                  IN THE SUPREME COURT OF TEXAS
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                                                  NO . 12-0518
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                               IN RE NESTLE USA, INC., RELATOR


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                                 ON PETITION FOR WRIT OF MANDAMUS
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       JUSTICE WILLETT , joined by JUSTICE LEHRMANN , dissenting.

       For the reasons explained in my separate writing in In re Allcat Claims Service, L.P.,1 I

believe the Court lacks exclusive original mandamus jurisdiction in taxpayers’ constitutional

challenges like this. In my view, the Court has stretched our mandamus jurisprudence beyond its

constitutional and prudential limits. I would reaffirm those purposeful curbs on judicial power, not

redefine them.

       Mandamus is not a jurisdictional talisman to conjure instant Supreme Court review. As a

constitutional matter, we cannot exercise original jurisdiction that the Constitution does not permit;

as a statutory matter, the Tax Code disallows taxpayer suits like this; and as a prudential matter,

deciding whether a statute is constitutional is simply not the stuff of mandamus.

       All in all, because I believe the Court has disregarded settled doctrines to remake the

mandamus remedy into something more ordinary than extraordinary, I respectfully dissent.




       1
           356 S.W .3d 455, 474–93 (Tex. 2011).
                                          _______________________________________
                                          Don R. Willett
                                          Justice


OPINION DELIVERED: October 19, 2012




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