in Re Michael Munk, Relator

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-14-00299-CV

IN RE MICHAEL MUNK, RELATOR

Original Proceeding

August 15, 2014

MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Relator, Michael Munk, serves as the elected district attorney for the 106th

District and has filed his petition for writs of mandamus and prohibition in relation to an

order issued by Respondent, the Honorable Carter T. Schildknecht, presiding judge of

the 106th District Court, in which Respondent allegedly expelled Relator from her

courtroom. For the reasons expressed herein, we will deny Relator’s petition for writs of

mandamus and prohibition.

Factual and Procedural History

The subject order of the instant petition seems to have had its origins in the

proceedings in trial court cause number 04-6286, styled State of Texas v. William
Jayson Ellison.1 In that case, Ellison had been convicted of driving while intoxicated—a

third or greater offense of it—and sentenced to community supervision. On two

occasions, the State had applied to revoke his community supervision based on alleged

violations of the terms and conditions of his supervision. On each of those occasions,

Respondent had modified the terms and conditions of supervision rather than revoking

community supervision and sentencing Ellison to imprisonment. At least one of these

modifications appears to have included the modification that Ellison attend a

rehabilitation facility. In the most recent of the State’s applications, it alleged that Ellison

violated the terms and conditions of his community supervision by committing yet

another offense of driving while intoxicated, this one being in Lubbock County.

Indeed, it appears that, in December 2013, Ellison was involved in a serious

collision in Lubbock County and was charged with driving while intoxicated yet again.

Apparently, the victim sustained injuries and sustained significant property damage as

well. He was charged in that case in Lubbock County and those charges were pending

when he came before Respondent on the State’s application to revoke community

supervision in the Dawson County case, trial court cause number 04-6286. In fact, trial

was to be held on the Lubbock County DWI charges within days of the revocation

hearing.

1
The 106th District includes the following four counties: Dawson, Gaines, Garza, and Lynn, two
of which are in our jurisdiction and two of which are not. We recognize that State v. Ellison is a Dawson
County case. Dawson County is not within this Court’s jurisdiction and, instead, lies within the jurisdiction
of the Eleventh Court of Appeals sitting in Eastland. See TEX. GOV’T CODE ANN. § 22.201(h), (l) (West
Supp. 2014). However, because State v. Ellison is not the underlying proceeding from which the subject
order directly arises, we do not dismiss the instant petition on the basis of lack of jurisdiction. As will be
noted later, the order at issue was entered, if at all, while Relator and Respondent were in Garza County,
a county that does lie within our geographical jurisdiction. See id. § 22.201(h).

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 Following the hearing on the State’s application to revoke in trial court cause

number 04-6286, Respondent again modified the terms and conditions of Ellison’s

community supervision to once again require him to attend a rehabilitation facility.

Relator, as the State’s prosecuting attorney, was dissatisfied with Respondent’s

decision. At this point, he commented to the Lubbock Avalanche-Journal; defense

counsel and Respondent declined to comment. Relator’s and others’ critical comments

appeared in an article published on July 8, 2014. Notably, Relator observed as follows:

“Giving someone a chance to be treated is one thing, but what this judge, [Respondent],

is doing is putting one person before the protection of the rest of society.” Josie Musico,

Lamesa Prosecutor Frustrated with Repeat Drunken Driver’s Continued Probation,

LUBBOCK AVALANCHE-JOURNAL, July 8, 2014, http://lubbockonline.com/local-news/2014-

07-08/lamesa-prosecutor-frustrated-repeat-drunken-drivers-continued-probation#.U-Jk7

7Eo7DA. He was also quoted as having commented that to permit Ellison another

chance at community supervision “would turn the court into a facilitator and [Ellison’s]

accomplice.” Id.

One week later, on July 15, Relator was at the Garza County courthouse

presenting cases to the grand jury in a part of the courthouse away from the 106th

District Court. After he was finished with the grand jury matters, Relator proceeded to

the 106th District Court and entered the courtroom “to assist with the remainder of the

criminal docket,” which apparently consisted of the non-jury criminal docket that was

being handled by assistant district attorneys from Relator’s office. Relator explains that

he was met almost immediately upon entry by Constable Eric Cravy, who informed

Relator that, by order of the district judge, Relator had to leave the courtroom. Relator

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sought clarification, and Cravy responded that “she doesn’t want to see your face” or

something to that effect, per Relator’s account of the interaction. Later, other more

specific and less polite accounts would come to light during a hearing on a motion to

recuse Respondent in another proceeding. At any rate, Relator exited the courtroom as

directed.

After Relator was disallowed from the courtroom on July 15, there were more

“less-than-flattering” newspaper articles concerning Respondent’s handling of Ellison’s

case. On July 21, Relator appeared before Respondent in trial court cause number 13-

2673, a Garza County case, styled State of Texas v. Bobby Glenn Blair. In that case,

Relator filed a motion to recuse Respondent, a motion which was heard by the

Honorable Kelly Moore, presiding judge of the Ninth Administrative Judicial Region and

the 121st District Court in Terry and Yoakum Counties, on July 23. In his motion to

recuse and citing TEX. R. CIV. P. 18b, Relator alleged that Respondent’s impartiality

might reasonably be questioned and that Respondent has a personal bias or prejudice

against Relator such that the State could not get a fair trial.

In the record of that hearing on Relator’s motion to recuse, we read witness

accounts as to what Respondent said when Relator came into the courtroom while non-

jury criminal matters were being dealt with on July 15. Witness accounts varied from “I

don’t want him in my courtroom” and “Get that [SOB] out of here” to distasteful

comments regarding Relator’s religious background and the region from which he hails.

Ultimately, Relator’s motion to recuse Respondent from the proceedings in State v. Blair

was denied; in his order denying such, Judge Moore keenly observed:

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 The Code of Judicial Conduct governs the actions of judges and provides
penalties for violation of the Code. Likewise, the Texas Disciplinary Rules
of Professional Conduct governs the actions of lawyers and provides
penalties for violations of the Rules. The provisions and safeguards of
these systems of self-regulation within the legal system have been time
tested to be a fair method of settling disputes involving lawyers and
judges. The matters presented at the hearing center around the strained
relationship between the judge and the DA and not about the ability of
each side to receive a fair trial in this proceeding.

Finally, Relator has filed with this Court his petition for writs of mandamus and

prohibition, aimed at Respondent’s July 15th order by which Relator was expelled from

Respondent’s courtroom. Relator contends that, by so ordering, Respondent has

interfered with the prosecutorial duties Relator is sworn to uphold. He goes even further

to claim that “Respondent’s order has the effect of removing Relator from office.” In

support of his request for a writ of prohibition, he maintains that, given the “highly

inflammatory nature and embarrassing light . . . [of] the four new [newspaper] stories,”

the filing of the motion to recuse in State v. Blair, and the fact that Ellison was since

sentenced to six years’ imprisonment in the Lubbock County DWI case, “it is probable

there will be another illegal expulsion order from Respondent.”

Petition for Writ of Mandamus

We first address Relator’s contentions in support of his request that this Court

compel Respondent by writ of mandamus to withdraw the expulsion order of July 15.

We note that Relator candidly concedes the possibility that such request may have

been rendered moot by subsequent developments.

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Applicable Law and Standards

Mandamus will issue only to correct a clear abuse of discretion or the violation of

a duty imposed by law when there is no other adequate remedy by law. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Thus, evaluating whether

mandamus relief should be granted requires that we determine whether there has been

a clear abuse of discretion by the trial court and, if so, whether an adequate appellate

remedy exists. See id.

Relator bears the burden to properly request and show entitlement to mandamus

relief. See id. at 837. “Even a pro se applicant for a writ of mandamus must show

himself entitled to the extraordinary relief he seeks.” Barnes v. State, 832 S.W.2d 424,

426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam); see In re

Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding). To satisfy

that burden, the relator must provide the reviewing court with a record sufficient to

establish his right to mandamus relief. See Walker, 827 S.W.2d at 837; In re Davidson,

153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); see also TEX. R.

APP. P. 52.3(k) (specifying required contents for appendix), 52.7(a) (providing that a

relator must file with petition "a certified or sworn copy of every document that is

material to the relator's claim for relief and that was filed in any underlying proceeding").

If a trial court’s order is adequately reflected in the reporter’s record, a formal written

order is not essential to obtaining mandamus relief. In re Vernor, 94 S.W.3d 201, 207

n.8 (Tex. App.—Austin 2002, orig. proceeding); In re Perritt, 973 S.W.2d 776, 779 (Tex.

App.—Texarkana 1998, orig. proceeding); see TEX. R. APP. P. 52.3(k)(1)(A). If the

complained-of order is an oral order, the portion of the reporter’s record that contains

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the order must be included in the petition’s appendix. In re Bill Heard Chevrolet, Ltd.,

209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (citing In

re Vernor, 94 S.W.3d at 207 n.8).

A petition for writ of mandamus must set out clearly, fully, and unreservedly, by

direct and positive allegation, every fact necessary to show why the requested relief is

mandated. Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982) (orig.

proceeding) (en banc). A mandamus action requires certainty as to both pleadings and

facts. Johnson v. Hughes, 663 S.W.2d 11, 12 (Tex. App.—Houston [1st Dist.] 1983,

orig. proceeding). We may not deal with disputed areas of fact in a mandamus

proceeding. See West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978) (orig. proceeding).

This “stringent test of exactness” is necessary because mandamus is an extraordinary

remedy that should not issue “without careful, individual scrutiny of the facts alleged.”

Fisher v. Harris Cnty. Republican Exec. Comm., 744 S.W.2d 339, 340 (Tex. App.—

Houston [1st Dist.] 1988, orig. proceeding) (quoting Bush v. Vela, 535 S.W.2d 803, 805

(Tex. Civ. App.—Corpus Christi 1976, orig. proceeding)).

Analysis

We express some concern that Relator has failed to adequately demonstrate the

“order” of which he complains in this original proceeding, noting that the “order” was not

written, not recorded, and not issued in connection with a particular identified case.

Further, we know very little regarding the details—duration, limits, expiration, etc.—of

this oral order, even after the subsequent hearing on the motion to recuse provided

some contextual information. In this regard, we have serious concerns whether Relator

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has shown, with sufficient specificity and certainty, that he is entitled to the relief

requested. See Kopeski, 629 S.W.2d at 745; Johnson, 663 S.W.2d at 12. Following

careful scrutiny of the facts alleged, we are not convinced that Relator’s allegations in

this regard have passed the “stringent test of exactness,” a necessary hurdle before we

will issue such an extraordinary remedy. See Fisher, 744 S.W.2d at 340.

To the extent that Respondent’s directive was adequately established by the

subsequent testimony at the hearing on Relator’s motion to recuse filed in State v. Blair,

trial court cause number 13-2673, and to the extent such directive can be said to

constitute an “order” of the trial court, we must conclude nonetheless that Relator’s

contentions are moot because the “order” about which he complains is obviously no

longer in effect as demonstrated by the fact that Relator has been permitted to appear

and practice before Respondent’s court since the alleged expulsion. See Camarena v.

Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (“[A]ppellate courts do not

decide cases in which no controversy exists between the parties.”). Because the order

about which Relator complains is no longer in effect, the issues raised in his petition

have been rendered moot. See In re Campbell, 106 S.W.3d 788, 788 (Tex. App.—

Texarkana 2003, orig. proceeding); see also In re White, No. 01-10-00960-CV, 2011

Tex. App. LEXIS 3283, at *1–2 (Tex. App.—Houston [1st Dist.] Feb. 24, 2011, orig.

proceeding) (mem. op.) (per curiam).

Accordingly, we deny Relator’s request for mandamus relief.

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 Petition for Writ of Prohibition

We next address Relator’s contention in support of his request that this Court

issue a writ of prohibition to prevent Respondent from entering a similar order or taking

similar actions to expel Relator from any future proceedings.

Applicable Law and Standards

We first point out that the writ of prohibition is a creature of limited purpose. In re

Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig, proceeding). The

purpose of the writ of prohibition is to enable a superior court to protect and enforce its

jurisdiction and judgments. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683

(Tex. 1989) (orig. proceeding). The writ is typically used to protect the subject matter of

an appeal or to prohibit an unlawful interference with the enforcement of a superior

court’s orders and judgments. Id. To those ends, a writ of prohibition may issue to

accomplish the following tasks: (1) to prevent interference with higher courts in deciding

a pending appeal, (2) to prevent inferior courts from entertaining suits which will

relitigate controversies which have already been settled by the issuing court, and (3) to

prohibit a trial court’s action when it affirmatively appears that the court lacks

jurisdiction. See In re Lewis, 223 S.W.3d at 761; McClelland v. Partida, 818 S.W.2d

453 (Tex. App.—Corpus Christi 1991, orig. proceeding). The writ of prohibition is

designed to operate much like an injunction issued by a superior court to control, limit,

or prevent action in a court of inferior jurisdiction. Holloway, 767 S.W.2d at 682.

In keeping with the limited purpose of the writ of prohibition, an appellate court’s

jurisdiction to issue the writ is likewise limited. See Tex. Employers’ Ins. Ass’n v. Kirby,

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137 Tex. 106, 152 S.W.2d 1073, 1073 (1941). In Kirby, the Texas Supreme Court

concluded that a petition for a writ of prohibition is an ancillary proceeding that is

invoked in aid of an appellate court’s jurisdiction which has otherwise been properly

invoked, not an independent proceeding brought to prohibit an action. See id. That

said, a writ of prohibition is appropriate only after an appellate court’s jurisdiction has

been invoked on independent grounds and then only in aid of that jurisdiction. See id.

So, an appellate court does not have jurisdiction, absent actual jurisdiction of a pending

proceeding, to issue a writ of prohibition requiring that a trial court refrain from

performing a future act. See In re Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler

2003, orig. proceeding); Lesikar v. Anthony, 750 S.W.2d 338 (Tex. App.—Houston [1st

Dist.] 1988, orig. proceeding).

Analysis

In this instance, Relator has not identified a pending proceeding over which this

Court has jurisdiction and by which this Court might have jurisdiction to issue a writ of

prohibition to prohibit a future act by Respondent. Nor have we found such a

proceeding. Simply put, it appears we have no pending jurisdiction to protect or

preserve by way of writ of prohibition. See Kirby, 152 S.W.2d at 1073. The instant case

does not present one of the limited purposes to be achieved by issuance of a writ of

prohibition and, that being the case, we lack jurisdiction to issue such extraordinary

relief. See Holloway, 767 S.W.2d at 683; In re Nguyen, 155 S.W.3d at 194.

Accordingly, we deny Relator’s request to issue a writ of prohibition in this

context.

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 Conclusion

For the above-stated reasons, we deny Relator’s petition for writs of mandamus

and prohibition as it relates to the order, if any, by Respondent on July 15, 2014, by

which Relator was expelled from the 106th District Court courtroom. See TEX. R. APP.

P. 52.8(a).

Per Curiam

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