Petition for Writ of Mandamus - Appeal by a different name and in a different form - currently used by Texas AG to Challenge Same-Sex Marriage Rulings by Travis County (Austin, TX) Trial Court Judges

THERE ARE APPEALS, AND THEN THERE ARE APPEALS BY A DIFFERENT NAME   

Appeal vs. Mandamus Petition / Writ of Habeas Corpus 

A mandamus case filed in the court of appeals is actually denominated an "original" proceeding, but it is original only in the court of appeals and it still pertains to a trial judge's act or inaction in a pending case in a trial court. So, given those characteristics, a mandamus proceeding has most of the hallmarks of an appeal of the interlocutory variety. It is more similar to an interlocutory appeal than a regular appeal because it is typically brought while a case is pending in the trial court.

In a mandamus case, the case style is different (In re BCD as opposed to BCD vs XYZ) and the party bringing the complaint is called relator, rather than the appellant. The opposing "party" in the mandamus proceeding is technically the judge whose ruling or other conduct forms the basis for the complaint, while the other party in the underlying suit is called the "real party in interest", and not the appellee, as in a regular or interlocutory appeal. Beyond the difference in terminology, there are also different rules that govern these types of appeals, and what types of papers are used to support it.
The main purpose of a mandamus proceeding is to obtain relief against a judge when no other remedy is available and it would arguably be too late to pursue an appeal from a final judgment, for example when one party claims it should not be forced to turn over documents that contain trade secrets or confidential information, but the trial judge nevertheless orders them to do so.

Under such circumstances, the resisting party may try to get the judge in question "mandamused" by appealing to higher authority, i.e. the court of appeals. The vehicle to do so is a petition for writ of mandamus, which may be accompanied by an emergency request for an immediate stay of the trial court's order.

A application for writ of habeas corpus filed in the court of appeals has much in common with a petition for a writ of mandamus, but is restricted to situations where the trial court's order puts the party in jail ("confinement").

RECENT MANDAMUS FILINGS IN THE TEXAS SUPREME COURT INVOLVING SAME-SEX MARRIAGE 

Current examples of high-profile mandamus proceedings are In re State of Texas, No. 15-0135, and In re State of Texas, No. 15-0139. The case styles are identical because neither the judges, nor the real parties in interest are made part of the case name in mandamus cases under the established case naming convention.

Because both cases were taken to the Supreme Court by the Texas Attorney General in the name of the State, it is necessary to add additional information to distinguish them: No. 15-0135 was filed on February 17, 2015 and involves a ruling by the judge of Probate Court No. 1 in Travis County (Austin) on same-sex marriage in the post-mortem context; while No. 15-0139 was filed two days later and involves a challenge to a temporary order signed by a district court judge that allowed two women to obtain a marriage license.

Both mandamus actions were initiated by the Texas Attorney General, Ken Paxton, in February 2015, and involve challenges to trial court orders that put the constitutionality of same-sex marriage prohibition in Texas in doubt. Some years back, the Texas Legislature passed a state constitutional amendment to declare that marriage shall consist only of "the union between one man and one woman", Acts 2005, 79th Leg. J.J.R. No. 6, §1; and the voters ratified it by referendum in November 2005.

But several trial courts have since ruled that the same-sex prohibition is unconstitutional under the due process and equal protection clauses of the federal constitution, which trump state law in case of conflict. Several cases involving same-sex marriage/divorce are already pending in the Texas Supreme Court. They are among the longest-pending cases on the docket.

In the two freshly-filed petitions for writ of mandamus, the Attorney General attacks orders declaring the same-sex marriage prohibition unconstitutional in two different contexts.

In Case No. 15-0135 the AG challenges an order by a Travis County probate court judge refusing to dismiss an application for determination of heirship by a woman claiming to be the surviving spouse of a deceased woman whose family filed a proceeding in probate court to settle the matter of inheritance in the absence of a will. The issue in this case is whether there was an informal marriage (more commonly known as “common law marriage”) under Texas law. The probate court judge based the denial of the motion to dismiss on the finding that the same-sex marriage prohibition was unconstitutional.

In Case 15-0139 the AG seeks to invalidate a temporary restraining order (TRO) granted by a district court judge in Travis County that enjoined the Travis County Clerk, Dana DeBeauvoir, from denying a marriage license to a lesbian couple, one of whom is cancer-stricken. The judge in that case, the Hon. P. David Wahlberg, also waived the otherwise mandatory waiting period, and the couple was married the same day. See Twitter post from Travis County Clerk with Photo.

Attorney General Paxton immediately filed an emergency motion for a stay in the Texas Supreme Court, which the Court granted the same day. In both cases, Paxton argues that there was no other remedy and that the rulings of the Travis County judges create confusion about whether or not same-sex marriage licenses may be issued. The absence of an adequate legal remedy is a one of the prerequisites for mandamus relief.

The mandamus-petitions against the most recent Travis County same-sex marriage rulings, however, are atypical in that the AG went immediately to the Texas Supreme Court, rather than to the Third Court of Appeals that oversees Travis County trial courts. And the AG not only requested immediate relief, but also received it within hours. He went so far as to call the judges' actions "rouge" in a press release.

All this reflects the highly charged nature of the issue, and the deep partisan division between liberals and conservatives on hot-button social issues. Austin, like other urban population centers (Houston, Dallas) is much more liberal and regularly elects Democratic office holders -- Houston even has a lesbian mayor -- while all members of the Texas Supreme Court are Republicans, and all other holders of state-wide offices, including the Governor and the Attorney General, are also Republicans. The current mandamus proceedings involving the same-sex marriage issue must be seen in that political context. The same can be said about the indictment of Rick Perry in Travis County for abuse of office while serving as Governor.

TEXAS SUPREME COURT STAY ORDERS IN 2015 SAME-SEX MARRIAGE CASES FROM TRAVIS COUNTY 

STATEMENT OF TRAVIS COUNTY CLERK - WILL ISSUE LICENSES TO SAME-SEX COUPLES ONLY ON COURT'S ORDER 

EXCERPTS FROM TRIAL COURT ORDERS AT ISSUE IN THE MANDAMUS CASES 

Snip from Judge Guy Herman's Order finding same-sex marriage ban unconstitutional 

Temporary Order by Judge Wahlberg directing County Clerk to
issue marriage license to same-sex couple in light of
illness of one of them 

GENERAL RULE GOVERNING MANDAMUS 

To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.2008) (orig. proceeding). 

Note on terminology: The party seeking relief by petition for writ of mandamus is called “relator”, while the opposing party in the litigation below is the “real party in interest”. In their opinions and orders, justices on the courts of appeals refer to trial court judges as “it”, sometimes even in mandamus proceedings, which are specifically directed against the judge that rendered the complained-of ruling. This is why a pending mandamus proceeding is affected by the trial judge leaving office. The judge replacing the original judge must be given an opportunity to reconsider the challenged order before the court of appeals proceeds to a decision on whether the original judge committed as error serious enough to warrant correction by the higher court.  

To establish entitlement to relief by mandamus, relators "must meet two requirements." In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). "One is to show that the trial court clearly abused its discretion." Id. "The other requirement . .. . is to show that . . . [relators have] no adequate remedy by appeal." Id. at 135-36. The Texas Supreme Court has explained that "[t]he operative word, `adequate,' has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts." Id. at 136. Although the Texas Supreme Court "has tried to give more concrete direction for determining the availability of mandamus review, rigid rules are necessarily inconsistent with the flexibility that is the remedy's principal virtue." Id.  

SOURCE: Corpus Christi / Edinburg Court of Appeals - No. 13-14-00395-CV - 7/11/2014

MANDAMUS STANDARD: LOWER WHEN CHALLENGED ORDER IS VOID 

"The issuance of a void order is an abuse of discretion." Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.-Houston [14th Dist.] 2006, orig. proceeding). Moreover, "[w]hen the order is adjudged void, it is not necessary for a relator to additionally show that it lacks an adequate appellate remedy." Id. Therefore, "[c]ases involving void orders present a circumstance warranting mandamus relief." Id.  

OPINIONS ON GRANT OR DENIAL OF WRIT OF MANDAMUS 

When denying relief, the court may hand down an opinion but is not required to do so. See TEX. R. APP. P. 52.8(d). When granting relief, the court must hand down an opinion as in any other case. TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). 

Many denials of mandamus are essential one-line or two-line orders. A footnote may be used to identify the underlying case in the trial court, and the name of the judge whose order is being challenged.