IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
PETITION FOR WRIT OF MANDAMUS
IN CAUSE NO. 1989-1036 FROM THE
54TH DISTRICT COURT OF MCLENNAN COUNTY
DISSENTING OPINION
The Court is apparently of the view that, if there is a federal stay of execution in place, the federal courts are competent to act in protection of their own jurisdiction. I agree, but do not think that it is necessarily a reason that this Court should not act instead.
The federal district court granted a stay of execution on May 10, 1999, "to allow for the orderly litigation of these habeas proceedings until further orders of this Court." There is no indication that it has ever been lifted. The Fifth Circuit still has the case under advisement, and until its mandate issues, or the stay is lifted, the district court's stay order remains legally viable. Under federal statutory law, a stay has the effect of rendering "void" any further "proceeding against the person detained . . . for any matter involved in the habeas corpus proceeding." (1) That federal provision is binding on Texas state courts under the Supremacy Clause. (2) Judge Allen set a new execution date on authority of Article 43.141 of the Texas Code of Criminal Procedure. (3) In the absence of a stay, Article 43.141 would clearly authorize him to do so. But it seems clear enough to me that, since a stay is in place, 28 U.S.C. § 2251, in combination with the Supremacy Clause, prohibits any invocation of Article 43.141 at this juncture to justify a new execution date. Judge Allen's order is therefore "void," and he would have a ministerial duty to withdraw it. A writ of mandamus may be granted in order to set aside an unauthorized order entered by a trial court. (4) Thus, the relator satisfies the first condition for mandamus relief from this Court.
To my mind, then, the question is whether he satisfies the second condition, that he has no adequate remedy at law. The relator has already filed a motion with Judge Allen requesting him to vacate his order. That motion was denied because it did not invoke any of the express circumstances under Article 43.141 (d), whereby a convicting court may withdraw its order setting an execution date. I am unaware of any statute or rule in Texas that would allow the relator to appeal Judge Allen's order setting the execution date, or his order denying the relator's motion to vacate it. Thus, there would appear to be no remedy at law (or at least none under Texas state law) to "supersede" the equitable relief he now seeks. (5) I believe that the relator has met the second condition for mandamus relief.
Nevertheless, should we, in the interest of federal/state comity, deny leave to file the mandamus writ in this Court in the expectation that the relator will seek (or perhaps already has sought) a remedy in federal court, such as a simple motion to enforce the stay that is already in place in the federal district court? Should we, in short, abstain, as the Court would have us do today, in the interest of comity?
In another context, the Court has declined to entertain post-conviction writs of habeas corpus when the applicant has a writ already pending in federal court. In Ex parte Soffar, (6) in describing this doctrine of abstention, we observed that it was a "judicially created policy based on comity which 'teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.' Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)." But Darr constitutes an apology for federal deference to state court judgments, justifying federal courts in "refus[ing] relief as a matter of comity until state remedies are exhausted." (7) Darr does not explicitly justify this Court in deferring to the federal courts on matters that are of paramount state importance (such as the question whether a state district court judge has the authority to set an execution date for a state prisoner). Moreover, at this juncture, we do not even know whether the federal courts are "already cognizant of the litigation" whereby the relator would challenge Judge Allen's order setting his execution date.
I think that we can, and should, exercise our mandamus jurisdiction to remedy this situation. We should not abstain by denying leave to file in the expectation that the federal courts will act to protect their own jurisdiction. The federal statute that renders Judge Allen's order void is binding upon the courts of Texas by the Supremacy Clause. Comity would counsel that the state courts should take the first action to address it, and the federal courts should only have to get involved after we have first had the opportunity to do so. Because the Court nevertheless defers to the federal courts on this matter, I respectfully dissent.
Filed: May 10, 2006
Do Not Publish
1. 28 U.S.C. § 2251.
2. U.S. Const. art. VI., cl. 2
3. Tex. Code Crim. art. 43.141.
4. 5. 6. 143 S.W.3d 804, at 805 (Tex. Crim. App. 2004).
7. 339 U.S. at 204.