Averitt v. Gutierrez , 1978 Tex. Crim. App. LEXIS 1305 ( 1978 )

ORDER

PER CURIAM.

On this day came on to be considered by the Court of Criminal Appeals the Application for Writ of Mandamus filed herein by petitioner, Susan Averitt. Petitioner requests this Court to issue a writ of mandamus directing the Honorable J. P. “Jimmy” Gutierrez, Justice of the Peace, Precinct 1, Place 1, Bexar County and/or the Honorable Ted Butler, Judge of the 226th Judicial District Court of Bexar County to issue certain subpoenas for witnesses to appear at petitioner’s examining trial in regard to a charge for the offense of capital murder which has been lodged against her.

Petitioner states that she has attempted to subpoena at least seven witnesses to appear at said examining trial which has been scheduled in the Justice Court, Precinct 1, Place 1, Bexar County, Texas, before the said J. P. “Jimmy” Gutierrez, on Friday, June 16, 1978 at 10:00 A.M. However, Judge Gutierrez has refused to issue subpoenas for more than three witnesses, “. . . citing as his reasons for this refusal an existing policy which only allows a Defendant a maximum of three witnesses per examining trial.” Petitioner further states that the Honorable Ted Butler has ruled that the District Court has no jurisdiction to compel said Justice of the Peace to issue the requested subpoenas.

Without passing on the validity of Judge Butler’s ruling concerning the jurisdiction of the District Court, suffice it to say that this Court will not issue a writ of mandamus compelling Judge Butler to issue subpoenas for witnesses to an examining trial in the Justice Court.

As to Judge Gutierrez, the issuance of subpoenas for witnesses after proper application therefor has been filed with him in accordance with Article 24.03, V.A.C.C.P., is a purely ministerial act. It is not a matter of discretion. There is no legal limitation on the number of witnesses that can be properly subpoenaed by the state or an accused to appear before an examining court. Article 24.01, V.A.C.C.P.

Therefore, the Honorable J. P. “Jimmy” Gutierrez, Justice of the Peace, Precinct 1, Place 1, Bexar County, Texas is hereby ORDERED to forthwith issue any and all subpoenas for which application shall be made or has been made by the petitioner, Susan Averitt, or her attorney, in accordance with the provisions of Article 24.03, V.A.C.C.P., for witnesses to appear at said examining trial, without any limitations on the number of such witnesses.

And the Clerk of this Court shall forthwith issue a peremptory writ of mandamus commanding and requiring said respondent, J. P. “Jimmy” Gutierrez, so to do, all in accordance with this Order.

IT IS SO ORDERED on this 13th day of June, 1978.