Thomas v. Stevenson , 1978 Tex. Crim. App. LEXIS 1048 ( 1978 )

OPINION

DOUGLAS, Judge.

The question presented is, does the Texas Court of Criminal Appeals have jurisdiction to issue writs of mandamus to compel speedy trials under the recent amendment to Article 5, Section 5 of the Texas Constitution?

The petitioner is an inmate in the Texas Department of Corrections serving a life sentence for the offense of attempted murder from Victoria County. On April 29, 1977, he was indicted in Victoria County for two offenses of burglary of a habitation in Cause Nos. 9025 and 9026. He alleges that detainers based upon these indictments were filed against him with the Texas Department of Corrections and that he has filed several requests with the trial court to obtain a speedy trial on these pending charges, but has received no response to his requests. He filed a petition for a writ of mandamus with the Texas Supreme Court, which transferred the case to this Court so that we might determine if we have jurisdiction to issue writs of mandamus to compel speedy trials concurrent with that of the Texas Supreme Court. See Article 1733 and 1734, V.A.C.S.

Under the Sixth Amendment to the United States Constitution, a defendant in a criminal case is entitled to a speedy trial. Defendants incarcerated in other penal institutions, outside of the demanding prosecution forum, have a right to compel the disposition of pending charges where detainers are lodged against them. See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Braden v. Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). See also Article 1.05, V.A.C.C.P.; Article 1, Section 10, Texas Constitution.

Prior to the recent amendment of Article 5, Section 5, supra, the Supreme Court of Texas exclusively issued writs of mandamus to compel speedy trials. See Articles 1733 and 1734, supra; Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969), cert. denied 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Ex parte Turman, 26 Tex. 708 (1863); Wilson v. Bowman, 381 S.W.2d 320 (Tex.1964).

The jurisdiction of the Texas Court of Criminal Appeals to issue such writs of mandamus has been previously limited by the provisions of Article 5, Section 5, supra, which provided that this Court and the judges thereof “shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue writs of mandamus as may be necessary to enforce its own jurisdiction.”

Under this constitutional provision, the Court could only issue writs of mandamus to enforce its appellate jurisdiction but not the power to issue writs of mandamus generally. See Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme, 158 Tex.Cr.R. 597, 259 S.W.2d 201 (1953); Ex parte Rubison, 170 Tex.Cr. 314, 340 S.W.2d 815 (1960); Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056 (1924); Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970); State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974); Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App.1976); Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Walker v. State, 537 S.W.2d 36 (Tex.Cr.App.1976).

However, the 65th Texas Legislature adopted Senate Joint Resolution No. 18, Acts 1977, p. 3359, which proposed to amend Article 5, Section 5. This amendment was approved by the voters of Texas and became effective January 1, 1978. It is as follows:

Subject to such regulations as may be prescribed by law, regarding criminal matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, cer-tiorari, and other such writs as may be necessary to protect its jurisdiction or enforce its judgments.” (Emphasis supplied).

The amendment when proposed was to provide the Texas Court of Criminal Appeals with additional power to grant extraordinary writs in cases regarding criminal matters.

Before the adoption of the amendment this Court had mandamus and prohibition power under the Constitution to enforce its own judgments. This authority was also inherent at common law. See State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (Tex.Cr.App.1961); State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974); Ex parte Norvell, supra; Smith v. Blackwell, supra.

We therefore conclude that the additional provisions in the amendment gave this Court authority to issue extraordinary writs including the power to issue writs of mandamus to compel a speedy trial in a criminal case.

Having determined the jurisdictional issue, it is apparent that petitioner has stated sufficient facts to raise a prima facie claim that he is being denied a speedy trial as provided for in the Constitutions of this State and the United States. It will thus be the duty of the respondent judge to set for trials Cause Nos. 9025 and 9026 at the earliest date possible consistent with the orderly performance of the court’s other duties, but not later than sixty days from the date in which this judgment becomes final. See Fariss v. Tipps, supra. Should a motion to dismiss the indictment be filed by the prosecutor and granted by the trial court, this case shall become moot, but absent such a dismissal motion, we assume that the respondent will act in accordance with the instructions set out herein, and the writ of mandamus will issue only in the event of noncompliance with this opinion.¹

IT IS SO ORDERED.

1 . In Pope v. Ferguson, supra, the Supreme Court held that it did not have mandamus jurisdiction to compel a dismissal of criminal charges, and we concur at this time with the rationale of Pope.

However, we note that as of July 1, 1978, the provisions of the new Texas Speedy Trial Act go into effect, thus specifically mandating the necessity for speedy trials in criminal cases, otherwise requiring that the indictments be dismissed or quashed. See Articles 32A.01 and 28.061, V.A.C.C.P.

We need not determine in this case whether the authority of Pope v. Ferguson, supra, will remain valid after the effective date of this new legislation requiring speedy trials. See and compare Ex parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1977); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977).