                                        NO. 12-18-00210-CV
                               IN THE COURT OF APPEALS
                   TWELFTH COURT OF APPEALS DISTRICT
                                           TYLER, TEXAS


IN RE:                                                   §

THOMAS LEE SWAN,                                         §       ORIGINAL PROCEEDING

RELATOR                                                  §

                                        MEMORANDUM OPINION
                                            PER CURIAM
         Thomas Lee Swan, acting pro se, filed this original proceeding in which he challenges the
dismissal of his application to convene a Court of Inquiry under Article 52 of the Texas Code of
Criminal Procedure.1 We deny the writ.


                                       PREREQUISITES TO MANDAMUS
         To obtain mandamus relief, the relator must show that he does not have an adequate
remedy at law and the act he seeks to compel is ministerial (not involving a discretionary or
judicial decision). State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d
207, 210 (Tex. Crim. App. 2007) (orig. proceeding). If the relator fails to satisfy either prong of
this test, mandamus relief should be denied. Id.


                                        AVAILABILITY OF MANDAMUS
         According to Relator’s petition, he sought a Court of Inquiry to “initiate an investigation
into acts performed by state officials that constitute offenses against the peace and dignity of the
State of Texas.” Attached to Relator’s petition is (1) a September 25, 2017 letter from Judge
Olen Underwood, the acting presiding judge of the Eleventh Administrative Judicial Region of

         1
             Respondent is the Honorable Michael C. Davis, Judge of the 369th District Court in Anderson County,
Texas.
Texas, stating, in part, that a Court of Inquiry may only be initiated by a district judge, and (2) an
October 26, 2017 letter from Clay Bowman, court administrator for the Harris County district
courts, which stated, in part, that an application for a Court of Inquiry must be made to a district
judge. Relator’s supplement to his petition contains an order in which Respondent dismissed his
application for a Court of Inquiry as frivolous or malicious under Chapter 14 of the Texas Civil
Practice and Remedies Code.2 In this original proceeding, Relator seeks an order directing
Respondent to act as a magistrate and review his application, witnesses, and evidence under
Article 52.01 “for cause that a crime or crimes have been committed against the peace and
dignity of the State.”
         When a district court judge, acting in his capacity as magistrate, has probable cause to
believe that an offense has been committed against the laws of Texas, he may request that the
presiding judge of the administrative judicial district appoint a district judge to commence a
Court of Inquiry. TEX. CODE CRIM. PROC. ANN. art. 52.01(a) (West 2018). Thus, whether to
convene a Court of Inquiry is a discretionary matter. In re Cepeda, No. 14-17-00139-CR, 2017
WL 3612253, at *1 (Tex. App.—Houston [14th Dist.] Aug. 22, 2017, orig. proceeding) (mem.
op., not designated for publication); In re Bowers, No. 11-12-00099-CR, 2012 WL 1380935, at
*1 (Tex. App.—Eastland Apr. 19, 2012, orig. proceeding) (mem. op., not designated for
publication). The law does not require the judge to request a Court of Inquiry even if he finds
that probable cause of an offense exists. In re Bowers, 2012 WL 1308935, at *1.
         Accordingly, Respondent was not required to grant Relator’s application for a Court of
Inquiry and this Court cannot order Respondent to do so. See Young, 236 S.W.3d at 210.
Because the commencement of a Court of Inquiry is a discretionary function, Relator has failed
to satisfy his burden of demonstrating that Respondent violated a ministerial duty by failing to
commence a Court of Inquiry. See id.; see also In re Cepeda, 2017 WL 3612253, at *1; In re
Bowers, 2012 WL 1380935, at *1.



         2
            This Court previously addressed a petition for writ of mandamus challenging a trial court’s failure to rule
on a motion for a Court of Inquiry. See In re Smith, 366 S.W.3d 268 (Tex. App.—Tyler 2012, orig. proceeding). In
that case, the object of relator’s motion was to attack the validity of his final felony convictions and was essentially a
request for habeas relief. Id. at 270. Because the motion was, in substance, an application for postconviction writ of
habeas corpus, the trial court had no jurisdiction to rule on it. Id. In the present case, Relator’s application
challenges the conduct of certain state officials as crimes against the peace and dignity of the State. He does not
appear to attack the validity of his conviction.

                                                            2
                                                   DISPOSITION
         Because Relator cannot show an entitlement to mandamus relief, we deny his petition for
writ of mandamus.
Opinion delivered August 8, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)


                                                          3
                                  COURT OF APPEALS
     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT


                                            AUGUST 8, 2018

                                        NO. 12-18-00210-CV



                                      THOMAS LEE SWAN,
                                           Relator
                                             V.

                                   HON. MICHAEL C. DAVIS,
                                         Respondent


                                       ORIGINAL PROCEEDING

              ON THIS DAY came to be heard the petition for writ of mandamus filed by
Thomas Lee Swan; who is the relator in Cause No. DCCV-375-369, pending on the docket of the
369th Judicial District Court of Anderson County, Texas. Said petition for writ of mandamus
having been filed herein on July 25, 2018, and the same having been duly considered, because it
is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED,
ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is,
hereby denied.
                   By per curiam opinion.
                   Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.


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