IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,160-01
IN RE STATE OF TEXAS EX REL. K. SUNSHINE STANEK,
LUBBOCK COUNTY DISTRICT ATTORNEY, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 2020-421,049
IN THE 140 DISTRICT COURT OF LUBBOCK COUNTY
TH
CAUSE NO. 07-21-00070-CV
IN THE SEVENTH COURT OF APPEALS
NEWELL, J. delivered the opinion of the Court in which
KELLER, P.J., HERVEY, RICHARDSON, YEARY, KEEL, WALKER, and
MCCLURE, JJ., joined. SLAUGHTER, J., concurred.
This case involves the same facts and same legal issues resolved
in the companion case, In re City of Lubbock, issued today. However,
this case presents a procedural issue not presented in the companion
case. Relator, Lubbock County District Attorney K. Sunshine Stanek,
seeks mandamus relief directly from this Court without having first
Stanek - 2
sought mandamus review from the court of appeals. That Relator seeks
relief from this Court first is understandable because Relator did not
learn of this case until after the court of appeals delivered its opinion in
the companion case. While this scenario arguably justifies the exercise
of this Court’s original mandamus authority, we need not do so in this
case. Relator’s arguments are largely the same as those presented by
the City of Lubbock in the companion case, and our resolution of those
arguments necessarily resolves the arguments raised in this case.
Consequently, we dismiss the motion for leave to file as improvidently
granted. To the extent that Relator’s arguments in this case enhance
the arguments raised in In re City of Lubbock, we will address them in
that case by treating the filing in this case as an amicus brief.
Background
The underlying facts are undisputed and are fully set out in our
companion opinion In re City of Lubbock issued today. A Lubbock County
grand jury indicted Real Party in Interest, Rodolfo Zambrano, with the
offense of sexual assault of a child. 1 Through counsel, he filed an “Ex
Parte Motion for Court Ordered Production of Documents and/or Things”
from the Lubbock Police Department. That same day, Respondent,
1
TEX. PENAL CODE § 22.011(a)(2).
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Presiding Judge of the 140th District Court of Lubbock County, Texas
issued an ex parte order on the motion. The City of Lubbock, on behalf
of the police department, objected to the ex parte nature of the
proceedings and the lack of notice.
Respondent granted the City of Lubbock an ex parte hearing and
subsequently issued an order on the Real Party in Interest’s Amended
Ex Parte Motion for In-Camera Inspection and Release of Lubbock Police
Department Records. The order commanded the City of Lubbock to
produce records for in-camera inspection without notice to Relator, the
other party to the criminal case. The City of Lubbock sought a writ of
mandamus in the Seventh Court of Appeals to compel Respondent to
vacate its order. The Seventh Court of Appeals denied the City of
Lubbock’s petition.
Once the court of appeals’ opinion became public, Relator became
aware of this discovery dispute. She then sought a writ of mandamus
with this Court invoking our constitutional authority to issue writs of
mandamus in criminal law matters. 2 Unlike the City of Lubbock,
2
TEX. CONST. art. V, § 5.
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however, Relator first sought relief in this Court rather than in the
Seventh Court of Appeals.
Mandamus Jurisdiction and Padilla v. McDaniel
In 1983, the Legislature passed the following legislation:
“An act relating to the jurisdiction of the supreme court and the
courts of appeals in certain civil cases and the issuance of the writ
of mandamus by the courts of appeals or the justices.”
which expanded the Texas courts of appeals’ mandamus jurisdiction in
civil cases. 3 It gave the courts of appeals general mandamus authority
to enforce their jurisdictions, and general mandamus authority against
district and county judges in their districts. 4 This Court held in 1987
that the 1983 act also gave the courts of appeals mandamus jurisdiction
in criminal law matters that is concurrent with this Court's jurisdiction. 5
3
Act of June 19, 1983, 68th Leg., R.S., ch. 839, § 3, 1983 Tex. Gen. Laws 4767, 4768–69.
The statute as amended, now reads:
“Each court of appeals for a court of appeals district may issue all writs of mandamus,
agreeable to the principles of law regulating those writs, against a:
(1) judge of a district or county court in the court of appeals district; or
(2) judge of a district court who is acting as a magistrate at a court of inquiry under
Chapter 52, Code of Criminal Procedure, in the court of appeals district.”
TEX. GOV’T CODE § 22.221(b).
4
Id.
5
Dickens v. Ct. of Appeals for Second Supreme Jud. Dist. of Texas, 727 S.W.2d 542 (Tex.
Crim. App. 1987).
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In Padilla v. McDaniel, we held that when a court of appeals and this
Court have concurrent, original jurisdiction over a petition for a writ of
mandamus against the judge of a district or county court, the petition
should be presented first to the court of appeals unless there is a
compelling reason not to do so. 6
Discussion
Padilla made clear that this Court will not entertain an application
for mandamus relief unless the Relator has first sought relief from an
intermediate court of appeals, absent a compelling reason. 7 Relator was
not aware of the mandamus proceedings until the court of appeals
issued its opinion. Relator argues that this is the type of exceptional
circumstance under which we should exercise our original mandamus
authority because the court of appeals has already heard and ruled on
this claim. Under these circumstances it seems unreasonable to require
Relator to start over and seek another opinion from the court of appeals.
Relator’s point is well-taken.
6
Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003).
7
Id.
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However, while Relator and the City of Lubbock frame their
respective issues for review differently, 8 both Relator and the City of
Lubbock are asking for review of the same court of appeals decision (and
by extension the same trial court order) rather than seeking mandamus
relief on different matters. Further, the arguments raised by Relator
significantly overlap those raised by the City of Lubbock on what is the
dispositive issue in the case, the propriety of the ex parte nature of the
hearing and order at issue. Accordingly, we can resolve the issues
presented by Relator through consideration of the request for
mandamus in the City of Lubbock’s companion case, decided today. 9
And to the extent that Relator’s arguments enhance those advanced by
the City of Lubbock in the companion case, we can consider those by
treating Relator’s filing as an amicus brief. Consequently, we dismiss
8
Relator’s issue presented reads:
“Whether trial courts have unlimited inherent authority to silence and compel
third parties to produce discovery in a criminal case while operating completely
outside of statutorily provided procedures, while purposefully excluding the
State of Texas, a natural and necessary party to all criminal cases, from the
dispute.”
City of Lubbock’s issue presented reads:
“Are Articles 24.02 and 39.14 of the Texas Code of Criminal Procedure the
exclusive means by which a party may seek the discovery of relevant
information under the control of a third party?”
9
See In re City of Lubbock, No. WR-93,137-01, slip op. at 12 (Tex. Crim. App. January 25,
2023).
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the motion for leave to file as improvidently granted. We treat Relator’s
petition for mandamus relief as an amicus brief because it seeks the
same relief sought by the City of Lubbock in the companion case decided
today.
Filed: February 8, 2023
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