             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                          NOS. WR-82,265-01 & WR-82,265-02



                            IN RE TYRONE ALLEN, Relator



                  ON PETITIONS FOR WRITS OF MANDAMUS
                     TO THE FIFTH COURT OF APPEALS
                 CAUSE NOS. 05-14-01167-CV AND 05-14-001168-CV
                              DALLAS COUNTY

       A LCALA, J., filed a dissenting opinion.

                                 DISSENTING OPINION

       Because the ministerial act that is at the center of the dispute in this case was

performed by a trial judge who is no longer on the bench and has no power to change the

offending order, the court of appeals’s decision to conditionally grant a writ of mandamus

against that trial judge has become moot during the pendency of this proceeding. The

appropriate action by this Court, which is effectively reviewing the propriety of the court of

appeals’s judgment conditionally granting mandamus relief against a former trial-court judge,

is to order the appellate court to vacate its prior judgment, hold the petition in abeyance, and
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abate the case to the trial court. The purpose of abatement under these circumstances is to

permit the current trial-court judge to determine whether he will adopt as his own the former

trial court’s order permitting a pretrial determination on intellectual disability. If the current

trial judge does adopt the former judge’s order, then the court of appeals may reinstate its

judgment by ordering that a writ of mandamus will issue against the current trial judge, and

the mandamus proceedings in this Court may move forward as they now have. But if the

current trial judge does not adopt the former judge’s order, then the court of appeals must

dismiss the petition as moot because the offending order would no longer exist. In short,

under the current procedural posture of this case, this case has become moot during the

pendency of this appeal. This Court accordingly lacks jurisdiction to issue a writ of

mandamus against the court of appeals because the subject of the proceedings in this

Court—the appellate court’s order conditionally granting a writ of mandamus against a

former trial-court judge—no longer constitutes a live controversy in light of the fact that the

former trial judge has no authority to rescind the offending order or to comply with the court

of appeals’s writ. Any resulting opinion by this Court in reviewing this matter, therefore, is

necessarily purely advisory.

       Alternatively, assuming that this Court has jurisdiction to order the court of appeals

to rescind its judgment conditionally granting a writ of mandamus against a former judge

who lacks authority to comply with the writ, I am persuaded by the argument presented in

the dissenting opinion by Judge Newell that, under the judicial-ripeness doctrine, a trial court
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lacks jurisdiction to conduct a pretrial determination of intellectual disability in a capital-

murder case, and I join his opinion. Alternatively, further assuming that this Court properly

considers the petition on the merits, I would uphold the court of appeals’s judgment granting

the State’s original application for a writ of mandamus to preclude the trial court from

conducting a pretrial determination of intellectual disability. Mandamus relief is appropriate

when a trial court has no discretion, as here, but to abide by principles of law that have been

in effect for more than a decade: the jurisdictional doctrine of ripeness, Texas statutes, and

this Court’s precedent for addressing this type of claim.

    I. Abatement to the Trial Court Is Required Under the Doctrine of Mootness

       Given that the trial judge who granted relator’s motion for a pretrial intellectual-

disability hearing, Judge Larry Mitchell, is no longer the presiding judge of the 292 nd Judicial

District Court, this Court is obligated to order the court of appeals to vacate its prior

judgment and abate the case to the trial court so that the now-presiding judge may have the

opportunity to reconsider the previous trial judge’s original ruling in this case. Such an

approach is consistent with the applicable law, which indicates that abatement is generally

required under these circumstances for the purpose of allowing a successor judge to

reconsider a prior judge’s disputed ruling in order to ensure that an actual controversy

continues to exist in the case. Moreover, under the particular facts of this case, the current

proceedings have, at this stage, been rendered moot as a result of the original trial judge

being succeeded in office by another judge. Absent any further ruling by the current
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presiding judge that indicates the continuing existence of a live controversy, the resulting

opinion by this Court addressing the merits of this petition constitutes a prohibited advisory-

only opinion.

       A. Applicable Law Governing Propriety of Abatement

       The Texas Supreme Court has observed that mandamus “will not issue against a new

judge for what a former one did.” In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228

(Tex. 2008) (explaining that abatement is required “to allow the successor [judge] to

reconsider the order”); see also In re Schmitz, 285 S.W.3d 451, 453 (Tex. 2009) (observing

that, when judge whose ruling is at center of mandamus proceeding is succeeded by another,

“[n]ormally, this would require abatement for reconsideration”); State v. Olsen, 360 S.W.2d

402, 403 (1962) (per curiam) (observing that, because original trial judge who was party to

mandamus proceeding had died, proceeding was “moot,” and holding that “[a] writ of

mandamus will not lie against a successor judge in the absence of a refusal by him to grant

the relief Relator seeks”). This rule has its foundation in the Texas Rules of Appellate

Procedure, which provide that, when a public officer is a party to an original mandamus

proceeding in the Supreme Court or a court of appeals and he ceases to hold office before the

mandamus proceeding is finally disposed of, the court “must abate the proceeding to allow

the successor to reconsider the original party’s decision.” T EX. R. A PP. P. 7.2(a), (b). The

rationale underlying the rule is that, for mandamus relief to lie, a live controversy must exist

between the parties. “A case becomes moot if a controversy ceases to exist between the
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parties at any stage of the legal proceedings, including the appeal.” In re Kellogg Brown &

Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding); see also State Bar of Tex.

v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (orig. proceeding) (stating that for controversy

to be justiciable, there must be a real controversy between the parties that actually will be

resolved by the judicial relief sought); Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex.

1995) (Court will not issue mandamus relief if it would be useless or unavailing). Because

a pretrial ruling by a trial judge who is no longer in office may readily be rescinded and

superseded by a subsequent pretrial ruling from the successor judge, a dispute stemming from

such a ruling is essentially moot, and, as such, that type of ruling cannot form the basis of a

live controversy that is the subject of mandamus proceedings. See Kellogg, 166 S.W.3d at

737; see also In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (declining to grant

mandamus relief and dismissing petition because “particular dispute” had become “moot”);

State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1994) (where relief

sought has become moot, “there is nothing to mandamus, ergo mandamus does not lie”).

       B. Abatement Is Required In Light of Mootness

       Applying these principles to the present context, I observe that all of the foregoing

rationales for requiring abatement to a successor trial-court judge are relevant to this case.

Here, the controversy between the parties stems from the action of the original trial-court

judge in granting relator’s motion for a pretrial intellectual-disability hearing. The continuing

viability of that ruling is, at this point, questionable at best. The successor judge has had no
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opportunity to revisit the prior judge’s ruling because of the pendency of these mandamus

proceedings and the resulting stay of all proceedings in the trial court. At some point in the

future, proceedings in this case will necessarily resume in the trial court, at which point the

successor judge will have plenary power over the case and will be fully authorized to rescind

the prior judge’s orders granting relator’s request for a pretrial hearing. As this Court’s

majority opinion accurately observes, because this is a mandamus proceeding, this Court is

not actually deciding the propriety of the trial court’s order, and thus there would not be any

law of the case to prohibit the successor judge from reconsidering this pretrial ruling. Given

these circumstances, there exists no live controversy between the relevant parties because the

person who granted the challenged motion, the former trial judge, now lacks the authority

to either carry out or rescind his original ruling. In the absence of a live controversy between

the parties, mandamus relief is inappropriate. See Kellogg, 166 S.W.3d at 737.

       With respect to the appellate-court proceedings in this matter, I observe that, like the

proceedings in the trial court, the result of those proceedings—the order conditionally

granting the State’s request for mandamus relief against the former judge—has similarly been

rendered moot as a result of Judge Mitchell’s departure from the bench. The appellate

court’s order in this case was directed at Judge Mitchell and was not directed more generally

at the trial court. See Schmitz, 285 S.W.3d at 454 (“Of course, the writ must be directed to

someone[.]”); O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (must be

proper request stating correct legal reason directed to judge against whom mandamus is
                                                                                        Allen - 7

sought). But, now that Judge Mitchell is no longer in a position of authority to comply with

the appellate court’s mandamus order, that order cannot be enforced against him. See Baylor,

280 S.W.3d at 228. And because the writ was not directed at the trial court, the appellate

court’s mandamus order cannot properly be enforced against the successor judge or anyone

else. See id. To the extent that we are presently reviewing the propriety of the court of

appeals’s conditional grant of mandamus relief, this Court’s majority opinion does not

explain how a live controversy continues to exist with respect to the appellate court’s order,

which, at this point, has become moot because it is directed at a person who is no longer in

a position to effectuate it. Moreover, the rules of appellate procedure and case law prohibit

enforcement of that order against the current presiding judge, absent an opportunity for him

to revisit the ruling. See id.; T EX. R. A PP. P. 7.2. And the rules and case law further provide

that a trial judge must be provided such an opportunity. See id. Because the court of

appeals’s mandamus order directed at the previous trial judge is clearly unenforceable against

the current presiding judge and, therefore, moot, any opinion by this Court reviewing the

propriety of that order is necessarily advisory in nature. See Pfeiffer v. State, 363 S.W.3d 594,

600 (Tex. Crim. App. 2012) (observing that this Court is “without authority” to render

advisory opinions).

       It is suggested that Judge Mitchell’s succession by another judge is irrelevant to our

resolution of the proceedings in this Court because, at this stage, we are not directly

considering the trial judge’s ruling in granting relator’s motion for a pretrial hearing, but we
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are instead considering whether a writ of mandamus from this Court is an appropriate vehicle

to correct the court of appeals’s judgment in the proceedings below. I observe, however, that

regardless of the procedural posture in which this case comes to us, the requirement of a live

controversy between the parties persists, and a case may become moot if a controversy ceases

to exist “at any stage of the proceedings, including the appeal.” Kellogg, 166 S.W.3d at 737.

However desirable it may seem to correct what is viewed as an erroneous ruling by the court

of appeals, a writ of mandamus from this Court is an inappropriate vehicle to do so when the

underlying appellate-court order is no longer enforceable against any party to these

proceedings.

       Along these same lines, it is suggested that abatement is not required because Rule

7.2 does not apply directly to proceedings in this Court. I, however, observe that, to the

extent that we are reviewing the propriety of the appellate court’s actions in conditionally

granting mandamus relief, we are bound to consider Rule 7.2 because it is applicable to

mandamus proceedings in the court of appeals. See T EX. R. A PP. P. 7.2(b); Baylor, 280

S.W.3d at 228. Furthermore, because the court of appeals issued its opinion on October 3,

2014, while Judge Mitchell was still on the bench,1 that court has never been afforded the

opportunity to decide whether abatement is required under that rule. Given the change in

circumstances that has arisen since the time its opinion was issued, the appellate court should

now be afforded the opportunity to comply with the rule.

       1
     See In re Watkins, Nos. 05-14-01167-CV, 05-14-01168-CV, 2014 WL 5903105 (Tex.
App.—Dallas Oct. 3, 2014).
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       Now that Judge Mitchell had been superseded in office, the appropriate and required

course of action is abatement in order to give the current presiding judge an opportunity to

reconsider the previous ruling granting relator’s request for a pretrial intellectual-disability

hearing, thereby ensuring the continued existence of a live controversy in this case. See T EX.

R. A PP. P. 7.2(b); Baylor, 280 S.W.3d at 228. The court of appeals’s order conditionally

granting mandamus relief to the State in the proceedings below is now moot because it is

directed at the former judge who is no longer in a position to take any action on that order,

and that order may not properly be enforced against the successor judge. See id. Because

the Court determines that, notwithstanding these circumstances that eliminate the existence

of a live controversy in this case, mandamus relief is nonetheless warranted, I disagree with

the Court’s decision to conditionally grant relator’s requested relief.

   II. Assuming that Court Properly Considers Relator’s Petition, His Requested
                            Relief Should Be Denied

       Even were I to agree that this Court properly addresses the merits of relator’s present

request for mandamus relief, I would nevertheless disagree with the Court’s decision to grant

that relief. As indicated above, I agree with the position taken by Judge Newell that a trial

court lacks jurisdiction to conduct a pretrial hearing on intellectual disability because that

issue is not ripe until the punishment phase of trial.

       Further assuming that this Court has jurisdiction to address this moot order pertaining

to an unripe matter, I conclude that, on the merits, mandamus relief is unwarranted. Before

addressing the merits, it is important to understand the way that the statutory scheme set forth
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by the Legislature has worked, at least until this Court’s decision today. Through numerous

provisions, the Code describes a capital-murder proceeding as follows: The State decides to

seek the death penalty against a person indicted for capital murder; individual voir dire is

conducted; the State presents evidence in a guilt stage of trial; a jury decides whether the

evidence proves capital murder; if the jury has convicted a defendant of capital murder, it

answers certain special issues in a sentencing phase of trial; the trial court sentences a

defendant either to life in prison or to the death penalty depending on the jury’s answers to

the special issues; and, on appeal, a defendant either files a notice of appeal to the court of

appeals challenging his life sentence or there is an automatic appeal of his death sentence to

this Court. Up until today, a defendant’s claim of intellectual disability has been addressed

either in the sentencing phase of his capital-murder trial or in a post-conviction hearing.

       In contrast to this procedural scheme that has been followed in Texas for over a

decade, here, at a pretrial stage, the trial court would conduct a hearing at which relator is

given the opportunity to prove that he is intellectually disabled before he is ever tried or

convicted of capital murder. At this pretrial stage, the State would have to provide evidence

establishing a defendant’s guilt of the offense in order for the fact finder to be able to assess

how that evidence may weigh into assessing whether he is intellectually disabled. This

pretrial hearing would essentially become applicant’s first trial on guilt and would require

the State to marshal all of its evidence to show his role in the commission of that offense.

If a defendant is determined to be intellectually disabled, a trial court may decide to deprive
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the State of the opportunity to seek the death penalty based on the court’s determination that

the defendant would be constitutionally ineligible for it. Alternatively, even if he is found

to be intellectually disabled at the pretrial hearing, the State would still have the right to

individual voir dire and to seek the death penalty, at least according to the provisions in the

Code of Criminal Procedure that are discussed below. After the pretrial hearing, therefore,

applicant’s regular guilt trial would occur. Assuming he is found guilty of capital murder,

applicant would again be permitted to present any evidence of his intellectual disability, as

that would be relevant to the mitigation special issue. Assuming that he is sentenced to

death, applicant likely would have a third opportunity to present evidence of his intellectual

disability in an application for a writ of habeas corpus either through a claim asserting

ineffective assistance of counsel or through any new evidence on that subject. The end result

of all of this will be that the guilt evidence will be presented twice, at the pretrial hearing and

at the regular trial, and the defendant will have at least three opportunities to prove his

intellectual-disability claim: at the pretrial hearing, regular trial, and in post-conviction

proceedings.

       There is only one rational decision under unequivocal, well-settled, and clearly

controlling legal principles: This bizarre procedural scheme, fancifully created by this single

trial court judge, is contrary to over a decade of jurisdictional principles, legislative statutes,

and this Court’s precedent. This Court should not abdicate its responsibility to ensure that

the law in Texas is not applied by a single trial judge in such an extraordinary and absurd
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manner. See, e.g., In re State ex. rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013).

Because the State has shown that under well-established and long-standing law it is entitled

to mandamus relief against this aberrant order, this Court has no discretion but to uphold the

appellate court’s order conditionally granting the State the relief that it seeks, as explained

more fully in my two points below.

       A. When Viewed in Their Totality, Texas Statutes Applicable to Capital-
       Murder Trials Preclude a Pretrial Determination

       In this context, it is unnecessary to lament the Legislature’s failure to specifically pass

statutes that would address how intellectual-disability claims should be handled because the

Legislature has enacted general procedures for the litigation of a capital-murder case that,

when viewed in their totality, definitively control the process applicable to such a proceeding.

A pretrial determination of intellectual disability is outside the realm of what the Legislature

has described with respect to the procedures applicable in a capital-murder trial. The absence

of a specific rule disallowing a pretrial determination as to intellectual disability, therefore,

is immaterial.

       Through numerous statutes, the Legislature has enacted a general procedural scheme

applicable to all capital-murder cases based only on the State’s representation that it is

seeking the death penalty. See T EX. C ODE C RIM. P ROC. art. 35.15(a) (“In capital cases in

which the State seeks the death penalty both the State and defendant shall be entitled to

fifteen peremptory challenges.”); Id. art. 35.17, § 2 (“In a capital felony case in which the

State seeks the death penalty, the court shall propound to the entire panel of prospective
                                                                                        Allen - 13

jurors questions [and] . . . . examine each juror on voir dire individually and apart from the

entire panel”); Id. art. 37.071, § 2(a)(1) (“If a defendant is tried for a capital offense in which

the state seeks the death penalty, on a finding that the defendant is guilty of a capital offense,

the court shall conduct a separate sentencing proceeding to determine whether the defendant

shall be sentenced to death or life imprisonment without parole.”); Id. art. 37.071, § 1 (“If a

defendant is found guilty in a capital felony case in which the state does not seek the death

penalty, the judge shall sentence the defendant” to life imprisonment without parole.); see

also id. art. 37.0711 §§ 2, 3 (emphasis added in all the parentheticals). These mandatory

provisions are contingent only on the State’s decision to seek the death penalty. Based on

the general scheme set forth by the Legislature establishing rules that become applicable to

a capital murder case only upon the State’s decision to seek the death penalty, it is clear that

the trial court has no discretionary authority to create an additional barrier to the State’s right

to seek the death penalty in the form of a pretrial determination of intellectual disability.

       Perhaps, in this case, even if the trial court were to decide in a pretrial hearing that

relator is intellectually disabled, the trial court would nonetheless permit this trial to proceed

as it normally would in a capital-murder case in which the State seeks the death penalty, with,

for example, individual voir dire and special issues in the sentencing phase. Even if that

were to occur, I would hold, based on the entire statutory scheme set forth by the Legislature

that is mandatory and contingent only upon the State seeking the death penalty, that a trial

court has no statutory authority to additionally require the State to successfully defend against
                                                                                     Allen - 14

a defendant’s pretrial claim of intellectual disability as a prerequisite to the normal

progression of a capital-murder trial.

       B. Permitting a Pretrial Determination on Intellectual Disability is Clearly
       Unauthorized by this Court’s Jurisprudence

       This Court’s jurisprudence in Ex parte Briseno has set forth the standard for

determining whether a particular defendant is ineligible for the death penalty due to

intellectual disability, but that standard contemplates that a defendant has already been found

guilty of capital murder. See Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004)

(setting criteria for determination of intellectual disability); see also Ex parte Sosa, 364

S.W.3d 889, 890 (Tex. Crim. App. 2012).          The Briseno standard operates under the

assumption that the defendant is in fact guilty of the capital murder for which he has been

indicted. Id. One of the Briseno factors specifically asks, “Putting aside any heinousness or

gruesomeness surrounding the capital offense, did the commission of that offense require

forethought, planning, and complex execution of purpose?” Id. At a pretrial stage, a

defendant is presumed innocent and no facts of the commission of the offense have been

proven. See Coffin v. United States, 156 U.S. 432, 453 (1895) (“The principle that there is

a presumption of innocence in favor of the accused is the undoubted law, axiomatic and

elementary, and its enforcement lies at the foundation of the administration of our criminal

law.”). The constitutional principle that a defendant be presumed innocent until proven

guilty stands in stark contrast to this Court’s jurisprudence for deciding an intellectual-

disability claim that requires consideration of a defendant’s actions while committing the
                                                                                         Allen - 15

capital murder for which he has been found guilty. I conclude that a trial court lacks the

discretion to conduct a pretrial hearing on intellectual disability in contravention of federal

constitutional law or this Court’s jurisprudence.

                                        III. Conclusion

       Because the trial judge who granted relator’s motion for a pretrial intellectual-

disability determination is no longer presiding over relator’s capital-murder trial, and because

the appellate court’s order conditionally granting mandamus relief was directed against that

judge, I conclude that abatement is required in order to afford the now-presiding judge an

opportunity to revisit the underlying ruling in this case.         In the absence of abatement,

mandamus will not lie against the successor judge, and any ruling by this Court evaluating

the appellate court’s conditional grant of mandamus relief, which has now been rendered

moot, will necessarily be advisory.

       Even accepting the correctness of the majority opinion’s decision to address the merits

of relator’s petition, I observe that the argument, “But you didn’t say that I couldn’t do this”

is not a persuasive argument from my kids when they act in contravention to one of my

general rules, nor is it here, where it is abundantly clear that federal, statutory, and state rules

that have been generally set forth apply to cover this situation. Because, as Judge Newell has

explained, an intellectual-disability claim is not yet ripe at a pretrial stage, and because the

legislative statutes and this Court have definitively set forth a procedural scheme that requires

that intellectual-disability claims be litigated during the sentencing phase or in the post-
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conviction phase of a capital-murder trial, I respectfully dissent.

Filed: May 13, 2015
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