in Re State of Texas Ex Rel. Brian Risinger, Relator

Court of Appeals of Texas·Decided November 18, 2015·No. WR-84,212-01·Published

Opinion

WR-84,212-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/18/2015 6:18:29 PM November 18, 2015 Accepted 11/18/2015 6:23:48 PM ABEL ACOSTA No. WR-84,212-01 CLERK

In the Court of Criminal Appeals ____________________________

In re STATE OF TEXAS ex rel. BRIAN RISINGER, Relator,

The Honorable HAL RIDLEY, 278th Judicial District Court of Madison County, Texas, Respondent. ____________________________

ON MOTION FOR LEAVE TO FILE PETITION FOR A WRIT OF MANDAMUS ____________________________

RESPONSE OF REAL PARTY IN INTEREST RAPHAEL HOLIDAY IN OPPOSITION TO MOTION FOR LEAVE TO FILE PETITION FOR A WRIT OF MANDAMUS

Raphael Deon Holiday opposes the State’s motion for leave to file

a petition for writ of mandamus directed to Judge Had Ridley of the

278th Judicial District Court of Madison County, Texas, and ordering

him to vacate the order he entered withdrawing the order setting Mr.

Holiday’s execution date for November 18, 2015, and recalling the

warrant of execution. Relator contends that the trial court lacked

authority under Tex. Code Crim. Proc. art. 43.141 to enter the order. The trial court’s acts, however, do not violate the language of the

statute and no published decision interpreting the statute exists.

Additionally, other sources of power for the court’s actions exist besides

Article 43.141. Because arguments to support the positions of both

relator and Mr. Holiday exist, it cannot be said that the trial court had

a ministerial duty to refrain from withdrawing the order setting Mr.

Holiday’s execution.

I. Background

On November 18, 2015, Mr. Holiday filed a motion in the 278th

District Court asking the court to withdraw the order it previously

entered setting Mr. Holiday’s execution date for November 18, 2015.

The motion was predicated on the existence of at least two

constitutional claims that Holiday seeks to raise in a subsequent habeas

corpus application, both of which may meet the requirements of Texas

Code of Criminal Procedure Article 11.071 § 5. Today, the trial court

entered an order withdrawing the order setting the execution date and

recalling the warrant of execution.

2 II. Legal Principles of Mandamus

A writ of mandamus “operates to undo or nullify an act already

performed . . . .” State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex.

Crim. App. 1985). To merit relief through a writ of mandamus, an

applicant must first show that the act he wishes the higher court to

nullify “does not involve a discretionary or judicial decision.” Simon v.

Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009). Second, an

applicant must show that he has no adequate remedy at law. State ex

rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210

(Tex. Crim. App. 2007). The ministerial-act requirement is satisfied if

the relator can show a clear right to the relief sought because the facts

and circumstances dictate but one rational decision under unequivocal,

well-settled, and clearly controlling legal principles. In re Bonilla, 424

S.W.3d 528, 533 (Tex. Crim. App. 2014). This Court has discussed the

ministerial duty in terms of the respondent’s authority or jurisdiction.

In re Medina, --- S.W.3d ---, 2015 WL 6722175, at *4 (“If a trial judge

lacks authority or jurisdiction to take particular action, the judge has a

‘ministerial’ duty to refrain from taking that action, to reject or overrule

requests that he take such action, and to undo the action if he has

3 already taken it”) (quoting 43B GEORGE E. DIX & JOHN M. SCHMOLESKY,

TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 61.29 (3d

ed. 2011)).

Mandamus generally will not lie as to an issue of first impression.

State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 928

(Tex. Crim. App. 2001) (a “clear legal right” cannot exist for issue of

first impression because the law is necessarily “equivocal or unsettled”).

An exception exists, however, where the “principle of law” being applied

“has been clearly established.” Medina, 2015 WL 6722175 at *4 (citing

In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013)).

Nevertheless, where arguments exist supporting both the relator and

the respondent (or real party in interest), it cannot be said that a

ministerial duty exists, and mandamus will not lie. Id. at 1.

II. No Clearly Established Law Prohibits the Court from Withdrawing an Order Setting an Execution Date Under the Circumstances Present Here

The State argues that the trial court lacked authority to withdraw

its order setting an execution date and recalling the warrant of

execution. The only authority offered by the State is an unpublished

order from this Court in In re Roach, No. WR-41,168-08, 2008 WL

4 2486229 (Tex. Crim. App. June 17, 2008) (not designated for

publication). In Roach, this Court ruled that a trial judge was without

authority under Tex. Code Crim. Proc. art. 43.141(d) to withdraw or

modify a death warrant to allow for additional proceedings on a

subsequent habeas corpus application where this Court had already

dismissed the application. Id. Roach cannot afford the State a basis for

mandamus relief for three reasons.

First, the present case presents circumstances different from

Roach. The trial court’s withdrawal of the execution date in Roach

occurred after this Court had already dismissed the defendant’s

subsequent habeas corpus applications. There was thus no possible way

that any “additional proceedings” could occur on such applications. In

the present case, the trial judge acted before a subsequent application

was filed in view of the need for additional proceedings once it is filed.

As the facts are different from Roach, Roach does not “dictate but one

rational decision under unequivocal, well-settled, and clearly controlling

legal principles.”

Second, Roach is not a published decision. “Unpublished opinions

have no precedential value and must not be cited as legal authority by

5 counsel or by a court.” Tex. R. App. P. 77.3. Thus, Roach cannot be

relied upon by the State as “authority” that establishes any legal

principle at all. Indeed, there is not any published decision from this

Court or any other Texas court interpreting Article 43.141 at all.

Whether Article 43.141 not only permits—but also operates to

prohibit—a court from withdrawing an order setting an execution date

is therefore an issue of first impression, for which mandamus will not

lie in the absence of a “clearly established” legal principle operating in

the background. The State points to no such clearly established legal

principle being applied by the trial court.

Third, and notwithstanding the above, other authority subsequent

in time to Roach reflects that a trial court is empowered to consider and

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