In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00305-CV
IN RE THE STATE OF TEXAS, RELATOR
ORIGINAL PROCEEDING
October 3, 2018
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
On August 9, 2018, relator Christopher Dennis, District Attorney for the 286th
Judicial District of Hockley County, filed a petition for writs of mandamus and prohibition
in this Court. See TEX. GOV’T CODE ANN. § 22.221 (West Supp. 2017); TEX. R. APP. P. 52.
By his petition, Dennis asks this Court to issue a writ of mandamus ordering the Honorable
Pat Phelan, presiding judge of the 286th District Court of Hockley County, to withdraw his
July 23, 2018 orders disqualifying the District Attorney’s Office from prosecuting cases
against two defendants, and a writ of prohibition preventing the trial court from
disqualifying the District Attorney’s Office from prosecuting any other causes without good
cause being shown. We deny Dennis’s petition.
Background
On June 7, 2018, Christina Woods-Duffy filed multiple motions to disqualify the
286th Judicial District Attorney’s Office based on a claim of prosecutorial vindictiveness
rising to the level of violation of her clients’ due process rights. Woods based her
argument on Dennis’s revocation of all pending plea offers to Woods’s clients by text and
letter after the two attorneys were involved in a contentious hearing regarding the
exclusion of the State’s expert witnesses in another case. Of significance to the present
proceeding, during a July 2nd hearing on Woods’s motions to disqualify, Judge Phelan
asked Dennis if he had withdrawn all offers to clients of a particular attorney by a similar
text or letter. Dennis responded that he had and, when Judge Phelan asked to whom,
Dennis expressly identified Laurie Key as one such attorney.
Because Dennis identified that he had previously withdrawn plea offers to all of
Key’s clients, Key filed motions to disqualify the 286th Judicial District Attorney’s Office
from cases involving James Darrell Bridges and Ernesto Salinas, both of whom are
criminal defendants being represented by Key and prosecuted by Dennis. The trial court
held a hearing on the motions at which Key argued that Dennis’s statement at the July
2nd hearing identified a policy of the district attorney’s office not to make plea bargain
offers to any of Key’s clients. Dennis denied that he or the district attorney’s office had
any policy refusing to make plea bargain offers to Key’s clients. Following the hearing,
Judge Phelan pronounced that he would grant the motions to disqualify and,
subsequently, issued written orders granting the motions and appointing a special
prosecutor. In response, Dennis filed his petition for writs of mandamus and prohibition.
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Law
Mandamus relief is generally only appropriate when the trial court has clearly
abused its discretion and the relator has no adequate remedy by appeal. In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). “A trial court abuses its discretion if
it clearly fails to analyze the law correctly or apply the law correctly to the facts.” In re
USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. App.—Houston [14th Dist.]
2012, orig. proceeding). As the party seeking relief, the relator bears the burden to
provide a sufficient record to establish his entitlement to mandamus relief. Walker v.
Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).
A writ of prohibition must meet the same standards as a writ of mandamus;
prohibition seeks to “prevent the commission of a future act whereas [mandamus]
operates to undo or nullify an act already performed . . . .” In re Medina, 475 S.W.3d 291,
297 (Tex. Crim. App. 2015) (quoting State ex rel. Wade v. Mays, 689 S.W.2d 893, 897
(Tex. Crim. App. 1985)). To establish entitlement to relief through a writ of prohibition, an
applicant must show that the act he wishes the court to restrict “does not involve a
discretionary or judicial decision.” Id. (quoting Simon v. Levario, 306 S.W.3d 318, 320
(Tex. Crim. App. 2009)). In addition, an applicant must show that he has no adequate
remedy at law. Id. The applicant bears the burden to prove that he is entitled to a writ of
prohibition. See In re Thorn, Nos. 14-14-00190-CR, 14-14-00191-CR, 14-14-00192-CR,
2014 Tex. App. LEXIS 2824, at *3 (Tex. App.—Houston [14th Dist.] Mar. 13, 2014, orig.
proceeding) (mem. op., not designated for publication) (per curiam).
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Analysis
The Texas Rules of Appellate Procedure set forth the documentation requirements
necessary to support an original proceeding. Specifically, the relator is required to file an
appendix containing “a certified or sworn copy of any order complained of, or any other
document showing the matter complained of . . . .” TEX. R. APP. P. 52.3(k)(1). The relator
must also file a record containing “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,”
as well as “a properly authenticated transcript of any relevant testimony from any
underlying proceeding . . . .” TEX. R. APP. P. 52.7(a). The relator must also certify that
“every factual statement in the petition is supported by competent evidence included in
the appendix or record.” TEX. R. APP. P. 52.3(j). Dennis has failed to comply with these
rules here.
As an initial matter, Dennis does not include a “certified or sworn copy” of the trial
court’s order disqualifying the District Attorney’s Office in the cases involving Bridges and
Salinas. Likewise, many of the other documents included in the appendix to his original
petition are not certified or sworn copies. In addition, Dennis has not certified that all
factual statements contained within the petition is supported by competent evidence
included in the appendix or record. Consequently, Dennis’s petition does not contain
certified or sworn documentation necessary to support his request for relief.
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Conclusion
Because relator has not met the basic requisites to establish his entitlement to
mandamus or prohibition relief, we deny his petition.
Judy C. Parker
Justice
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