                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00305-CV


                       IN RE THE STATE OF TEXAS, RELATOR


                               ORIGINAL PROCEEDING

                                    October 3, 2018

                            MEMORANDUM OPINION
                    Before CAMPBELL and PIRTLE and PARKER, JJ.


       On August 9, 2018, relator Christopher Dennis, District Attorney for the 286th

Judicial District of Hockley County, filed a petition for writs of mandamus and prohibition

in this Court. See TEX. GOV’T CODE ANN. § 22.221 (West Supp. 2017); TEX. R. APP. P. 52.

By his petition, Dennis asks this Court to issue a writ of mandamus ordering the Honorable

Pat Phelan, presiding judge of the 286th District Court of Hockley County, to withdraw his

July 23, 2018 orders disqualifying the District Attorney’s Office from prosecuting cases

against two defendants, and a writ of prohibition preventing the trial court from

disqualifying the District Attorney’s Office from prosecuting any other causes without good

cause being shown. We deny Dennis’s petition.
                                       Background


       On June 7, 2018, Christina Woods-Duffy filed multiple motions to disqualify the

286th Judicial District Attorney’s Office based on a claim of prosecutorial vindictiveness

rising to the level of violation of her clients’ due process rights. Woods based her

argument on Dennis’s revocation of all pending plea offers to Woods’s clients by text and

letter after the two attorneys were involved in a contentious hearing regarding the

exclusion of the State’s expert witnesses in another case. Of significance to the present

proceeding, during a July 2nd hearing on Woods’s motions to disqualify, Judge Phelan

asked Dennis if he had withdrawn all offers to clients of a particular attorney by a similar

text or letter. Dennis responded that he had and, when Judge Phelan asked to whom,

Dennis expressly identified Laurie Key as one such attorney.


       Because Dennis identified that he had previously withdrawn plea offers to all of

Key’s clients, Key filed motions to disqualify the 286th Judicial District Attorney’s Office

from cases involving James Darrell Bridges and Ernesto Salinas, both of whom are

criminal defendants being represented by Key and prosecuted by Dennis. The trial court

held a hearing on the motions at which Key argued that Dennis’s statement at the July

2nd hearing identified a policy of the district attorney’s office not to make plea bargain

offers to any of Key’s clients. Dennis denied that he or the district attorney’s office had

any policy refusing to make plea bargain offers to Key’s clients. Following the hearing,

Judge Phelan pronounced that he would grant the motions to disqualify and,

subsequently, issued written orders granting the motions and appointing a special

prosecutor. In response, Dennis filed his petition for writs of mandamus and prohibition.



                                             2
                                            Law


       Mandamus relief is generally only appropriate when the trial court has clearly

abused its discretion and the relator has no adequate remedy by appeal. In re Reece,

341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). “A trial court abuses its discretion if

it clearly fails to analyze the law correctly or apply the law correctly to the facts.” In re

USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. App.—Houston [14th Dist.]

2012, orig. proceeding). As the party seeking relief, the relator bears the burden to

provide a sufficient record to establish his entitlement to mandamus relief. Walker v.

Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).


       A writ of prohibition must meet the same standards as a writ of mandamus;

prohibition seeks to “prevent the commission of a future act whereas [mandamus]

operates to undo or nullify an act already performed . . . .” In re Medina, 475 S.W.3d 291,

297 (Tex. Crim. App. 2015) (quoting State ex rel. Wade v. Mays, 689 S.W.2d 893, 897

(Tex. Crim. App. 1985)). To establish entitlement to relief through a writ of prohibition, an

applicant must show that the act he wishes the court to restrict “does not involve a

discretionary or judicial decision.” Id. (quoting Simon v. Levario, 306 S.W.3d 318, 320

(Tex. Crim. App. 2009)). In addition, an applicant must show that he has no adequate

remedy at law. Id. The applicant bears the burden to prove that he is entitled to a writ of

prohibition. See In re Thorn, Nos. 14-14-00190-CR, 14-14-00191-CR, 14-14-00192-CR,

2014 Tex. App. LEXIS 2824, at *3 (Tex. App.—Houston [14th Dist.] Mar. 13, 2014, orig.

proceeding) (mem. op., not designated for publication) (per curiam).




                                             3
                                          Analysis


       The Texas Rules of Appellate Procedure set forth the documentation requirements

necessary to support an original proceeding. Specifically, the relator is required to file an

appendix containing “a certified or sworn copy of any order complained of, or any other

document showing the matter complained of . . . .” TEX. R. APP. P. 52.3(k)(1). The relator

must also file a record containing “a certified or sworn copy of every document that is

material to the relator’s claim for relief and that was filed in any underlying proceeding,”

as well as “a properly authenticated transcript of any relevant testimony from any

underlying proceeding . . . .” TEX. R. APP. P. 52.7(a). The relator must also certify that

“every factual statement in the petition is supported by competent evidence included in

the appendix or record.” TEX. R. APP. P. 52.3(j). Dennis has failed to comply with these

rules here.


       As an initial matter, Dennis does not include a “certified or sworn copy” of the trial

court’s order disqualifying the District Attorney’s Office in the cases involving Bridges and

Salinas. Likewise, many of the other documents included in the appendix to his original

petition are not certified or sworn copies. In addition, Dennis has not certified that all

factual statements contained within the petition is supported by competent evidence

included in the appendix or record. Consequently, Dennis’s petition does not contain

certified or sworn documentation necessary to support his request for relief.




                                             4
                                       Conclusion


      Because relator has not met the basic requisites to establish his entitlement to

mandamus or prohibition relief, we deny his petition.




                                                        Judy C. Parker
                                                           Justice




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