I have recently had occasion to file a couple of petitions for writ of mandamus on behalf of the State in criminal proceedings. Under the holding in Padilla, 122 S.W.3d 805, the State must first seek relief from the court of appeals. Some courts, including the 2nd treat these as civil proceedings, demanding a $75 filing fee from the State. Other courts, including the 10th and 11th, file these proceedings with a criminal cause number and apparently do not require a filing fee to be paid. It seems to me the practice of the 10th and 11th CofA is the correct one. In any event, there should be uniformity.
I would also contend the proceeding is criminal in nature because the court of appeals must utilize the CCA's test for whether the writ should issue. Hill, 34 S.W.3d 924. In civil cases the Supreme Court requires only that the relator show the trial court failed to apply the law "correctly" and has no other adequate remedy. The CCA, on the other hand seems to have a higher standard, namely, that one show the law violated clearly spelled out the duty to be performed with such certainty that nothing was left to the exercise of discretion or judgment.
I would like to know if anyone thinks I am wrong about this (and why).
A while ago in Collin County I filed a mandamus seeking a stay during a State's appeal. The judge wanted to retry the case after a mistrial despite our appeal. The 5th COA charged us the filing fee then decided it as a motion. We got the stay. Also, I called up the Court and got the money back! I said if the Court wanted to treat it as a mandamus we would pay, but if it wanted to treat it as a motion we wanted the $ back. They understood and quickly reimbursed the county.
I agree that uniformity should exist. Something for the OCA or the appellate rules committee perhaps?
I have determined that the treatment of mandamus as a civil action, even though it pertains to a criminal prosecution, is not without precedent. Hogan v. Turland, 428 S.W.2d 316. But, I note this language from the opinion: "The civil nature of the action is demonstrated by the fact that it is not brought by nor in the name of the state." Further, the CCA has noted a petition for writ of mandamus is a "criminal law matter" despite the holding in Hogan. See Espinoza, 669 S.W.2d 736, fn. 1. I continue to believe Padilla envisioned a criminal action in the intermediate court.
The lack of uniformity as to filing fee continues. There is another aspect to the characterization worth noting. If treated as a civil action, the opinion of the intermediate court appears not to be subject to Tex. R. App. P. 47.2(b) or 47.7(a). Given the tendency of the courts to overutilize Tex. R. App. P. 47.2(b), the distinction is quite important to the jurisprudence of the state. Decisions in such cases as In re Paxton (Tex. App.-Dallas 5/30/17) might easily otherwise lose some of their significance.
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