Murphy v. Sumners

112 S.W. 1070, 54 Tex. Crim. 369, 1908 Tex. Crim. App. LEXIS 371

• Court: Court of Criminal Appeals of Texas
• Decided: October 14, 1908
• Docket: No. 4076.
• Status: Published

Opinion

BBOOKS, Judge.

The record in this case discloses, in substance, the following facts:

The county attorney had presented to him a valid affidavit and information properly prepared against certain supposed violations of law in the City of Dallas, and the demand was made that said county attorney should put his official signature to the information and file, and prosecute parties who were alleged in the affidavit and information of 'having violated a misdemeanor law of this State. The county attorney refused to do so. Thereupon, a petition was filed by Joseph Murphy, through his attorneys, in the County Court of Dallas County, asking the court to grant a mandamus to compel the county attorney to file said prosecution and to prosecute same. Upon the hearing of said petition the writ of mandamus was refused by the county court, and from said refusal an appeal was prosecuted to this court. This is, in substance, the facts upon which this case rest.

We hold, in the first place, this court has no jurisdiction; furthermore, the writ of mandamus would not lie against the county attorney to institute a prosecution. The function of a writ of mandamus is simply to force a party to perform a purely ministerial act, and the institution of prosecutions by the county attorney are not purely ministerial acts, since there is a large measure of learning and discretion required and to be exercised in instituting and maintaining prosecutions by said officer, and very clearly it would be beyond the province of this court ■ to grant a mandamus for the purpose of securing the object sought by the petition in this case.

Therefore, the writ of mandamus is refused, and the petitioner in this case is ordered to pay all cost in this behalf incurred.

Mandamus refused.