            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 WRIT OF MANDAMUS
                     TO THE FIFTH COURT OF APPEALS
                 CAUSE NOS. 05-14-01167-CV AND 05-14-01168-CV
                              DALLAS COUNTY

        K EASLER, J., delivered the opinion of the Court in which M EYERS, H ERVEY,
R ICHARDSON, and Y EARY, JJ., joined. M EYERS, J., filed a concurring opinion. Y EARY,
J., filed a concurring opinion. A LCALA, J., filed a dissenting opinion. N EWELL, J., filed
a dissenting opinion in which K ELLER, P.J., and A LCALA, J., joined. J OHNSON, J.,
concurred.

                                       OPINION

       In two capital-murder cases, Tyrone Allen sought a pretrial hearing requesting the trial

judge determine whether he was intellectually disabled and therefore exempt from the death

penalty if convicted. Over the State’s objection, the judge granted the motions for a pretrial

hearing. The court of appeals granted the State mandamus relief, finding that the judge acted

outside his authority. The uncertainty surrounding intellectual-disability determinations
                                                                                     ALLEN—2

prevents labeling the judge’s actions a violation of a ministerial duty. We conditionally grant

Allen’s petitions for writ of mandamus to the court of appeals.

                                         Trial Court

       Allen faces two capital-murder indictments and the possibility of death sentences in

each. Allen filed a motion requesting a pretrial determination by the trial judge on his

intellectual disability alleging facts supporting his claim that he suffered from intellectual

disability and was therefore exempt from execution. After holding a hearing on Allen’s

request, the judge granted Allen’s motion. At this juncture, the judge has not yet held the

hearing or made an intellectual-disability determination in either case. The State sought

mandamus relief in this Court, but the State’s motion for leave to file a petition for writ of

mandamus was denied.1 The State subsequently sought and obtained mandamus relief in the

Dallas Court of Appeals.2 This Court granted Allen’s motion for leave to file a petition for

writ of mandamus challenging the court of appeals’ judgment.

                                      Court of Appeals

       Although noting the absence of established procedures for addressing intellectual-

disability issues in capital cases, the court of appeals found the law sufficiently clear to hold




       1
        In re Craig Watkins, Nos. WR-82,011-01 & WR-82,012-01 (Tex. Crim. App.
Aug. 29, 2014).
       2
       In re Craig Watkins, Nos. 05–14–01167–CV & 05–14–01168–CV, 2014 WL
5903105 (Tex. App.—Dallas Oct. 3, 2014) (mem. op, not designated for publication).
                                                                                      ALLEN—3

that the judge acted without authority to grant Allen’s request.3 The court’s analysis began

by looking to this Court’s previous cases stating that a finding of intellectual disability is an

issue of fact. The court of appeals then looked to the following statutes found in the Texas

Code of Criminal Procedure: (1) Article 37.071, § 2, stating that once a jury finds a capital

defendant guilty, the court must conduct a sentencing proceeding “before the trial jury”; (2)

Articles 1.13(a) and 1.14(a), providing that a defendant facing the death penalty may not

waive a jury trial on punishment; and (3) Article 36.13, mandating that “[u]nless otherwise

provided in this Code, the jury is the exclusive judge of the facts .”4 The court concluded that,

“Because intellectual disability is an issue of fact that is relevant to the determination of

punishment, under Texas criminal procedure as it presently stands, the factual determination

whether the defendant is intellectually disabled must be made by the jury that determines the

guilt or innocence of the defendant.” 5

                                    Mandamus Standard

       Mandamus relief is appropriate only when a relator establishes (1) that he has no

adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is

a ministerial act, not a discretionary or judicial decision.6 A relator satisfies the ministerial-



       3
           Id. at *5–6.
       4
           Id. at *5.
       5
           Id.
       6
           Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011).
                                                                                     ALLEN—4

act component when he can show that he has a clear right to the relief sought.7 “A clear right

to relief is shown when the facts and circumstances dictate but one rational decision ‘under

unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and

clearly controlling legal principles.’”8 A ministerial act, by its nature, does not involve the

use of judicial discretion;9 it must be positively commanded and so plainly prescribed under

the law as to be free from doubt.10 We have said that while a trial court has a ministerial duty

to rule upon a properly filed and timely presented motion, it generally has no ministerial duty

to rule a certain way on that motion.11 It is proper to order a court to rule a particular way

only when the law invoked is “definite, unambiguous, and unquestionably applies to the

indisputable facts of the case.” 12

       We review the court of appeals’ judgment on a petition for writ of mandamus under

a de novo review of the two-pronged test.13 Because we find the mandamus standard’s


       7
            In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013).
       8
            Id. (citing Bowen, 343 S.W.3d at 810).
       9
         Banales v. Court of Appeals for the Thirteenth Judicial Dist., 93 S.W.3d 33, 35
(Tex. Crim. App. 2002); State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34
S.W.3d 924, 927 (Tex. Crim. App. 2001).
       10
            State ex rel. Hill, 34 S.W.3d at 928.
       11
         State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207,
210 (Tex. Crim. App. 2007).
       12
            Id.
       13
         In re State ex rel. Weeks, 391 S.W.3d at 121–22; Bowen, 343 S.W.3d at 810 n.6
(“The State . . . argues that it is the court of appeals’s denial of mandamus relief that we
                                                                                   ALLEN—5

second prong dispositive in resolving the present case, we do not answer whether the State

has an adequate remedy at law challenging the judge’s ruling.

                                   No Clear Right to Relief

        The State’s assertion to the judge that “there is no express statute governing how

intellectual disability is litigated” is undeniably true. However, we disagree with the court

of appeals’ conclusion that, when read together, several Code of Criminal Procedure articles

unquestionably establish that Allen’s pretrial motion compelled but one rational decision

under unequivocal and well-settled legal principles: a denial.

       We find little help in Article 37.071, § 2, which provides, in part, that upon finding

a defendant guilty of capital murder in a case in which the State is seeking the death penalty,

a separate punishment proceeding is required “before the trial jury” to determine whether the

defendant shall be sentenced to death or life imprisonment.14 The statute currently provides

no statutory, procedural scheme defining how intellectual-disability issues should be handled.

The court of appeals seizes on the “before the trial jury” phrase, but to consider that

persuasive invites circular reasoning. Section 2 applies only when the “State seeks the death

penalty.” And if a trial judge finds a defendant exempt from the death penalty pretrial,



should be reviewing rather than the respondent’s ruling directly . . . .[I]n practice it makes
little difference whether we purport to review the court of appeals’s mandamus ruling or
the trial court’s order . . . . Either way, we review the appropriateness of the trial court’s
conduct . . . . essentially by undertaking a ‘de novo application of the two pronged test’
for mandamus relief.”)
       14
            T EX. C ODE C RIM. P ROC. A NN. art. 37.071, § 2 (West 2011).
                                                                                    ALLEN—6

presumably only the possibility of lifetime confinement remains.15 Can we then say with any

degree of confidence that the State is still seeking the death penalty at the moment a jury

finds a defendant guilty of capital murder? If not, § 2 does not apply, and it would be

illogical to use its language to support a conclusion that the judge in this case acted contrary

to established law.

       We also fail to find guidance on the present issue in Articles 1.13(a), 1.14(a), and

36.13. In the cases’ current posture, we find Articles 1.13(a) and 1.14(a), which limit a

defendant’s ability to waive a jury trial when the State seeks the death penalty, to be

irrelevant. By considering these statutes supportive of its position, the court of appeals

equates Allen’s pretrial motion with a jury-trial waiver. In our minds, the proverbial dots

remain unconnected, and therefore we do not share the court of appeals’ confidence in the

statutes’ applicability to Allen’s motion.

       We further find no relevant mandate in Article 36.13’s command that “[u]nless

otherwise provided in this Code, the jury is the exclusive judge of the facts, but is bound to

receive the law from the court and be governed thereby.” The statute has been frequently

cited to support the common notion that a jury decides facts, and the court applies the law

to the facts.16 It also supports the unremarkable legal principles that a jury is required to

determine the elements of the offense in a jury trial and is the sole judge of the evidence’s


       15
            See id. § 1.
       16
          See, e.g., Crabtree v. State, 389 S.W.3d 820, 832–33 (Tex. Crim. App. 2012)
(distinguishing the factfinding duties of a jury from the law-giving duties of a judge).
                                                                                    ALLEN—7

weight.17 Whether the scope of this broadly worded statute encompasses Allen’s request for

a pretrial intellectual-disability determination is less clear. While an intellectual-disability

determination is necessarily fact-intensive, our precedents addressing these determinations

never invoked Article 36.13 as informative on the issue of the proper factfinder of

intellectual disability.

                                          Case Law

       Our case law provides only marginally more guidance than that found in existing

statutes. In 2002, the United States Supreme Court held that the Eighth Amendment’s

prohibition against cruel and unusual punishment exempts intellectually disabled 18 criminals

from the death penalty.19 However, the Supreme Court left to the states the development of

the substantive law and procedural mechanisms giving effect to its decision.20 In Ex parte

Briseno, this Court created a “stop-gap” definition of intellectual disability during a

legislative interregnum to provide temporary judicial guidelines in addressing Atkins


       17
           See, e.g., Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (holding
that, in a driving-while-intoxicated trial, whether appellant was operating his motorcycle
was a question of fact to be resolved by the jury); Lancon v. State, 253 S.W.3d 699, 705
(Tex. Crim. App. 2008).
       18
           This opinion substitutes the term “intellectual disability” for “mental
retardation.” See Hall v. Florida, 134 S. Ct. 1986, 1991 (2014) (“Previous opinions of
this Court have employed the term ‘mental retardation.’ This opinion uses the term
‘intellectual disability’ to describe the identical phenomenon.”). See also T EX. H EALTH &
S AFETY C ODE A NN. § 591.003(7-a), (13) (West 2011).
       19
            Atkins v. Virginia, 536 U.S. 304, 318–21 (2002).
       20
            Id. at 317; Ex parte Briseno, 135 S.W.3d 1, 4–5 (Tex. Crim. App. 2004).
                                                                                    ALLEN—8

claims.21 With a great deal of trepidation, we adopted a definition of intellectual disability

and guidelines that, without subsequent legislative action, remain the law today despite the

Court’s intention that they be temporary.22 Although Briseno’s Atkins claim was presented

in a post-conviction proceeding, Briseno recognized that Atkins itself does not require

intellectual-disability determinations to be made by a jury.23 Although a jury finding on

intellectual disability is not constitutionally required, we have endorsed, but have not

mandated, the submission of a “special issue” on intellectual disability to the jury and held

that submission to the jury sufficiently protects a defendant’s Eight Amendment rights.24

       Although not definitive, we find Hunter v. State,25 a factually similar case to that at

bar, to be the most informative authority on the present issue. The presiding judge of

Hunter’s capital-murder trial denied him a pretrial intellectual-disability determination by the

judge, or in the alternative, a separately impaneled jury. Hunter’s analysis began by reprising

Briseno’s admonishment: “Although a jury determined the issue of mental retardation in this


       21
            Briseno, 135 S.W.3d at 4–5.
       22
            Id.
       23
           Id. at 10 (“There was certainly no indication from the Supreme Court in Atkins
that the fact of mental retardation is one that a jury, rather than a judge, must make.”).
       24
           See, e.g., Williams v. State, 270 S.W.3d 112, 132 (Tex. Crim. App. 2008); Neal
v. State, 256 S.W.3d 264, 272 (Tex. Crim. App. 2008); Hunter v. State, 243 S.W.3d 664,
671 (Tex. Crim. App. 2007); Gallo v. State, 239 S.W.3d 757, 770 (Tex. Crim. App.
2007); Lizcano v. State, No. AP-75,879, 2010 WL 1817772, *8–9 (Tex. Crim. App. May
5, 2010) (not designated for publication).
       25
            243 S.W.3d at 672.
                                                                                      ALLEN—9

case, it is important to note at the outset that a jury determination of mental retardation is not

required.”26 Nor did Briseno address when a intellectual-disability determination is to be

made.27     The Hunter Court held that, because there is no legislation or constitutional

requirement directing when or by whom an intellectual-disability determination is to be

made, the judge did not err in denying Hunter’s request.28 Hunter’s rationale suggests, if

only by implication, that the decision whether to grant a request to determine intellectual

disability pretrial still encompasses a significant amount of judicial discretion.

       It is suggested that our decisions in State ex rel. Lykos v. Fine 29 and State ex rel.

Watkins v. Creuzot30 support a conclusion that mandamus should issue.31 Our holdings in

these cases are not squarely on point. Lykos and Fine did not address real-party-in-interest

intellectual-disability claims, but rather an “as applied” constitutionality claim to the death

penalty itself and a claim asserting the delay of a retrial prevents the defendant from

presenting a complete mitigation case, respectively. At a minimum, our opinion in Hunter

muddies the water where intellectual-disability claims are concerned. Taking Fine and

Creuzot into consideration with our other precedents, we do not find a denial of Allen’s

       26
            Id. at 667 (citing Schiro v. Smith, 546 U.S. 6, 7 (2005)).
       27
            Id. at 672.
       28
            Id.
       29
            330 S.W.3d 904 (Tex. Crim. App. 2011).
       30
            352 S.W.3d 493 (Tex. Crim. App. 2011).
       31
            Post, at 3 (Newell, J., dissenting).
                                                                                  ALLEN—10

motion to be positively commanded and so plainly prescribed under the law as to be free

from doubt.32 Further, to find Allen’s motion unjustiable for lack of ripeness pretrial ignores

the immediate effect the State’s notice in seeking the death penalty has upon the nature of

the case. It affects a defendant’s counsel’s pretrial mitigation and punishment investigations,

the appointment of punishment experts, voir dire proceedings, to list only a few implications

of the State’s notice. More importantly, we cannot conclude with the requisite certainty that

these issues are too remote to consider the motion unripe.

       If the law surrounding a court’s action is unclear, mandamus relief may not issue

despite how unwise we think the action may have been. At times, it is an exercise akin to

judicial restraint.   The dissenters understand this opinion to modify the Legislature’s

procedural scheme in death-penalty cases33 or that this Court judicially approves of deciding

the intellectual-disability issue pretrial.34 These conclusions stem from a misreading of this

opinion, and they lose sight of the case’s procedural posture. This case, like all mandamus

cases, must be decided on the existing law alone. Unfortunately, we find none that supports

a conclusion that granting Allen’s request for a pretrial intellectual-disability determination

deviated so far from well-settled legal principles to be considered acting outside a judge’s

authority. Even if we were inclined to again act when the Legislature has not, a mandamus



       32
            See State ex rel. Hill, 34 S.W.3d at 928.
       33
            See Post, at 3 (Alcala, J., dissenting).
       34
            Post, at 1 (Newell, J., dissenting).
                                                                                ALLEN—11

proceeding is not the appropriate place to interpret statutory language, clarify this Court’s

precedent, or create law where there is none. We hold that the absence of existing law

precluded granting the State’s mandamus relief below; it is by no means an endorsement of

the judge’s action.

       Judge Alcala maintains that, because the judge whose act was the subject of the court

of appeals’ opinion no longer is the presiding judge, we are required to abate these

proceedings for a response from the current presiding judge under Texas Rule of Appellate

Procedure 7.2(b).35 The assertion stems from misreading the rule. Rule 7.2(b) states, in

relevant part, “If the case is an original proceeding under Rule 52, the court must abate the

proceeding to allow the successor to reconsider the original party’s decision.” Rule 52

governs only original proceedings in the Supreme Court of Texas and the courts of appeals,

as evidenced by its location under Section Three, entitled “Original Proceedings in the

Supreme Court and the Court of Appeals.” Instead, this mandamus application comes to this

Court by way of “Rule 72. Extraordinary Matters.” Like Rule 52, Rule 72 is found under a

section that affects its application—“Section Five: Proceedings in the Court of Criminal

Appeals.” We are therefore not bound by Rule 7.2(b)’s requirement to abate.

       Further, if we were to abate for a response from the current presiding judge after

reconsidering his predecessor’s ruling, it would do nothing to correct the court of appeals’

erroneous conclusion that a trial judge has no discretion when presented with a request for



       35
            Post, at 5–9 (Alcala, J., dissenting).
                                                                                  ALLEN—12

a pre-trial hearing on intellectual disability. And by addressing the merits of the case we do

not limit the presiding judge’s ability to reconsider his predecessor’s ruling; we only remove

the inherent influence of a superior court’s opinion expressing its view on what it perceives

to be the only permissible ruling.

                                      Legislative Action

         Without legislation, case law has necessarily sculpted the boundaries of intellectual

disability in a piecemeal fashion since 2002. In terms of issues surrounding intellectual-

disability determinations, we still find ourselves in the same legislative “interregnum” that

existed in 2004. Public-policy arguments quickly pile up on both sides of the debate on when

and by whom intellectual-disability determinations should be made; several have been

presented to this Court. But they find utility only in the Legislature and should be directed

there.

         While we withhold normative judgment, the need for a statutory scheme on this score

is readily apparent, and its continued absence portends serious consequences for our

criminal-justice system. Without a unified procedure, intellectual-disability determinations

may vary from county to county, court to court, and case to case. As the present cases and

authorities cited in this opinion illustrate, some judges may prefer to address the issues

pretrial, others by submission of a special issue to the jury. The gravity of defendants’

intellectual-disability claims are too weighty to be subject to such disparity. The uncertainty

may come at a cost to the State as well. If determined pretrial, it remains to be seen whether
                                                                                 ALLEN—13

the State is afforded an adequate remedy should the judge conclude, incorrectly in the State’s

opinion, that a defendant is exempt from the death penalty as a result of his intellectual

disability. The trial- and sentence-altering decision may escape appellate review entirely

under existing law.36      We now make explicit what we before expressed only tacitly:

Legislation is required.

                                        Conclusion

       Because we find that Allen’s request for a pretrial determination of intellectual

disability does not call for the execution of a ministerial act, we conditionally grant

mandamus relief and order the court of appeals to rescind its judgment conditionally granting

the State’s (as Relator below) petitions for writ of mandamus. The writs of mandamus will

issue only in the event that the court of appeals fails to comply with this opinion.




DELIVERED: May 13, 2015

PUBLISH




       36
          See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 912–14 (Tex. Crim. App.
2011) (holding that the State did not have an adequate remedy at law because Code of
Criminal Procedure article 44.01 does not permit the State to appeal a pretrial ruling that
the death penalty is unconstitutional). Accord In re Watkins, 2014 WL 5903105 at *6.
