In Re the State of Texas Ex Rel. Brian W. Wice, Relator ( 2023 )

In the Court of Criminal
Appeals of Texas
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No. WR-93,089-01
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In re STATE OF TEXAS, ex rel. BRIAN W. WICE,
Relator
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On Application for a Writ of Mandamus
Against the First Court of Appeals
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YEARY, J., filed dissenting opinion.
The real question before us today is whether, after venue in this
case was transferred from Collin County to Harris County, the two
judges who presided over the case in Harris County—State District
Court Judge Robert Johnson, and then State District Court Judge Jason
Luong—had any authority at all to send the case back to Collin County.
The Court’s analysis seems to place almost all of its focus on the
authority of Judge George Gallagher—the Judge who was assigned to
WICE – 2
this case in Collin County—to order the change of venue in the first
instance. See Majority Opinion at 1−2 (“The issue before this Court, on
mandamus, is whether Judge Gallagher had the constitutional and
statutory authority to preside over State v. Paxton when he granted a
change of venue to Harris County[.]”). That, I think, is a mistake. 1 0F
1 The Court observes that “Real-Party-in-Interest claimed Judge
Gallagher had no authority to preside over the case because the orders from
the regional presiding judge of the Eighth Administrative Judicial Region had
expired.” Majority Opinion at 2, n.1. “That sole issue[,]” it says, “was raised in
motions before two district judges in Harris County, the First Court of Appeals,
and on mandamus before our Court.” Id. And apparently from that, the Court
draws the conclusion that “[a]ny other grounds are not mentioned in the
record[,]” and that “[w]hat either Judges Johnson or Luong might have been
thinking is pure speculation.” Id.
My response is that this is not a direct appeal, and in this case we are
not exercising our power of discretionary review. This case involves a request
for mandamus relief—invoking our original authority to grant extraordinary
relief. TEX. CONST. art. V, § 5(c). It does not involve a request from Real Party
in Interest to do what the Harris County Judges have already done—to send
this case back to Collin County. It is a request by Relator to overturn that
decision—one that has already been made, by two different judges—before it
can be carried out, and before any appeal from a judgment can be had.
In cases like this, the proper approach is not to focus exclusively on
what the parties have argued before the trial court judge to support the entry
of the challenged order. Here, Relator has the burden to prove that there is no
valid legal argument that would justify the trial court’s actions—that the trial
court judge whose order is challenged simply had no discretion to do or to
refrain from doing the action being complained about. There must be only one
right action or refusal to act and the trial court must have done or not done it.
The burden is upon the petitioner to negate by affirmative allegation and prove
every fact or condition which would have authorized the public official to take
action sought to be enforced upon him. See Wortham v. Walker, 133 Tex. 255,
279, 128 S.W.2d 1138, 1151 (1939) (“The office of mandamus is to execute, not
adjudicate. It does not ascertain or adjust mutual claims or rights between the
parties.”); see also State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex. Crim.
App. 1985) (“[A]n extraordinary writ is an order directing a public official to
perform a duty exacted by law and will not issue to enforce a duty that is to
any degree debatable.”).
WICE – 3
It is true that Relator seeks mandamus in this Court against the
First Court of Appeals, and when we are asked to issue the writ of
mandamus against a court of appeals, this Court essentially conducts a
de novo review of the same question that was before that lower court,
paying “no particular deference to the court of appeals’s judgment with
respect to whether the relator has established the requisites for
mandamus relief.” State ex rel. Young v. Sixth Judicial District Court of
Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). But Judge
Gallagher was not the respondent in the First Court of Appeals. Instead,
the respondent in the First Court of Appeals was Judge Luong, who
signed an order sustaining the original order returning this case to
Collin County, which original order was signed by Judge Johnson. 2 1F
This principle seems to mirror to some degree, in my view, the way we
often treat rulings by trial courts in other situations. This Court has described
in other contexts what it has called the “right ruling, wrong reason” doctrine.
Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim. App. 2022). The principle of
that doctrine seems to be that, in circumstances controlled by the doctrine, the
Courts are “required to uphold [a] trial court’s ruling on any applicable legal
theory.” Id. If, in the context of a direct appeal, such a principle can be applied,
it certainly should apply in the context of mandamus proceedings where “[t]o
obtain extraordinary relief, [a] [r]elator must show that . . . what he seeks to
compel or prohibit is ministerial, involving no discretion.” In re State ex rel
Best, 616 S.W.3d 594, 599 (Tex. Crim. App. 2021). I consider it my duty, then,
and the duty of the Court as well, to examine any argument, even one that the
parties have avoided, that would support the trial judges’ challenged actions.
2 Judge Johnson was originally assigned to this case in Harris County.
On June 25, 2020, Judge Johnson signed an order sending the case back to
Collin County. On June 30, 2020, Relator filed an application for mandamus
relief in the First Court of Appeals asking that Court to order Judge Johnson’s
June 25th order to be vacated. Then, on July 6, 2020, Judge Johnson signed an
order voluntarily recusing himself from the case.
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Mandamus is an inappropriate vehicle to address abstract
disagreements with a trial court’s given reason for a ruling when
another, yet unspoken reason, might also still justify the trial court’s
same ruling. On review of an application for a writ of mandamus, a court
should focus its attention on the action of the respondent—whether the
respondent had jurisdiction, authority, or discretion to take, or refrain
from, the challenged action. It should not focus narrowly on the
respondent’s stated reason for its action or inaction. See e.g., Missouri-
Kansas-Texas R. Co. of Tex. v. Brewster, 124 Tex. 244, 246, 78 S.W.2d
575, 576 (Tex. [Comm’n Op.] 1934) (“It has long been the rule of law of
this state that this court will not review by mandamus the action of a
trial court in granting a new trial unless his action in attempting to do
so is absolutely void. This rule applies even though the court may
expressly state erroneous reasons for granting the motion, if the motion
itself is sufficient to invoke his jurisdiction.”) (emphasis added).
Relator’s burden is to demonstrate that the trial court judge—
against whom mandamus is sought (here, Johnson and Luong, not
On July 15, 2020, this case was reassigned at the district court level
from Judge Johnson to Judge Luong. And then, on July 28, 2020, the First
Court of Appeals abated the case to allow Judge Luong an opportunity to
reconsider Judge Johnson’s original order sending the case back to Collin
County. Having regained authority over the case by virtue of the First Court
of Appeals’ abatement order, Judge Luong signed an order on October 23, 2020,
finding that Judge Johnson’s June 25th order effectively transferred the case
back to Collin County and that his plenary jurisdiction to reconsider that order
had expired, depriving him of jurisdiction over the case. But Judge Luong
added that, if the First Court of Appeals disagreed with him about his
jurisdiction over the case, Judge Gallagher’s order transferring the case to
Harris County “should be set aside” and the case should be transferred back to
Collin County. In re State ex rel. Wice, 629 S.W.3d 715, 720 (Tex. App.—
Houston [1st Dist.] 2021).
WICE – 5
Gallagher)—had no discretion to rule the way he did. See e.g., In re City
of Lubbock, 666 S.W.3d 546, 553 (Tex. Crim. App. 2023) (“To satisfy the
ministerial-act requirement, the relief sought must be clear and
indisputable such that its merits are beyond dispute and there is
nothing left to the exercise of discretion or judgment.”) (emphasis added);
In re State ex rel Best, 616 S.W.3d 594, 599 (Tex. Crim. App. 2021) (“To
obtain extraordinary relief, Relator must show that . . . what he seeks to
compel or prohibit is ministerial, involving no discretion.”) (emphasis
added). When I focus on Harris County Judges Johnson’s and Luong’s
rulings as opposed to Judge Gallagher’s, I cannot conclude that their
rulings are subject to being ordered vacated on mandamus. I write
separately to explain why. But before proceeding to that explanation, I
wish to briefly highlight a different matter that I think the Court also
gets wrong: whether there is an adequate remedy at law.
I. ADEQUATE REMEDY AT LAW
A mandamus applicant must establish both: 1) that he has no
adequate remedy at law; and 2) that he seeks to compel a ministerial
act, not involving discretion or judicial decision-making, to which he is
clearly entitled. State ex rel. Mau v. Third Court of Appeals, 560 S.W.3d
640, 644 (Tex. Crim. App. 2018). The Court rightly recognizes that both
of these prongs must be satisfied before relief may be granted. Majority
Opinion at 14 & 36, n.101. The first requirement—no adequate remedy
at law—is meant to assure that an extraordinary remedy (like
mandamus) is appropriate as opposed to an ordinary one. Id. (citing In
re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013)).
Relator argues that, “[b]ecause Judge Luong’s ruling does not fall
WICE – 6
within the scenarios vesting the State with the right to appeal,
mandamus is the State’s only remedy.” Application for Writ of
Mandamus at 15. But I can readily think of one at least potentially
alternative legal remedy that Relator might seek: The State could
simply file another motion for change of venue in the district court in
Collin County. 32F
The Court responds that this proposed remedy is “no remedy at
all.” Majority Opinion at 36, n.100. It claims that this remedy would
“lead to an infinite loop of venue changes before an appropriate venue is
identified.” Id. I disagree that it would add much delay, especially when
compared to the delay occasioned by this proceeding—over one-and-a-
half years now. But even if the Court is correct that such a revised
proceeding would take too much time, Relator could instead file a
motion, premised on the fact that Judge Gallagher has already ruled
that a change of venue is appropriate, asking the appropriate judge in
Collin County to act on that determination by transferring the case now
to a venue that is proper under Article 31.02 of the Code of Criminal
Procedure. See post, Part II; TEX. CODE CRIM. PROC. art. 31.02. After all,
Real Party in Interest has already objected to that ruling, so if it was
3
For that matter, the State is just plain wrong that it has no right to
appeal. “The state is entitled to appeal a ruling on a question of law if the
defendant is convicted in the case and appeals the judgment.” TEX. CODE CRIM.
PROC. art. 44.01(c) (emphasis added). The question that remains, then, is
whether the right to appeal that the State has in this instance is adequate.
Furthermore, while I question whether it should even need to be said,
when a defendant is denied a change of venue in the trial court, it is likely that
he must wait until appeal after conviction to complain about it. Here, it is the
State seeking to overturn a trial court order related to venue. Good for the
goose, good for the gander?
WICE – 7
erroneous, it could be raised by him on direct appeal. And then, the only
question would be which proper district to transfer the case to,
consistent with the requirements of Article 31.02. There is simply no
good reason for this Court to exercise our extraordinary mandamus
authority to compel a result with regard to venue at this time. If the
issue needs to be addressed at all, it can be addressed in the trial courts,
and if necessary, later, on appeal.
Not to state the obvious, but this is not a direct appeal. And if
there is a direct appeal by the defendant in this case, Relator—the State
of Texas—will have the right to complain about both (1) the rulings
made by Judges Johnson and Luong, and (2) the rulings made by the
judge who would sit on this case next in Collin County. More
importantly, if the next judge to sit on this case in Collin County agrees
that venue still needs to be ordered changed, because of Judge
Gallagher’s original order or because a new transfer determination is
made, then that judge could easily change venue to an appropriate
location, consistent with the requirements of Article 31.02. Nothing
about that process would lead to a “an infinite loop of venue changes[.]”
Majority Opinion at 36, n.100.
Perhaps the Court should consider whether, if Judge Gallagher
had denied a change of venue in this case, the State would have been
entitled to mandamus at that point in time to compel the venue to be
transferred to another county, including Harris County. If not, then why
now compel it to remain there? The posture of the case is really not that
different. Even though the case seems to be moving between trial courts
and judges, the case is still active in the trial courts. Would the Court
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find mandamus an appropriate remedy if it were reviewing an order
from Judge Gallagher denying transfer of venue (in this hypothetical)
that is being challenged? Some may read the Court’s decision here as a
precedent supporting an answer to that question that the Court might
not agree with if that should be the next case in which a question like
this reaches us.
II. RELATOR IS NOT CLEARLY ENTITLED TO RELIEF
The actual, real, and critical question (and the one the court of
appeals rightly identified) in this case: whether Judge Johnson or Judge
Luong had the authority to invalidate Judge Gallagher’s order sending
this case to Harris County—on any basis at all. If I thought this case
ultimately came down to a question of Judge Gallagher’s authority to
issue the change-of-venue order at all, I would be inclined to join
Presiding Judge Keller’s dissent in this case, for reasons that she details.
But, as far as I am concerned, there is yet another, very good reason that
could have justified both Judge Johnson’s and Judge Luong’s rejection
of the specific change-of-venue order that Judge Gallagher issued in this
case. Under Article 31.02 of our Code of Criminal Procedure, Judge
Gallagher lacked the authority to transfer this case to Harris County.
TEX. CODE CRIM. PROC. art. 31.02.
There seems to be no dispute that Judge Gallagher issued the
change-of-venue order in response to a motion from Relator, the State. 4 3F
4
Judge Gallagher’s written order granting change of venue, signed on
March 30, 2017, expressly invokes Article 31.02 of the Code of Criminal
Procedure and purports to change venue on the State’s motion. TEX. CODE
CRIM. PROC. art. 31.02.
WICE – 9
When the State seeks a change of venue, the Code of Criminal Procedure
identifies an exclusive set of localities to which change of venue is
permissible, and it seems to allow no exceptions. Unlike other provisions
in Chapter 31 of the Code governing change of venue, Article 31.02
mandates that any change of venue granted on the State’s request
“shall” be made “to any county in the judicial district in which [the
originating] county is located or in an adjoining district.” TEX. CODE
CRIM. PROC. art. 31.02. 5 The statute recognizes no leeway, as do other
4F
statutes in Chapter 31, for improvisation with the indulgence of the
parties. 6 5F
Here, Judge Gallagher ordered that venue be changed to a county
5 The Court, in its footnote 15, suggests that, because the parties
consented to go to Harris County, Judge Gallagher “had authority to choose
Harris County[,]” notwithstanding Article 31.02. See Majority Opinion at 8, n.
15. For authority the Court relies upon Ex parte Watson, 601 S.W.2d 350, 351
(Tex. Crim. App. 1980), which I contend—post at 13−14, n.12—has no
precedential or authoritative value relevant to this case. And the Court fails to
discuss or explain how, if at all, the statement it relies upon from Watson
overcomes the mandatory language—“shall”—in Article 31.02 of our Code of
Criminal Procedure.
6
For example, a trial court judge who decides to change venue “upon
his own motion” may, under certain specified conditions, “order a change of
venue to any county beyond an adjoining [judicial] district[.]” TEX. CODE CRIM.
PROC. art. 31.01. Similarly, when changing venue “on the written motion of the
defendant,” a trial court judge may also, under certain specified conditions,
transfer the case to “a county beyond an adjoining district”—if, for instance, a
closer county “is not subject to the same conditions which required the
transfer” from the originating county, or upon the motion of the defendant and
consent of the State. TEX. CODE CRIM. PROC. art. 31.03. Notably, however,
Article 31.02 contains no such relative latitude. Change of venue at the State’s
request is strictly limited “to any county in the judicial district in which [the
originating] county is located or in an adjoining county”—without exception.
TEX. CODE CRIM. PROC. art. 31.02.
WICE – 10
several judicial districts removed from that in which Collin County is
located. 7 On its face, his order violated the terms of the statute. In my
6F
view, it would certainly have been within Judge Johnson’s or Judge
Luong’s discretion to declare Judge Gallagher’s change-of-venue order
invalid on that account, if for no other reason. 8 But those Harris County
7F
judges might also have concluded that the change of venue to Harris
7 After a telephonic hearing on April 11, 2017, at which he entertained
objections from Real Party in Interest to his March 30th order changing venue,
Judge Gallagher signed another written order overruling those objections. His
April 11th written order goes on to aver that “[t]he parties have agreed to allow
the Court to transfer venue of these cases to a county that does not adjoin
Collin County, Texas.” So far, so good, since Article 31.02 would permit the
trial court to change venue to a county in an “adjoining” judicial district, which
would not have to be contiguous with Collin County. But then the April 11th
order expressly required that “venue for trial on the merits of these cases is
transferred to Harris County, Texas.” Collin County and Harris County are not
in “adjoining” judicial districts, and so, at least to this extent, the order violates
Article 31.02.
8 The Court says that “the act of voiding Judge Gallagher’s valid order
was clearly unlawful because it violated Judge Gallagher’s judicial authority
flowing from both the Texas Constitution and our statutes.” Majority Opinion
at 36. This seems to suggest that there are no circumstances in which a
transferee court (like the courts assigned to Judges Johnson and Luong) would
ever have the discretion to consider the propriety of a change of venue to one
of their courts as an independent matter. But what if (in that court and even
this Court’s view) the transfer did violate Chapter 31? What remedy then? It
also seems to suggest that a transferee court would not even have the authority
to further transfer the case out of its district, even were it to find circumstances
justifying that action under Chapter 31 of the Code of Criminal Procedure. So,
the Court’s decision in this case seems to establish a precedent for the
proposition that the provisions of Chapter 31 only apply to the original court
into which a case is properly filed, and once a decision is made by that court to
transfer venue to another court, no further transfer may ever be made from the
transferee court for any reason at all. I am not at all sure about that. And I am
inclined to think this is not what the Court actually intends. So, then, why say
it?
WICE – 11
County was void, since it was beyond Gallagher’s statutory authority to
order, even with the consent of the parties, under the express and
unequivocal requirements of Code of Criminal Procedure Article 31.02. 9 8F
Even if the failure to follow the statutory scheme did not provide
a basis upon which to conclude that the order changing venue to Harris
County was void, it remained within Judge Johnson’s and Judge
Luong’s discretion to declare it invalid on that basis. It does not matter
that the parties, including the State, agreed to the unauthorized change
of venue to Harris County. Judge Johnson and Judge Luong could still
have acted to rectify the situation, and those judges would not have been
somehow estopped from doing so on account of the fact that the parties
were content to violate the law. 109F
9 Ironically, the Fifth Court of Appeals’ decision in a previous
mandamus action in this case that required Judge Gallagher to relinquish
control over the case after signing the order changing venue was predicated on
the unchallenged assumption that Gallagher’s order changing venue was itself
valid. In re Paxton, ___ S.W.3d ___, Nos. 05-17-00507-CV, 05-17-00508-CV, 05-
17-00508-CV, 2017 WL 2334242, at *4 (Tex. App.—Dallas May 30, 2017). As
the Court today accepts, the question of the validity of the order changing
venue was apparently not at issue in that mandamus proceeding, which is why
the Court today rejects Relator’s law-of-the-case argument. Majority Opinion
at 18. The First Court of Appeals came to the same conclusion. See In re State
ex rel. Wice, 629 S.W.3d 715, 721−22 (Tex. App.—Houston [1st. Dist.] 2021)
(“Because the Dallas Court of Appeals did not resolve whether Judge Gallagher
had the authority to order a change of venue after the expiration of his
assignment to the underlying cases, the law of the case doctrine does not
prevent us from resolving that issue here.”).
10Unlike the parties, the trial court itself is not impeded by principles
of estoppel, waiver, or procedural default from enforcing the law. Suppose Real
Party in Interest had proceeded to trial in Harris County, had been convicted,
and then argued on appeal that the trial court erred to proceed on the basis of
a change of venue that violated Article 31.02. We would probably in that
WICE – 12
The bottom line is that, even if Judge Gallagher had the authority
to issue a change-of-venue order in this case, he had no authority to
change it to Harris County. It was therefore within Judge Johnson’s and
Judge Luong’s discretion (whose decisions, after all, are ultimately the
subject of this mandamus proceeding!) to declare such an order invalid
and to order the Harris County clerk to return the “papers” in the cause
to Collin County. 11 TEX. CODE CRIM. PROC. art. 31.05. On that basis, if
10F
no other, I conclude that Relator has not shown that it is clearly entitled
to the relief it seeks. 1211F
circumstance hold that his agreement to the illegal change-of-venue
destination either estopped him from complaining, or at least constituted a
waiver or forfeiture of his ability to complain about it, on appeal. Suppose,
instead, that the State attempted to challenge that change-of-venue order on
that basis under Article 44.01(c), which allows it to appeal “a ruling on a
question of law if the defendant is convicted in the case and appeals the
judgment.” TEX. CODE CRIM. PROC. art. 44.01(c). We would likewise probably
hold that it was estopped by its agreement from doing so. But such principles
of estoppel, waiver, or default do not operate to limit the authority of a trial
court to enforce the law on its own, irrespective of the will of the parties. The
Court takes no account of this important consideration.
11And nothing would then have prevented Relator from once again
seeking to change venue from Collin County, but this time to a statutorily
acceptable county.
12The Court raises several arguments against my views. I will endeavor
to address them here:
First, the Court suggests that “[w]hat either Judges Johnson or Luong
might have been thinking is pure speculation.” Majority Opinion at 2, n.1. But
I have never suggested that any of my arguments depended on the Harris
County judges having actually accepted my argument about the proper
application of Article 31.02 in this case. The point I try to make is not that
Judges Johnson and Luong did order this case returned to Collin County
because of Article 31.02, but that they at least had discretion to do so on that
basis. At the very minimum, I contend it would not have been an abuse of
WICE – 13
discretion for them to do so, and consequently, granting mandamus relief in
this circumstance is inappropriate.
Suffice it to say, the burden in this case is on Relator, not Respondent.
Relator’s burden is to demonstrate that the Harris County trial court judges in
this case had no discretion to order this case returned to Collin County, either
on the basis of Real Party in Interest’s arguments or for any other reason. It is
not sufficient to earn mandamus relief to merely prove that the reasons argued,
or even accepted by the trial court, for the return of the case to Collin County
were wrong. If there exists any reason why the Harris County judges could
have, within their discretion and authority, returned this case to Collin
County, our precedents require that mandamus be denied. See In re City of
Lubbock, 666 S.W.3d 546, 553 (Tex. Crim. App. 2023) (“To satisfy the
ministerial-act requirement, the relief sought must be clear and indisputable
such that its merits are beyond dispute and there is nothing left to the exercise
of discretion or judgment.”) (emphasis added).
The Court also relies on Ex parte Watson, 601 S.W.2d 350, 351 (Tex.
Crim. App. 1980), for the proposition that “[i]mproper venue, unlike
jurisdiction, may be waived by the defendant’s failure to object[,]” and “[u]nlike
jurisdiction, venue may be acquired by consent.” Majority Opinion at 8, n.15;
id. at 35, n. 98.
Watson does not stand for the proposition that the Legislature’s use of
the mandatory term “shall” in Article 31.02 of the Code of Criminal Procedure
means only “may,” even when the parties might agree to transfer to a
particular, otherwise improper county. Watson does not rely upon or even cite
to any provision in Chapter 31 of our Code, much less Article 31.02 itself. So
the likelihood is that, even if that provision was effective when Watson was
written, the Court was not grappling with its effect in that case. The question
in that case was whether the trial of a case involving an improper venue would
impact the jurisdiction of the trial court to act. The Watson Court answered
that question no.
It is unclear to me why the Watson Court even needed to say anything
about venue being capable of being acquired by “consent.” There is no
suggestion that “consent” was given in that case or that it had any effect on the
resolution of the issues presented. That comment was therefore likely only
what the Court has called obiter dictum, meaning that it was unnecessary to
the decision and does not constitute binding authority. Seger v. Yorkshire
Insurance Co., Ltd., 503 S.W.3d 388, 399 (Tex. 2016) (“Obiter dictum is not
binding as precedent.”). But even looking at the authorities the Watson Court
cited for that proposition, they do not help the Court’s position in this case.
Watson cites to Williams v. State, 145 Tex. Crim. 536, 170 S.W.2d 482 (1943),
which pre-dated the 1965 adoption of the modern version of Article 31.02. And
WICE – 14
while it does say at one point that “[v]enue may be acquired by consent[,]” it
only does so to distinguish venue from jurisdiction, and it relies for that
proposition in Taylor v. State, 81 Tex. Crim. 347, 197 S.W. 196 (1917) (Morrow,
J., dissenting), which similarly refers to consent only in an effort to contrast it
with jurisdiction, which (and I agree on this point) may not be acquired by
consent. Moreover, in conjunction with its citations to Williams and Judge
Morrow’s dissent in Taylor, the Watson Court also cites Code of Criminal
Procedure Article 13.20, the modern version of which clearly has no application
to this case, at all. It provides:
The trial of all felony cases, without a jury, may, with the consent
of the defendant in writing, his attorney, and the attorney for
the state, be held in any county within the judicial district or
districts for the county where venue is otherwise authorized by
law.
TEX. CODE CRIM. PROC. art. 13.20 (emphasis added). There is no evidence that
the trial of this case will be conducted without a jury. And even then, the
statute limits the counties where the case may be tried by consent to counties
“within the judicial district or districts for the county where venue is otherwise
authorized by law[,]” id., and as I have otherwise shown in this opinion, venue
in this case is not authorized by law to be transferred to Harris County on
motion of the State—in this case, Relator. See TEX. CODE CRIM. PROC. art.
31.02. So, I consider the Court’s reliance on Watson to be misplaced in this
case. And I am concerned that by jumping to that argument, the Court might
unwittingly be establishing a rule permitting venue-by-consent in all cases,
irrespective of whether the laws of our state may dictate a different result in
some, if not many, circumstances.
The Court also suggests that issues related to Gallagher’s decision on
“the place of venue” may only be raised on direct appeal at the conclusion of
the case. Majority Opinion at 13, n. 34. It is true that a defendant is likely not
authorized to take an interlocutory appeal to challenge a decision denying a
motion to change venue prior to trial and conviction. See e.g., United States v.
Martin, 620 F.2d 237 (10th Cir. 1980) (denying relief on interlocutory appeal
and mandamus where a defendant challenged the denial of his motion to
dismiss on the ground of improper venue). That a defendant might not be
permitted to appeal the denial of a change of venue until after the entry of a
judgment of conviction does not a fortiori compel the conclusion either: (1) that
a defendant may not properly move for a reversal of a change-of-venue order
in the trial court; or (2) that a trial court may not lawfully grant such a motion.
WICE – 15
III. CONCLUSION
Mandamus relief should be denied in this case. In my view, the
Court clearly errs by deciding otherwise. Because the Court holds that
mandamus is appropriate to compel this case to remain in Harris
County, I respectfully dissent.
FILED: June 14, 2023
PUBLISH
The Court also, again, suggests that the Harris County judges’ orders
must be vacated because “the parties clearly waived any objections under
Article 31.02 and consented to a non-adjacent county.” Majority Opinion at
35−36. Even if the parties might have waived arguments that they might have
had to make to preserve the issue for an eventual direct appeal challenge, the
Harris County district judges retained authority to ensure that the law, as
mandated in Article 31.02, was followed. A trial court judge is not restricted
from ensuring the law is followed because of principles of estoppel, waiver, or
forfeiture of a claim by a party. Even if the parties were content—themselves—
to violate the law, the Harris County district judges still had authority to
enforce it.
And finally, the Court’s opinion says “the Constitution requires more
than mere disagreement to void the rulings of one of its judges acting within
their discretion.” Majority Opinion at 36. Considering all of the history of
written opinions by this Court, I have always understood that maxim to be
true, especially in the context of mandamus. But the Court seems to think that
its disagreement with Judges Johnson’s and Luong’s reasons given for their
orders is a sufficient reason to void their decisions. What are we to make of
that?