      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00689-CV



                                     In re R. Lowell Thompson


                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                               DISSENTING OPINION


                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,



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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




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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




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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,



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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



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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




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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



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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



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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



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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



                                                  11
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



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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



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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




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