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    Citation: 561 s.w. 2d 845
                                     561 S.W.2d 845, *; 1978 Tex. Crim. App. LEXIS 1048, **

          Joe Earl Thomas, Jr., Petitioner v. Clarence Stevenson, Presiding Judge, 24th District Court,
                                       Victoria County, Texas, Respondent                           ·

                                                                               No. 576_15

                                                    COURT OF CRIMINAL APPEALS OF TEXAS

                                           561 S.W.2d 845; 1978 Tex. Crim. App. LEXIS 1048


                                                                        February 22, 1978

     PRIOR HISTORY: [**1] Original Application for Writ of Mandamus.

         CASE SUMMARY                                                                               ,.:·!!':~>
                                                                                                      . -!~~:·.-
                                                                                                         ~-




         PROCEDURAL POSTURE: Petitioner inmate sought a writ of mandamus to compel
         respondent judge to set a date for trial on charges pending against petitioner for two
         offenses of burglary of a habitation because petitioner argued that he was being denied a
         speedy trial as provided for.in U.S. Canst. amend. VI and Tex. Canst. art. 1, § 10.

     OVERVIEW: Petitioner inmate was serving a life sentence in the Texas Department of
     Corrections for the offense of attempted murder when he was indicted for two offenses of
     burglary of a habitation. Petitioner sought a writ of mandamus to compel respondent judge
   - to set a date for trial on the charges pending against him, arguing that he was being denied
     his right to a speedy tr.ial under U.S. Canst. amend. VI and Tex. Canst. art. L § 10. The
    -court held that Tex. Canst. art. 5, § 5, gave the court authority to issue extraordinary writs,
     including the power to issue writs of mandamus to compel a speedy trial in a criminal case.
     The court held that petitioner stated sufficient facts to raise a prima facie claim that he was:-_
     being denied a speedy trial. The court instructed respondent to set for trial the pending
     charges against petitioner inmate at the earliest date possible consistent with the orderly
     performance of respondent's other duties, but not later than 60 days from the date that the
     court's judgment became final. The court assumed that respondent would act in accordance_
     with the court's instructions and held that a writ of mandamus would issue only if respondent                                                                                                     ' .> .
     did not comply.

         OUTCOME: The court instructed respondent judge to set for- trial the pending charges        ,.
         against petitioner inmate at the earliest date possible consistent with the orderly       . : : ; _ " ,.
         performance of respondent's other duties, but not later than 60 days from the date that the' -         ,'
         court's judgment became final. The court assumed that respondent would act in acco'rdanc~i ' 1 <
         with the court's instructions and held that a writ of mandamus would issue only if responderit                                                                                      I
         did not comply.                                                                               ; · It " . ; .. .
                                                                                                                                                                             .
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                                                                                                                                                                         '-1                             ,.
                                                                                                                                                                       ;,)   . --                      .. :   '



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                                                                                                                                                                                                 5· ··>  ~. • :   i
Get a Document- by Citation- 561 S.W.2d 845                                                                 :Page 2-of6
                                                                                                               ..


   CORE TERMS: writs of mandamus, speedy trials, writ of habeas corpus, criminal case, joint
   resolution, power to issue, mandamus, authority to issue, criminal matters, prescribed,
   jurisdiction to issue, constitutional provision, necessary to protect, procedendo, indictment,
   supplied, recent amendment, pending charges, original jurisdiction, detainers, necessary to
   enforce, own jurisdiction, extraordinary writs, results reached, legislative history, last resort,
   drafted, voters



    LEXISNEXIS® HEADNOTES                                                                                  8Hide
             > Remedies > Writs > Common Law Writs > Mandamus~
   Civil Procedure

   Constitutional Law   > Bill of Rights > Fundamental Rights > Criminal Process > Speedy Trial    ie ·
   Criminal Law & Procedure > Preliminary Proceedings > Detainer > Timing       it]
   HN1~Under U.S~ Canst. amend. VI, a defendant in a criminal case is entitled to a speedy
          trial. Defendants incarcerated in other penal institutions, outside of the demanding
          prosecution forum, have a right to compel the disposition of pending charges where
          detainers are lodged against them. Tex. Code Crim. Proc. Ann. art. 1.05; Tex.
          Canst. art. 1, § 10. More Like This Headnote I Shepardize: Restrict By Headnote

   Criminal Law & Procedure > Appeals      > Appellate Jurisdiction > Extraordinary Writs   it'J
   Criminal Law & Procedure > Habeas Corpus       > Procedure > General Overview ~":2

   HN2Z,See Tex. Canst. art. 5, § ·5. Shepardize: Restrict By Headnote

   Civil Procedure > Remedies·> Writs > Common Law Writs > Mandamus~~

   Constitutional Law > Bill of Rights   > Fundamental Rights > Criminal Process > Speedy Trial    it":i
   Criminal Law & Procedure > Appeals > Appellate Jurisdiction > Extraordinary Writs        it;J
   HN3~The     additional provisions in Tex. Canst. art.· 5, § 5 give tl:le Court of Criminal
          Appeals of Texas authority to issue extraordinary writs including the power to issue
          writs of mandamus to compel a speedy trial in a criminal
          case. More Like This Headnote I Shepardize: Restrict By Headnote



  JUDGES: En bane.

   OPINION BY: DOUGLAS

   OPINION


   [*845] OPINION

  The question presented is, does the Texas Court of Criminal Appeals have jurisdiction [*846]
  to issue writs of mandamus to compel speedy trials under the recent amendment to Article 5,
  Section 5 of the Texas Constitution?

  The petitioner is an inmate in the Texas Department of Corrections serving a life sentence for



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    Get. a Document- by Citation- 561 S.W.2d 845                                                    Page 3 of6


         'the offense of attempted murder from Victoria County. On April 29, 1977, he was indicted in
          Victoria County for two offenses of burglary of a habitation in Cause Nos. 9025 and 9026. He
          alleges that detainers based upon these indictments were filed against him with the Texas
          Department of Corrections and that he has filed several requests with the trial court to obtain a
          speedy trial on these pending charges·, but has received no response to his requests.) He filed a
         petition for a writ of mandamus with the Texas Supreme Court, which transferred the case to
          this Court so that we might determine if we have jurisdiction to issue writs of mandamus to
          compel speedy trials concurrent with that of the Texas Supreme Court. See Article 1733 and
          1734, V.A.C.S. HNl'1J_

          [**2] Under the Sixth Amendment to the United States Constitution, a defendant in a
         criminal case is entitled to a speedy trial. Defendants incarcerated in other penal institutions, :
         outside of the demanding prosecution forum, have a right to compel the disposition of pending·
         charges where detainers are lodged against them. See Klopfer v. North Carolina, 386 U.S. 213,
         87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d
         607 (1969); Dickey v. Florida, 398 u.s. 30, 90s. Ct. 1564, 26 L. Ed. 2d 26 (1970); Moore v,
         Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973); Barker v. Wingo, 407 U.S. 514,
         92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Braden v. Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35
         L. Ed. 2d 443 (1973). See also Article 1.05, V.A.C.C.P.; Article 1, Section 10, Texas
         Constitution.

         Prior to the recent amendment of Article 5, Section 5, supra, the Supreme Court of Texas
         exclusively issued writs of mandamus to compel speedy trials. See Articles 1733 and 1734,
         supra; Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Pope v. Ferguson, 445 S.W.2d 950
         (Tex.1969), cert. denied 397 U.S. 997, 90S. Ct. 1138, 25 L. Ed. 2d 405 (1970); Ex
         parte [**3] Turman, 26 Tex. 708 (1863); Wilson v. Bowman, 381 S.W.2d 320 (Tex.1964).

         The jurisdiction of the Texas Court of Criminal Appeals to issue such writs of mandamus has :
         been previously limited by the provisions of Article 5, Section 5, sup'ra, which provided that this
         Court and the judges thereof "shall have the power to issue the writ of habeas corpus, and
         under such regulations as may be prescribed by law, issue writs of mandamus as may be
         necessary to enforce its own jurisdiction."

         Under this constitutional provision, the Court could only issue writs.of mandamus to enforce its
         appellate jurisdiction but not the power to issue writs of mandamus.generally. See Millikin v.
         Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme, 158 Tex.Cr.R. 597, 259 S.W.2d
         201 (1953); Ex parte Rubison, 170'Tex.Cr. 314, 340 S.W.2d 815,(1960); Eaves v. Landis, 96.
         Tex.Cr.R. 555, 258 S.W. 1056 (1924); Bradley v. Miller, 458 S.W.2d·673 (Tex.Cr.App.1970);·, :·;'       ••.       J I ~

         State.ex rei. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d · ·.
         774 (Tex.Cr.App.1974); Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App.1976); Bretz v. State,
         508 S.W.2d 97 (Tex.Cr.App.1974); Walker v. State, 537 [**4] S.W.2d 36 (Tex.Cr.App.1976) ..

         However, the 65th Texas Legislature adopted Senate Joint Resolution No. 18, Acts 1977, p. ·
         3359, which proposed to amend Article 5, Section 5. This amendment was approved by the .
         voters of Texas and became effective January 1, 1978. It is as follows:

               HN~subject to such regulations as may be prescribed by law, regarding criminal
               matters, the Court of Criminal Appeals and the Judges thereof shall have the power
               to issue the writs of habeas corpus, mandamus, procedendo, prohibition, certiorari,
               and other such writs as may be necessary to protect its jurisdictfon or enforce its
               judgments." (Emphasis supplied).
                                                                                                        : -~     '    .



\                                                                                                       .   .    .
    \      [*847] The amendment when proposed was to provide the Texas Court of Criminal Appeals' · '
        , \ h additional power to grant extraordinary wnts in cases regarding criminal matters. . : i.
                                                                                                                                  ·\




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     Get a Document- by Citation- 561 S.W.2d 845                                                   Page 4 of6



        Before the adoption of the amendment this Court had mandamus and prohibition power under
        the Constitution to enforce its own judgments. This authority was also inherent at common law.
        See State ex rei. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (Tex.Cr.App.196l);    -
        State ex rei. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974); Ex parte Norvell, supra;
        Smith [**5] v. Blackwell, supra.

        We therefore conclude that HN3 "¥the additional provisions in the amendment gave this Court
        authority to issue extraordinary writs including the power to issue writs of mandamus to compel
        a speedy trial in a criminal case.

        Having determined the jurisdictional issue, it is apparent that petitioner has stated sufficient
        facts to raise a prima facie claim that he is being denied a speedy trial as provided for in the
        Constitutions of this State and the United States. It will thus be the duty of the respondent
        judge to set for trials Cause Nos. 9025 and 9026 at the earliest date possible consistent with
        the orderly performance of the court's other duties, but not later than sixty days from the date
        in which this judgment becomes final. See Fariss v. Tipps, supra. Should a motion to dismiss
        the indictment be filed by the prosecutor and granted by the trial court, this case shall become
        moot, but absent such a dismissal motion, we assume that the respondent will act in
        accordance with the instructions set out herein, and the writ of mandamus will issue only in the
        event of noncompliance with this opinion. 1

         FOOTNOTES

        1 In Pope v. Ferguson, supra, the Supreme Court held that it did not have mandamus        ,
        jurisdiction to compel a dismissal of criminal charges, and we concur at this time with the
        rationale of Pope.                          ·

         However, we note that as of July 1, 1978, the provisions of the new Texas Speedy Trial Act
         go into effect, thus specifically mandating the necessity for speedy trials in criminal cases,
         otherwise requiring that the indictments be dismissed or quashed. See Articles 32A.01 and
         28.061, V.A.C.C.P.

        We need not determine in this case whether the authority of Pope v. Ferguson, supra, will
        remain valid after the effect e date of this new legislation requiring speedy trials. See and
        compare Ex parte Trillo, 54· ,).W.2d 728 (Tex.Cr.App.1977); Ex parte Dickerson, 549
        S. W.2d 202 (Tex.Cr.App.lS . ).
I.
\



        [**6] ·IT IS SO ORDERED.

        CONCUR BY: ONION

        CONCUR


       ONION .., Presiding Judge, concurring.

       I concur in the results reached, but I would go further and point out the legislative history of
       Senate Joint Resolution No. 18 (Acts 1977, 65th Leg., p. 3359), which proposed an amendment
       to Article V, § 5 of the State Constitution, and which was adopted on November 8, 1977 by the
       voters of Texas and became effective January 1, 1978. That legislative history shows that
       Senate Joint Resolution No. 18 was drafted, among other things, 1 to expressly give the Court
       of Criminal Appeals the authority to issue writs of mandamus to compel speedy trials in criminal
       cases in this State. This writer and other members of this court appeared before legislative
       committees of both the Senate and the House to explain its provisions, and to point out that



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Q~t   a ~ocument- by Citation- 561 S.W.2d 845                                                   Page 5 of6 ·


  'under the then existing constitutional provisions the Court of Criminal Appeals, the court of last
  resort for criminal matters in this State, did not have the authority .to issue writs of mandamus
  to compel speedy trials in criminal cases.

      FOOTNOTES

    1 Senate Joint Resolution No. 18 also proposed increasing the number of judges on the
  ; Court of Criminal Appeals from five to nine judges with the authority to sit in panels of three '
  : in all cases with the exception of death penalty cases.                                         ·


      [**7] Article V, § 5 of the State Constitution, as amended 1966, provided in part:

           "The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with
           the limits of the State in all criminal cases of whatever grade, with such exceptions
           and under such regulations as may be prescribed by law.

           The Court of Criminal Appeals and the Judges thereof shall have the power to
            [*848] issue the writ of habeas corpus, and render such regulations as may be
           prescribed by law, issue such writs as may be necessary to enforce its own
           jurisdiction .... " 2 (Emphasis supplied.)




  :FOOTNOTES

  i 2 This same language is found in the 1891 amendment to Article V, § 5 of the State
  i Constitution creating the Court of Criminal Appeals.



   Under such constitutional provision and decisional law, this court could only issue the writ of
   mandamus to protect its appellate jurisdiction or its original jurisdiction to issue the writ of
   habeas corpus. Thus when a defendant in a criminal case sought a writ of mandamus to
   compel [**8] a speedy trial, he could not obtain one from the court of last resort in criminal
   cases because neither this court's appellate jurisdiction nor its original jurisdiction to issue the
   writ of habeas corpus was in need of protection. Such defendant was required to apply to the .
   Supreme Court of Texas, a court of generally civil jurisdiction, for the needed mandamus since
   such court, as noted by the majority, had the general authority to issue the writ of mandamus.
   3 This was true despite the fact that the Court of Criminal Appeals would be the court to            ·
   determine later on appeal whether the defendant had been in fact deprived of a speedy trial ..

  i FOOTNOTES,.
  \                                                                                                   '"f.

  !   This same situation existed where the defendant sought a writ of mandamus to compel a
      3
  \speedy trial in a probation revocation hearing. See Fariss v. Tipps, 463 S.W.2d 176
  ; (Tex.Sup.Ct.1971).



  It was in part to correct this anomaly that Senate Joint Resolution No. 18 was drafted to giv~ l
  this court original jurisdiction not only to issue writs of habeas corpus but writs [**9] of : ..
  mandamus, procedendo, prohibition and certiorari. That portion of Senate Joint Resolution No~
  18 here involved provides:                                                                     •· ·
                                                                                                      1 .~
                                                                                                              ::
                                                                                                      .'
           "Subject to such regulations as may prescribed by law, regarding criminal law.                "·




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Get a Document- by Citation- 561 S.W.2d 845                                                               Page 6 of6


               matters, the Court of Criminal Appeals and the Judges thereof shall have the power
               to issue the writs of habeas corpus, mandamus, procedendo, prohibition, certiorari,
               and such other writs as ·may be necessary to protect its jurisdiction or enforce its
               judgments .... "(Emphasis supplied.)




    In the drafting it was decided to additionally include a catch all clause "and other such writs as
    may be necessary to protect its jurisdiction or enforce its judgments." Care should be taken to
    understand that the phrase "as may be necessary to protect its jurisdiction or enforce its
  . judgments" has reference only to "and other such writs" and is not a limitation upon the
    authority of the court to issue writs of habeas corpus, mandamus, procedendo, prohibition or
    certiorari. One important limitation, however, is that the court's authority to issue such above
    described writs is limited to "criminal matters." This limitation was the subject of a committee
  . substitute to said Senate Joint Resolution [* * 10] by Senator Bill Meier of Euless, sponsor of
    the joint resolution, early in the legislative process, to counter claims that without such
    limitation the Court of Criminal Appeals might use its newly granted writ powers in civil law
    matters. This limitation may haVe, wittingly or unwittingly, restricted this court's authority to
    issue writs of habeas corpus. Formerly under the prior constitutional provision the power of the
    court to issue the writ of habeas corpus was not limited to "criminal matters." 4

       FOOTNOTES

    4 The original jurisdiction of the Court of Criminal Appeals to issue writs of habeas corpus
   ·under the prior constitutional provision was unlimited. State ex rei. Wilson v. Briggs, 171
    Tex.' Crim. 479, 351 S.W.2d 892 (1961); Ex parte Cvengros, 384 S.W.2d 881
    (Tex.Cr.App.1965); Ex parte Degener, 30 Tex. Civ. App. 566, 17 S.W. 1111 (1891); Ex
   ·parte Kearby, 35 Tex.Cr.R. 531, 34 S. W. 635 (1896); Ex parte Kearby, 35 Tex.Cr.R. 634,
    34 S.W. 962 (1896). See and cf. Ex parte Hofmayer, 420 S.W.2d 137 (Tex.Sup.Ct.1967).


       [* *,11] With these observations, I concur with the result reached.

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