                                  NO. 12-12-00195-CV

                       IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN RE:                                        §

JOEL MALLORY,                                 §              ORIGINAL PROCEEDING

RELATOR                                       §

                                  MEMORANDUM OPINION
       Relator Joel Mallory filed a petition for writ of mandamus in which he contends that the
Honorable Joe D. Clayton (Respondent), assigned judge for the 7th Judicial District Court of
Smith County, Texas, has no authority to act in a contempt proceeding in which Relator is named
as the contemnor. Consequently, Relator seeks a writ of mandamus directing Respondent to
dismiss the underlying proceeding. Relator also filed a motion for emergency relief seeking to
obtain a copy of certain sealed documents to file in this court as a “sealed supplement.” We
deny the petition in part, dismiss it in part, and dismiss the motion for emergency relief as moot.


                                          BACKGROUND
       The underlying contempt proceeding arose out of a criminal trial in the 7th Judicial
District Court. The Honorable Kerry L. Russell is the presiding judge of that court. The acts
that gave rise to the contempt proceeding occurred during a hearing conducted by Judge Russell
on September 16, 2011. The hearing was initially scheduled as a sentencing hearing for a
defendant who had entered a guilty plea. But at some point before the hearing commenced, the
defendant’s appointed counsel filed several motions, two of which are pertinent here: (1) a
motion to withdraw the defendant’s guilty plea, and (2) a motion to withdraw as counsel for the
defendant in which he also requested that Relator be substituted as counsel.
       Relator appeared at the September 16 hearing and confirmed that he had been retained to
represent the defendant. He informed the court that he would like to “continue along the path” to
make further arguments that the guilty plea should be withdrawn and requested an “adequate
opportunity to do so.” He stated further that “I’m actually on my way to my mother’s funeral.
My mother just passed during the week[.]” The trial court granted the motion to withdraw and
substitute counsel and then turned to the motion to withdraw the plea.
       Relator told the court that “as a newcomer,” he was not prepared to argue the motion,
“which goes back to the motion for continuance as to proceed.” After further discussion, Relator
again requested a continuance to allow him time to review the file and prepare for a hearing on
the motion “and in light of my personal circumstances.”
       During the remainder of the hearing, Relator made additional references to his mother’s
death. When the trial court asked Relator how much time he was requesting, Relator responded
that “[w]hat I’m looking at, it’s not so much just attendance to the funeral, but it’s just the other
kinds of winding down process I see myself getting involved in. I would request 30 days.” In
explaining why he had not promptly notified the prosecutor that he had been retained, Relator
replied that he had been retained “last Friday” but had thought he was being retained for an
appeal. 1 He stated further that “Sunday, Monday, that’s when I learned about my mother’s
death; and I’ve been dealing with that.” He also informed the court that his mother’s funeral was
the next day.
       Later in the hearing, Relator commented that “[o]ne thing I continue to point out, I think
the usual circumstances–all this is exacerbated is what was [sic] just occurred to me, the loss–
the tremendous loss that I’ve just–and I’m continuing to go through. As we sit here arguing, the
only thing I’m sitting here thinking about, really, is my mother.” In his final remarks to the court
regarding his need for a continuance, Relator relied on “the circumstances that total–the totality
of the circumstances of my involvement [in this case] and the loss I had. That’s all. I’m just
presenting that to the Court.” The trial court granted the continuance and set the hearing on the
defendant’s motion for October 21, 2011.
       After the September 16 hearing, an investigator for the State conducted an inquiry
pertaining to the date of death of Relator’s mother. When the case was called on October 21, the
court announced that the State had filed a motion to determine the truthfulness of the statements

       1
           The hearing was held on Friday, September 16, 2011. The preceding Friday was September 9.

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Relator made during the September 16 hearing about his mother’s date of death. The State’s
motion included allegations, based on information gathered during the inquiry, that Relator had
misrepresented his mother’s date of death to the court.
          In its initial comments, the court stated that “I don’t really need to know much about
what their allegations are because I have, frankly, I guess an intent to refer most of this to our
regional presiding judge. Because whenever I read this, it appears it’s primarily aimed at being a
contempt type of motion.” The court then asked Relator when his mother died, and Relator
answered that “[i]t’s my understanding she was declared deceased on September 22nd.” The
court also asked Relator if he had an explanation for his prior statements. Relator replied that he
did but wanted to provide it at a “proper proceeding where I can vindicate my rights under the
constitution and the procedures–the court procedures and with testimony of witnesses other than
myself.” The court then informed Relator that the matter would be referred to the presiding
judge of the administrative region for the assignment of another judge to hear the contempt
matter.
          By letter dated October 21, 2011, Judge Russell referred the matter to the Honorable John
Ovard, presiding judge of the administrative region. In his letter, Judge Russell provided a brief
statement of facts. He also stated that Relator had filed a response to the State’s motion, a
motion to recuse the Smith County District Attorney, and a request for the appointment of a
special prosecutor. He then asked that Judge Ovard assign a judge to hear the contempt matter as
soon as possible. Judge Ovard assigned Respondent, who, after a hearing on February 27, 2012,
granted Relator’s motion to recuse the Smith County District Attorney’s Office and appointed
James R. Hagan as special prosecutor for the State. On March 27, 2012, the State filed a motion
requesting that Relator be found in contempt of court and fined not more than $500.00, confined
in the county jail for no more than six months, or both.          Relator then filed this original
proceeding and the accompanying motion for emergency relief.


                                  PREREQUISITES TO MANDAMUS
          A relator’s right to mandamus relief generally requires a predicate request for some
action and a refusal of that request. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999). This
predicate is relaxed only on the rare occasions where the circumstances confirmed that the
request would have been futile and the refusal little more than a formality. Id.

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       Once this predicate is satisfied, the relator must show he is entitled to mandamus relief.
In a civil case, the relator has the burden to establish that the trial court’s act or refusal to act
constitutes a clear abuse of discretion for which the relator has no adequate remedy by appeal.
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). In a
criminal case, the relator must establish that what he seeks to compel is a ministerial act, not
involving a discretionary or judicial decision, and that he has no other adequate legal remedy.
State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007) (orig. proceeding). Thus, whether the case is civil or criminal, the usual object of a
petition for mandamus relief is an order of the trial court or its refusal to act after being asked to
do so. See State ex rel. Young, 236 S.W.3d at 210; In re Prudential, 148 S.W.3d at 135-36.


                                      AVAILABILITY OF MANDAMUS
       In this case, Relator complains of only one action taken by Respondent. Specifically, he
challenges an order issued by Respondent on February 23, 2012, finding Relator in contempt for
failure to appear at a hearing. The State has provided a copy of an order issued by Respondent
on June 1, 2012, vacating the February 23 order. This renders Relator’s complaint about the
February 23 order moot. See In re Watkins, No. 05-12-00203-CV, 2012 WL 779658, at *1
(Tex. App.–Dallas Mar. 9, 2012, orig. proceeding) (mem. op.) (vacating standing order in
question rendered issues presented in mandamus petition moot).
       Relator also asserts that Respondent has no authority to rule on the State’s contempt
motion. He contends that the trial court referred the contempt matter to Judge Ovard pursuant to
Texas Government Code Section 21.002. Therefore, he argues, Judge Ovard’s order assigning
Respondent cannot confer the necessary authority for Respondent to decide Relator’s guilt or
innocence because the trial court did not find Relator in contempt. Section 21.002 provides as
follows:


                 An officer of a court who is held in contempt by a trial court shall, on proper motion filed
       in the offended court, be released on his own personal recognizance pending a determination of his
       guilt or innocence. The presiding judge of the administrative judicial region in which the alleged
       contempt occurred shall assign a judge who is subject to assignment by the presiding judge other
       than the judge of the offended court to determine the guilt or innocence of the officer of the court.



See TEX. GOV’T CODE ANN. § 21.002(d) (West 2004).

                                                         4
       To invoke the protections that Section 21.002 affords an officer of the court, two
prerequisites must be satisfied: (1) the offended court must enter a finding of contempt against
an officer of the court, and (2) the officer of the court must file a proper motion in the offended
court, requesting that the matter be referred to the presiding judge of the administrative region in
which the alleged contempt occurred. In re Abraham, 22 S.W.3d 512, 515 (Tex. App.–El Paso
1999, orig. proceeding). The record does not reflect that the court entered the requisite contempt
finding. Further, the record does not reflect that Relator has filed a motion to dismiss the
contempt proceeding or otherwise requested Respondent to take any action pertaining to
Relator’s doubts about Respondent’s authority to act. See In re Perritt, 992 W.W.2d at 446.
And finally, Relator does not identify any act or refusal to act by Respondent. See State ex rel.
Young, 236 S.W.3d at 210; In re Prudential, 148 S.W.3d at 135-36. Therefore, we cannot
conclude that this complaint provides any basis for mandamus relief.
       In his other arguments, Relator asserts that (1) his conduct is not actionable contempt; (2)
the contempt matter is barred by the prosecutor’s and trial court’s improper motives and
constitutional violations and by the State’s illegal search; and (3) the special prosecutor’s motion
fails for unconstitutional vagueness. The State asserts that, by these arguments, “Relator seeks to
preemptively substitute the judgment of this court over the judgment of the trial court in a matter
that has yet to be heard and decided on the merits.” We agree. These matters do not relate to
whether Respondent has the authority to determine Relator’s guilt or innocence, but instead
relate to the merits of the State’s motion for contempt. Relator cites no authority supporting a
conclusion that mandamus can be used to prejudge the merits of the underlying proceeding, and
we are not aware of any such authority. Accordingly, we decline to do so.


                                           DISPOSITION
       We have held that Relator’s challenge to Respondent’s February 23, 2012 order is moot.
Therefore, we dismiss that complaint. As to Relator’s remaining arguments, Relator does not
point to any act or refusal to act by Respondent that forms the basis of his request for mandamus
relief. Accordingly, as to these arguments, we deny Relator’s petition for writ of mandamus.
We also dismiss Relator’s motion for emergency relief as moot.




                                                 5
                                                                BRIAN HOYLE
                                                                   Justice



Opinion delivered June 25, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)


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                                COURT OF APPEALS
     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                           JUNE 25, 2012


                                       NO. 12-12-00195-CV


                                     JOEL MALLORY,
                                          Relator
                                             v.
                                   HON. JOE D. CLAYTON,
                                         Respondent




                                    ORIGINAL PROCEEDING


                     ON THIS DAY came to be heard the petition for writ of mandamus filed
by JOEL MALLORY, who is the relator in Cause No. 07-1350-10, pending on the docket of
the 7th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus
having been filed herein on May 29, 2012, and the same having been duly considered, because it
is the opinion of this Court that a writ of mandamus 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. Relator’s challenge to Respondent’s February 23, 2012 order is
moot and DISMISSED. Relator’s motion for emergency relief is moot and DISMISSED.
                     Brian Hoyle, Justice.
                     Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
