Opinion filed October 15, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-15-00169-CV
                                     __________

   IN RE THE STATE OF TEXAS EX REL. MICHAEL MUNK


                   Original Mandamus/Prohibition Proceeding


                                    OPINION
      This is an original mandamus/prohibition proceeding filed by Relator, the
State of Texas, acting by and through the District Attorney for the 106th Judicial
District, Michael Munk. Relator contends that Respondent, the Honorable Carter T.
Schildknecht, Judge of the 106th District Court of Dawson County, Texas, entered
a void order on July 22, 2015, requiring Relator to provide discovery pursuant to
Texas Code of Criminal Procedure Article 39.14(a). TEX. CODE CRIM. PROC. ANN.
art. 39.14(a) (West Supp. 2014). Relator asserts that the order was void because
Respondent did not have jurisdiction to enter it. Relator seeks a “writ of mandamus
ordering the [trial] court to reverse its order of July 22, 2015, which requires the
State to produce discovery for an unindicted case” and a “writ of prohibition
preventing the court from requiring that the State produce discovery for an
unindicted case.” Additionally, the State requested an emergency temporary stay of
the proceedings. We granted the State’s requested emergency stay in a separate
written order entered on July 28, 2015. For the reasons expressed herein, we
conditionally grant the petition for writ of mandamus, and we deny the petition for
a writ of prohibition.
                                   Background Facts
      The real party in interest, Dimas Gonzalez, was arrested on May 17, 2015, for
murder pursuant to an arrest warrant. Justice of the Peace Denise P. Dyess provided
Gonzalez with the requisite magistrate warnings on May 18, 2015. See CRIM. PROC.
art. 15.17 (West 2015). Gonzalez filed a “Request for Appointment of Counsel and
Determination of Indigence” on May 18, 2015, and Respondent entered an “Order
Appointing Attorney” on May 19, 2015, appointing attorney Arthur Aguilar Jr. as
Gonzalez’s attorney. Subsequently, attorney Daniel W. Hurley wrote a letter dated
June 4, 2015, to District Attorney Michael Munk advising Munk that Hurley had
been retained to represent Gonzalez. Hurley’s letter indicated that it constituted
Gonzalez’s “formal request for discovery” pursuant to Article 39.14. Hurley’s letter
concluded with a request that Munk either comply with the request within fifteen
days or that Munk file a formal motion and request a hearing seeking an extension
of time for compliance.
      Munk did not voluntarily comply with Gonzalez’s request for discovery set
out in Hurley’s letter of June 4. Gonzalez subsequently filed a “Motion to Compel
Discovery and to Impose Sanctions for Failure to Abide.” Gonzalez styled the
caption on this motion as follows: “CAUSE NO. ______________, STATE OF TEXAS V.
DIMAS GONZALEZ, IN       THE   106TH DISTRICT COURT   OF   DAWSON COUNTY, TEXAS.”
Respondent conducted a hearing on this motion on July 22, 2015. Respondent began
the hearing with the following announcement: “Court calls the State of Texas versus
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Dimas Gonzalez. And we are here on the motion, filed on behalf of the defendant,
to compel discovery and to impose sanctions for failure to abide.” The prosecutor
that appeared at the hearing informed Respondent at the outset of the hearing that
the State did not believe that the trial court had jurisdiction to consider Gonzalez’s
discovery motion because an indictment had not been filed. Respondent responded
as follows to the prosecutor’s contention: “And the Court is going to go ahead and
proceed on the case. The Court, respectfully, does not agree with the State. The
Court does believe it has jurisdiction and is going to proceed.” Respondent entered
a written order that same day granting Gonzalez’s motion to compel discovery. The
order required the State to provide Gonzalez with discovery on or before 5:00 p.m.
on July 30, 2015.
                        This Court’s Mandamus Jurisdiction
      As a threshold issue, Gonzalez argues that we lack jurisdiction to issue a writ
of mandamus because Respondent was not acting in her capacity as the judge of a
district court but, rather, in her capacity as a magistrate. Section 22.221 of the Texas
Government Code defines and limits our mandamus jurisdiction. In re Thompson,
330 S.W.3d 411, 414 (Tex. App.—Austin 2010, orig. proceeding); see TEX. GOV’T
CODE ANN. § 22.221 (West 2004). Section 22.221 provides, in pertinent part, as
follows:

             (a) Each court of appeals or a justice of a court of appeals may
      issue a writ of mandamus and all other writs necessary to enforce the
      jurisdiction of the court.

            (b) Each court of appeals for a court of appeals district may issue
      all writs of mandamus, agreeable to the principles of law regulating
      those writs, against a:

                   (1) judge of a district or county court in the court of
             appeals district; or

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                      (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.

GOV’T § 22.221(a), (b). We focus our attention on subsection (b) of Section 22.221
because there is no assertion that the issuance of the mandamus sought by Relator is
necessary to enforce the jurisdiction of this court.
        The leading case on the application of subsection (b) is State ex rel. Holmes v.
Salinas, 774 S.W.2d 421 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding)
(Holmes I). The Fourteenth Court of Appeals concluded that, under subsection (b),
an intermediate court of appeals only has mandamus jurisdiction over district and
county judges when they are functioning in that capacity. Holmes I, 774 S.W.2d at
422–23. Conversely, an intermediate court of appeals does not have mandamus
jurisdiction over district and county judges when they are functioning as
magistrates.1 Id. The court determined that it did not have jurisdiction to issue a
writ of mandamus against the respondent district judge in Holmes I because he was
functioning as a magistrate when he entered the orders that were challenged.2 Id.
        The respondent district judge in Holmes I issued pre-indictment orders that
restrained the Harris County district attorney from “making any effort to obtain from
the Grand Jury an indictment prior to the completion of an examining trial” in cases
involving two potential defendants. Id. at 422. The district attorney conceded that


        1
         Subsection (b)(2) pertaining to district judges “acting as a magistrate at a court of inquiry” was
added after Holmes I was decided. It has no application to this proceeding because there is no assertion
that Respondent was acting as a magistrate of a court of inquiry.
        2
          By contrast, the mandamus jurisdiction of the Texas Court of Criminal Appeals is not as restricted
as our mandamus jurisdiction, as evidenced by the fact that the relator in Holmes I subsequently obtained
mandamus relief from the court in State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex. Crim. App. 1990)
(orig. proceeding) (Holmes II), for the same orders challenged in Holmes I. See State ex rel. Millsap v.
Lozano, 692 S.W.2d 470, 481 (Tex. Crim. App. 1985) (orig. proceeding) (Pursuant to Article V, section 5
of the Texas constitution, the Texas Court of Criminal Appeals has jurisdiction to issue writs of mandamus
“in all criminal matters.”).

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the respondent district judge was “sitting as a magistrate” when he entered the
challenged orders. Id. In reaching its holding, the Fourteenth Court of Appeals
noted that district judges also function as a magistrate at times at the pretrial stage
of a criminal case pursuant to Article 2.09 of the Texas Code of Criminal Procedure.
Id. (citing CRIM. PROC. art. 2.09). The court further noted that jurisdiction attaches
in the district court only after the grand jury returns an indictment. Id. (citing
Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. [Panel Op.] 1980) (orig.
proceeding)).
      In reliance upon Holmes I, Gonzalez contends that, when a district judge acts
before issuance of an indictment, the judge is acting under his or her authority as a
magistrate. We disagree with Gonzalez’s contention and reliance on Holmes I. As
noted previously, the respondent district judge in Holmes I issued the challenged
orders in connection with orders pertaining to an examining trial. The act of holding
an examining trial is a function performed by a magistrate. CRIM. PROC. art. 16.01;
see Holmes II, 784 S.W.2d at 424. “The duties and authority attendant to the role of
magistrate ‘within the meaning of’ the Code of Criminal Procedure are clearly set
out in Arts. 2.10 and 2.11.” Holmes II, 784 S.W.2d at 424 (citing CRIM. PROC. arts.
2.10, 2.11 (West 2005)).       A discovery order issued under the auspices of
Article 39.14(a) is not a function associated with the role of a magistrate as set out
in Articles 2.10 and 2.11.
      Gonzalez contends that Respondent’s issuance of the discovery order was
akin to the act of a magistrate conducting an examining trial because an examining
trial provides a “crude means for basic pre-indictment discovery.” See id. (noting
that an examining trial provided for in Article 16.01 “may be a practical tool for
discovery by the defendant” (quoting Harris v. State, 457 S.W.2d 903, 907 (Tex.



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Crim. App. 1970))). However, Respondent was not conducting an examining trial
at the time the discovery order was issued. In this regard:
             The traditional and statutory purposes of an examining trial are
      (1) to determine whether there exists sufficient evidence of guilt to hold
      a suspect accused of criminal conduct; (2) to determine whether bail
      should be allowed and if so, the amount of bail; and (3) to perpetuate
      the testimony of witnesses, including any voluntary statement the
      suspect may wish to make.
Id. (citing Harris, 457 S.W.2d at 907 n.1).         The only matter considered by
Respondent at the hearing was Gonzalez’s motion for discovery under
Article 39.14(a). We conclude that Respondent was functioning in her capacity as
the district judge of the 106th District Court at the time she considered Gonzalez’s
discovery motion.       Accordingly, we have mandamus jurisdiction under
Section 22.221(b) to review her actions.
                                 Writ of Mandamus
      Mandamus is appropriate in a criminal proceeding when the relator
establishes (1) “that he has no adequate remedy at law to redress the harm that he
alleges will ensue” and (2) “that the act he seeks to compel or prohibit does not
involve a discretionary or judicial decision.” Simon v. Levario, 306 S.W.3d 318,
320 (Tex. Crim. App. 2009) (orig. proceeding); see State ex rel. Hill v. Ct. of Appeals
for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).
Relator does not have an adequate remedy at law because the State does not have
the right to appeal from the order entered by the trial court. CRIM. PROC. art. 44.01;
see Millsap, 692 S.W.2d at 481. Accordingly, the first prong of the two-part test is
established.
      With respect to the second prong, “[f]or a court to act, it must have jurisdiction
to do so. This is fundamental.” Millsap, 692 S.W.2d at 482 (quoting State v. Klein,
224 S.W.2d 250, 252 (Tex. Crim. App. 1949)) (internal quotation marks omitted).

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“Any order entered by a court having no jurisdiction is void.” Id. (citing Ex parte
Sandoval, 318 S.W.2d 64, 66 (Tex. Crim. App. 1958)). “If the court has no
jurisdiction, it should proceed no further with the case other than to dismiss it for
want of power to hear and determine the controversy. In such a case, any order or
decree entered, other than one of dismissal is void.” Id. (quoting Hall v. Wilbarger
Cnty., 37 S.W.2d 1041, 1046 (Tex. Civ. App.—Amarillo 1931), aff’d, 55 S.W.2d
797 (Tex. Comm’n App. 1932, judgm’t adopted)) (internal quotation marks
omitted). Accordingly, if Relator is correct in its assertion that Respondent did not
have jurisdiction to enter the discovery order, it has established the second prong of
the two-part test and is entitled to mandamus relief to compel vacation of
Respondent’s discovery order. Id.
      This case involves the new discovery procedures that became effective with
the passage of the Michael Morton Act. See Michael Morton Act, 83d Leg., R.S.,
ch. 49, 2013 Tex. Gen. Laws 106 (codified at CRIM. PROC. art. 39.14); In re State
ex rel. Munk, 448 S.W.3d 687, 691 (Tex. App.—Eastland 2014, orig. proceeding).
We direct our attention to subsection (a) of Article 39.14 that provides as follows:
             (a) Subject to the restrictions provided by Section 264.408,
      Family Code, and Article 39.15 of this code, as soon as practicable after
      receiving a timely request from the defendant the state shall produce
      and permit the inspection and the electronic duplication, copying, and
      photographing, by or on behalf of the defendant, of any offense reports,
      any designated documents, papers, written or recorded statements of
      the defendant or a witness, including witness statements of law
      enforcement officers but not including the work product of counsel for
      the state in the case and their investigators and their notes or report, or
      any designated books, accounts, letters, photographs, or objects or other
      tangible things not otherwise privileged that constitute or contain
      evidence material to any matter involved in the action and that are in
      the possession, custody, or control of the state or any person under
      contract with the state. The state may provide to the defendant
      electronic duplicates of any documents or other information described
      by this article. The rights granted to the defendant under this article do
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      not extend to written communications between the state and an agent,
      representative, or employee of the state. This article does not authorize
      the removal of the documents, items, or information from the
      possession of the state, and any inspection shall be in the presence of a
      representative of the state.
CRIM. PROC. art. 39.14(a).
      Article 39.14(a) addresses what the State must produce and when the State
must produce it. However, the statute does not address the manner by which the trial
court may enforce the mandates of Article 39.14(a) by issuing an order compelling
the State to comply with the statute. Gonzalez contends that the statute permits the
trial court to issue an order prior to an indictment to compel compliance with the
statute. We disagree with Gonzalez’s interpretation of the statute.
      “[I]t is well settled that a valid indictment, or information if indictment is
waived, is essential to the district court’s jurisdiction in a criminal case.” Trejo v.
State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Garcia, 596 S.W.2d at
527). “The attachment of jurisdiction in the district court conveys upon that court
the power to determine all essential questions ‘and to do any and all things with
reference thereto authorized by the Constitution and statutes, or permitted district
courts under established principles of law.’” Garcia, 596 S.W.2d at 527–28 (quoting
Cleveland v. Ward, 285 S.W. 1063, 1069 (Tex. 1926)). In the absence of express
language in Article 39.14(a) authorizing the trial court to issue an order compelling
the State to produce discovery prior to indictment, we conclude that the statute does
not alter the well-settled requirement that an indictment is essential to the district
court’s jurisdiction in a criminal case.
      Respondent did not have jurisdiction prior to indictment to issue an order
compelling Relator to comply with Article 39.14(a). Accordingly, Relator is entitled
to mandamus relief. We conditionally grant Relator’s petition for writ of mandamus.
A writ will issue only if Respondent fails to vacate her July 22, 2015 order to produce
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discovery.   Our emergency stay of the enforcement of the “order to produce
discovery” shall remain in place until Respondent vacates her July 22, 2015
discovery order.
                                 Writ of Prohibition
      Relator also seeks a writ of prohibition to prohibit Respondent from requiring
the State to provide discovery prior to indictment in future cases.          We have
previously held that the writ of prohibition is a creature of limited purpose that is
appropriate only after an appellate court’s jurisdiction has been invoked on
independent grounds and then only in aid of that jurisdiction. Munk, 448 S.W.3d at
694; see In re Munk, No. 07-14-00308-CV, 2014 WL 4082109, at *4–5 (Tex.
App.—Amarillo Aug. 15, 2014, orig. proceeding) (mem. op.) (citing Holloway v.
Fifth Ct. of Appeals, 767 S.W.2d 680, 683 (Tex. 1989) (orig. proceeding)). An
appellate court does not have jurisdiction, absent actual jurisdiction of a pending
proceeding, to issue a writ of prohibition requiring that a trial court refrain from
performing a future act. Munk, 448 S.W.3d at 694; see In re Nguyen, 155 S.W.3d
191, 194 (Tex. App.—Tyler 2003, orig. proceeding); Lesikar v. Anthony, 750
S.W.2d 338, 339 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding).
      Relator has not identified a pending proceeding over which this court has
jurisdiction and by which this court might have jurisdiction to issue a writ of
prohibition to prohibit a future act by Respondent. Furthermore, we have not found
such a proceeding. Thus, we have no pending jurisdiction to protect or preserve by
way of a writ of prohibition. That being the case, we lack jurisdiction to issue a writ
of prohibition. Accordingly, we deny Relator’s request to issue a writ of prohibition.
                                 This Court’s Ruling
      Relator’s petition for writ of mandamus is conditionally granted.           The
Honorable Carter T. Schildknecht is directed to vacate her discovery order of

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July 22, 2015. A writ of mandamus will issue only if Judge Schildknecht fails to act
by October 30, 2015. Relator’s request for a writ of prohibition is denied.




                                                    JOHN M. BAILEY
                                                    JUSTICE

October 15, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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