in Re David-Richard: Lutz

• Court: Court of Appeals of Texas
• Decided: November 2, 2011
• Docket: 03-11-00500-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00500-CV

In re David-Richard: Lutz

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

MEMORANDUM OPINION

Relator David-Richard Lutz filed a petition for writ of quo warranto in this Court.

See Tex. R. App. P. 52. In his petition, Lutz complains that the Respondents—the Honorable

Billy Ray Stubblefield, presiding judge of the 26th Judicial District Court of Williamson County,

Texas, the Honorable John Bradley, Criminal District Attorney in and for Williamson County,

Texas, and Lisa David, District Clerk of Williamson County, Texas—have failed to fulfill their

official duties and have breached their oaths of office by denying him a jury trial in a civil equity

action that he filed in an attempt to nullify the judgments of his criminal convictions for aggravated

sexual assault of a child and indecency with a child.

Quo warranto is an ancient common-law writ that gave the king an action against a

person who claimed or usurped any office, franchise, or liberty, to inquire by what authority that

person supported the claim to hold office. Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util.

Dist. ex rel. Bd. of Directors, 198 S.W.3d 300, 310 (Tex. App.—Texarkana 2006, pet. denied);

Newsom v. State, 922 S.W.2d 274, 277 (Tex. App.—Austin 1996, writ denied); State ex rel. City

of Colleyville v. City of Hurst, 519 S.W.2d 698, 700 (Tex. Civ. App.—Fort Worth 1975, writ ref’d n.r.e.). In the modern context, a writ of quo warranto is an extraordinary remedy used to determine

disputed questions concerning the proper person entitled to hold a public office and exercise its

functions.1 State ex rel. Angelini v. Hardberger, 932 S.W.2d 489, 490 (Tex. 1996) (citing State

ex rel. Jennett v. Owens, 63 Tex. 261, 270 (Tex. 1885)); Save Our Springs, 198 S.W.3d at 310; see

Tex. Civ. Prac. & Rem. Code Ann. § 66.001 (West 2008). Thus, the purpose now of a quo warranto

action is to test whether an individual has the proper authority to hold an office, not to

test the validity of their actions once in office. See Newsom, 922 S.W.2d at 278-79; see also

State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 172, 43 S.W. 271, 272 (Galveston 1897),

writ ref’d, 91 Tex. 351, 43 S.W. 1101 (Tex. 1897); State ex rel. Phillips v. Trent Indep. Sch. Dist.,

141 S.W.2d 438, 440 (Tex. Civ. App.—Eastland 1940, writ ref’d). Lutz’s petition does not raise an

issue for which a writ of quo warranto is available, and therefore is an improper vehicle for

obtaining the relief sought.

Moreover, the writ power of this Court is limited to issuing writs of mandamus and

all other writs necessary to enforce our jurisdiction, which does not include a writ of quo warranto.

See Tex. Gov’t Code Ann. § 22.221(a) (West 2004). The Texas Supreme Court, not the courts of

appeals, is vested with the power to issue writs of quo warranto. Tex. Gov’t Code Ann. § 22.002(a)

(West 2008); see Tex. Const. art. V, § 3. We do not have original jurisdiction over proceedings

seeking a writ of quo warranto.

Accordingly, we dismiss Lutz’s petition for writ of quo warranto for lack of

jurisdiction. See Tex. R. App. P. 52.8(a).

1 A quo warranto action may also be used to question the existence of a public corporation or district and its right to act. See Tex. Civ. Prac. & Rem. Code Ann. § 66.001 (West 2008).

2 __________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Dismissed for Want of Jurisdiction

Filed: November 2, 2011

Do Not Publish