Lead Opinion
delivered the opinion of the Court,
It is well-rooted in our jurisprudence that contempt is a broad and inherent power of a court. But, we have also recognized that despite the breadth and necessity of that power, it is a power that must be exercised with caution. Today, we decide as a matter of first impression whether a trial court may hold a litigant in contempt for perjury committed during a deposition. We are further presented with a question arising from the bifurcated nature of the Texas judiciary and our limited habeas jurisdiction: whether we should exercise our mandamus jurisdiction to provide a forum for a civil litigant who is deprived of liberty pursuant to a court’s contempt order, and the Court of Criminal Appeals has declined to exercise its habeas jurisdiction.
In the underlying civil case, the relator was held in contempt and confined for perjuring himself during a deposition.
We conclude the trial court abused its discretion by holding the relator in contempt for perjury occurring during a deposition, because such perjury did not obstruct the operation of the court. Further, because the underlying suit is civil in nature, and the Court of Criminal Appeals declined to grant the relator leave to file a habeas petition in that court, we hold the relator has no adequate remedy by appeal and therefore mandamus is the appropriate remedy to correct the trial court’s abuse of discretion. We conditionally grant relief.
I. Background
The trial court found relator Coy Reece in contempt for perjuring himself during a 2008 deposition in the underlying civil suit brought by real party in interest SB International, Inc. (SB). Specifically, during the deposition, Reece denied knowledge of a codefendant’s transactions in violation of a contract with SB,
After Reece’s admission, SB filed a motion for sanctions, requesting costs and fees incurred in connection with its efforts to obtain Reece’s compliance with discovery obligations, totaling $58,331.17.
Reece filed a petition for writ of habeas corpus with the court of appeals, which granted his request for emergency relief, but that court later dismissed the habeas petition for want of jurisdiction.
Reece filed a motion for reconsideration in the Court of Criminal Appeals, explaining that this Court lacks habeas jurisdiction because the contempt order does not emanate from a violation of an order, judgment, or decree. See Tex. Gov’t Code § 22.002(e). Reece also filed the instant mandamus petition with this Court.
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.,
II. Clear Abuse of Discretion
The crux of Reece’s arguments rests on his assertion that perjury committed during a deposition is not punishable by contempt, and therefore the trial court clearly abused its discretion by holding him in contempt for this conduct. In evaluating the merits of this assertion, we first examine the general contours of a court’s contempt power in Texas and then decide whether the specific misconduct at issue in this case is punishable by contempt.
A. Contempt of Court in Texas
We have broadly defined contempt as “disobedience to or disrespect of a court by acting in opposition to its authority,” Ex parte Chambers,
Contempt is further classified into either civil or criminal contempt. In determining whether contempt is civil or criminal, it is necessary to examine the purpose behind the contempt order: civil contempt is “remedial and coercive in nature” — the contemnor carries the keys to the jail cell in his or her pocket since the confinement is conditioned on obedience with the court’s order, Ex parte Werblud,
Here, Reece has admitted to lying outside the trial court’s presence during a deposition, and the purpose of the contempt judgment was to punish him for this misdeed rather than to coerce him into complying with an order. The trial court therefore held Reece in constructive criminal contempt.
Reece first asserts that a court’s constructive contempt power is limited to situations in which a person violates a court’s order, and thus Reece cannot be held in contempt here because he did not violate any order. We disagree with this overly narrow definition. While our case law suggests constructive contempt generally arises from the violation of a court order,
Reece next argues that, even if constructive contempt is not limited to violations of court orders, it is at least confined to acts that obstruct, impede, or embarrass the court in the discharge of its duties. SB responds that although obstruction is a necessary element of contempt under federal law, it is not under Texas law.
At the outset, we acknowledge that federal statutory contempt standards are more stringent than Texas statutory standards. Under federal law, a court has discretion to punish for contempt only to the extent that a contemnor (1) engages in misbehavior in or near the court’s presence so as to obstruct the administration of justice, (2) in the case of a court officer, engages in misbehavior during official transactions, or (3) disobeys or resists a court order. 18 U.S.C. § 401. In Texas, however, the statutory guidance is more sparse. Section 21.002 of the Government Code sets forth the only statutory framework for contempt, broadly providing that a “court may punish for contempt.” Tex. Gov’t Code § 21.002(a).
Contrary to SB’s assertion, however, it is firmly established in our common law that a court’s ability to punish for contempt is not unfettered. Rather, an act must impede, embarrass, or obstruct the court in the discharge of its duties in order to constitute constructive contempt.
B. Perjury as Grounds for Contempt
This Court has not had occasion to determine whether perjury in a deposition obstructs a court’s performance and thus constitutes contempt. Federal law includes obstruction as an element of contempt and is therefore instructive in our analysis.
It is axiomatic under federal law that perjury alone is not a ground for contempt unless the conduct also obstructs the court in the performance of its duties. See In re Michael,
SB argues that even if obstruction is a necessary element in a constructive contempt case, Reece’s perjury met this element because it interfered with and prejudiced SB during the underlying litigation. While we agree that Reece’s perjury undoubtedly may have caused SB difficulty in the discovery process, we cannot say, on this record, that it obstructed the court in the performance of its duties. Reece’s behavior was reprehensible: he admitted to making intentional misstatements during his deposition concerning core issues in the underlying litigation, behavior which inevitably caused his opponent delays and additional costs. See Soliz v. State,
All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses.
Id. We are loath to contemplate a system where litigants and their attorneys scour transcripts, searching for any misstatement for the sole purpose of accusing the opponent of contempt and ultimately securing the opponent’s confinement. Authorizing contempt in a situation such as the instant one also begs several questions. Is any misstatement during a deposition punishable by contempt, no matter how immaterial? Or, as the Supreme Court has noted, could a court, in believing a witness testified falsely, punish the person for contempt with the purpose of compelling the person to testify in a manner the court considers truthful? See Ex parte Hudgings,
A trial court has other weapons in its arsenal to discourage perjury during a deposition without resorting to restraining a person’s liberty in a contempt proceeding. First, a deposition is a discovery tool. As such, our rules make available the possibility of a range of sanctions for discovery abuse. See Tex.R. Civ. P. 215; Bodnow Corp. v. City of Hondo,
Second, a trial court has the option of referring a perjury allegation to the district attorney for criminal prosecution. See Soliz,
III. No Adequate Remedy by Appeal
We now turn to whether Reece has met the second element required for the exercise of our mandamus jurisdiction: the lack of an adequate remedy by appeal. The parties agree this Court lacks jurisdiction to grant habeas relief in this matter; we may only exercise our habeas jurisdiction when the contemnor’s confinement is on account of a violation of an order, judgment, or decree previously made in a civil case. See Tex. Gov’t Code § 22.002(e); Tex. Const, art. V, § 3. The Court of Criminal Appeals — and not this Court — is the state’s appellate court afforded general original habeas jurisdiction.
As stated above, the Texas Constitution grants this Court limited jurisdiction to review lower court decisions through the writ of habeas corpus. Tex. Const. art. V, § 3(a) (“The Supreme Court
The supreme court or a justice of the supreme court, either in termtime or vacation, may issue a writ of habeas corpus when a person is restrained in his liberty by virtue of an order, process, or commitment issued by a court or judge on account of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case.
Tex. Gov’t Code § 22.002(e) (emphasis added). Thus, if the basis of contempt is not a previous violation of a court order, this Court lacks jurisdiction to review a sentence of confinement by way of writ of habeas corpus, even in a civil case. Ex parte Morris,
We have previously indicated that a petition for writ of habeas corpus is generally the only method for attacking an order of contempt. See Deramus v. Thornton,
On this basis, we have held mandamus is available to challenge an order of contempt not involving confinement given the unavailability of the Court’s statutory habeas corpus jurisdiction in that circumstance. See In re Long,
Like SB, several courts of appeals have presumed mandamus is limited to the review of fine-only contempt orders, but not orders that result in confinement.
A. Habeas Corpus Jurisdiction
Before determining whether mandamus relief is available here, we note, and the parties do not dispute, that Reece may not
The history of the two high courts’ respective habeas jurisdictions is less than clear. Until 1876, this Court possessed the general power to issue writs of habeas corpus, as well as appellate jurisdiction over criminal law matters. Tex. Const. of 1869, art. V, § 3; Tex. Const. of 1866, art. IV, § 3; Tex. Const, of 1861, art. IV, § 3; Tex. Const, of 1845, art. IV, § 3; see also Ex parte Jackson,
Though the Texas Constitution granted this Court habeas jurisdiction as “may be prescribed by law,” we lacked any actual statutory authority to grant writs of habe-as corpus until 1905, when the Legislature enacted Senate Bill 36. This bill authorized us to exercise habeas jurisdiction, but only in situations where a contemnor’s confinement is by virtue of a violation of an order in a civil case. Act of February 24, 1905, 29th Leg., R.S., ch. 17, § 1,1905 Tex. Gen. Laws 20, 20 (current version at Tex. Gov’t Code § 22.002(e)). This statute has remained substantively the same since its enactment and continues in effect today.
As a matter of historical context, the Legislature apparently enacted Senate Bill 36 to ensure the Court of Criminal Appeals determines criminal matters and this Court civil matters in habeas proceedings, in line with the bifurcated system contemplated in our Constitution. As the full
Under the present status of the law all writs of habeas corpus sued out by a person who has been fined or imprisoned for a violation of any order, judgment or decree entered in a civil case, go upon appeal to the Court of Criminal Appeals instead of the Supreme Court. This often results in confusion and conflicts of decision authority. The object of the bill is to harmonize our judicial decisions and jurisdiction so that all civil matters shall be determined by the Supreme Court and all criminal matters by the Court of Criminal Appeals.
House Judiciary Comm., Full Report, Tex. S.B. 36, 29th Leg., R.S. (1905) (emphasis added). Over the past 100 years, contempt orders arising from civil cases concern a contemnor’s violation of a court order the vast majority of the time. See James L. Branton, Note, Ex parte Morris,
Nonetheless, this Court has generally properly declined to exercise habeas jurisdiction in contempt cases arising from civil suits where a violation of a court order is not the grounds for contempt, as required by the plain language of section 22.002(e) and its predecessors.
Despite its general original habeas jurisdiction, the Court of Criminal Appeals has deferred to this Court in cases where the two courts clearly have concurrent habeas jurisdiction over civil matters.
B. Mandamus Jurisdiction
Unlike our habeas jurisdiction, our constitutional and statutory grant of mandamus jurisdiction is broad; this Court possesses general original jurisdiction to issue writs of mandamus. See Tex. Const, art. V, § 3(a) (granting the Court
First, the limit SB proposes on our mandamus jurisdiction is unwarranted as a matter of statutory construction. While a person must be confined for us to exercise our habeas jurisdiction, this is so only because the habeas statute specifically states that a person must be “restrained in his liberty” for that remedy to be available. See Tex. Gov’t Code § 22.002(e). But the converse is not true: our statutory grant of habeas jurisdiction does not prohibit us from exercising mandamus jurisdiction when a person is confined. See id. Nor does the statute prescribing our mandamus jurisdiction state that mandamus relief is unavailable when a person is confined — instead, as noted above, our statutory grant of mandamus jurisdiction is broad. Id. § 22.002(a). The Legislature could have included language designating habeas corpus as the exclusive remedy for unlawful confinement, but declined to do so. Cf. MCI Sales & Serv., Inc. v. Hinton,
Further, mandamus is an “extraordinary remedy, not issued as a matter of right, but at the'discretion of the court.” In re Prudential Ins. Co. of Am.,
It is difficult to imagine a circumstance more compelling for the exercise of our mandamus jurisdiction than a situation where the relator’s liberty interests are threatened without a remaining procedural safeguard for challenging his confinement. Certainly, a result of our inaction is a potential waste of judicial and litigant resources as the case travels between this Court and the Court of Criminal Appeals, with neither court exercising jurisdiction to consider the merits of Reece’s petition. But the further consequence of Reece’s lack of an adequate appellate remedy in this matter is his unlawful confinement: the relator’s very liberty interests are at stake with no other procedure to challenge his confinement in our state courts.
Finally, because mandamus is expressly reserved for situations where a relator lacks an adequate remedy by appeal, we have employed it in other situations where, as here, a statutory gap prevents the relator from obtaining adequate appellate relief. For example, before the Legislature
More relevant to the instant dispute, until 1978, the Court of Criminal Appeals lacked jurisdiction to grant writs of mandamus except as necessary to protect its own judgments. See Tex. Const, art. V, § 5 (amended 1977 and 1980); Thomas v. Stevenson,
Our Constitution grants the Court of Criminal Appeals jurisdiction over criminal matters and this Court jurisdiction over civil cases. Tex. Const, art. V, §§ 3, 5. As it has done historically, the Court of Criminal Appeals prudently deferred to this Court because the underlying case is civil in nature. But, by virtue of a statutory limitation, we lack jurisdiction to issue a writ of habeas corpus to discharge the relator from unlawful confinement in this
C. Response to Dissent
In his dissent, Justice Willett argues that an “express statutory prohibition” precludes our exercise of mandamus jurisdiction here. Justice Willett points to the unavailability of our habeas jurisdiction in this matter as a “sign” that we are not meant to hear appeals of any sort — including by way of mandamus — arising from contempt orders not involving a violation of a previous court order. As such, Justice Willett reads the statute permitting us to issue writs of mandamus “agreeable to the principles of law regulating those writs,” Tex. Gov’t Code § 22.002(a), as circumscribed by the limitations in our habeas statute. Yet, the plain text of the statute governing our original proceeding jurisdiction does not comport with Justice Wil-lett’s interpretation. As discussed above, neither our statutory grant of habeas or mandamus jurisdiction prohibits us from exercising mandamus jurisdiction when a person is confined, and we decline to read such a limitation into the language of the statute.
Despite his statements to the contrary, the rule Justice Willett’s dissent attempts to establish is that express legislative permission is required for us to exercise our mandamus jurisdiction. Under his reasoning, if a statute grants jurisdiction in only a limited circumstance, it must follow that we are forbidden from exercising our mandamus jurisdiction in a situation falling outside the parameters of that limitation. The weakness inherent in this argument is obvious in the context of arbitration. We could have interpreted the Legislature’s specific allowance for interlocutory appeal under the Texas Arbitration Act in the absence of a law allowing for the same under the Federal Arbitration Act as a “sign” that the Legislature did not intend for any appeal, including by mandamus, under the FAA. But we wisely declined to limit our mandamus jurisdiction so narrowly.
Further, a review of our precedent reveals its support for our — and not Justice Willett’s — interpretation of our mandamus jurisdiction. We decline to overrule Deramus because the general proposition in Deramus is still valid. In Deramus, we stated that a petition for writ of habeas corpus was the only manner for challenging a contempt judgment, but left open the possibility of the availability of mandamus in a situation where habeas would prove inadequate. See Deramus,
We finally observe that whatever one’s view of our bifurcated judicial system, it is the system established by the people of this state. The bifurcated system, pursuant to our Constitution, establishes this Court as the court of final resort for civil matters, see Tex. Const, art. V, § 3, and the Court of Criminal Appeals as the court of final resort for criminal matters, see id. art. V, § 5. The instant case — a business dispute in which a party to the case was held in contempt for lying during a deposition — is unquestionably civil, and not criminal, in nature. A case of criminal contempt does not depend on whether the underlying case is civil or criminal, see generally Ex parte Werblud,
IV. Conclusion
Because the trial court abused its discretion in confining Reece for criminal contempt for acts of perjury occurring during a deposition and Reece has no adequate remedy by appeal, we conditionally grant the writ of mandamus and order the trial court to vacate the May 29, 2009, and June 24, 2009, contempt judgments against Reece. We are confident the trial court will comply, and our writ will issue only if it does not.
Notes
. In the underlying suit, SB accuses Reece and codefendants of diverting business from SB by secretly convincing SB's customers to place orders directly with SB’s suppliers, enabling Reece and his codefendants to keep all profits rather than sharing the profits with SB as required by their contracts.
. The motion for sanctions was a renewed motion. SB had previously moved for sanctions based on what it suspected was the defendants’ lack of credibility, but it did not have proof of any of the defendants’ misrepresentations or misstatements until Reece's admission. The trial court twice carried this motion.
.Texas courts of appeals only have habeas jurisdiction in situations where a relator's restraint of liberty arises from a violation of an order, judgment, or decree previously made by a court or judge in a civil case. Tex. Gov't Code § 22.221(d).
. The motion for reconsideration is still pending at the Court of Criminal Appeals, presumably because that court is awaiting this Court’s ruling on Reece’s mandamus petition.
. There are limits, however, to a trial court’s ability to summarily hold someone in direct contempt. See Ex parte Knable,
. See also In re Coppock,
. See, e.g., Ex parte Gonzalez,
. But see Ex parte Arnold,
. The statute also provides that punishment for criminal contempt may not exceed $500 or confinement for more than six months in jail, see Tex. Gov't Code § 21.002(b), but provides no similar limits for civil contempt, see id. § 21.002(e). The Federal Rules of Criminal Procedure provide more detailed instructions for the procedures a court must utilize in holding a person in criminal contempt. Fed.R.Crim.P. 42.
.Though not at issue in this case, obstruction includes the flagrant disregard of a court order. See Ex parte Taylor,
. Though an unpublished opinion, it is helpful to compare Ex parte Gibson to the factual scenario of In re Wightman, No. 05-98-01697-CV,
. We also note that while confinement is a possibility in a criminal prosecution for perjury just as it is in a contempt proceeding, the procedural distinctions between the two are important: although a court is required to employ various procedural safeguards similar to those found in a criminal prosecution in a constructive criminal contempt case, these procedures do not duplicate a criminal trial. Namely, a person charged with criminal con
. Of course, under our rules, a person may be held in contempt for failure to appear, to be sworn, or to answer questions during a deposition after being directed to do so by the trial court. Tex.R. Civ. P. 215.2. The federal rules contain a similar provision. See Fed. R.Civ.P. 37(b)(1).
. Reece also argues the contempt judgments are void because the show cause order did not afford him due process. Because we hold the contempt judgments are void on other grounds, we need not reach this issue.
. As mentioned previously, the courts of appeals possess the same habeas jurisdiction as this Court. See Tex. Gov't Code § 22.221(d).
. See In re M.J.,
. For a general review of the history of original jurisdiction in our state's high courts, see George E. Dix, Appellate Review by Mandamus and Prohibition in Texas Criminal Litigation, 17 Tex. Tech L.Rev. 75, 80-89 (1986).
. For example, in a case somewhat similar to this one, this Court dismissed a contem-nor’s habeas petition for want of jurisdiction where the contemnor was found to have given false testimony during court proceedings. Ex parte Morris,
. See, e.g., Ex parte Jones,
. For example, in Ex parte Duncan, the con-temnor was held in contempt due to certain statements made in a brief in a civil case.
. Similarly, we have exercised our mandamus jurisdiction in situations where a trial court improperly denies a motion to dismiss premised on an inadequate expert report under former article 4590i. See Tex.Rev.Civ. Stat. art. 4590i (repealed 2003). Article 4590i did not provide for interlocutory appeal of such a denial, but in In re McAllen we held mandamus was available to contest an improper denial of a challenge to an inadequate expert report to fill this statutory gap. In re McAllen,
. See generally 6 Roy W. McDonald & Elaine A. Grafton Carlson, Mcdonald & Carlson Texas Civil Practice § 35:2 (2d ed.2010).
. Indeed, in Stevenson, the petitioner initially filed his mandamus petition with this Court, but we transferred the case to the Court of Criminal Appeals so that they could determine if they had jurisdiction to issue writs of mandamus to compel speedy trials concurrently with this Court. Stevenson,
Dissenting Opinion
dissenting.
The Court of Criminal Appeals has general original habeas jurisdiction, Tex. Const. art. V, § 5; Ex parte Thompson,
Although our habeas jurisdiction is limited, our mandamus jurisdiction is broad. See Tex. Const, art. V, § 3(a); Tex. Gov’t Code § 22.002(a). And for the reasons the Court sets out, I agree that our broad mandamus jurisdiction encompasses the matters set out in Reece’s petition. Nevertheless, and as SB International, Inc. argues, Reece substantively petitions this Court for habeas relief. Under the circumstances I would refrain from granting mandamus relief for the reasons Justice
Because I disagree that we should grant mandamus relief, I respectfully dissent.
Dissenting Opinion
joined by Justice JOHNSON as to Part IV, dissenting.
Intrepidity at the Alamo; entering the United States as the Republic of Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles (sadly none this millennium); Dr Pepper and the “little creamery” in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence — the sources of Lone Star pride are innumerable.
Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list. Today’s case is a byproduct of that recondite web, sparking a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told — and this particular truth has been told repeatedly — the State’s entire Rube Goldberg-designed ju-. dicial “system” is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. That said, and however labyrinthine the jurisdictional maze often is, the answer in today’s case seems straightforward: This dispute belongs with our sister court. It arrived on our doorstep because of a simple yet pivotal misunderstanding: the Court of Criminal Appeals’ mistaken belief that we have unfettered habeas jurisdiction and are thus equally able to grant habeas relief.
The mandamus remedy turns on two findings: legality and practicality.
I. This Case Illustrates (Again) Our Abstruse Judicial “System.”
“An artificial and arbitrary system, as age creeps on, gets hardened arteries.”
The history of Texas courts is indeed a sclerotic one. But all’s well that ends well, and even a helter-skelter judicial structure might be worth the strife if it still managed, despite itself, to produce efficiency. Ours hasn’t.
A. We Have Arrived Here Through Historical Happenstance.
Like many things of Texas lore, the story of our court system begins with its size. During the colonization of Texas, judicial power was vested in the “municipal alcalde, an elected official who held executive, legislative and judicial duties,”
“Forty years and five constitutions later,”
The Legislature was also charged with the task of dividing the state into judicial districts, each with its own' court of civil appeals.
Generally speaking, under our bifurcated structure, litigants file civil matters in the Supreme Court and criminal matters in the Court of Criminal Appeals. People frequently get misdirected, though — lawyers included — and the courts’ front offices regularly redirect lost litigants to the “other” high court. In fact, this Court’s clerk’s office has a stock letter it sends — every single day — to lost litigants, steering them to our sister court and noting that the Supreme Court “does not have jurisdiction over criminal cases” and “does not review the decisions of the Court of Criminal Appeals.”
Our dual high courts are largely meant to be co-equals — constitutional twins. This is anomalous among court systems, even in the only other two-court state, Oklahoma. Like Texas, Oklahoma has a Supreme Court that hears civil appeals and a Court of Criminal Appeals that
B. Our Fragmented Structure is Much Maligned, and Deservedly So.
The convoluted make-up of the Texas judiciary — “one of the most complex in the United States, if not the world”
First, trial courts. “Texas has some 3,241 trial courts within its 268,580 square miles.”
In 1993, the Court-appointed Citizens’ Commission on the Texas Judicial System commented that “[n]o one person understands or can hope to understand all the nuances and intricacies of Texas’ thousands of trial courts.”
As one might imagine, our bizarre structure has generated some fanciful factoids — practical problems and offbeat jurisdictional oddities that clog the everyday inner workings of our judiciary. Consider:
• Texas has at least nine different types of trial courts, “although that number does not even hint at the complexities of the constitutional provisions and statutes that delineate jurisdiction of those courts.”40 Whether a given trial court has jurisdiction is a five-step inquiry.41
*383 • As Chief Justioe Jefferson has pointed out: “Some counties share a multi-county district court, while others have multiple districts within the county. And some counties are part of more than one district, creating a shifting target for litigants who may not know which court’s rules prevail. Overlapping geographical jurisdiction creates confusion for litigants and increases the risk of conflicting rulings in a single area.”42
• At least one county court has no civil jurisdiction whatsoever.43
• Only eight percent of Texas’s justices of the peace are lawyers, even though they can hear cases involving multimillion-dollar claims.44
• A civil suit that would be tried before a twelve-person jury in district court would be tried before a six-person jury if filed in a county court.45
• District court vacancies are filled by appointment by the Governor46 but statutory county court vacancies are filled by appointment by the county commissioners, even though those courts frequently have jurisdiction over the same matters.47
• Whether there is a minimum monetary limit on the State’s district court jurisdiction actually remains an open question.48 While the Constitution has been amended to eliminate a monetary minimum, there is some argument that it is still implied49
• Generally, jurisdictional limits on statutory county courts range widely by county — from $500 to $100,00050 — and some such courts have no monetary limits at all.51
• “Appellate rights can vary depending on which court a case is filed in, even among trial courts with concurrent jurisdiction, and even when the same judge in the same courtroom presides over two distinct courts.”52
Second, intermediate appellate courts. Texas is the only state in the nation in which trial judges answer to more than one intermediate appellate court;
The Attorney General’s current chief legal counsel recently bemoaned problems inherent in our overlapping intermediate-court structure: “Much of the problem— and most of the opportunity for reform— lies in the antiquated structure of the lower courts”;
Third, courts of last resort. Coy Reece’s case is but one more cautionary Texas tale. As it illustrates, our dichotom-ized system invites inter-court confusion, and as Texas history shows, inter-court clashes. The Citizens’ Commission report from 1993 noted that conflicts between the dual courts have arisen over the conclusivity of the courts of appeals’ factual determinations, the constitutionality of the “Pool Hall Law,” and whether journals of the House and Senate can be used to contradict an enrolled bill.
In fact, members of the two courts have themselves sometimes highlighted the friction that occasionally befalls a bifurcated system. A Court of Criminal Appeals judge once lamented the split-system’s tendency to shuffle parties needlessly about as he sent an “appellant on his way to begin yet another search for the proper
Up north in Oklahoma, that Supreme Court could decide this jurisdictional quandary swiftly. Not so here, though one court-reform study, mindful of the potential for jurisdictional confusion, proposed a Sooner-like solution whereby “the supreme court should determine which court has jurisdiction, and those determinations should be final.”
C. A Century of Pleas for Structural Reform Have Failed.
The urgency of sweeping judicial reorganization was “a perennial theme”
The 1970s were particularly reform-minded. The Judicial Section of the State Bar of Texas pushed for substantial changes to our judicial structure during the 1971 legislative session.
In early 1973, the thirty-seven members of the Texas Constitutional Revision Commission began nine months of study and public hearings, culminating in a proposed new state constitution.
The following January, the Legislature convened unicamerally in the House chamber as the Constitutional Convention of 1974. Like the Revision Commission, the Constitutional Convention favored a wholesale overhaul of the entire Constitution, and many of the proposed reforms, especially a right-to-work provision, provoked raucous debate.
The Legislature reconvened in January 1975, and this time, acting as a regular legislature and not as a constitutional convention, it approved what became a package of eight separate amendments, including a new Article V, which resurrected the recommendations for a combined high court, courts of appeals with both civil and criminal jurisdiction, and substantial trial-court unification.
The call for broader reforms persisted throughout the 1990s — from TRL,
In the 1990s, the Citizens’ Commission proposals did draw support as part of broader efforts to streamline our ungainly constitution down to something approaching comprehensibility.
Against this bizarre background I turn to Reece’s petition for writ of habeas corpus. It determines the procedural posture that so interestingly animates this case, and channels the kinds of cases this Court can and cannot hear. The issue of jurisdiction — deciding to decide — may sound like a meta-interest floating in the jurisprudential ether, but its importance as a threshold issue cannot be overstated. The matter of to whom the courts are open— and for which claims — colors our bifurcated high-court system, and ultimately disposes of this case. Sections II and III discuss, respectively, the statutory and precedential evidence that suggests we are not permitted by law to hear this case. Section IV explains that even if we do maintain jurisdiction, it would be unwise to exercise it. The former is a matter of a legal directive, the latter a matter of judicial discretion, but both yield the same conclusion: There is no compelling case to hear this case.
II. The Clear Statutory Prohibition that Prevents this Court from Hearing this Case as a Habeas Petition Suggests it Cannot be Cleverly Restyled as Mandamus.
There is no argument that this Court is statutorily hamstrung when it comes to habeas jurisdiction. The Texas Constitution gives us the “power to issue writs of habeas corpus, as may be prescribed by law.”
A. There is No Debate that Habeas May Not Issue Here.
As applies here, this Court has the authority to issue a habeas writ only if Reece both seeks release from custody and appeals from an order of contempt based on a violation of an order, judgment, or decree “previously made” by the court or judge in a civil case.
To say this is a rule grounded in statute and in precedent would be an understatement. This Court has been in the business of reviewing habeas petitions based on statutory language similar to Section 22.002(e) for more than 100 years.
The strength of this rule should be heeded as a sign — both from the Texas Legislature and our many decisions construing its enactments — that we are not meant to hear appeals from contempt cases where the basis for contempt is not the violation of a previously issued order, and therefore, we are not meant to ad-lib the means to arrive at the same forbidden end. It is undisputed that we cannot hear this case as a habeas petition. Why, then, should we be permitted to hear it under another name?
This statutory prohibition — the only legislatively mandated anchor in a sea of confused and overlapping jurisdiction — should and does provide a comprehensive sense of this case. By issuing mandamus when we are clearly not permitted to issue habeas, we do a disservice to the framework differentiating the two, as well as to the jurisdictional structure which (for better or worse) we are charged with upholding.
The Court contends “our constitutional and statutory grant of mandamus jurisdiction is broad,” and not limited in the way I suggest here, explaining that “this Court possesses general original jurisdiction to issue writs of mandamus.”
III. Precedent Further Indicates this Court Cannot Issue Mandamus.
The statutory prohibition against habeas is but one reason to dismiss the case. There are others grounded in our mandamus (rather than habeas) jurisprudence. We have at least suggested — if not stated plainly — that the habeas prohibition precludes our ability to hear a ease like this, explaining that “[o]ur original habeas corpus jurisdiction is limited thereby to cases in which a person has been confined for violating an order, judgment or decree in a civil cause, and we are without power to inquire into the legality of restraint imposed for some other reason.”
A. Our Deramus Decision Demonstrates — Rather Than Disproves— that Habeas is Inappropriate Here.
Both Reece and the Court
Deramus was held in contempt for violating an injunction. He sought a writ of mandamus ordering his trial judge to vacate the contempt judgment and dismiss the contempt proceedings. There, as here, we noted that the usual avenue for such a situation was habeas, explaining: “Had the District Judge not suspended the judgment of contempt the normal course would have followed, and the remedy adopted by the relator could necessarily have been an application for a writ of habeas corpus.”
Reece has not violated a previously issued order, meaning this Court may not issue habeas. If the Court in Deramus found that habeas — not mandamus — was appropriate where contempt was the result of the violation of a previously made order, then the Court should find here that neither habeas — nor mandamus — is proper where there is no such violation. The dissent in Deramus acknowledged that ha-beas was the usual remedy in cases where a relator seeks a release from confinement, but maintained the view that the import of the cases suggested a different principle: “[W]here a judge, as in the instant case, has determined to commit and fine a relator on a void contempt judgment, this court has the power to issue writs of mandamus and prohibition to prevent the enforcement of a void act.”
In sum, what was true in Deramus remains true today: Granting mandamus “would completely change the procedure long followed in this State and allow in every case an attack on the order of con
B. In re Long Indicates Mandamus Specifically May Not Issue Here, Where Contempt Sanctions Involve Confinement.
In re Long
In fact, quite the opposite is true. It can be inferred from In re Long that contempt sanctions that do involve confinement may not be reviewed through mandamus — otherwise, the distinction that case makes would be meaningless. We have applied this kind of logic to the habeas cases discussed earlier, in which we reasoned from the statute permitting issuance of the habeas writ where there is a violation of a previous court order that we were prohibited from issuing the writ where there was no such order. It makes sense to do the same here. Under a simple corollary of the In re Long rule, we are prohibited from issuing mandamus because Reece was subject to contempt sanctions that involved confinement. Even foregoing this inference as the Court would, however, it is clear that mandamus has never been permitted where there was no violation of an order and confinement was involved.
C. The Court Misconstrues the Mandamus Remedy.
The Court’s defense of its decision is based largely on four contentions: (1) mandamus is generally flexible; (2) no law announces that habeas is the exclusive remedy; (3) mandamus has often been used to “gap-fill” where there is no remedy; and (4) our sister court tends to defer to us on matters such as these. The first two stem from a more general view about the mandamus and habeas remedies, respectively. The second two are rooted in case law. I address each in turn.
First, it is true, as the Court points out, that mandamus is available to review rulings in “exceptional cases,” and that “rigid rules ... are necessarily inconsistent with the flexibility that is the remedy’s principal virtue.”
Consider, as an illustration, Betts v. Johnson,
Similarly, we have determined mandamus may not issue to controvert a prior injunction
Second, it is also true that no statutory or constitutional provision states that ha-beas is the only vehicle in this circumstance, and this Court has previously granted mandamus relief in quasi-criminal cases. The first point is a cat’s game, in which neither side wins: While there may not be a provision limiting the possibilities in this case to habeas, there is certainly not one explicitly permitting mandamus. To the contrary, In re Long at least suggests that mandamus is inappropriate where confinement is involved.
Third, according to the Court, many cases support the view that mandamus is a statutory “gap-filler” that may issue here. But in none of these cases did an independent statutory prohibition suggest that mandamus was inappropriate as it does here. Instead, we simply fashioned a remedy because there was a lack of available alternatives. In other words, we are not claiming that express statutory permission is required to issue mandamus; we are simply asking that the Court refrain from issuing mandamus where there seems to be an express statutory prohibition against doing so.
Contrary to the Court’s understanding of my position, I do not believe that “if a statute grants jurisdiction in only a limited circumstance, it must follow that we are forbidden from exercising our mandamus jurisdiction in a situation falling outside the parameters of that limitation.”
“Gap-filling” is just that — a decision to act when there is no other avenue open to the parties. Today the Court does something more akin to “needle-threading” than “gap-filling.” It attempts to gap-fill where there is not clearly a gap — where there is, instead, a law.
We gap-filled because without the mandamus remedy the essence of the appeal would vanish, and the arbitration-seeker would be left without the very thing for which he contracted ex ante.
This Court has similarly stepped in
It is also worth noting that the Legislature eventually intervened to fill in the
Fourth and finally, the Court claims that the Court of Criminal Appeals has “preferred to defer” to this Court where contempt proceedings arise from civil cases. In support, it points to a case in which the Court of Criminal Appeals, after doing so, was forced to take the case back after a Supreme Court justice explained that this Court did not have jurisdiction.
Were we the Oklahoma Supreme Court, sorting out jurisdictional spats like this one by simply taking the case might be a more tenable position. But in Texas, it is the Legislature that designs and divvies up the dockets. And the Legislature has not given us the authority to hear this case— whether we call it habeas or mandamus.
D. The Court’s Reliance on Legislative History is Both Unnecessary and Unwise.
My skepticism of legislative history is well known, and well informed. It is a wariness borne of many years participating in the legislative process at both the state and federal levels, and confirmed by six years on the bench, where I see firsthand the perils of “embarking on a scavenger hunt for extratextual clues prone to contrivance.”
One such reality, unfortunate but also undeniable, is that legislative history is prone to manipulation (by lawyers, judges, and legislators alike) and often cited inaccurately, selectively and misleadingly. More fundamentally, the statute alone is what constitutes the Legislature’s collective will, and isolated snippets along the way lack the authoritative imprimatur of a Legislature that, we must presume, intended precisely what it enacted.
That said, one need not necessarily subscribe to this view to find the Court’s reliance on legislative history unsettling. For this case demonstrates yet another disadvantage to reading through the often-distorting lens of legislative history: It is really no aid at all.
The Court attempts to guess at what the Legislature of 1905 could have meant. The Court’s determination to wrestle with the ghost of Section 22.002(e) reveals, perhaps not surprisingly, that wrestling with ghosts is unsatisfying. After reading the House Judiciary Committee’s report on Senate Bill 36, the Court can only suggest that “perhaps [the Legislature] simply did not envision contempt in civil cases extending beyond [a contemnor’s violation of a court order], and so crafted this Court’s habeas jurisdiction accordingly.”
That shaky assumption is the basis for the Court’s assertion that Reece’s case has “fall[en] inside the statutory loophole created by the particular division of habeas jurisdiction between the Court of Criminal Appeals and this Court.”
IV. Granting Relief Poses Few Practical Benefits and Many Potential Practical Burdens.
Even if we can issue mandamus here, it is doubly clear that we should not. Even if it is legal, it is certainly impractical. Most peculiar about the Court’s decision to accept this appeal is the lack of any compelling practical reason to do so. The Court of Criminal Appeals itself acknowledged two years ago — before the case even arrived on our doorstep — that it has jurisdiction to hear the case.
A. Hearing Reece’s Case Implies a Lack of Equal Sisterhood with Our Supposed Sister Court.
If the instant case offers no reason to seize jurisdiction, the specter of future cases more strongly militates against our doing so. Hearing the case implies that the Supreme Court and the Court of Criminal Appeals are not co-equals. Accepting mandamus jurisdiction when the Court of Criminal Appeals has exclusive habeas jurisdiction over these types of contempt orders would violate the mandated separation with that court. It would evince more respect for an institution we call our equal, and those who created it, to allow it to hear its rightful docket than to encroach pointlessly upon it.
B. Hearing Reece’s Case Will Disorient Deciders, Confusing the Two High Courts and Courts of Appeals Alike.
Similarly, this case leaves open the question of whether and when a petitioner may seek review in both courts, and in what order. Such confusion could lead to an unnecessarily increased docket in either court, or at least wasted resources spent shuffling cases between the two systems (or discussing whether to do the shuffle in the first place). While the Court seems concerned that dismissing Reece’s case would constitute “a potential waste of judicial and litigant resources as the case travels between [both courts], with neither court exercising jurisdiction to consider the merits of Reece’s petition,”
The confusion caused in hearing this case will affect both litigants and the courts of appeals below that have understood and applied for years the rule that today the Court contravenes. The court
Further, this issue is before us largely because of the Court of Criminal Appeals’ mistaken view that this Court has habeas jurisdiction.
C. Hearing Reece’s Case May Manufacture Manipulation.
A lack of jurisdictional clarity threatens to encourage forum shopping. An astute attorney may determine that his client stands to receive a more favorable ruling at one court rather than the other, and arrange jurisdiction-manipulative arguments accordingly. After this case, for example, petitioners seeking an audience with the Supreme Court would be advised to style them petitions as mandamus; with the Court of Criminal Appeals, habeas.
D. Hearing Reece’s Case Draws a Blurry, Rather than Bright-Line, Rule.
Finally, the Court’s suggestion that today’s decision draws helpful lines of clarity between the civil and the criminal is unpersuasive. Today the Court may ostensibly limit itself by allowing this Court to grant mandamus in “situations where the underlying dispute is civil in nature, and the Court of Criminal Appeals declines to
In other words, it is still true that “[u]n-der the provisions of the Texas Constitution and the pertinent Texas statutes relating to the original jurisdiction of this Court and the Court of Criminal Appeals, the circumstance that the cause out of which a restraint of a person’s liberty arises may be classified as a civil case, is not sufficient to vest this Court with habeas corpus jurisdiction.”
It is easy to draw a line based upon the nature of the underlying case, but this case alone demonstrates that the line is somewhat meaningless. Even the Court acknowledges that “the distinction between criminal and civil contempt does not turn on whether the underlying litigation is civil or criminal, but rather on the nature of the court’s punishment.”
The world is not nearly as tidy as the approach the Court has designed for it. In those blurry instances, it seems best to follow precedent. And a bright-line rule is particularly without its usual benefits where it comes at the expense of precedent that prohibits such a rule. “[W]e are seldom presented with the opportunity to give a jurisdictional statute a reasonable construction that results in more uniformity and simplicity (even if only slightly more), and given that opportunity in this case, I would seize it.”
V. Conclusion
No amount of head-tilting and eye-squinting can manufacture jurisdiction where there is none. Where mandamus relief would mirror the effect of a statutorily prohibited habeas writ, we should not hear the case. We should be particularly hesitant where our own mandamus jurisprudence precludes such relief. We should be triply wary where our sister court concedes it “does have the authority to act in this case.”
It makes little sense for us to expand, without clear delineations, our own jurisdiction where our sister high court has already declared it has the power to take action. By inventing jurisdiction without practical or legal reasons for doing so, the Court today further muddles the two-court system in which we find ourselves. We may have inherited a jurisdictional house of cards, but it is imprudent to build more intricate towers upon it.
I would dismiss this petition, and in doing so urge my own: The fastest growing state in the nation requires a modernized top-to-bottom judicial structure fit for the twenty-first century and worthy of our great State. At the very least (and it grieves me to use these six words) Texas should be more like Oklahoma, where one high court is truly supreme and empowered to decide jurisdictional squabbles inherent in a bifurcated scheme. I respectfully dissent.
APPENDIX
. See In re Reece, No. WR-72,199-02, slip op. at 2 (Tex.Crim.App. June 29, 2009) (per cu-riam) (not designated for publication) ("Although this Court does have the authority to act in this case pursuant to Article 5, § 5, of the Texas Constitution, we decline to do so. Effective 1981, Article 5, § 3(a) of the Texas Constitution was amended to give the Texas Supreme Court and the Justices thereof the authority to issue writs of habeas corpus.”). The Court of Criminal Appeals also offers the civil/criminal distinction as a basis for deference, id., an issue I address below. See infra IV. D. Even so, it is difficult to imagine our sister court lateraling to us had it realized we lack habeas jurisdiction to hear in this case.
. See Tex. Const, art. V, § 3(a) (limiting the habeas jurisdiction of the Texas Supreme Court).
. Though it is discussed explicitly throughout this opinion, tire legality prong has often been implicit: As a general rule, the Legislature determines our jurisdiction. See Tex. Gov't Code § 22.001(a). This principle applies no less strongly to the issuance of mandamus. The practicality prong — namely, that the requesting party must show it has "no adequate remedy by appeal”' — has received more judicial attention. See, e.g., In re Prudential Ins. Co. of America,
.In re Reece, No. WR-72,199-02, at 2 ("Although this Court does have the authority to act in this case pursuant to Article 5, § 5, of the Texas Constitution, we decline to do so.”).
. Rhodes S. Baker, The Bar Association's Legislative Program — Judicial Control of Procedure, 2 Tex. L.Rev. 422, 429-30 (1924).
. Adrienne Sonder, Tarlton Law Library, Ja-mad Center for Legal Research, Timeline of the Texas Supreme Court and Court of Criminal Appeals (Nov.2006), http://tarlton.law. utexas.edu/justices/timeline.html [hereinafter "Sonder, Timeline ”].
. Texas Research League, Texas Courts: Report One, The Texas Judiciary: A Structural-Functional Overview, at xiii and 2 (1990) (citation omitted) [hereinafter "Texas Research League, Texas Courts: Report I”].
. Joe R. Greenhill, The Constitutional Amendment Giving Criminal Jurisdiction to the Texas Courts of Civil Appeals and Recognizing the Inherent Power of the Texas Supreme Court, 33 Tex. Tech L.Rev. 377, 378 (2002) (citation omitted) [hereinafter "Greenhill, The Constitutional Amendment"].
. Id.
. James T. Worthen, The Organizational & Structural Development of Intermediate Appellate Courts in Texas, 1892-2003, 46 S. Tex. L.Rev. 33, 34 (2004) (citation omitted) [hereinafter "Worthen, The Organizational & Structural Development"]; Leila Clark Wynn, A History of Civil Courts in Texas, 60 Sw. Hist. Q. 1, 4-5 (1956).
. Texas Research League, Texas Courts: Report I, at xiii.
. Id. This was itself "the sixth judicial structure implemented in Texas within 40 years.” H. Comm, on the Judiciary, A Proposal for the Comprehensive Revision of Article V, 63rd Leg., R.S., at 3 (1974) [hereinafter "H. Comm, on the Judiciary, A Proposal”].
. Worthen, The Organizational & Structural Development, at 34 (citation omitted).
. Id. (citation omitted).
. Id. at 34-35 (citation omitted).
. Tex. Const, art. V, § 4-5 (amended 1891).
. Second Court of Appeals, History and Jurisdiction, Texas Courts Online, http://www.2 ndcoa.courts.state.tx.us/court/history.asp (last updated Sept. 2, 2008).
. Tex. Const, art. V § 3 (amended 1891).
. Id. § 6.
. Act of March 26, 1913, 33rd Leg., R.S., ch. 55, § 1, 1913 Tex. Gen. Laws 107. Incidentally, the Commission of Appeals, created in 1879 and eliminated in 1891, was reestablished in 1918 to ease this Court’s still-crowded docket, and in 1925, the Legislature created a two-person Commission of Appeals to help the Court of Criminal Appeals. These two commissioners were folded into the formal Court of Criminal Appeals when its membership grew from three to five in 1966. But just three years later, in 1969, the Commission was reestablished to help the Court of Criminal Appeals meet its workload. See Sonder, Timeline.
. See Worthen, The Organizational & Structural Development, at 39-40 (citations omitted).
. See id. at 40-41 (citations omitted).
. Letter from Blake A. Hawthorne, Clerk of the Supreme Court of Texas (May 9, 2011) (citing Tex. Gov’t Code §§ 22.001-002) (on file in the clerk’s office of the Supreme Court of Texas).
. The Supreme Court of the State of Oklahoma, Bringing a case before the Appellate Courts, http://www.oscn.net./oscn/schome/ appelcase.htm (last visited Mar. 28, 2011). There are 52 state courts of last resort (50 state courts, the criminal courts in Texas and Oklahoma, plus the District of Columbia Court of Appeals). National Center for State Courts, Many states outpace U.S. Supreme Court on gender diversity (Apr. 21, 2010), http://www.ncsc.ori/newsroom/backgrounder/ 2010/gender-diversity.aspx.
. Okla. Const, art. VII, § 1.
. Id. § 4.
. Nearly one hundred years ago, the Alabama Supreme Court explained why this might be a bad idea:
There must be in every state a court capable of exercising ultimate judicial power. In this state that is the Supreme Court. If it were otherwise, there would be no organ of government capable of authoritatively settling judicial questions; and there must be such an organ there can be no doubt, for the judicial department is an independent one, and the element of sovereignty delegated to that department must, as in the case of the executive and legislative, reside, in its last and highest form, in one tribunal, one officer, or body of officers.
Williams v. Louisville & Nashville R.R.,
. George D. Braden et al„ The Constitution of the State of Texas: An Annotated and Comparative Analysis 367 (1977).
. Citizens’ Commission on the Texas Judicial System, Report and Recommendations: Into the Twenty-First Century 3 (1993) [hereinafter Citizens’ Commission, Report and Recommendations].
. Texas Research League, Texas Courts: Report Two, The Texas Judiciary: A Proposal for Structural-Functional Reform, at iii, xi (1991) (emphasis omitted) [hereinafter "Texas Research League, Texas Courts: Report II"].
. Texas Research League, Texas Courts- Report I, at 5.
. In re United Servs. Auto. Ass’n,
. Texas Courts Online, Court Structure of Texas (Mar. 1, 2001), http://www.courts.state. tx.us/.
. Wallace B. Jefferson, The State of the Judiciary in Texas: Presented to the 80th Legislature by Chief Justice Wallace B. Jefferson (Feb. 20, 2007), in 70 Tex. B.J. 314, 316 (2007) [hereinafter "Jefferson, The State of the Judiciary”].
. Sultan v. Mathew,
. Thomas M. Reavley, Court Improvement: The Texas Scene, 4 Tex. Tech L.Rev. 269, 270 (1973) (citations omitted).
. Ed Kinkeade, Appellate Juvenile Justice in Texas: It’s a Crime! Or Should Be, 51 Baylor L.Rev. 17, 59 (1999) (explaining the jurisdictional overlap between Texas’s two courts of last resort as it applies to questions of juvenile appeals).
. Citizens’ Commission, Report and Recommendations 17.
. H. Comm, on the Judiciary, To the Speaker and Members of the Texas House of Representatives, 72nd Legislature, 71st Leg., R.S., at 8 (1990).
. In re United Servs.,
. Id. at 303-04 ("[R]ecourse must be had first to the Constitution, second to the general statutes establishing jurisdiction for that level of court, third to the specific statute authorizing the establishment of the particular court in question, fourth to statutes creating other courts in the same county (whose jurisdictional provisions may affect the court in question), and fifth to statutes dealing with specif
. Jefferson, The State of the Judiciary, at 316.
. See, e.g., Tex. Gov’t Code § 26.321 ("The County Court of Taylor County has the general jurisdiction of a probate court and juvenile jurisdiction as provided by Section 26.042(b) but has no other criminal or civil jurisdiction.”).
. Office of Court Administration, 2010 Annual Report for the Texas Judiciary 13 (2010).
. Jose A. Berlanga and Diana P. Larson, Six is Not Enough: Why Six Person Juries in Concurrent Jurisdiction Cases in County Courts are Not Constitutional, 51 S. Tex. L.Rev. 1, 1 (2009).
. Tex Const, art. V, § 28.
. Tex. Gov’t Code § 25.0009(a).
. See Sultan,
. See id. at 756 n. 24.
. Tex. Gov’t Code § 25.0003(c)(1); see also In re United Servs.,
. Sultan,
. In re United Servs.,
. See Worthen, The Organizational & Structural Development, at 63-64 ("Texas has the only intermediate appellate system in the nation with overlapping geographical appellate districts.”) (citation omitted).
. See Scott Brister, Is It Time to Reform Our Courts of Appeals?, 40 Hous. Law. 22, 25 (Mar.-Apr.2003) (citations omitted) [hereinafter "Brister, Is It Tirne to Reform? ”].
. Andrew T. Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 St. Mary’s L.J. 417, 451-52 (2006) (citations omitted). In five of these counties, the appellant may choose to file an appeal in either intermediate court. Id. at 451, 453. In the ten Houston-area counties, the intermediate court is randomly assigned. See id. at 451; Tex. Gov't Code § 22.202(h).
. Miles v. Ford Motor Co.,
. See Montes v. City of Houston,
. Compare Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) with Montes v. City of Houston,
. Tex. Sup.Ct., Recommendations for Reallocation of Courts of Appeals, Misc. Docket No. 02-9232 (Dec. 17, 2002).
. See Tex. Gov’t Code § 74.022.
. David J. Schenck, Are We Finally Ready to Reshape Texas Appellate Courts for the 21st Century?, 41 Tex Tech L.Rev. 221, 223 (2009).
. Id. at 222.
. Id. at 225-26.
. Citizens’ Commission, Report and Recommendations 11-12.
. Bretz v. State,
. State ex rel. Holmes v. Third Court of Appeals,
. Keith Carter, The Texas Court of Criminal Appeals, 11 Tex. L.Rev. 455, 470 (1933) ("This lack of coordination extends throughout the courts. To the writer it seems clear that the existence of two independent 'supreme courts’ can not be justified on either theoretical or practical grounds.”).
. Janet Elliott, State Appeals Twice in Sodomy Case, But Neither High Court May Want 'Hot Potato', Tex. Lawyer, May 18, 1992, at 1.
. State v. Morales,
. Id. at 947.
. Editorial, Texas' Top Courts Dodge Decision, San Antonio Express-News, Jan. 15, 1994, at 40.
. See Brister, Is It Time to Reform?, at 26. Former Governor Bill Clements, who helped Chief Justice Greenhill promote giving criminal jurisdiction to the courts of appeals, once speculated that a majority of Texans "have no idea that we have a parallel system of courts, and the Supreme Court is, in fact, not supreme .... We can have a better court system, if we start right at the top and combine these two courts into one court.” See G. Robert Hillman, Clements Wants One Texas Supreme Court, Dallas Morning News, Mar. 18, 1987, at 1A.
. Texas Research League, Texas Courts: Report II, at 25.
. Clarence A. Guittard, Court Reform, Texas Style, 21 SW. L.J. 451, 451 (1967) [hereinafter "Guittard, Court Reform "].
. Dr. Roscoe Pound, Address Before the Thirty-Seventh Annual Proceedings of the Texas Bar Association, 37 Tex. Bar Ass'n 205-16 (1918) (J.A. Lord, rep.) [hereinafter "Lord, Tex. Bar. Ass’n”].
. Texas Research League, Texas Courts: Report I, at xvii.
. The Texas Bar Association saw an urgent need for judicial reorganization and responded by recommending an ambitious Article V overhaul. See Lord, Tex. Bar. Ass’n 69. Over the years, numerous distinguished lawyers and jurists pushed continually for system-wide reforms. See Guittard, Court Reform, at 453 (citing several calls for reform). In 1933, the Texas Civil Judicial Council, a longtime proponent of broadbased judicial reform, advocated a single, nine-member Supreme Court to handle both civil and criminal matters. Texas Judicial Council 1929-1997, at 63 (Aug. 31, 1997), reprinted from Texas Judicial Council 50th Annual Report 60, 63 (1978). In 1941, then-Chief Justice Alexander exhorted the Council that "[w]e need a reorganization of our judicial system,” prompting the Council to propose a wholesale revision of Article V, which later died in a House subcommittee. Guittard, Court Reform, at 453-54 (citation omitted). In 1943, then-Dean of the University of Texas Law School, Charles McCormick, echoed the call for reform, including a single high court. Charles T. McCormick, Modernizing the Texas Judicial System, 21 Tex. L.Rev. 673, 695 (1943). A decade later, in the early 1950s, State Bar President Cecil Burney led another ill-fated effort to rewrite Article V, including judicial selection and high-court consolidation, proposals favored by a first referendum of state bar members but rejected by a second referendum. Guittard, Court Reform, at 454. In 1964, a conference sponsored by the state bar and the Joint Committee for the Effective Administration of Justice, derided our "unorganized and fragmented courts,” calling it "archaic” and calling for "a single and unified court system." Lawyers, Laymen Urge Modernization of Texas’ Antiquated Judicial System, 27 Tex. B.J. 299, 305 (1964).
. Texas Research League, Texas Courts: Report I, at 66.
. See Tex. H.B. Nos. 1372-1376, 62nd Leg., R.S. (1971); Tex. H.R.J. Res. Nos. 77-80, 62nd Leg., R.S. (1971).
. Tex. H.R.J. Res. 61, 62nd Leg., R.S., 1971 Tex. Gen. Laws 4140.
. Task Force for Court Improvement, Proposed Judiciary Article of the Texas Constitution (1972) [hereinafter "Task Force. Proposed Judiciary Article”]. See also Greenhill, The Constitutional Amendment, at 379-80 (citations omitted).
. H. Comm, on the Judiciary, Streamlining the Texas Judiciary: Continuity with Change, 62nd Leg., R.S. (1972). This report prompted consideration in the 63rd Legislature, Regular Session of 1973 of Tex. H.B. Nos. 725, 1401-07, and 1600; Tex. H.R. Res. Nos. 48 and 96; and Tex. H.R. Con. Res. 129. See H. Comm, on the Judiciary, A Proposal, at 3 n.5.
. Greenhill, The Constitutional Amendment, at 383 (citation omitted). Chief Justice Calvert had also once served as Speaker of the' Texas House of Representatives.
. Compare The Texas Constitutional Revision Commission- A New Constitution for Texas 109-22, with Task Force: Proposed Judiciary Article 1-5.
. Texas State Historical Association, Constitutional Convention of 1974, Handbook of Texas Online, http://www.tshaonline.org/ handbook/online/articles/mjc07 (last visited May 25, 2011).
. Id.
. Id.
. See generally H. Comm, on the Judiciary, A Proposal.
. Greenhill, The Constitutional Amendment, at 384 (citations omitted).
. Id. at 384-85.
. H. Comm, on the Judiciary, The Texas Court System: Manpower, Resources, and Management, 65th Leg., R.S., at 2-5 (1976).
. Citizens' Commission, Report and Recommendations 4 n.9.
. Joe R. Greenhill, State of the Judiciary: Address By the Texas Supreme Court Chief Justice to the 66th Texas Legislature (Jan. 31, 1979), in 42 Tex. B.J. 379, 380 (1979).
. Greenhill, The Constitutional Amendment, at 396.
. Texas Research League, Texas Courts: Report I, at xvii.
. Citizens' Commission, Report and Recommendations 3 n.4.
. Id. at 9-12.
. Texas Research League, Texas Courts: Report II, at 1. TRL’s earlier report in 1990 reached a similar conclusion: "Because the courts are so decentralized and because individually they are quite independent, it is difficult to call the Texas judiciary a system.” Texas Research League, Texas Courts- Report I, at xvii.
. Citizens' Commission, Report and Recommendations 47.
. Tex. Const, art. V, § 31.
. Citizens’ Commission, Report and Recommendations 5.
. Id. at 1. This two-courts-in-one proposal resembles one first proposed by Charles De Morse, a delegate at the Texas Constitutional Convention of 1875. Debates in the Texas Constitutional Convention of 1875, at 384-85 (Seth Shepard McKay ed., 1930).
. Editorial, Texas Constitution: State should overhaul this outmoded relic, Dallas Morning News, Nov. 12, 1995, at 2J.
. See Sultan,
. Editorial, Improve Texas justice by combining courts, Austin American-Statesman, Feb. 18, 2003, at A10.
. Tex. Const, art. V, § 3(a).
. Tex Gov’t Code § 22.002(e).
. See Ex parte Morris,
. See Ex parte Morris,
. The Court cites to a case in which this Court, without discussing the statutory limits of our habeas jurisdiction, upheld a contempt judgment against an attorney.
. See, e.g., Ex parte Allison,
. See, e.g., Ex parte Reid, 99 Tex. 405,
. In re Reece, No. WR-72,199-02, at 2.
. See Tex. S.J. Res. 36, 66th Leg., R.S., 1979 Tex. Gen. Laws 3223. The 1980 amendments were adopted at the Nov. 4, 1980 election, and became effective Sept. 1, 1981. See Tex. Const, art. V, § 3.
.
.
. Ex parte Morris,
. See
. Deramus,
. Id.
. The opinion then goes on to note several then-recent decisions to that effect. Id. (citing Tims v. Tims,
. Deramus,
. Id.
. Id. at 830 (Smith, J., dissenting) (citations omitted) (emphasis omitted).
. Deramus,
.
. See In re Long,
.
.
. See, e.g., In re Watkins,
. See, e.g., In re AIU Ins. Co.,
.
. Id. at 5.
. Act of Apr. 13, 1892, 22nd Leg., C.S., ch. 14, § 1, art. 1012, 1892 Tex. Gen. Laws 19, 21, repealed by Act of May 12, 1939, 46th Leg., R.S., ch. 25, § 1, 1939 Tex. Gen. Laws 201.
. Betts,
. See In re TXU Elec. Co.,
. "The rule is, of course, an elementary one that mandamus will not lie to an inferior court where proceedings therein have been enjoined.” Sterling v. Ferguson,
. "[Mjandamus cannot issue to compel a public officer to do an act which is not clearly prescribed by law.” Horton v. Pace,
. See Kidder v. Hall,
. See
.
.
. Id. at 273.
. Id. at 272.
. Id. (“Although we can conceive of no benefit from such an unnecessarily expensive and cumbersome rule, we may not enlarge appellate jurisdiction absent legislative mandate.”).
. In re D. Wilson Constr. Co.,
. Jack B. Anglin Co.,
.
. See, e.g., Fariss v. Tipps,
. See Tex. Const. art. V, § 5 (amended 1977 and 1980); Thomas v. Stevenson,
. See Tex. Civ. Prac. & Rem.Code § 51.016 (enacting a law authorizing interlocutory appeals under the FAA in Texas courts); Tex. S.J. Res. 18, 65th Leg., R.S., 1977 Tex. Gen. Laws 3359 (amending the Constitution to provide the Court of Criminal Appeals with mandamus jurisdiction over all criminal law matters).
.
. Entergy Gulf States, Inc. v. Summers,
.
.
.
. In re Reece, No. WR-72,199-02, at 2 ("Although this Court does have the authority to act in this case pursuant to Article 5, § 5, of the Texas Constitution, we decline to do so.”).
.
.
. That the strange Texas jurisdictional system offers Reece a remedy via the Court of Criminal Appeals easily disposes of his reliance on a United States Supreme Court case for the notion that this scenario is “of such a character as to be an exception to the rule of procedure that other available sources of judicial power may not be passed by for the purpose of obtaining relief by resort to the original jurisdiction of this court.” Ex parte Hudgings,
.
.
. See id. at 370 ("[SJeveral courts of appeals have presumed mandamus is limited to the review of fine-only contempt orders, but not orders that result in confinement.”) (citations omitted),
. See, e.g., In re M.J.,
.
. In re Reece, No. WR-72,199-02, at 2 (“Effective 1981, Article 5, § 3(a), of the Texas Constitution was amended to give the Texas Supreme Court and the Justices thereof the authority to issue writs of habeas corpus.”). The Court does not acknowledge this mistake.
.
. Ex parte Hofmayer,
.
.
. Sultan,
. State v. Briggs,
. In re Reece, No. WR-72,199-02, at 2 ("Although this Court does have the authority to act in this case pursuant to Article 5, § 5, of the Texas Constitution, we decline to do so.").