
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00689-CV


In re R. Lowell Thompson




ORIGINAL PROCEEDING FROM TRAVIS COUNTY


D I S S E N T I N G   O P I N I O N

	In this case, the Relatives of Cameron Todd Willingham have sought to invoke a
court of inquiry regarding Willingham's conviction in Navarro County and his ultimate execution. 
In furtherance of that goal, the Relatives filed with Judge Baird a petition to convene a court of
inquiry in Travis County.  After the petition was filed, Judge Baird scheduled a hearing and sent
letters to various individuals, including some government officials, informing them of the hearing
and inviting them to attend and to present evidence regarding the matter.  Shortly thereafter, Lowell
Thompson, who is the district attorney from the county in which Willingham was convicted, filed
a motion to recuse Judge Baird from the matter.  When Judge Baird concluded that the district
attorney did not have standing to seek his recusal, the district attorney filed this writ of mandamus
asking this Court to order Judge Baird to either recuse himself or refer the recusal matter to the
presiding judge of the administrative judicial district.  See Tex. R. Civ. P. 18a(c).   After reviewing
the district attorney's petition and the response by the Relatives, the majority in this case determines
that they have jurisdiction to issue a writ in this case and also orders Judge Baird to either recuse
himself or refer the matter in accordance with the rules of civil procedure.  For the reasons that
follow, I respectfully dissent from the opinion by the majority and would instead deny the petition
for the writ of mandamus because I believe that this Court does not have jurisdiction in this case.  
	Before addressing the petition, I believe that a brief discussion regarding the evolution
of courts of inquiry would be helpful.  Courts of inquiry have a long and troubled history in Texas
jurisprudence.  See Eagle Printing Co. v. Delaney, 671 S.W.2d 883 (Tex. Crim. App. 1984).  A court
of inquiry is a procedural device employed "to ascertain if illegal activity has occurred or is
occurring."  Jones v. Westergren, 771 S.W.2d 669, 673 (Tex. App.--Corpus Christi 1989, no writ). 
At the risk of understating the matter, courts of inquiry are "extraordinary proceeding[s]."  See id.
at 883.  In the past, the procedures routinely used during courts of inquiry were fundamentally unfair
and abusive in nature.  Id. at 886 (noting that procedures utilized were shocking in nature); see also
Martin v. State, 382 U.S. 928, 929 (1965) (noting that there are "grave constitutional questions"
raised by conducting courts of inquiry); Martin v. Beto, 397 F.2d 741, 749 (5th Cir. 1968)
(Thornberry, J., concurring) (reflecting that procedures used in courts of inquiry present serious
constitutional concerns).  Some of the questionable procedures employed included denying an
accused of the right to counsel, refusing to inform the accused of the nature of the accusation against
him, and prohibiting an accused from presenting a defense, calling his own witnesses, or cross-examining the witnesses that were called.  See Ex parte Smith, 383 S.W.2d 401, 403-04 (Tex. Crim.
App. 1964) (concluding that procedures employed during court of inquiry were unconstitutional);
McClelland v. Briscoe, 359 S.W.2d 635, 638 (Tex. Civ. App.--Houston 1962, writ ref'd n.r.e.)
(stating that procedures used were "shocking and . . . at variance with our conception of the
minimum requirements of fair play, within the meaning of due process law"); see also Westergren,
771 S.W.2d at 671 (addressing mandamus in which relator asserted that judge who called court of
inquiry was "interested in the outcome of the proceeding" and was accuser in proceeding but was
not subject to cross-examination).  Furthermore, "the absence of rules of procedure" for courts of
inquiry presented an "opportunity for abuse of power," and courts of inquiry provided little
protection for those "unjustly accused."  Briscoe, 359 S.W.2d at 640 (Coleman, J., concurring); Neal
v. Brim, 506 F.2d 6, 7 n.1 (5th Cir. 1975) (explaining that when court of inquiry is called, rules of
evidence and other procedural safeguards are suspended).  The unfettered discretion employed
during these proceedings was further compounded by the publicity and media attention that these
proceedings engendered.  See, e.g., Beto, 397 F.2d at 751 (Thornberry, J., concurring) (calling court
of inquiry "carnival proceeding" and noting that type of publicity received seemed "at variance with
elemental requirements of fair play").  In light of these inequities, members of the judiciary called
for legislative reform, and a committee of the State Bar asked for the abolishment of courts of
inquiry in their entirety.  Eagle Printing Co., 671 S.W.2d at 886.    
	In response to these concerns, the legislature enacted chapter 52 of the code of
criminal procedure and expressly set out the manner in which courts of inquiry may be invoked, the
limited and narrow function of courts of inquiry, and the rights and responsibilities of those involved
in calling, presiding over, and attending a court of inquiry.  See Act of May 27, 1965, 59th Leg.,
R.S., ch. 772, arts. 52.01-.09, 1965 Tex. Gen. Laws 317, 559-60.   Notably, the legislature limited
the officials who may convene a court of inquiry to district judges.  See id. art. 52.01; see also Eagle
Printing Co., 671 S.W.2d at 886 (explaining that legislature concluded that courts of inquiry could
still serve useful purpose if presiding officers were limited to district court judges and if procedural
aspects were explicitly "spelled out"). 
	As originally enacted, chapter 52 allowed a district judge who "has good cause to
believe that an offense has been committed" to convene a court of inquiry and to "summon and
examine any witness in relation thereto."  See Act of May 27, 1965, 59th Leg., R.S., ch. 772, arts.
52.01-.09, 1965 Tex. Gen. Laws 317, 559-60; see also Neal, 506 F.2d at 7 (pertaining to court of
inquiry called by judge who had cause to believe that crime had occurred); Westergren, 771 S.W.2d
at 670 (same).  In addition, the original version of chapter 52 also exhaustively set out the manner
in which evidence may be taken at a court of inquiry (through testimony, by deposition, or by
affidavit) and the rights of witnesses, including the right to have counsel present and the right to
cross-examine "any of the witnesses" called.  Act of May 27, 1965, 59th Leg., R.S., ch. 772, arts.
52.02, 52.04, 1965 Tex. Gen. Laws 317, 559-60; see Eagle Printing Co., 671 S.W.2d at 886. 
Furthermore, chapter 52 empowered the judge presiding over a court of inquiry to subpoena
witnesses, to compel testimony and the production of evidence, and to hold witnesses in contempt. 
Act of May 27, 1965, 59th Leg., R.S., ch. 772, arts. 52.03, 52.05, 52.06, 1965 Tex. Gen. Laws 317,
559-60; see In re Court of Inquiry, 148 S.W.3d 554, 555 (Tex. App.--El Paso 2004, no pet.).  In
light of the potential for misuse of the court-of-inquiry process, the legislature also imposed
additional safeguards, including that all evidence and testimony taken during a court of inquiry be
transcribed and that the proceedings "be open to the public."  Act of May 27, 1965, 59th Leg., R.S.,
ch. 772, art. 52.07, 1965 Tex. Gen. Laws 317, 559-60.  Finally, the legislature empowered a judge
presiding over a court of inquiry to issue an arrest warrant if he ultimately concluded that "an offense
has been committed."  Id. art. 52.08.  
	Recognizing that even the new statutory provisions presented opportunities for abuse,
the legislature has repeatedly amended the statutes governing courts of inquiry and has added
additional safeguards to mitigate potential problems.  See Tex. Code Crim. Proc. Ann. arts. 52.01-.09
(West 2006).  Significantly, the legislature imposed a multi-step process that must be complied with
before a court of inquiry may be held and further limited the individuals who may properly serve
over a court of inquiry.  Id. art. 52.01.   
	Under the new statutes, if a district court judge who "is acting as a magistrate has 
probable cause to believe that an offense has been committed," he may request "that the presiding
judge of the administrative judicial district appoint a district judge to commence a Court of Inquiry." 
Id. art. 52.01(a) (emphasis added); see also id. art. 2.10 (West 2005) (stating that it is duty of
magistrate to preserve "the peace within his jurisdiction").  In other words, it is only after the
presiding judge of the administrative judicial district assigns the case to a district court judge that
a court of inquiry is invoked, meaning that the district judge who makes the initial determination
regarding probable cause is not conducting a court of inquiry.  Moreover, the judge initially involved
in the probable-cause-to-believe determination is statutorily prohibited from presiding over a
subsequently called court of inquiry.  Tex. Code Crim. Proc. Ann. art. 52.01(b)(2).
	Although the original version of chapter 52 authorized a judge making the initial
probable-cause determination to convene a hearing, summon and examine witnesses, and ultimately
employ any of the powers bestowed on judges presiding over courts of inquiry, Act of May 27, 1965,
59th Leg., R.S., ch. 772, arts. 52.01-.09, 1965 Tex. Gen. Laws 317, 559-60, the current version of
the statute divested those powers from judges making the initial determination.  Under the current
enactment, a judge making the initial probable-cause determination is only authorized to perform
the following two acts: issue an affidavit specifying "the substantial facts establishing probable cause
that a specific offense has been committed" and refer the matter to "the presiding judge of the
administrative judicial district."  Tex. Code Crim. Proc. Ann. art. 52.01(a), (b).  It is only after the
presiding judge of the district assigns the case to a district judge that the assigned judge is imbued
with the various powers and duties listed in the statutory provisions governing courts of inquiry,
including the ability to hold hearings, admit evidence, compel testimony, and issue subpoenas and
contempt orders.  Id. arts. 52.01-.07.  
	The full import of the legislature's decision to distinguish between a district judge
who is presiding over a court of inquiry and a district judge involved in the initial probable-cause
determination is not entirely clear.  The legislature seems to have established a system in which a
district judge, while acting as a magistrate, may receive information from the community and then
based on the information received, determine whether probable exists to believe that an offense has
occurred.   What is readily apparent, however, that is the legislature deliberately chose to limit the
role and power of judges conducting the initial determination and to reserve the powers identified
in chapter 52 of the code of criminal procedure to those judges who have been assigned to preside
over a court of inquiry.  In other words, although a judge involved in the probable-cause
determination may receive information from the public, he may not compel the production of
evidence, call witnesses to testify, or conduct a hearing on the matter.  In light of the serious
problems that have been associated with courts of inquiry and in light of the steps taken by the
legislature to ameliorate those concerns, it would be illogical to assume that the legislature intended
through its most recent amendment to broaden the power of a judge engaged in the initial probable-cause determination to the unrestrained and unchecked levels that so plagued counts of inquiry held
prior to the enactment of chapter 52.  
	With the preceding in mind, I do not believe that Judge Baird is presiding over a court
of inquiry because the presiding judge for the district has not assigned the matter to him.  At best,
Judge Baird could only be making the initial probable-cause determination.  Despite the absence of
legislative authorization, Judge Baird has elected to invoke various powers reserved for district
judges conducting a court of inquiry.  In particular, he convened a hearing to admit and consider
evidence and to elicit testimony from witnesses.  In light of the legislature's acknowledgment of the
potential for abuse through courts of inquiry, its mandate prohibiting a judge who performs the initial
probable cause determination from presiding over a subsequent court of inquiry, its decision to
exhaustively set out the powers, responsibilities, and limitations for judges presiding over courts of
inquiry and remove such empowerment from judges conducting the initial probable-cause
determination, I believe that Judge Baird is exercising authority that he does not possess.  See State
v. Vasilas, 187 S.W.3d 486, 489 (Tex. Crim. App. 2006) (stating that when construing statutes,
courts must presume that "legislature meant what it said"); Dowthitt v. State, 931 S.W.2d 244, 258
(Tex. Crim. App. 1996) (explaining that in interpreting statutes, we presume that "[e]very word in
a statute has been used for a purpose"); see also Ex parte Smith, 383 S.W.2d at 404 (stating that it
is "incumbent upon the justice who convened the court of inquiry to conduct said court in such a
manner as to provide the procedural safeguards guaranteed by" constitution).    
	Given the limited nature of courts of inquiry and given the type of permissible relief
that may be afforded through a court of inquiry, I also note that the relief sought by the Relatives is
inconsistent with the relief that is available through a court of inquiry.  Generally speaking, courts
of inquiry are called to determine whether there is probable cause to believe that a crime has
occurred.  See, e.g., Ex parte Smith, 383 S.W.2d at 402 (pertaining to court of inquiry called to
investigate whether city official was illegally taking kickbacks); In re Court of Inquiry, 148 S.W.3d
at 555 (addressing court of inquiry called to see if two police officers assaulted woman); In re Court
of Inquiry, No. 06-10-00171-CR, 2010 Tex. App. LEXIS 8080, at *1 (Tex. App.--Texarkana 2010,
Oct. 6, 2010, orig. proceeding) (regarding court of inquiry held to determine whether prosecutor
fraudulently altered indictment); Texas Dep't of Transp. v. Marquez, 885 S.W.2d 456, 457 (Tex.
App.--El Paso 1994, no pet.) (addressing court of inquiry called to determine whether public
servants had illegally funded state programs in discriminatory manner); cf. In re McClelland, 260 F.
Supp. 182, 183 (S.D. Tex. 1966) (discussing court of inquiry that was held to determine whether
there was probable cause to believe that probate court judge had been stealing from estates
administered through his court).  As mentioned previously, if the presiding judge is convinced at the
end of the inquiry that an offense has been committed, he may issue an arrest warrant for the
offender.  Tex. Code Crim. Proc. Ann. art. 52.08.    
	Although the Relatives assert in their petition that they are asking for the initiation
of a court of inquiry to determine whether various government officials engaged in official
oppression by failing to "adequately consider" the evidence of Willingham's innocence, the main
thrust of their assertions is a challenge to Willingham's conviction that occurred in another appellate
district and that became final years ago.  Beto, 397 F.2d at 748 (noting primacy of conducting
prosecutions in county or district in which crime was alleged to have occurred in order to aid in fair
administration of justice and public's confidence in it); see also Bitner v. State, 135 S.W.3d 906, 907
(Tex. App.--Fort Worth 2004, pet. ref'd) (explaining that magistrates may not exercise judicial
authority outside geographical limits of his jurisdiction).  Moreover, that conviction was affirmed
on appeal, Willingham v. State, 897 S.W.2d 351 (Tex. Crim. App. 1995), writ den'd, 516 U.S. 946
(1995), and Willingham's writ of habeas corpus was denied, Willingham v. Johnson,
No. 3:98-CV-0409-L, 2001 U.S. Dist. LEXIS 21766 (N.D. Tex. Dec. 31, 2001), aff'd Willingham v.
Cockrell, 61 Fed. Appx. 918 (5th Cir. Tex. 2003), writ den'd, Willingham v. Dretke, 540 U.S. 986
(2003).  I can see nothing in the provisions of the code of criminal procedure governing courts of
inquiry that could be read to authorize an otherwise impermissible collateral attack on a final and
presumptively valid conviction.   
	Even though I believe that Judge Baird is attempting to convene an unauthorized and
unorthodox proceeding, I do not believe that the legislature has given us mandamus authority in
these circumstances.  The government code specifically states that an appeals court "may issue all
writs of mandamus . . . against a: (1) judge of a district or county court in the appeals district; or
(2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code
of Criminal Procedure, in the court of appeals district."  Tex. Gov't Code Ann. § 22.221(b) (West
2004).  Appellate courts have no authority "to issue a writ of mandamus against an official not
prescribed by statute."  In re Hettler, 110 S.W.3d 152, 154 (Tex. App.--Amarillo 2003, orig.
proceeding); see In re Lopez, 286 S.W.3d 408, 410 (Tex. App.--Corpus Christi 2008, orig.
proceeding) (explaining that appellate court's authority to issue writs of mandamus is limited to
those situations described in government code).  
	In its opinion, the majority concludes that this Court has jurisdiction under
subsection 22.221(b)(1) and, thereby, sidesteps the issue of whether a proper court of inquiry has
been called.  When reaching this decision, the majority lists the relief requested by the Relatives and
notes that the Relatives sought a declaration "that Mr. Willingham was wrongfully convicted, and
that all legal disabilities attaching to him or his survivors as a result of that conviction are forever
removed."  The majority then assumes that because the Relatives sought a declaration, the Relatives
were pursuing a declaratory judgment cause of action.  See Tex. Civ. Prac. & Rem. Code Ann.
§§ 37.001-.011 (West 2008) (containing provisions of Uniform Declaratory Judgments Act).  After
determining that Judge Baird could only issue that type of declaration while acting in a judicial (not
a magisterial) capacity, the majority reasons that we have mandamus jurisdiction because we have
jurisdiction over district court judges in our appellate region.  
	For the reasons that follow, I believe that the majority's conclusion is erroneous. 
Although the majority correctly points out that the declaratory relief sought is not available through
a court of inquiry, see Tex. Code Crim. Proc. Ann. arts. 52.01, .08 (West 2006) (limiting remedy
available from court of inquiry to issuance of arrest warrant if court determines that "an offense has
been committed"), they improvidently jump to the conclusion that the Relatives must have been
seeking relief under the declaratory judgment act even after admitting that the Relatives do not
characterize their petition or the relief they request as falling under the declaratory judgment act and
even though the Relatives do not mention the declaratory judgment act, much less cite to any of the
statutes or cases governing declaratory judgment actions.  In fact, the Relatives repeatedly insist
throughout the entirety of their petition that they are seeking relief through a court of inquiry.  See
Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.--Houston [14th Dist.]
2008, no pet.) (explaining that it is not court's duty to "fashion a legal argument . . . when [party]
has failed to do so" and that it is inappropriate for appellate court to "speculate as to what [party]
may have intended to raise").
	Moreover, the fact that the Relatives requested a declaration as relief does not
necessitate a conclusion that they were in fact attempting to seek a declaration under the declaratory
judgment act or that they, thereby, invoked Judge Baird's power as a district court judge.  Given the
language in the Relatives' petition, a more reasonable inference to draw from the fact that the
Relatives sought a declaration in their attempt to initiate a court of inquiry is that they simply made
a mistake: they included in their prayer a form of relief that is not available through the procedure
they attempted to initiate.  No higher purpose need be or should be inferred from the Relatives'
miscalculation, and courts should be wary of converting the vehicle through which a party chooses
to bring forth his claims in order to accommodate the relief that he requests.  This seems particularly
true given that the Relatives are pursuing a criminal matter and that the declaratory judgment act "is
purely a creature of civil law" and "has no application in criminal proceedings."  See Ex parte
Williams, 786 S.W.2d 781, 782 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd); see also Texas
Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (stating that declaratory
judgment act is "merely a procedural device for deciding cases with a court's jurisdiction rather than
a legislative enlargement of a court's power").  Accordingly, the declaratory-judgment assumption
that serves as the foundation for the majority's analysis cannot bear the weighty conclusion that the
majority ill-advisedly places upon it.     
	In light of the fact that the Relatives are seeking relief through a court of inquiry and
given that I do not believe that the relatives are or could be pursuing a declaratory judgment action
in this case, I would conclude that we do not have jurisdiction over Judge Baird under
subsection 22.221(b)(1) of the government code because Judge Baird is not being called to act in his
judicial capacity.  
	I also do not believe that we have jurisdiction under subsection 22.221(b)(2).  As
discussed above, that provision authorizes appellate courts to issue writs against district court judges
who are acting as magistrates "at a court of inquiry."  Tex. Gov't Code Ann. § 22.221(b)(2).  No
proper court of inquiry has been called in this case because the matter has not been referred to the
presiding judge of the administrative judicial district and because the presiding judge has not
assigned a district judge to conduct a court of inquiry.  See Tex. Code Crim. Proc. Ann. art. 52.01(a),
(b).  Even assuming for the sake of argument that Judge Baird is attempting (albeit improperly) to
ascertain whether there is probable cause to believe that a crime has occurred, appellate courts have
no mandamus jurisdiction over judges engaging in that preliminary determination.  
	This conclusion is supported by two court opinions addressing whether appellate
courts have jurisdiction over individuals involved in calling a court of inquiry.  When the Amarillo
court of appeals was confronted with a similar situation in which it had to determine whether it had
jurisdiction over individuals involved in the process of calling a court of inquiry but not actually
presiding over the court of inquiry itself, the court concluded that appellate courts do not have
mandamus jurisdiction over individuals unless the legislature expressly grants that power.  See In
re Hettler, 110 S.W.3d at 154-55.  Specifically, the court decided that it had no jurisdiction to issue
a mandamus against the "presiding judge of an administrative judicial region" because the legislature
has not bestowed that power upon appellate courts.  Id. at 154.  
	The El Paso court of appeals reached a similar result under a prior version of the
government code.  See Marquez, 885 S.W.2d at 459 (Tex. App.--El Paso 1994, no pet.).  In that
case, the court was charged with determining whether it had jurisdiction over district judges
presiding over a court of inquiry.  Id.  At that time, the government code stated that appellate courts
may only issue writs against district court judges.  See Act of April 23, 1987, 70th Leg., R.S., ch. 69,
§ 1, 1987 Tex. Gen. Laws 174, 174.  After determining that judges presiding over courts of inquiry
are acting in a magisterial rather than a judicial capacity, the court of appeals concluded that it did
not have jurisdiction because section 22.221 did not list judges who are acting as magistrates as
individuals over whom appellate courts may issue writs.  Marquez, 885 S.W.2d at 459.  The
legislature subsequently amended section 22.221, but it only bestowed on appellate courts mandamus
authority over judges actually presiding over a court of inquiry.  See Tex. Gov't Code Ann.
§ 22.221(b)(2). Because Judge Baird is not presiding over a court of inquiry, I would conclude that
we do not have mandamus authority in this case under subsection 22.221(b)(2).  See id. 
	Because the government code does not authorize the issuance of a writ in the
circumstances presented to us in this case, see Tex. Gov't Code Ann. § 22.221, I believe that we do
not have jurisdiction to consider the writ, see State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim.
App. 1996) (explaining that issue of jurisdiction is "fundamental and cannot be ignored" and that
courts may address issue sua sponte), overruled on other grounds, Medrano v. State, 67 S.W.3d 892,
903 (Tex. Crim. App. 2002); see also Curry v. Wilson, 853 S.W.2d 40, 45 (Tex. Crim. App. 1993)
(explaining that courts derive authority from constitution and state laws); Drew v. State, 765 S.W.2d
533, 535-36 (Tex. App.--Austin 1989), pet. dism'd, improvidently granted, 805 S.W.2d 451 (Tex.
Crim. App. 1991) (per curiam) (stating fundamental proposition that court may only act when it has
jurisdiction to do so).  Accordingly, I respectfully dissent from the opinion by the majority and would
deny the petition for writ of mandamus.  See In re Hettler, 110 S.W.3d at 155 (dismissing petition
for writ of mandamus after concluding that court did not have jurisdiction over official named); see
also In re Ramirez, No. 03-10-00409-CV, 2010 Tex. App. LEXIS 6678, at *1 (Tex. App.--Austin
2010, orig. proceeding) (denying petition for writ of mandamus because person against whom writ
was to issue did not fit into either of categories listed in subsection 22.221(b) of government code).
 

 					__________________________________________
					David Puryear,  Justice
Before Chief Justice Jones, Justices Puryear and Pemberton
Filed:   December 21, 2010
 
