ACCEPTED 08-24-00378-CR EIGHTH COURT OF APPEALS 08-24-00378-CR EL PASO, TEXAS 10/29/2024 2:56 PM ELIZABETH G. FLORES CLERK
NO. 08-24-00378-CR
FILED IN IN THE COURT OF APPEALS 8th COURT OF APPEALS EL PASO, TEXAS FOR THE EIGHTH DISTRICT OF TEXAS 10/29/2024 2:56:11 PM ELIZABETH G. FLORES Clerk IN RE: THE STATE OF TEXAS, Relator
REAL PARTY IN INTEREST’S RESPONSE TO STATE’S PETITION FOR WRIT OF MANDAMUS
/s/ Mark Stevens MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205 (210) 226-1433 State Bar No. 1918420 mark@markstevenslaw.com
/s/ Joe Aureliano Spencer, Jr. JOE AURELIANO SPENCER JR. 1009 Montana Ave El Paso, TX 79902-5411 (915) 532-5562 State Bar No. 18921800 joe@joespencerlaw.com
/s/ Felix Valenzuela FELIX VALENZUELA 701 Magoffin El Paso, Texas 79901 (915) 209-2719 State Bar No. 24076745 felix@valenzuela-law.com
Counsel for Real Party in Interest Patrick Crusius Table of Contents
Table of Contents ................................................................................................................ ii Table of Authorities ........................................................................................................... iii A. The Only Issue Before This Court Is Whether Mandamus Is Appropriate to Correct the Trial Court’s Finding That In re City of Lubbock Does Not Apply Retroactively to Pending Litigation................................................................................................... 2 B. Because Relator Has Not Established a Right to Mandamus Relief, its Petition for of Mandamus Should be Dismissed. ............................................................................... 6 C. In re City of Lubbock Is Not Retroactive and Does Not Invalidate Steps Previously Taken in the Pending, Underlying Criminal Case. ..................................................... 9 CONCLUSION ................................................................................................................. 11 CERTIFICATION ............................................................................................................ 13
ii Table of Authorities Cases Ake v. Oklahoma, 470 U.S. 68 (1985) ................................................................................. 2 Ex parte Abell, 613 S.W.2d 255 (Tex. 1981) .................................................... 3, 4, 5, 8, 10 Hunter Indus. Facilities, Inc. v. Tex. Nat. Res. Conservation Comm’n, 910 S.W.2d 96 (Tex. App.—Austin 1995, writ denied) ................................................................................ 5, 8 Hunter Indus. Facilities, Inc., 910 S.W.2d at 110 n.15 ..................................................... 10 In re City of Lubbock, 666 S.W.3d 546 (Tex. Crim. App. 2023) .................................... 2, 6 In re State ex rel. Tharp, No. WR–86,409–01, 2017 WL 4160990 (Tex. Crim. App. Sept. 20, 2017) (unpublished) ................................................................................................... 8 In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) ................................... 7 In re Univ. of Tex. Med. Branch-Galveston, 677 S.W.3d 696 (Tex. Crim. App. 2023) ..... 8 State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex. Crim. App. 1987) ............................... 7 State ex rel. Hill v. Ct. of Appeals for Fifth Dist., 34 S.W.3d 924 (Tex. Crim. App. 2001)7 State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at Texarkana, 236 S.W.3d 207 (Tex. Crim. App. 2007) ............................................................................................................. 7 State ex. Rel Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) ................. 7, 9 Tex. Dep’t of Corr. v. Dalehite, 623 S.W.2d 420 (Tex. Crim. App. 1981)..................... 7, 9 Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997) ............................................... 2 Statutes Tex. Gov’t Code § 22.221(a) ............................................................................................... 6
iii TO THE HONORABLE JUDGES OF THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS:
On October 28, 2024, Relator State of Texas (“Relator”) filed a Petition for Writ of
Mandamus and an Emergency Motion for a Stay of Trial Court Proceedings. The purpose
of the Petition and Motion is ostensibly to obtain the retroactive enforcement of a February
8, 2023, opinion of the Court of Criminal Appeals (“CCA”), but Relator is seeking
extraordinary relief from this Court meant only to be granted where a right to that relief is
clear, despite not being able to point to a single case that would entitle it to that relief.
Mandamus relief is plainly inappropriate in these circumstances.
Without any clear right to mandamus relief on this issue, Relator’s filings, taken
together, should be understood as an attempt to obtain what it was rightly denied by the
trial court at an October 24, 2024, hearing: a continuance of a hearing beginning on October
31, 2024, concerning discovery of information related to vast, meticulously-documented
misconduct committed by Relator throughout the five-plus years its case against Real Party
in Interest Patrick Crusius has been pending. See Ex. A, Defense Motion for Discovery and
Sanctions; see also Real Party in Interest’s Response to State’s Emergency Motion for a
Stay of Trial Court Proceedings Pursuant to Tex. R. App. P. 52.10 (describing how the
State used both this Petition and its Motion as a way to obtain a backdoor continuance of
the October 31 hearing).
Relator’s request to retroactively unseal the contested ex parte motions and orders
through a writ of mandamus should therefore be denied.
1 A. The Only Issue Before This Court Is Whether Mandamus Is Appropriate to Correct the Trial Court’s Finding That In re City of Lubbock 1 Does Not Apply Retroactively to Pending Litigation.
On October 18, 2024, Relator filed two motions responding to the Motion for
Discovery and Sanctions, See Ex. A, filed by Patrick Crusius on September 9, 2024. In a
Motion to Unseal, 2 Relator sought discovery of certain documents pertaining to all non-
expert-related ex parte motions filed by the defense and the corresponding ex parte orders
issued by the trial court. See Ex. B. Relator also filed a Motion for Continuance, 3 seeking
a continuance of a October 31, 2024, hearing concerning discovery of documents related
to Relator’s pervasive prosecutorial misconduct since the inception of the underlying
criminal case. See Ex. C.
Relator’s position concerning the unsealing of non-Ake ex parte, orders relied on In
re City of Lubbock, in which the CCA held that ex parte orders cannot be issued unless
expressly authorized, either by statute or by Ake v. Oklahoma 4 and Williams v. State, 5
which state that due process entitles an indigent defendant to have experts appointed ex
parte. In re City of Lubbock, 666 S.W.3d 546, 558–59, 566 (Tex. Crim. App. 2023). In its
Motion to Unseal, Relator argued that all non-Ake ex parte motions since the inception of
the case were “void” and must be unsealed, implicitly arguing that In re City of Lubbock
should apply retroactively, since the opinion was issued on February 8, 2023, and Mr.
1 666 S.W.3d 546 (Tex. Crim. App. 2023). 2 This references the State’s Motion to Unseal All Non-Ake Ex Parte Motions, Orders, and Contents, which is attached as Exhibit B. 3 This references the State’s Motion for Continuance, which is attached as Exhibit C. 4 470 U.S. 68 (1985). 5 958 S.W.2d 186 (Tex. Crim. App. 1997). 2 Crusius was arrested on August 3, 2019. See Ex. B at 5–6. Relator cited no case law to
support its argument that In re City of Lubbock applied Relator sought a continuance of
the October 31, 2024, hearing on discovery of items related to its misconduct because it
argued that two of the many issues to be discussed at that hearing involved “void” orders,
and that it would need time to go through “hundreds of sealed orders that may be void.” Id.
at 6; Ex. C at 2.
In his Response, 6 Mr. Crusius noted that under Texas law, “when no vested
substantive right has been impaired but only [a] procedure or remedy has been changed . .
. the change will not affect or invalidate steps previously taken in pending litigation . . . .”
Ex. D at 2–3 (quoting Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981)). Accordingly, In
re City of Lubbock applied to only the 18 ex parte motions filed and corresponding orders
issued in the case since February 8, 2024. Id. at 2, 2 n.4. Fourteen of them were clearly
properly filed and issued ex parte under Ake—thirteen related to expert appointments while
another pertained to confidential expert issues. Id. at 2 n.4. However, four of them were
arguably not authorized to be filed ex parte under the terms of In re City of Lubbock. Id. at
4. Those were as follows:
1. Motion for Provision of Personal Items (a writing instrument and eyeglasses), order issued on June 23, 2023;
2. Motion to Comply with Judicial Order [of June 23, 2023], order issued on July 25, 2023;
3. Motion for Transcription, order issued on October 2, 2024;
6 This references Mr. Crusius’s Response to State’s Motion to Unseal Non-Ake Ex Parte Motions, Orders, and Contents, and Its Motion for a Continuance, which is attached as Exhibit D. 3 4. Motion for Medical Examination, order issued on October 13, 2023.
Id. Mr. Crusius noted that these motions and orders did not impact the substance of the
court’s October 31 hearing, but even so, the documents totaled 22 pages, so a continuance
of that hearing was unnecessary and should be denied. Id. at 2–10. Shortly before the
hearing on the motions, Relator filed an Objection, 7 which functioned as both a reply to
Mr. Crusius’s Response and an objection to trial court conducting ex parte proceedings
going forward. See Ex. E.
At the October 24 hearing, Relator argued as it had in its motion that In re City of
Lubbock applied to all of the ex parte proceedings in Mr. Crusius’s case, not just the
proceedings that occurred after the opinion was issued. 1 MHRR 14–15. 8 Relator again
pointed to no case law supporting its position that In re City of Lubbock should apply
retroactively. See id. at 23 (indicating that Relator “didn’t point to any case law at all that
[] supports their argument of retroactivity”).
Without conceding that the four motions and orders discussed in its Response were
improperly litigated ex parte, the defense provided the Court with two cases—highlighted
in the Response—that indicated that that In re City of Lubbock should not apply
retroactively to orders in pending litigation. See id.; Abell, 613 S.W.2d at 260 (stating that
“when no vested substantive right has been impaired but only [a] procedure or remedy has
7 This references the State’s Objections to Ex Parte Proceedings and the Entry of Ex Parte Orders Not Expressly Authorized by Law, which is attached as Exhibit E. 8 The reporter’s record for the motions hearing (“MHRR”) will be cited as # MHRR *, where # is the volume number and * is the page number. The reporter’s record was attached to Relator’s Petition for Writ of Mandamus. 4 been changed . . . the change will not affect or invalidate steps previously taken in pending
litigation, but all subsequent proceedings will be governed by the new statute or rule as of
its effective date, provided a reasonable time is afforded in which to act upon the new
law”); Hunter Indus. Facilities, Inc. v. Tex. Nat. Res. Conservation Comm’n, 910 S.W.2d
96, 110 n.15 (Tex. App.—Austin 1995, writ denied) (describing the rule in Abell to be that
a “procedural change in law cannot be used to invalidate steps previously taken in pending
litigation, but will apply to any subsequent proceedings after effective date”) (citing Abell,
613 S.W.2d at 260).
The trial court granted the State’s Motion to Unseal in part. 1 MHRR 32. Real Party
in Interest filed a response, revealing four motions and corresponding orders that were
thereby rendered moot as to the ex parte designation. However, the court found that In re
City of Lubbock’s holding was not retroactive and therefore did not unseal any ex parte
motions that were filed or ex parte orders that were issued prior to February 8, 2023. Id.
The court also granted Relator’s Objection insofar as it barred the court from considering
non–Ake motions ex parte in the future. Id. at 32–33.
Relator confirmed during the hearing that its request for a continuance was based
on the need to review many, many pages of documents. Id. at 33. Because the four unsealed
motions and orders totaled only 22 pages, Relator’s request for a continuance of the
October 31 hearing was denied. See id.
Because of the narrow grounds on which the trial court denied, in part, the State’s
Motion to Unseal, the question before this Court is similarly narrow: whether In re City of
Lubbock applies retroactively to change or invalidate prior steps taken in the litigation of
5 the underlying criminal case. Neither the application of In re City of Lubbock to the non-
expert-related ex parte orders issued since that opinion nor the propriety of holding ex parte
proceedings concerning non-expert-related motion are issues before this Court, because the
trial court ruled in favor of Relator on both issues. Accordingly, the only issues before this
Court are whether Relator has met the high bar to obtain mandamus relief, and only if it
has, whether In re City of Lubbock applies retroactively. Relator’s arguments fail on both
counts.
B. Because Relator Has Not Established a Right to Mandamus Relief, its Petition for Writ of Mandamus Should be Dismissed.
The question this Court must answer is not simply whether In re City of Lubbock
replies retroactively in the underlying criminal proceeding, but whether Relator has
demonstrated that it is entitled to such a holding in an original mandamus proceeding.
Relator has not come close to meeting its burden and this Court should not reach the merits
of Realtor’s claim and dismiss the Writ of Mandamus for want of jurisdiction.
This Court may issue a writ of mandamus to a district court if doing so is necessary
to enforce its jurisdiction. Tex. Gov’t Code § 22.221(a). A court may only issue mandamus
relief if the relator demonstrates 1) that they have no other adequate remedy at law, and 2)
that the act they seek to be enforced in the district court is purely ministerial, not an act
involving a discretionary judicial decision. In re City of Lubbock, 666 S.W.3d at 553. An
act is considered ministerial “if it constitutes a duty clearly fixed and required by law.”
State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (emphasis added).
6 In order to meet the ministerial act requirement, the relator must “show a clear right
to the relief sought.” In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App.
2013). Such a showing is only made “when the facts and circumstances dictate but one
rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional,
or case law sources), and clearly controlling legal principles.” State ex rel. Young v. Sixth
Jud. Dist. Ct. of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)
(quotations omitted); see also Tex. Dep’t of Corr. v. Dalehite, 623 S.W.2d 420, 424 (Tex.
Crim. App. 1981) (“An act is said to be ministerial where the law clearly spells out the duty
to be performed by an official and does so with such certainty that nothing is left to the
exercise of discretion or judgment.”); State ex rel. Hill v. Ct. of Appeals for Fifth Dist., 34
S.W.3d 924, 928 (Tex. Crim. App. 2001) (“The act must be positively commanded and so
plainly prescribed under the law as to be free from doubt.”) (quotations omitted). In other
words, mandamus relief is only appropriate “to correct judicial action that is clearly
contrary to well-settled law, whether that law is derived from a statute, rule, or opinion of
a court.” State ex. Rel Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994)
(emphasis in original).
Relator’s request for mandamus relief should be denied because it has yet to point
to a single case demonstrating that In re City of Lubbock is retroactive and invalidates past
actions taken in pending litigation, either in its motions before the trial court or in its
Petition to this Court. In its argument concerning the appropriate application of In re City
of Lubbock, Relator substantively cites only two cases: In re City of Lubbock itself, and In
7 re Univ. of Tex. Med. Branch-Galveston, 677 S.W.3d 696 (Tex. Crim. App. 2023), which
does not address retroactivity. See Petition at 7–16.
While Relator cannot point to a single case supporting the retroactivity of In re City
of Lubbock, the CCA has previously found an act not to be ministerial—and thus denied
relief—even where “several courts of appeals’ opinion” supported the relator’s argument,
because this was not enough to “express a well-settled and clear legal principle sufficient
to establish a ministerial act for mandamus purposes.” In re State ex rel. Tharp, No. WR–
86,409–01, 2017 WL 4160990, at *4 (Tex. Crim. App. Sept. 20, 2017) (unpublished). Here,
Relator certainly cannot establish that the trial court failed to complete a ministerial act if
it cannot show even one piece of decisional law to which the trial court’s decision was
contrary. In fact, the current case law supports Mr. Crusius’s argument that In re City of
Lubbock does not apply retroactively. See Abell, 613 S.W.2d at 260; Hunter Indus.
Facilities, Inc., 910 S.W.2d at 110 n.15.
Because Relator cannot point to a single case to support the retroactivity of In re
City of Lubbock, Relator also argues that In re City of Lubbock did not create a new rule
and therefore is not subject to a retroactivity analysis because it was based on an
interpretation of professional rules and norms. See Petition at 15–16. Relator does this
despite relying heavily, and nearly exclusively, on In re City of Lubbock to make its
argument, suggesting that In re City of Lubbock did in fact announce distinct new
procedures for trial courts to follow. Regardless, the fact that professional rules and norms,
like the ones cited by Relator, are “long-standing” does not mean Relator’s or the CCA’s
interpretation of those rules was similarly grounded in law. Texas law does not require
8 trial courts to anticipate the eventual interpretations of statutes and rules by the CCA;
indeed, the mandamus standard demands appellate courts reject this standard in original
proceedings. See Healey, 884 S.W.2d at 774 (indicating that Relator can only prevail upon
showing that the trial court’s decision was “clearly contrary to well-settled law”).
This Court must only grant mandamus relief if “the law clearly spells out” that the
ex parte motions and orders prior to February 8, 2023, must be unsealed and that it “does
so with such certainty that nothing is left to the exercise of discretion or judgment.” See
Dalehite, 623 S.W.2d at 424. Because Relator clearly cannot come close to making this
showing, and indeed cannot even provide a case supporting its position, Relator’s request
for mandamus relief must fail and this Court should not review the merits of the underlying
issue presented in Realtor’s Petition for Writ of Mandamus.
C. In re City of Lubbock Is Not Retroactive and Does Not Invalidate Steps Previously Taken in the Pending, Underlying Criminal Case.
Even if this Court finds that Relator has met its burden for mandamus relief,
Relator’s argument that In re City of Lubbock applies retroactively is without merit.
Relator’s argument is belied by the fact that the courts of this State have held that the exact
opposite is true when a change in law is procedural. In Ex parte Abell, the Texas Supreme
Court stated that that “when no vested substantive right has been impaired but only [a]
procedure or remedy has been changed . . . the change will not affect or invalidate steps
previously taken in pending litigation, but all subsequent proceedings will be governed by
the new statute or rule as of its effective date, provided a reasonable time is afforded in
which to act upon the new law.” Abell, 613 S.W.2d at 260. In other words, a “procedural
9 change in law cannot be used to invalidate steps previously taken in pending litigation, but
will apply to any subsequent proceedings after [the] effective date.” Hunter Indus.
Facilities, Inc., 910 S.W.2d at 110 n.15 (citing Abell, 613 S.W.2d at 260).
The change in law at issue—announced in In re City of Lubbock—is clearly
procedural in that it addresses when ex parte proceedings are appropriate. Therefore, this
case involves a very straightforward application of Abell: the change of law upon which
the State relies is procedural and applies only after In re City of Lubbock’s effective date
of February 8, 2023. The trial court was correct to unseal only those motions and orders it
believed were affected by the holding of In re City of Lubbock after that opinion was issued.
Just like in its motions and in the October 24 hearing, Relator can point to no case
law supporting its position that In re City of Lubbock applies retroactively. Indeed, Relator
cited only two cases, neither of which touched on the retroactivity of In re City of Lubbock.
See Section B, supra.
Instead, Relator argues that In re City of Lubbock applies to the prior ex parte
motions and orders in the underlying case because it was an interpretation of previously
established law, rather than new law itself. See Petition at 5–16. Therefore, Relator argues,
ex parte proceedings conducted prior to the opinion being issued are affected by it as well.
Setting aside the fact that Relator cited In re City of Lubbock almost exclusively for this
supposedly long-standing principle—rather than new interpretation of a long-standing
principle—every judicial opinion is in some way based on what came before it. What is
relevant is whether the interpretation of that prior law was previously so well-established
that the law did not “change.” The fact that Relator relies so heavily on In re City of
10 Lubbock, rather than any opinion that comes before it, to argue that it is entitled to a remedy
demonstrates that In re City of Lubbock itself created distinct, specific procedures that were
not previously clearly defined.
At its core, In re City of Lubbock tweaks, and restricts, the availability of ex parte
procedures for the defense. Under established state law, which Relator has not contradicted,
its holding does not apply retroactively to pending litigation.
CONCLUSION
For the foregoing reasons, Relator is not entitled to mandamus relief, because the
trial court did not have a ministerial duty to find that In re City of Lubbock applied
retroactively to the criminal proceedings and to unseal certain ex parte motions filed and
orders issued prior to its effective date.
11 Respectfully submitted,
/s/ Mark Stevens MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205 (210) 226-1433 State Bar No. 1918420 mark@markstevenslaw.com
/s/ Joe Aureliano Spencer, Jr. JOE AURELIANO SPENCER JR. 1009 Montana Ave El Paso, TX 79902-5411 (915) 532-5562 State Bar No. 18921800 joe@joespencerlaw.com
/s/ Felix Valenzuela FELIX VALENZUELA 701 Magoffin El Paso, Texas 79901 (915) 209-2719 State Bar No. 24076745 felix@valenzuela-law.com
Counsel for Real Party in Interest Patrick Crusius
12 CERTIFICATION
I hereby certify that I have reviewed this Real Party in Interest’s Response to
Relator’s Petition for Writ of Mandamus and conclude that every factual statement in the
petition is supported by competent evidence included in the appendix or record.
/s/ Mark Stevens Mark Stevens
13 CERTIFICATE OF SERVICE
I certify that this Real Party in Interest’s Response to Relator’s Petition for Writ of
Mandamus has been electronically delivered to the El Paso County District Attorney’s
Office, on this the 29th day of October, 2024.
/s/ Felix Valenzuela Felix Valenzuela
1 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Felix Valenzuela Bar No. 24076745 felix@valenzuela-law.com Envelope ID: 93706863 Filing Code Description: Response Filing Description: Response to Petition for Mandamus Status as of 10/29/2024 3:06 PM MST
Associated Case Party: The State of Texas--34th Judicial District
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Associated Case Party: PatrickWoodCrusius
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