Faulder v. State ( 1980 )

ONION, Presiding Judge,

dissenting.

Appellant-relator’s motion for rehearing following this court’s refusal to grant relief on his application for a writ of prohibition is overruled without written opinion. I dissent for the reason that the question presented by the original application for writ of prohibition is now moot. The application should be denied, the opinions written on the now mooted issue should be withdrawn and the mandate in Cause No. 60,554 should issue.

Appellant Faulder was convicted of capital murder and assessed the death penalty. On appeal this court reversed the conviction. District Attorney Hill then filed a motion to stay this court’s mandate of reversal in order that he might seek a writ of certiorari under 28 U.S.C., § 1257(3), from the United States Supreme Court for review of this court’s action. Faulder filed an application for writ of prohibition to prevent Hill from seeking such review contending such action was an appeal by the State, prohibited by constitutional and statutory provisions. After concluding that this court had jurisdiction to issue a writ of prohibition if the district attorney was acting beyond his authority, the majority of the court in a 5-4 decision held that the constitutional prohibition against the right of appeal by the State in criminal cases did not prevent the district attorney from seeking review by the United States Supreme Court. There was a plurality opinion, a concurring opinion and three dissenting opinions. Relief requested was denied. The appellant-relator Faulder filed a motion for leave to file a motion for rehearing, and while said motion was pending before this court, the respondent Hill filed his petition for writ of certiorari in the United States Supreme Court. Thereafter, this court granted appellant-relator’s motion for leave to file a motion for rehearing. While said motion for a rehearing was under consideration by this court, the petition for certiorari was denied by the United States Supreme Court. The issue presented by the application for writ of prohibition is now clearly moot. Courts do not and should not act upon moot issues.

The proper disposition of the matter should not depend upon the view of the majority as to whether original application for a writ of prohibition had merit or not.

ROBERTS, CLINTON and TEAGUE, JJ., join in this opinion.

Believing that the application for writ of prohibition should be denied as the question is moot and prohibition is no longer applicable, I dissent to the action of the majority.¹

1 . Even if the plurality opinion of a previously constituted court is now published, its prece-dential value must be surely questioned under the circumstances of this case.