in Re Michael Munk, Relator ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00299-CV
IN RE MICHAEL MUNK, RELATOR
Original Proceeding
August 15, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Relator, Michael Munk, serves as the elected district attorney for the 106th
District and has filed his petition for writs of mandamus and prohibition in relation to an
order issued by Respondent, the Honorable Carter T. Schildknecht, presiding judge of
the 106th District Court, in which Respondent allegedly expelled Relator from her
courtroom. For the reasons expressed herein, we will deny Relator’s petition for writs of
mandamus and prohibition.
Factual and Procedural History
The subject order of the instant petition seems to have had its origins in the
proceedings in trial court cause number 04-6286, styled State of Texas v. William
Jayson Ellison.1 In that case, Ellison had been convicted of driving while intoxicated—a
third or greater offense of it—and sentenced to community supervision. On two
occasions, the State had applied to revoke his community supervision based on alleged
violations of the terms and conditions of his supervision. On each of those occasions,
Respondent had modified the terms and conditions of supervision rather than revoking
community supervision and sentencing Ellison to imprisonment. At least one of these
modifications appears to have included the modification that Ellison attend a
rehabilitation facility. In the most recent of the State’s applications, it alleged that Ellison
violated the terms and conditions of his community supervision by committing yet
another offense of driving while intoxicated, this one being in Lubbock County.
Indeed, it appears that, in December 2013, Ellison was involved in a serious
collision in Lubbock County and was charged with driving while intoxicated yet again.
Apparently, the victim sustained injuries and sustained significant property damage as
well. He was charged in that case in Lubbock County and those charges were pending
when he came before Respondent on the State’s application to revoke community
supervision in the Dawson County case, trial court cause number 04-6286. In fact, trial
was to be held on the Lubbock County DWI charges within days of the revocation
hearing.
1
The 106th District includes the following four counties: Dawson, Gaines, Garza, and Lynn, two
of which are in our jurisdiction and two of which are not. We recognize that State v. Ellison is a Dawson
County case. Dawson County is not within this Court’s jurisdiction and, instead, lies within the jurisdiction
of the Eleventh Court of Appeals sitting in Eastland. See TEX. GOV’T CODE ANN. § 22.201(h), (l) (West
Supp. 2014). However, because State v. Ellison is not the underlying proceeding from which the subject
order directly arises, we do not dismiss the instant petition on the basis of lack of jurisdiction. As will be
noted later, the order at issue was entered, if at all, while Relator and Respondent were in Garza County,
a county that does lie within our geographical jurisdiction. See id. § 22.201(h).
2
Following the hearing on the State’s application to revoke in trial court cause
number 04-6286, Respondent again modified the terms and conditions of Ellison’s
community supervision to once again require him to attend a rehabilitation facility.
Relator, as the State’s prosecuting attorney, was dissatisfied with Respondent’s
decision. At this point, he commented to the Lubbock Avalanche-Journal; defense
counsel and Respondent declined to comment. Relator’s and others’ critical comments
appeared in an article published on July 8, 2014. Notably, Relator observed as follows:
“Giving someone a chance to be treated is one thing, but what this judge, [Respondent],
is doing is putting one person before the protection of the rest of society.” Josie Musico,
Lamesa Prosecutor Frustrated with Repeat Drunken Driver’s Continued Probation,
LUBBOCK AVALANCHE-JOURNAL, July 8, 2014, http://lubbockonline.com/local-news/2014-
07-08/lamesa-prosecutor-frustrated-repeat-drunken-drivers-continued-probation#.U-Jk7
7Eo7DA. He was also quoted as having commented that to permit Ellison another
chance at community supervision “would turn the court into a facilitator and [Ellison’s]
accomplice.” Id.
One week later, on July 15, Relator was at the Garza County courthouse
presenting cases to the grand jury in a part of the courthouse away from the 106th
District Court. After he was finished with the grand jury matters, Relator proceeded to
the 106th District Court and entered the courtroom “to assist with the remainder of the
criminal docket,” which apparently consisted of the non-jury criminal docket that was
being handled by assistant district attorneys from Relator’s office. Relator explains that
he was met almost immediately upon entry by Constable Eric Cravy, who informed
Relator that, by order of the district judge, Relator had to leave the courtroom. Relator
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sought clarification, and Cravy responded that “she doesn’t want to see your face” or
something to that effect, per Relator’s account of the interaction. Later, other more
specific and less polite accounts would come to light during a hearing on a motion to
recuse Respondent in another proceeding. At any rate, Relator exited the courtroom as
directed.
After Relator was disallowed from the courtroom on July 15, there were more
“less-than-flattering” newspaper articles concerning Respondent’s handling of Ellison’s
case. On July 21, Relator appeared before Respondent in trial court cause number 13-
2673, a Garza County case, styled State of Texas v. Bobby Glenn Blair. In that case,
Relator filed a motion to recuse Respondent, a motion which was heard by the
Honorable Kelly Moore, presiding judge of the Ninth Administrative Judicial Region and
the 121st District Court in Terry and Yoakum Counties, on July 23. In his motion to
recuse and citing TEX. R. CIV. P. 18b, Relator alleged that Respondent’s impartiality
might reasonably be questioned and that Respondent has a personal bias or prejudice
against Relator such that the State could not get a fair trial.
In the record of that hearing on Relator’s motion to recuse, we read witness
accounts as to what Respondent said when Relator came into the courtroom while non-
jury criminal matters were being dealt with on July 15. Witness accounts varied from “I
don’t want him in my courtroom” and “Get that [SOB] out of here” to distasteful
comments regarding Relator’s religious background and the region from which he hails.
Ultimately, Relator’s motion to recuse Respondent from the proceedings in State v. Blair
was denied; in his order denying such, Judge Moore keenly observed:
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The Code of Judicial Conduct governs the actions of judges and provides
penalties for violation of the Code. Likewise, the Texas Disciplinary Rules
of Professional Conduct governs the actions of lawyers and provides
penalties for violations of the Rules. The provisions and safeguards of
these systems of self-regulation within the legal system have been time
tested to be a fair method of settling disputes involving lawyers and
judges. The matters presented at the hearing center around the strained
relationship between the judge and the DA and not about the ability of
each side to receive a fair trial in this proceeding.
Finally, Relator has filed with this Court his petition for writs of mandamus and
prohibition, aimed at Respondent’s July 15th order by which Relator was expelled from
Respondent’s courtroom. Relator contends that, by so ordering, Respondent has
interfered with the prosecutorial duties Relator is sworn to uphold. He goes even further
to claim that “Respondent’s order has the effect of removing Relator from office.” In
support of his request for a writ of prohibition, he maintains that, given the “highly
inflammatory nature and embarrassing light . . . [of] the four new [newspaper] stories,”
the filing of the motion to recuse in State v. Blair, and the fact that Ellison was since
sentenced to six years’ imprisonment in the Lubbock County DWI case, “it is probable
there will be another illegal expulsion order from Respondent.”
Petition for Writ of Mandamus
We first address Relator’s contentions in support of his request that this Court
compel Respondent by writ of mandamus to withdraw the expulsion order of July 15.
We note that Relator candidly concedes the possibility that such request may have
been rendered moot by subsequent developments.
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Applicable Law and Standards
Mandamus will issue only to correct a clear abuse of discretion or the violation of
a duty imposed by law when there is no other adequate remedy by law. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Thus, evaluating whether
mandamus relief should be granted requires that we determine whether there has been
a clear abuse of discretion by the trial court and, if so, whether an adequate appellate
remedy exists. See id.
Relator bears the burden to properly request and show entitlement to mandamus
relief. See id. at 837. “Even a pro se applicant for a writ of mandamus must show
himself entitled to the extraordinary relief he seeks.” Barnes v. State, 832 S.W.2d 424,
426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam); see In re
Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). To satisfy
that burden, the relator must provide the reviewing court with a record sufficient to
establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Davidson,
153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see also TEX. R.
APP. P. 52.3(k) (specifying required contents for appendix), 52.7(a) (providing that a
relator must file with petition "a certified or sworn copy of every document that is
material to the relator's claim for relief and that was filed in any underlying proceeding").
If a trial court’s order is adequately reflected in the reporter’s record, a formal written
order is not essential to obtaining mandamus relief. In re Vernor, 94 S.W.3d 201, 207
n.8 (Tex. App.—Austin 2002, orig. proceeding); In re Perritt, 973 S.W.2d 776, 779 (Tex.
App.—Texarkana 1998, orig. proceeding); see TEX. R. APP. P. 52.3(k)(1)(A). If the
complained-of order is an oral order, the portion of the reporter’s record that contains
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the order must be included in the petition’s appendix. In re Bill Heard Chevrolet, Ltd.,
209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (citing In
re Vernor, 94 S.W.3d at 207 n.8).
A petition for writ of mandamus must set out clearly, fully, and unreservedly, by
direct and positive allegation, every fact necessary to show why the requested relief is
mandated. Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982) (orig.
proceeding) (en banc). A mandamus action requires certainty as to both pleadings and
facts. Johnson v. Hughes, 663 S.W.2d 11, 12 (Tex. App.—Houston [1st Dist.] 1983,
orig. proceeding). We may not deal with disputed areas of fact in a mandamus
proceeding. See West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978) (orig. proceeding).
This “stringent test of exactness” is necessary because mandamus is an extraordinary
remedy that should not issue “without careful, individual scrutiny of the facts alleged.”
Fisher v. Harris Cnty. Republican Exec. Comm., 744 S.W.2d 339, 340 (Tex. App.—
Houston [1st Dist.] 1988, orig. proceeding) (quoting Bush v. Vela, 535 S.W.2d 803, 805
(Tex. Civ. App.—Corpus Christi 1976, orig. proceeding)).
Analysis
We express some concern that Relator has failed to adequately demonstrate the
“order” of which he complains in this original proceeding, noting that the “order” was not
written, not recorded, and not issued in connection with a particular identified case.
Further, we know very little regarding the details—duration, limits, expiration, etc.—of
this oral order, even after the subsequent hearing on the motion to recuse provided
some contextual information. In this regard, we have serious concerns whether Relator
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has shown, with sufficient specificity and certainty, that he is entitled to the relief
requested. See Kopeski, 629 S.W.2d at 745; Johnson, 663 S.W.2d at 12. Following
careful scrutiny of the facts alleged, we are not convinced that Relator’s allegations in
this regard have passed the “stringent test of exactness,” a necessary hurdle before we
will issue such an extraordinary remedy. See Fisher, 744 S.W.2d at 340.
To the extent that Respondent’s directive was adequately established by the
subsequent testimony at the hearing on Relator’s motion to recuse filed in State v. Blair,
trial court cause number 13-2673, and to the extent such directive can be said to
constitute an “order” of the trial court, we must conclude nonetheless that Relator’s
contentions are moot because the “order” about which he complains is obviously no
longer in effect as demonstrated by the fact that Relator has been permitted to appear
and practice before Respondent’s court since the alleged expulsion. See Camarena v.
Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (“[A]ppellate courts do not
decide cases in which no controversy exists between the parties.”). Because the order
about which Relator complains is no longer in effect, the issues raised in his petition
have been rendered moot. See In re Campbell, 106 S.W.3d 788, 788 (Tex. App.—
Texarkana 2003, orig. proceeding); see also In re White, No. 01-10-00960-CV, 2011
Tex. App. LEXIS 3283, at *1–2 (Tex. App.—Houston [1st Dist.] Feb. 24, 2011, orig.
proceeding) (mem. op.) (per curiam).
Accordingly, we deny Relator’s request for mandamus relief.
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Petition for Writ of Prohibition
We next address Relator’s contention in support of his request that this Court
issue a writ of prohibition to prevent Respondent from entering a similar order or taking
similar actions to expel Relator from any future proceedings.
Applicable Law and Standards
We first point out that the writ of prohibition is a creature of limited purpose. In re
Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig, proceeding). The
purpose of the writ of prohibition is to enable a superior court to protect and enforce its
jurisdiction and judgments. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683
(Tex. 1989) (orig. proceeding). The writ is typically used to protect the subject matter of
an appeal or to prohibit an unlawful interference with the enforcement of a superior
court’s orders and judgments. Id. To those ends, a writ of prohibition may issue to
accomplish the following tasks: (1) to prevent interference with higher courts in deciding
a pending appeal, (2) to prevent inferior courts from entertaining suits which will
relitigate controversies which have already been settled by the issuing court, and (3) to
prohibit a trial court’s action when it affirmatively appears that the court lacks
jurisdiction. See In re Lewis, 223 S.W.3d at 761; McClelland v. Partida, 818 S.W.2d
453 (Tex. App.—Corpus Christi 1991, orig. proceeding). The writ of prohibition is
designed to operate much like an injunction issued by a superior court to control, limit,
or prevent action in a court of inferior jurisdiction. Holloway, 767 S.W.2d at 682.
In keeping with the limited purpose of the writ of prohibition, an appellate court’s
jurisdiction to issue the writ is likewise limited. See Tex. Employers’ Ins. Ass’n v. Kirby,
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137 Tex. 106, 152 S.W.2d 1073, 1073 (1941). In Kirby, the Texas Supreme Court
concluded that a petition for a writ of prohibition is an ancillary proceeding that is
invoked in aid of an appellate court’s jurisdiction which has otherwise been properly
invoked, not an independent proceeding brought to prohibit an action. See id. That
said, a writ of prohibition is appropriate only after an appellate court’s jurisdiction has
been invoked on independent grounds and then only in aid of that jurisdiction. See id.
So, an appellate court does not have jurisdiction, absent actual jurisdiction of a pending
proceeding, to issue a writ of prohibition requiring that a trial court refrain from
performing a future act. See In re Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler
2003, orig. proceeding); Lesikar v. Anthony, 750 S.W.2d 338 (Tex. App.—Houston [1st
Dist.] 1988, orig. proceeding).
Analysis
In this instance, Relator has not identified a pending proceeding over which this
Court has jurisdiction and by which this Court might have jurisdiction to issue a writ of
prohibition to prohibit a future act by Respondent. Nor have we found such a
proceeding. Simply put, it appears we have no pending jurisdiction to protect or
preserve by way of writ of prohibition. See Kirby, 152 S.W.2d at 1073. The instant case
does not present one of the limited purposes to be achieved by issuance of a writ of
prohibition and, that being the case, we lack jurisdiction to issue such extraordinary
relief. See Holloway, 767 S.W.2d at 683; In re Nguyen, 155 S.W.3d at 194.
Accordingly, we deny Relator’s request to issue a writ of prohibition in this
context.
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Conclusion
For the above-stated reasons, we deny Relator’s petition for writs of mandamus
and prohibition as it relates to the order, if any, by Respondent on July 15, 2014, by
which Relator was expelled from the 106th District Court courtroom. See TEX. R. APP.
P. 52.8(a).
Per Curiam
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