In Re Texas Department of Criminal Justice, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-95,689-01

IN RE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Relator

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
AND PETITION FOR WRIT OF MANDAMUS
IN CAUSE NO. 69441
IN THE 34TH JUDICIAL DISTRICT COURT
EL PASO COUNTY

WALKER, J., filed a concurring and dissenting opinion.

CONCURRING AND DISSENTING OPINION

Respondent, the judge of the 34th District Court in El Paso County, entered an order directing

Relator, the Texas Department of Criminal Justice (TDCJ), to allow an outside doctor’s staff into

one of TDCJ’s prisons, so that those personnel could access the Real Party in Interest, Tony Ford,

and draw his blood for testing (the “Access Order”). Today, a majority of this Court concludes that

TDCJ is entitled to conditional mandamus relief, and the Court orders Respondent to rescind the

Access Order. Mandamus relief is appropriate, so says the majority, because in their view the

convicting court did not have jurisdiction to enter the Access Order because Ford does not have any
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active post-conviction pleadings pending before that court. While that is true, Ford is clearly working

towards preparing and filing an application for habeas corpus relief, and I believe the convicting

court had the implicit authority to enter the Access Order so Ford could properly investigate his

claims. Moreover, the petition before us asks for a writ of mandamus, which would be proper only

if it is clear that the convicting court lacked the authority. Yet, there is no controlling precedent that

clearly demonstrates that the Access Order was unauthorized.

Accordingly, I respectfully dissent from the Court’s grant of conditional mandamus relief as

to the convicting court’s Access Order. I concur, however, with the Court’s conclusion that TDCJ

lacks standing to challenge the convicting court’s separate order requiring El Paso County to provide

funding for testing.

I — Procedural History

Ford was convicted of capital murder and sentenced to death in July 1993. Ford v. State, 919

S.W.2d 107, 109 (Tex. Crim. App. 1996). On direct appeal, this Court affirmed Ford’s conviction

and sentence. Id. at 118. Mandate issued April 19, 1996.

Ford has since pursued several post-conviction remedies. In February 1998, Ford filed in the

convicting court his initial state habeas application under Texas Code of Criminal Procedure article

11.071, which this Court ultimately denied. Ex parte Ford, No. WR-49,011-01 (Tex. Crim. App.

Sept. 12, 2001) (per curiam, not designated for publication). Ford filed a second article 11.071

application in this Court in November 2005, but when the convicting court granted DNA testing

under Texas Code of Criminal Procedure Chapter 64, we dismissed the application without

prejudice. Ex parte Ford, No. WR-49,011-02, 2005 WL 3429243, at *1 (Tex. Crim. App. Dec. 14,

2005) (per curiam, not designated for publication). Years later, in September 2018, Ford filed a third
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article 11.071 application, which we dismissed as an abuse of the writ under article 11.071, § 5. Ex

parte Ford, No. WR-49,011-03, 2019 WL 4318695, at *1 (Tex. Crim. App. Sept. 11, 2019) (per

curiam, not designated for publication). As of the date of this opinion, Ford has no pending article

11.071 applications or Chapter 64 motions.

On March 27, 2024, Ford filed in the convicting court a “Defense Motion for Funding for

Genetic Testing.” Ford alleged that if he could obtain a specific kind of genetic testing, he could

prove that he did not personally shoot the victim in the underlying capital murder case. Ford

explained that he had already found a doctor and lab willing to facilitate and conduct the testing, but

needed funding from the convicting court. In light of Ford’s motion, Respondent Judge William E.

Moody of the 34th Judicial District Court of El Paso County, Texas, entered an order dated March

27, 2024, directing:

(1) “El Paso County pay to [Ford’s doctor] . . . the amount of $3600.00 for the
collection and genetic assessment of a blood sample from Mr. Ford for
[genetic testing]”; and

(2) “the warden of the Polunsky Unit-TDCJ allow access to Mr. Ford . . . by
personnel from [the doctor’s] office for the purpose of drawing the necessary
blood sample for this testing.”

Relator in this proceeding, TDCJ, seeks mandamus relief from both (1) the “Funding Order”

and (2) the Access Order. TDCJ argues that Respondent’s plenary jurisdiction ended long ago and

Ford does not currently have an active case or pleading under article 11.071 or Chapter 64, and it

points to In re Medina, in which we noted that:

this Court has discussed the ministerial duty in terms of the respondent’s authority
or jurisdiction: “[i]f a trial judge lacks authority or jurisdiction to take particular
action, the judge has a ministerial duty to refrain from taking that action, to reject or
overrule requests that he take such action, and to undo the action if he has already
taken it.”
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In re Medina, 475 S.W.3d 291, 298 (Tex. Crim. App. 2015) (quoting 43B GEORGE E. DIX & JOHN

M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 61.29 (3d ed.

2011)). From this language, the argument goes that the convicting court had no jurisdiction over

Ford’s case, and the Funding and Access Orders were entered by a court lacking jurisdiction, making

them subject to this Court’s mandamus authority.

II — Access Order

To obtain mandamus relief from the Access Order, TDCJ must show that (1) it has no

adequate remedy at law from the Access Order, and (2) Respondent has a “ministerial” duty to

rescind it. See In re State ex rel. Best, 616 S.W.3d 594, 599 (Tex. Crim. App. 2021). Ford concedes

that TDCJ has no adequate remedy at law, and the issue turns on the “ministerial duty” prong. Again,

“[i]f a trial judge lacks authority or jurisdiction to take particular action, the judge has a ‘ministerial’

duty to refrain from taking that action, to reject or overrule requests that he take such action, and to

undo the action if he has already taken it.” Medina, 475 S.W.3d at 298. For the purposes of the

petition for writ of mandamus here, TDCJ must demonstrate that the convicting court judge clearly

lacked jurisdiction or authority to enter the Access Order. In other words, the convicting court’s duty

to rescind the Access Order—because it did not have the jurisdiction to order it—“must be

‘positively commanded and so plainly prescribed’ under the law as ‘to be free from doubt.’” State

ex rel. Hill v. Ct. of Appeals for the Fifth Dist., 34 S.W.3d 924, 928 (Tex. Crim. App. 2001) (quoting

Buntion v. Harmon, 827 S.W.2d 945, 947 n.2 (Tex. Crim. App. 1992)).

As we recently explained:

a trial court must derive its jurisdiction from either the Texas Constitution or
legislative enactments. When a conviction has been affirmed on appeal and mandate
has issued, general jurisdiction is not restored in the trial court. A trial court can
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obtain postconviction jurisdiction over a matter statutorily—for example, to set an
execution date, conduct DNA testing, or determine whether an inmate is competent
to be executed. But the statutes bestowing jurisdiction over these matters also define
the scope of that jurisdiction. And even when a trial court has jurisdiction over a
matter, it may lack authority to take a certain action.

In re State ex rel. Ogg, 692 S.W.3d 481, 484–85(Tex. Crim. App. 2024) (per curiam) (internal

citations omitted) (citing Staley v. State, 420 S.W.3d 785, 795 (Tex. Crim. App. 2013)).

TDCJ correctly points out that the convicting court’s plenary jurisdiction over Ford’s case

ended long ago. Furthermore, all of Ford’s prior article 11.071 applications and Chapter 64 motions

have been disposed of, and the convicting court has no active article 11.071 or Chapter 64 pleadings

in front of it.

On the other hand, however, future active pleadings are not possible without investigation

and due diligence on the part of the writ applicant and his counsel. An argument can be made that

Code of Criminal Procedure article 11.071 provided the convicting court with implicit authority to

enter the Access Order so that Ford could have his blood drawn and analyzed to develop his

prospective claim for post-conviction relief in a future application for writ of habeas corpus. At the

very least, there is a lack of binding precedent to show an indisputable absence of authority on the

convicting court’s part to enter such an order, such that mandamus relief would be proper. See State

ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.

2007) (the ministerial act requirement “is satisfied if the relator can show he has ‘a clear right to the

relief sought’—that is to say, ‘when the facts and circumstances dictate but one rational decision’

under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and

clearly controlling legal principles.”); see also Simon v. Levario, 306 S.W.3d 318, 321 (Tex. Crim.

App. 2009) (a clear right to relief means that the law is “definite, unambiguous, and unquestionably
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applies to indisputable facts of the case.”).

Indeed, that argument has been previously made. In an earlier, similarly-named case, In re

Texas Department of Criminal Justice, the convicting court entered an ex parte discovery order

directing TDCJ to turn over specified inmate records to the Office of Capital and Forensic Writs,

which was assisting in the preparation of an article 11.071 habeas application for a death-sentenced

individual. In re Tex. Dep’t Crim. Just., No. WR-91,688-01 2023 WL 4003792, at *1 (Tex. Crim.

App. June 14, 2023) (not designated for publication). Determining that the discovery order was

unauthorized because it was ex parte, this Court conditionally granted mandamus relief. Id. at *2.

Judge Slaughter disagreed in a published dissent, and she would have found that the convicting court

had implicit authority to facilitate discovery and investigation of claims under article 11.071, even

at the pre-filing stage. In re Tex. Dep’t of Crim. Just., 668 S.W.3d 375, 382–84 (Tex. Crim. App.

2023) (Slaughter, J., dissenting).

Unlike that former TDCJ case, the case before us today does not involve ex parte orders and

requires an examination of a convicting court’s authority to facilitate a prospective habeas

applicant’s pre-filing investigation. “The purpose of a writ of habeas corpus is to obtain a speedy and

effective adjudication of a person’s right to liberation from illegal restraint.” Ex parte Kerr, 64

S.W.3d 414, 419 (Tex. Crim. App. 2002). Pursuant to that goal, article 11.071 requires applicants

to be represented by competent counsel, and it provides for the appointment of competent counsel

if the applicant is indigent. TEX. CODE CRIM. PROC. Ann. art. 11.071, § 2. It requires that competent

counsel, “[o]n appointment,” to “investigate expeditiously, before and after the appellate record is

filed in the court of criminal appeals, the factual and legal grounds for the filing of an application

for a writ of habeas corpus.” Id. § 3(a). It also permits counsel to submit requests for prepayment or
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reimbursement of expenses, “including expert fees.” Id. § 3(b)–(d). These statutory provisions are

“built upon the premise that a death row inmate does have one full and fair opportunity to present

his constitutional or jurisdictional claims in accordance with the procedures of the statute.” Kerr, 64

S.W.3d at 419 (emphasis in original).

Although article 11.071 does not expressly authorize a convicting court to enter orders

facilitating the investigation of potential claims, our precedent nevertheless recognizes that a

convicting court may have implicit authority to take actions not expressly authorized if they are in

furtherance of the statute’s jurisdictional purpose. See State v. Holloway, 360 S.W.3d 480, 487–88

(Tex. Crim. App. 2012), abrogated on other grounds by Whitfield v. State, 430 S.W.3d 405, 409

(Tex. Crim. App. 2014), (addressing concept of implicit authority in context of post-conviction DNA

proceedings under Code of Criminal Procedure Chapter 64). We previously explained:

In addition to specific power to act conferred by constitutional provision, statute, or
common law, all courts have inherent authority to take certain actions. In
Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979), our sister court noted that
in addition to express grants of judicial power, a court has inherent judicial power,
which it may call upon to aid in the exercise of its jurisdiction, in the administration
of justice, or in the preservation of its independence and integrity. Courts may also
have implied authority to act, arising from specific grants of power.

In sum, a court may take a particular action only if that action is authorized
by constitutional provision, statute, or common law, or the power to take the action
arises from an inherent or implied power.

State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991); see also TEX. GOV’T CODE Ann.

§ 21.001(a) (titled “Inherent Power and Duty of Courts,” and providing “[a] court has all powers

necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including

authority to issue the writs and orders necessary or proper in aid of its jurisdiction.”). But, that

inherent or implicit authority is not unlimited; “any acts undertaken under the guise of ‘implicit
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authority’ may be taken only in furtherance of some other action for which there is an explicit grant

of jurisdiction.” Holloway, 360 S.W.3d at 488; see also id. (identifying the “jurisdictional purpose”

of Chapter 64, to determine the limits of implicit authority thereunder).

Here, article 11.071’s apparent jurisdictional purpose—to provide capital habeas applicants

with procedural mechanisms to ensure a single full and fair opportunity to litigate their post-

conviction claims—is furthered by the convicting court’s ability to enter orders in the pre-filing

stage. Section 3 of the statute mandates that appointed counsel “shall investigate expeditiously” both

the “factual and legal grounds” for relief before filing the application. Tex. Code Crim. Proc. Ann.

art. 11.071 § 3(a). Based on counsel’s thorough investigation of potential claims, we have held that

counsel is required to plead “specific facts” in support of relief in the application, rather than mere

“conclusory allegations.” See Ex parte Medina, 361 S.W.3d 633, 637–38 (Tex. Crim. App. 2011)

(per curiam). But, if counsel is unable to obtain confidential, non-publicly available information

without a court order, then how can counsel possibly “investigate expeditiously” all the potential

grounds for relief? To hold that a trial judge lacks implicit authority to facilitate counsel’s

investigation of claims at the pre-filing stage sets up a Catch-22 for capital habeas applicants—they

are required to plead specific facts in the application, but they have no power to compel any third

parties to actually comply with their factual investigation that might support those claims. Given the

broad purposes of article 11.071 and the overall structure of the statute, a convicting court’s pre-

filing order does not clearly and indisputably exceed the permissible scope of implicit authority

under the statute.

Of course, Ford already filed his initial habeas application, so some of the special concerns

that attach to an initial habeas application and the importance of affording an applicant his one “full
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bite” at the apple are not implicated here. Instead, because Ford has already had his initial bite, the

statutory scheme says he cannot have another. See TEX. CODE CRIM. PROC. Ann. art. 11.071, § 5(a)

(“If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a

court may not consider the merits or grant relief based on the subsequent application . . . .”). While

the convicting court has the implicit authority to ensure that a habeas applicant gets as-good-of-a-

bite-as-he-can-get on his initial application, does the convicting court have the same authority to

facilitate pre-filing investigation for a subsequent writ application, if such an application is statutorily

barred and the applicant presumably gets no more bites?

One only needs to keep reading that very same statute to see that there is the possibility for

another bite; there are exceptions to the § 5 subsequent writ bar:

(a) If a subsequent application for a writ of habeas corpus is filed after filing an
initial application, a court may not consider the merits or grant relief based
on the subsequent application unless the application contains sufficient
specific facts establishing that:

(1) the current claims and issues have not been and could not have been
presented previously in a timely initial application or in a previously
considered application filed under this article or Article 11.07 because
the factual or legal basis for the claim was unavailable on the date the
applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United
States Constitution no rational juror could have found the applicant
guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United
States Constitution no rational juror would have answered in the
state’s favor one or more of the special issues that were submitted to
the jury in the applicant’s trial under Article 37.071, 37.0711, or
37.072.

TEX. CODE CRIM. PROC. Ann. art. 11.071, § 5(a). To overcome the statutory bar on subsequent writs
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and receive consideration of his claim on the merits, a capital habeas applicant would need to present

both argument and facts showing that he fits within one of these exceptions. But, how can Ford ever

hope to satisfy the pleading burden that § 5(a) plainly imposes if his new claim cannot be factually

developed and investigated since he cannot have his blood drawn while incarcerated without a court

order allowing access?

The majority suggests that an initial habeas applicant should go ahead and file a habeas

application, so long as he can make a prima facie showing, rather than prove his entire case. Indeed,

in such a prima facie showing, the majority reaffirms that the applicant must allege sufficient specific

facts that would entitle him to relief, and those facts do not need to be proven at that time. Yet, how

would an applicant allege sufficient specific facts that, if proven, establish his right to relief if he

does not know what the facts are? He has ideas, surely, but is the Court signaling that conclusory and

bare assertions about what might be out there would be enough for a habeas application, so long as

that speculation would get him across the finish line?

As for an applicant considering a subsequent habeas application, such as Ford, the majority

suggests that he also should have gone ahead and filed his subsequent habeas application, and in that

subsequent application essentially incorporate the discovery request that would then later yield,

potentially, the facts. The majority also reminds subsequent applicants such as Ford, however, that

the subsequent application must allege why the application gets past the subsequent writ bar of

article 11.071, § 5, such as why the evidence was previously unavailable. With such a pleaded

application, this Court could then consider whether the application is procedurally barred and, if not,

whether to remand the case to the convicting court for factual development. Yet, how would an

applicant such as Ford make the required prima facie showing that there are new facts when he
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supposedly must seek discovery of those very facts in the same pleading? At the moment he files the

subsequent application and before the convicting court obtains jurisdiction and therefore the

authority to order discovery under the majority’s rule, he does not know what the facts actually are.

I would have thought it surely was not the Legislature’s intent, in creating the exceptions to

the subsequent writ bar, for capital habeas applicants to plead speculative conclusions about how

their case meets an exception to the subsequent writ bar, solely so the applicant can get his foot in

the door and begin the process of discovery and investigation, possibly through the use of orders

entered by the convicting court. But, as I understand it, the majority’s approach would greatly loosen

the pleading standard for habeas applications. An applicant could hereafter plead any theory about

why he is entitled to habeas relief, without even a scintilla of evidence that would support the theory,

so long as he has a good faith belief that he might be right. And, a subsequent applicant could plead

a theory about what new evidence is out there and a theory about why that evidence was previously

unavailable, so long as he also has a good faith belief that such evidence exists. And, then after

discovery commences and he finds out what actually is out there, he would then need to file a

subsequent application alleging claims to relief based on what he found out from his previous

application, filed only in the name of obtaining discovery in the first place. Or, if this Court be so

generous, allow him to amend the plausible-theory application to plead the facts, which may be

drastically different than what was previously alleged.

Instead of preventing fishing expeditions altogether, we would nevertheless allow fishing

expeditions so long as the habeas applicant pleads, to this Court, his fish story.

Rather than greatly loosening the pleading requirements for initial and subsequent habeas

applications and eschewing established practice requiring applicants plead “sufficient specific facts,”
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I would simply recognize that the statutory scheme expects applications that have been thoroughly

investigated before filing, and intervention or assistance from the convicting court in the form of

discovery or access orders may be necessary to prepare a properly pleaded writ application, initial

or subsequent. I would hold that Respondent therefore had the implicit authority to facilitate Ford’s

investigation of potential claims for a possible subsequent writ application, and the fact that Ford has

not yet filed a subsequent writ application should not be dispositive. Accordingly, I believe the

Access Order in this case was not made without authority or jurisdiction, and mandamus relief is

therefore unwarranted.

Two additional considerations reinforce my conclusion. First, broadly speaking, principles

of fundamental fairness conflict with a rule categorically disallowing convicting courts from

facilitating factual investigation of prospective post-conviction claims from death-sentenced

individuals. The Supreme Court:

has long recognized that when a State brings its judicial power to bear . . . on [a]
defendant in a criminal proceeding, it must take steps to assure that the defendant has
a fair opportunity to present his defense. This elementary principle, grounded in
significant part on the Fourteenth Amendment’s due process guarantee of
fundamental fairness, derives from the belief that justice cannot be equal where . . .
a defendant is denied the opportunity to participate meaningfully in a judicial
proceeding in which his liberty is at stake.

Ake v. Oklahoma, 470 U.S. 68, 76 (1985). Consequently, “a criminal trial is fundamentally unfair

if the State proceeds against [a] . . . defendant without making certain that he has access to the raw

materials integral to the building of an effective defense.” Id. at 77. “The consistent theme” is

“[m]eaningful access to justice,” and “fundamental fairness entitles . . . defendants to ‘an adequate

opportunity to present their claims fairly within the adversary system.’” Id. at 77 (quoting Ross v.

Moffitt, 417 U.S. 600, 612 (1974)). Accordingly, defendants must be provided “‘the basic tools of
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an adequate defense or appeal.’” Id. (quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)).

Although the specific context of Ake—preparation for criminal trial—is different from the

circumstances before us, the underlying rationale applies. “[T]his principle of meaningful

participation” extends to “quasi-criminal” proceedings. Id. at 76 (citing Little v. Streater, 452 U.S.1

(1981)). Principles of fundamental fairness require that a habeas applicant be afforded a fair

opportunity to present his claims. See Ake, 470 U.S. at 76. Here, as in Ake, a litigant whose liberty

is at stake has no means of fully preparing his case without a court order.

Second, in support of its argument for standing, TDCJ emphasizes its interest in the secure

operation of its prisons, and it asserts that being forced to provide outside medical personnel with

access to an inmate on death row impacts that interest. Indeed, “prisons have compelling interests

in both protecting those attending an execution and preventing them from interfering with it . . . .”

Ramirez v. Collier, 595 U.S. 411, 431 (2022). But, it is unclear how allowing a medical professional

into the prison to take Ford’s blood for genetic testing poses a risk that justifies TDCJ’s current

position. Medical professionals routinely assist inmates, including the drawing of blood samples, and

TDCJ undoubtedly has security protocols for allowing and supervising visitors to its facilities. While

the level of intrusion into TDCJ’s interests caused by the Access Order is a separate issue from the

question of whether the convicting court had the authority to enter it, the degree of intrusion seems

quite minimal, constituting an additional circumstance that weighs against the granting of

extraordinary mandamus relief here.

III — Conclusion

In conclusion, I believe that TDCJ is not entitled to mandamus relief. TDCJ has not shown

that the convicting court had a ministerial duty to undo the Access Order because TDCJ has not
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shown that the convicting court clearly lacked the authority to enter the Access Order. Instead, article

11.071 affords a convicting court judge the implicit authority to enter orders facilitating the factual

investigation of potential post-conviction claims for initial and subsequent writs, even in the pre-

filing stage. Such orders further both article 11.071’s purpose and notions of fundamental fairness.

In any event, this Court has never squarely held that the statute does not afford a convicting court

the discretion to enter such orders.

I would deny mandamus relief. I concur in part as to the Court’s holding on the issue of

standing as it pertains to the Funding Order, but I respectfully dissent to the majority’s granting of

conditional mandamus relief as to the Access Order.

Filed: March 26, 2025
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