In Re Texas Department of Criminal Justice Ex Rel Ken Paxton

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-96,121-01

IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE EX. REL.
KEN PAXTON, Relator

ON MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF
MANDAMUS AND PETITION FOR WRIT OF MANDAMUS IN
THE 200TH DISTRICT COURT OF TRAVIS COUNTY

NEWELL, J., filed a dissenting opinion in which RICHARDSON,
WALKER and MCCLURE, JJ., joined.

Today the court grants mandamus relief under the theory that a

civil court’s injunction to enforce a legislative subpoena cannot interfere

with the carrying out of a death warrant in a criminal case. But I believe

the scenario presented in this case is sufficiently distinguishable from

our previous cases dealing with the interaction between civil and
Paxton Dissenting — 2

criminal causes of action that we should file and set the case for an

opinion on the issues raised. Because the court does not, I dissent.

This Court has held that a civil case that has the effect of staying

an execution is a criminal law matter subject to our jurisdiction. 1 The

suit at issue in Holmes sought to avoid the execution in the underlying

criminal case altogether through clemency proceedings and we held that

the suit seeking a clemency hearing could not enjoin the execution. 2

However, the injunction at issue here is not brought by the defendant

to vindicate the defendant’s rights. Rather, our Legislature seeks to

vindicate its own authority to subpoena witnesses for testimony before

it.3 Such a claim, raises a separation of powers issue by its very nature.

And that issue is not present in our precedent cases.4

Indeed, this distinguishing factor also raises the issue of whether

we have mandamus jurisdiction because the Legislature brought the

proceeding on its own behalf to protect its statewide subpoena power.

1
State ex. rel. Holmes v. Honorable Cr. Of Appeals for Third Dist., 885 S.W.2d 389, 394 (Tex.
Crim. App. 1994).

2
Id. at 395-96; see also State ex. rel. Wilson v. Briggs, 351 S.W.2d 892 (1961).

3
Tex. Gov’t Code Ann. § 301.024(a) (“A general investigating committee may issue process
to compel the attendance of witnesses and production of books, records, documents, and
instruments required by the committee . . . A committee may issue process to a witness at
any place in this state.”).

4
Tex. Const. art. II, § 1.
Paxton Dissenting — 3

The propriety of the civil injunction to vindicate our Legislature’s

authority makes this arguably as much a civil matter as a criminal one.5

Given these distinctions, I think the more prudent course of action

would not be to grant mandamus relief outright. Instead, this Court

should file and set this case and order briefing from the parties. Perhaps

after we have fully fleshed out these issues the Court will ultimately hold

that mandamus relief is appropriate. But given the unprecedented

nature of the circumstances present in this case, I believe we should at

least explain our reasoning to the Texas Legislature as well as the

citizens of Texas.

Because the Court does not, I respectfully dissent.

Filed: October 17, 2024

Publish

5
Smith v. Flack, 728 S.W.2d 784, 788 (Tex. Crim. App. 1987) (noting that the Texas
Constitution “grants this Court power to issue writs of mandamus when a criminal law is the
subject of the litigation”).