in Re Nestle USA, Inc.

Opinion

IN THE SUPREME COURT OF TEXAS 444444444444 NO . 12-0518 444444444444

IN RE NESTLE USA, INC., RELATOR

4444444444444444444444444444444444444444444444444444 ON PETITION FOR WRIT OF MANDAMUS 4444444444444444444444444444444444444444444444444444

JUSTICE WILLETT , joined by JUSTICE LEHRMANN , dissenting.

For the reasons explained in my separate writing in In re Allcat Claims Service, L.P.,1 I

believe the Court lacks exclusive original mandamus jurisdiction in taxpayers’ constitutional

challenges like this. In my view, the Court has stretched our mandamus jurisprudence beyond its

constitutional and prudential limits. I would reaffirm those purposeful curbs on judicial power, not

redefine them.

Mandamus is not a jurisdictional talisman to conjure instant Supreme Court review. As a

constitutional matter, we cannot exercise original jurisdiction that the Constitution does not permit;

as a statutory matter, the Tax Code disallows taxpayer suits like this; and as a prudential matter,

deciding whether a statute is constitutional is simply not the stuff of mandamus.

All in all, because I believe the Court has disregarded settled doctrines to remake the

mandamus remedy into something more ordinary than extraordinary, I respectfully dissent.

1 356 S.W .3d 455, 474–93 (Tex. 2011). _______________________________________ Don R. Willett Justice

OPINION DELIVERED: October 19, 2012