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

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,089-01
In re STATE OF TEXAS, ex rel. BRIAN W. WICE, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
AGAINST THE FIRST COURT OF APPEALS
SLAUGHTER, J., filed a concurring opinion in which RICHARDSON, NEWELL,
and MCCLURE, JJ., joined.
CONCURRING OPINION
I agree with and join the Court’s opinion. I write separately, however, to address
Judge Yeary’s misguided but surely well-meaning dissenting opinion. Judge Yeary’s
misunderstanding of the issues here has led to him arguing two points: (1) the Court’s
opinion is wrong because it focuses on the wrong question; and (2) mandamus is improper
because there is an available adequate remedy at law. J. Yeary’s Dissent at 1, 6. I disagree
as to each point for the following reasons.
I. The Court properly frames the issue raised on mandamus.
Judge Yeary declares that the “real question” before the Court is whether either of
the two Harris County district judges (Judges Johnson and Luong) “had any authority at
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all to send the case back to Collin County.” Id. at 1. He further states that the Court must
“focus its attention on the action of the respondent [Harris County district judges],” and
“should not focus narrowly on the respondent’s stated reason for its action or inaction.” Id.
at 4. Yet, Judge Yeary (at least in the first part of his opinion) seems to identify the relevant
“action” of the Harris County district judges as “sending the case back to Collin County.”
Id. at 4 n.2.
Contrary to Judge Yeary’s assertion, the underlying issue before this Court has
nothing to do with whether the Harris County district judges had some sort of authority,
from any source, to transfer venue back to Collin County. Neither Harris County district
judge was ever asked by any party to transfer venue. Had one of the parties filed a motion
asking the Harris County district judges to transfer venue back to Collin County, I doubt a
mandamus action would have been filed because a judge’s decision on a motion to transfer
venue would be reviewable on direct appeal thereby precluding mandamus relief. But, in
any event, on mandamus, we must address what actually happened and not deal in
hypotheticals. The only motion filed and decided that led to this mandamus action was a
motion filed by Real-Party-in-Interest Paxton’s attorneys “to set aside as void” Judge
Gallagher’s venue transfer order. The only relief sought in that motion was to declare that
Judge Gallagher, at the time he transferred venue to Harris County, did not have
jurisdiction to issue the venue transfer order, thereby making his order void. Judge Johnson
granted the motion and, after the case was transferred to Judge Luong, he adopted Judge
Johnson’s ruling. No party filed a motion in Harris County to transfer venue back to Collin
County, nor did anyone ask Judge Johnson to exercise discretion to affirmatively send the
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case back to Collin County. Therefore, the only action taken by Judge Johnson (and then
Judge Luong) was to vacate as void for lack of jurisdiction Judge Gallagher’s venue
transfer order. The effect of Judge Johnson’s action was essentially to undo Judge
Gallagher’s order, reverse the timeline, and make it as if Judge Gallagher had never
transferred venue to Harris County. 1 Thus, Judge Johnson’s action was not to “send” the
0F
case back to Collin County. His action was to improperly void the order of another district
judge. And that is precisely the action that the Court’s opinion correctly addresses.
II. There is no adequate remedy at law for a judge improperly declaring
that the valid order of another judge is void.
Judge Yeary argues that mandamus is also inappropriate here because the State had
an adequate remedy at law, namely, filing an additional venue transfer motion in Collin
County. J. Yeary’s Dissent at 5–6. But how exactly does that fix the problem at issue here
with respect to Judge Johnson improperly vacating as void a proper and legitimate order of
another district judge who had jurisdiction? It doesn’t. A new venue transfer motion does
not directly address, nor does it provide relief for, the true issue at hand.
Judge Yeary posits that “[t[here 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.”
Id. at 7. But again, this framing of the issue misses the mark. This Court is not deciding at
this juncture whether Harris County or Collin County or some other county is the proper
venue. We are simply deciding the narrow issue presented to us—whether Judge Gallagher
1
Moreover, nothing about Judge Johnson’s actions involved him affirmatively deciding (or even
being asked to decide) whether Collin County was the proper venue for the case. So again, Judge
Johnson did not decide to “send the case back to Collin County.” J. Yeary’s Dissent at 1.
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had jurisdiction at the time he issued the venue transfer order such that his order was valid
and not subject to being vacated by another district judge. Whether venue is proper in
Harris County is an issue that can ultimately be challenged on direct appeal. 2 1F
Judge Yeary’s final point is his claim that Judge Gallagher lacked the authority to
transfer the case to Harris County. Id. at 8–9. This argument is fully addressed by the
Court’s opinion, and so I do not feel the need to address it here beyond saying that I agree
wholeheartedly with the Court’s analysis and resolution of this issue.
With these comments, I unreservedly and fully join the Court’s opinion.
Filed: June 14, 2023
Publish
2
See, e.g., Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007).