in Re: Kerry Max Cook
2012 Tex. App. LEXIS 10574
| Tex. App. | 2012Background
- Relator Kerry Max Cook seeks mandamus to challenge a 2003 transfer of his case from the 241st District Court to the 114th District Court.
- Cook’s capital murder conviction and death sentence were affirmed, then reversed on various grounds; retrials occurred with further reversals and ultimately a no-contest plea for non-capital exposure.
- In 2003, Judge Ovard delegated temporary assignment to Judge Kent, who then transferred all criminal cases from the 241st to the 114th, including Cook’s case, due to concerns about the district attorney’s involvement.
- In 2012, Cook filed postconviction DNA testing motion; he also sought recusal/transfer relief and objected to the transfer; Judge Kennedy was assigned to preside by Judge Ovard in August 2012.
- The Texas Court of Appeals held it lacked mandamus jurisdiction against the regional presiding judge but retained jurisdiction over the 114th District Court; it concluded the 2003 transfer and the 2012 assignment were valid and denied relief as to Kennedy and dismissed as to Ovard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2003 transfer order was void ab initio and deprived jurisdiction. | Cook | State | Transfer valid; order not void. |
| Whether Judge Ovard lacked authority to appoint Judge Kennedy in 2012. | Cook | Ovard had authority under Chapter 74; reassignment proper | Ovard authorized to assign Kennedy. |
| Whether the August 2012 order moots the petition. | Cook | Order moot; cures the issue | Not moot; does not resolve voidness of 2003 transfer. |
| What relief is appropriate—mandamus or prohibition—and against whom. | Cook seeks prohibition of Kennedy’s actions | Mandamus unavailable against regional judge; jurisdiction over 114th Court exists | Writ of prohibition as to Kennedy; dismissal as to Ovard; petition denied as to Kennedy. |
Key Cases Cited
- In re Rio Grande Valley Gas Co., 987 S.W.2d 167 (Tex. App.–Corpus Christi 1999) (Rule 18a transfer issues; absence of pending motion affects proceedings)
- In re PG&E Reata Energy, L.P., 987 S.W.2d 178 (Tex. App.–Corpus Christi 1999) (Transfer fairness when Rule 18a matters arise; procedural posture matters)
- Republic Royalty Co. v. Evins, 931 S.W.2d 338 (Tex. App.–Corpus Christi 1996) (District courts may transfer/exchange cases and set local administration rules)