservice to the
framework differentiating the two, as well as to the jurisdictional
structure . . . we are charged with upholding.”167 And despite the majority’s
attempt to cabin its holding,168 collapsing the functions of the two writs into
one will likely cause an upsurge in duplicative writ filings, an increase in
“litigant shuffling” between the Court of Criminal Appeals and the Texas
Supreme Court, and general confusion among practitioners and lower
courts who have long understood the roles of mandamus and habeas corpus
to be distinct.169 Quite simply, the rule established in this case demolishes
the basic and time-honored distinctions between such powerful devices as
the writs of mandamus and habeas corpus. Reece improperly altered the
writ system for the sake of expediency or, cast in a more cynical light, for
the sake of expanding the court’s jurisdiction.
B. The Majority Engaged in Questionable Statutory Construction
The majority’s treatment of the statutes involved in this case calls into
question the Texas Supreme Court’s commitment to implementing
legislative intent. The majority ignored the one statute that, arguably, could
have put this issue to rest: Texas Code of Criminal Procedure art. 11.01.
The majority’s treatment of Texas Government Code §§ 22.02(a), (e) was
questionable when looked at in isolation and made fatally incomplete by
failure to consider Texas Code of Criminal Procedure TEX. art. 11.01. The
single group of statutes and constitutional provisions that the majority
faithfully interpreted was the one barring the court’s use of habeas corpus to
address Reece’s problem.170 One would think that if the majority were
genuinely interested in advancing the Legislature’s intent as expressed by
statute, the majority would have been more attentive to what the statutes
actually said or fairly implied.
166
See supra part IV.
See Reece, 341 S.W.3d at 391 (Willett, J., dissenting).
168
See id. at 376 (majority opinion).
169
See id. at 398–401 (Willett, J., dissenting).
170
See id. at 370–71 (majority opinion).
167
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C. Texas’s Judicial Structure and an Error in Judgment Enabled this
Decision
Justice Willett, in his dissent, lays his finger on the precise reasons why
the Texas Supreme Court was even presented with this issue: (1) the
labyrinthine structure of Texas’s court system; and (2) an error in judgment
by the Court of Criminal Appeals.171 Justice Willett spends a large part of
his dissent bemoaning the structure of our “maligned” Texas court
system.172 While the majority is likely correct in asserting that this critique
is off-base relative to the legal issues involved in Reece, it cannot be
ignored that this system is at the root of those issues.173 With the exception
of Oklahoma, Texas is the only state to employ bifurcated courts of last
resort based on criminal and civil jurisdiction.174 Texas’s courts of last
resort differ from Oklahoma’s in that Oklahoma’s civil court of last resort
has the constitutionally granted power to definitively settle jurisdictional
squabbles between itself and the criminal court of last resort.175 Neither the
Texas Supreme Court nor the Court of Criminal Appeals has a
corresponding power.176 Therefore, to the extent that each court’s grant of
jurisdiction is unclear, neither court has an obvious mechanism for
definitively settling the issue without recourse to constitutional or statutory
construction.177 Justice Willett notes that attempts to reform the abstruse
structure of the Texas judiciary have been rejected for over a century.178
Therefore, although this issue may lie at the heart of the jurisdictional
problems presented by Reece, urging change at an organizational level will
likely be unhelpful. Rather, a look at the Court of Criminal Appeal’s actions
in this case may lead to more immediate change.
The Court of Criminal Appeals enabled the erroneous decision in
Reece by misunderstanding the Texas Supreme Court’s jurisdiction and by
relying on a practice of transferring cases to that court in instances of
171
See id. at 378 (Willett, J., dissenting).
See id. at 378–89. Justice Willett likens the “juris-imprudent design” of Texas’s court
system to that of a Rube Goldberg machine. Id. at 378.
173
See id. at 377.
174
Id. at 380–81 (Willett, J., dissenting).
175
Id. (citing OKLA. CONST. art. VII, § 4).
176
See id. at 381.
177
See id.
178
Id. at 385–89 (discussing the history of attempts to reform the structure of Texas’s judicial
system).
172
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perceived concurrent jurisdiction.179 The Court of Criminal Appeals
incorrectly believed that the Texas Supreme Court possessed concurrent
habeas corpus jurisdiction to review Reece’s confinement through habeas
corpus.180 Pursuant to a long-standing practice of deferring to the Texas
Supreme Court in civil cases where contempt is involved,181 the Court of
Criminal Appeals declined to exercise its habeas jurisdiction and instead
sent Reece packing to its sister court.182 The Court of Criminal Appeals
made this decision despite expressly acknowledging that it possessed
jurisdiction to hear Reece’s habeas petition.183
The decision to punt Reece to the Texas Supreme Court is at once the
most understandable and most questionable decision in the case. The
decision is understandable because the Court of Criminal Appeals’ core
competency is criminal law. On its face, that consideration alone might not
seem to justify the punt. But in reality, it provides a compelling practical
reason to shift these cases to a court that specializes in civil matters.
Assume that the Court of Criminal Appeals had exercised its habeas
jurisdiction in this case. It would ultimately have had to decide the same
issue of contempt law that the Texas Supreme Court decided—is perjury
committed during a deposition grounds for constructive criminal contempt?
However, to respond to this question—and to be able to answer this
question in the future—the justices of the Court of Criminal Appeals would
have had to understand what sort of behaviors and types of perjury would
actually rise to the level of obstruction in civil cases. Specific to this case,
these justices would have had to consider the effect of the exact perjury at
issue on depositions (which are infrequent in criminal proceedings) and
then try to divine the effect of that tainted deposition on the remainder of
the civil trial process. Thus, the Court of Criminal Appeals would have
been required to judge the obstructionist effect of contumacious actions on
proceedings that are outside its core competency. This consideration weighs
heavily in favor of “punting.”
But there is a more powerful argument against “punting.” The Court of
Criminal Appeals clearly has jurisdiction to review an individual’s
179
See id. at 363–64 (majority opinion); id. at 378 (Willett, J., dissenting).
Id. (Willet, J., dissenting).
181
See id. at 363–64 (majority opinion).
182
Id.
183
Id.
180
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confinement through habeas corpus.184 This is undisputed, and the Court of
Criminal Appeals admitted as much in its order punting Reece’s case to the
Texas Supreme Court.185 This jurisdiction was clearly established by the
Texas Constitution and elaborated upon by the Texas Legislature.186
Therefore, it is a safe assertion that the drafters of Texas’s Constitution and
the Legislature desire the Court of Criminal Appeals to review the bulk of
cases involving incarceration.187 The practice of punting civil cases
involving contempt-based incarceration to the Texas Supreme Court
dishonors the intent of the Legislature and the drafters of Texas’s
Constitution, unless the case falls within the extremely narrow exception
found in Texas Government Code § 22.002(e). Furthermore, “punting” has
the propensity to increase the litigant shuffling phenomenon so bemoaned
by the dissent in this case.188 Though “punting” is understandable, a better
practice would be to stop. If the Court of Criminal Appeals is presented
with a proper habeas corpus petition, it should simply exercise its
jurisdiction to review the confinement. Doing so would save litigants’
resources by avoiding a court hunt and would better honor the intent of the
Legislature.
Another reason for the Court of Criminal Appeals to abandon this
“punting” practice is because the Texas Supreme Court has backed the
Court of Criminal Appeals into a corner with its holding in Reece. The
Texas Supreme Court has, in effect, manufactured concurrent jurisdiction in
every case involving legal challenges to a person’s contempt-based
confinement by reading into mandamus a power previously reserved to
habeas corpus. Thus, if the Court of Criminal Appeals were to continue to
punt cases where there was arguably concurrent jurisdiction, it would have
to send every contempt-based confinement challenge to the Texas Supreme
Court. After all, if that court can do through mandamus what used to be the
Court of Criminal Appeals’ job via habeas corpus, a strict adherence to the
punting practice dictates that the Court of Criminal Appeals should defer to
its sister court in those matters. This untenable result is another indication
184
TEX. CONST. art. V, § 5; TEX. CODE CRIM. PROC. ANN. art. 11.05 (West 2005).
Reece, 341 S.W.3d at 364.
186
TEX. CONST. art. V, § 5; TEX. CODE CRIM. PROC. ANN. art. 11.05.
187
But see TEX. GOV’T CODE ANN. § 22.002(e) (West 2005) (creating a small carve-out
allowing the Texas Supreme Court to use habeas corpus to review a relator’s confinement if the
confinement is a result of violation of a court order, judgment, or decree rendered by a court or
judge in a civil case).
188
Reece, 341 S.W.3d at 399 (Willett, J., dissenting).
185
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that the Texas Supreme Court’s decision to appropriate the powers of
habeas corpus by absorbing them into mandamus is problematic.
D. How Texas Practitioners Should Proceed in the Wake of Reece
Hopefully, no one reading this Note will have to deal with a contempt
order, either personally or for a client. But if a practitioner or a client is held
in contempt and incarcerated, what is the best way to proceed in light of
Reece? Despite the majority’s attempt to cabin its holding, Reece seems to
offer “two bites at the apple” for challenging a confinement based on
contempt. There are at least two distinct ways for a litigant to claim his
“two bites.” The first is to simultaneously initiate original petitions for
habeas corpus and mandamus. The petition for habeas corpus should be
filed because it is still the proper remedy to challenge the legality of
confinement. The petition for mandamus should be filed in case the Court
of Criminal Appeals continues to adhere to its “punting” practice and ceases
to review habeas petitions arising out of civil cases. The second way is to
engage in forum shopping. Justice Willett highlights this possibility when
he notes that as a result of the majority’s holding relators can choose which
forum will yield the most favorable result and style their petitions as either
mandamus or habeas corpus depending on the forum they want.189
The majority would likely disapprove of these tactics and point to its
cabining language.190 It would say that immediately pursuing a writ of
mandamus before seeking a writ of habeas corpus is incorrect procedurally.
That possible critique at least jives with the cabining language. However, it
is inconsistent with the effect of the majority’s holding. That effect is to
merge the powers of habeas corpus into mandamus. If the writ of
mandamus is inherently effective to review the legality of a relator’s
confinement, it seems wasteful for the Texas Supreme Court to insist that
relators first seek habeas relief in the Court of Criminal Appeals. This is
especially true if the Court of Criminal Appeal abides by its punting policy
because, in light of the concurrent jurisdiction that the Texas Supreme
Court has manufactured, all instances of confinement occasioned by
criminal contempt will simply be shuffled from the Court of Criminal
Appeals to the Texas Supreme Court. By forcing a relator to first route his
issue through the Court of Criminal Appeals, the Texas Supreme Court
would be imposing a needless restraint on litigant behavior because the
189
190
Id. at 400.
See id. at 376 (majority opinion).
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issue will wind up before the Texas Supreme Court anyway. Furthermore, if
a relator were to forum shop rather than seek relief through both writs
simultaneously, where is the procedural problem? If the relator seeks
habeas relief, he is standing on legal bedrock to the extent that habeas
corpus has been, and still is, recognized as a proper remedy for reviewing
the legality of his confinement. If the relator seeks review of his
confinement through mandamus, how is that procedurally or substantively
incorrect when the majority has held that mandamus has the inherent power
to offer relief to those seeking review of the legality of their confinement?
Simply put, the majority has built a hollow cabin: it has procedural walls
but no substantive core.
VI. CONCLUSION
In re Reece presented the Texas Supreme Court with novel jurisdictional
issues and questions of contempt law. Although the court correctly decided
the contempt question, it should never have gotten that far. For, quite
simply, the court lacked jurisdiction to review the legality of Reece’s
confinement. The Texas Legislature had barred the court from reviewing
Reece’s confinement through the writ of habeas corpus—the traditionally
and legislatively recognized remedy for such review. Frustrated, the Texas
Supreme Court did an unwise thing: it exercised its mandamus jurisdiction
to do an end-run around the Legislature. Ultimately, the majority’s holding
has created a monster: a writ of mandamus that has eaten and subsumed the
powers of the Great Writ. What implications this will have for the writ
system generally—and for Texas practitioners, specifically—remain to be
seen. But what is certain is that in sacrificing a carefully crafted writ system
for expediency, the Texas Supreme Court has created a rift in the way
mandamus and habeas corpus interact in the contempt context.