DENY; and Opinion Filed August 16, 2018.




                                                                   In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                        No. 05-18-00924-CV
                                                        No. 05-18-00925-CV
                                                        No. 05-18-00926-CV
                                                IN RE ROY OLIVER, Relator

                       Original Proceeding from the 292nd Judicial District Court
                                         Dallas County, Texas
                    Trial Court Cause No. F17-18595-V, F17-00576-V & F17-00579-V

                                           MEMORANDUM OPINION
                                     Before Justices Bridges, Brown, and Boatright
                                               Opinion by Justice Brown
          Before the Court is relator’s petition for writ of mandamus contending he is entitled to

mandamus relief because the trial court refused to hold a hearing on his properly-filed pretrial

application for habeas corpus.1 In his application for writ of habeas corpus, relator alleged the

grand jury process was unconstitutionally and hopelessly tainted because the State used coerced

statements to obtain the indictments, and the use of such statements was unconstitutional. Relator

relies on Garrity v. New Jersey, 385 U.S. 493 (1967), to support his claims.

          The record shows that the trial court conducted a hearing on relator’s original application

for writ of habeas corpus on August 10, 2018. After that hearing, the trial court determined the

application was invalid on its face. Two days later, relator filed an amended application and the




   1
       Relator filed an application seeking to have several indictments against him dismissed.
trial court held a second hearing on August 14, 2018. After that hearing, the trial court determined

relator’s complaints were not cognizable and orally denied relator’s application for pretrial writ of

habeas corpus without considering the merits of relator’s Garrity complaints. Relator now asks

this Court to direct the trial court to “issue relator’s writ of habeas corpus and hold a hearing on

the merits of the petition.”

       To establish a right to mandamus relief in a criminal case, the relator must show that the

trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.

Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). The ministerial duty

requirement is satisfied if the relator has “‘a clear right to the relief sought’—that is to say, ‘when

the facts and circumstances dictate but one rational decision’ under unequivocal, well-settled (i.e.,

from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.”

Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding). Mandamus

will not lie to compel the trial court “to rule a certain way” on an issue which involves judicial

discretion. Id. Thus, it is improper to order a trial court to exercise its judicial (as opposed to its

ministerial) function in a particular way unless the law the relator invokes is definite,

unambiguous, and unquestionably applies to the indisputable facts of the case. Id. Relator has not

met this standard. For a duty to be ministerial, the law must “clearly spell [ ] out the duty to be

performed ... with such certainty that nothing is left to the exercise of discretion or judgment.”

State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 928 (Tex. Crim. App.

2001) (quoting Tex. Dep’t of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App.

1981)). In other words, the act must be “positively commanded and so plainly prescribed” under

the law “as to be free from doubt.” State ex rel. Hill, 34 S.W.3d at 928 (quoting Buntion v. Harmon,

827 S.W.2d 945, 949 (Tex. Crim. App. 1992)).




                                                 –2–
        A defendant may use a pretrial writ of habeas corpus only in very limited circumstances.

Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (internal citations omitted). Relator

cites no Texas authorities, and this Court has found none, holding that a Garrity claim is cognizable

in a pretrial application for writ of habeas corpus. Relator has not established a clear right to relief

because the law is not unequivocal or well-settled on that issue. As such, the trial court did not

have a ministerial duty to issue a writ of habeas corpus or to address the merits of the Garrity

claim. Accordingly, we deny relator’s petition for writ of mandamus.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE




180924F.P05




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