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# aQocument- by Citation- 561 S.W.2d 845 Page 1of6

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### by LEXSEE® Citation: 561 

### s.w. 2d 845 561 S.W.2d 845, 

### *; 1978 Tex. Crim. App. LEXIS 1048, 

### ** View Tutorial

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; 1978Tex. 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 respondentjudge to set a date fortrial on charges pending against petitionerfor two offenses of burglary ofa 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 ofattempted murderwhen he was indicted for two offenses of burglary ofa habitation. Petitioner sought a writ of mandamus to compel respondentjudge

- 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 thatTex. Canst. art. 5, 

### § 5, gave the court authority to issue extraordinary writs,

including the powerto 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 laterthan 60 days from the date that the court'sjudgment became final. The court assumed that respondent would act in accordance_ with the court's instructionsand held that a writ of mandamus would issue only if respondent did not comply. OUTCOME: The court instructed respondentjudge to setfor-trial the pending charges , . ' .> . against petitioner inmate at the earliest date possible consistent with the orderly
.: :;_ " ,. performance of respondent's other duties, but not laterthan 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 did not comply. ;· 

# . ; .

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### GetaDocument- byCitation- 561 S.W.2d 845 :Page2-of6



## ..
CORE TERMS: writs of mandamus, speedy trials, writ of habeas corpus, criminal case, joint resolution, powerto 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 Civil Procedure 

### > Remedies 

### > Writs 

### > Common Law Writs 

### >**Mandamus~** 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 ofthe 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 ofCriminal Appeals ofTexas authority to issue extraordinary writs including the powerto 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 havejurisdiction 

### [*846] to issue writs of mandamus to compel speedy trials underthe 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 

### http://www.lexis.com/research/retrieve?
_m=ff567827a5f5051233a698aed2ceb098&csvc=L... 1/20/2015

### Get.aDocument- by Citation- 561 S.W.2d 845 Page3of6
'the offense ofattempted 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 thatdetainers 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 ifwe havejurisdiction to issue writs of mandamus to compel speedy trials concurrent with that ofthe Texas Supreme Court. See Article 1733 and 1734, V.A.C.S. HNl'1J_ 

### [**2] Underthe 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 ofthe 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); Barkerv. 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. Priorto the recent amendment ofArticle 5, Section 5, supra, the Supreme Court ofTexas 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). Thejurisdiction ofthe Texas Court of Criminal Appeals to issue such writs of mandamus has : been previously limited by the provisions ofArticle 5, Section 5, sup'ra, which provided that this Court and thejudges thereof "shall have the powerto 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." Underthis constitutional provision, the Court could only issue writs.of mandamus to enforce its appellate jurisdiction but not the powerto issue writs of mandamus.generally. See Millikin v. Jeffrey, 117Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme, 158Tex.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 ofTexas 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 othersuch writs as may be necessary to protect itsjurisdictfon or enforce its judgments." (Emphasis supplied).
:**-~** ' . \ . .

## . \ [*847] The amendment when proposed was to provide the Texas Court of Criminal Appeals' · '

,\h additional powerto grant extraordinary wnts in cases regarding criminal matters. . :

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### _m=ff567827a5f5051233a698aed2ceb098&csvc=l... 112012,9 

### 5·I. \ 

### GetaDocument- byCitation- 561 S.W.2d 845 Page4of6

Before the adoption ofthe 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 HN 3

### "¥the additional provisions in the amendment gave this Court authority to issue extraordinary writs including the powerto issue writs of mandamus to compel a speedy trial in a criminal case. Having determined thejurisdictional issue, it is apparentthat 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 ofthis State and the United States. Itwill thus be the duty ofthe respondent judge to set fortrials Cause Nos. 9025 and 9026at the earliest date possible consistent with the orderly performance ofthe court's other duties, but not laterthan sixty days from the date in which thisjudgment 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 ofcriminal charges, and we concur atthis time with the rationale of Pope. · However, we note that as ofJuly 1, 1978, the provisions ofthe newTexas 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 whetherthe authority of Pope v. Ferguson, supra, will remain valid afterthe effect e date ofthis 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
. ). 

### [**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 ofthe State Constitution, and which was adopted on November 8, 1977 bythe voters ofTexas and became effective January 1, 1978. That legislative history shows that Senate Joint Resolution No. 18 was drafted, among otherthings, 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 ofthis court appeared before legislative committees of both the Senateand the House to explain its provisions, and to point out that 

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### by Citation- 561 S.W.2d 845 Page 5of6· '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 ofjudges on the ;Court ofCriminal Appeals from five to ninejudges with the authority to sit in panels ofthree ' : in all cases with the exception ofdeath penalty cases. ·



### [**7] Article V, § 5 ofthe State Constitution, as amended 1966, provided in part: "The Court ofCriminal Appeals shall have appellatejurisdiction co-extensive with the limits ofthe State in all criminal cases ofwhatever 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 powerto



### [*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 ofthe State i Constitution creating the Court ofCriminal Appeals. Under such constitutional provision and decisional law, this court could only issue the writ of mandamus to protect its appellatejurisdiction 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 neitherthis 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 ofTexas, 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 whetherthe defendant had been in fact deprived ofa speedy trial
.. 

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


### Itwas 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. . ' "· ::

### http://www.lexis.com/research/retrieve?_m~ff567827a5f505J233a698aed2ceb098&csvc=l... 

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### GetaDocument- by

### Citation- 561 S.W.2d 845 Page

## 6of6 matters, the Court of Criminal Appeals and the Judges thereofshall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, certiorari, and such other writs as ·may be necessary to protect itsjurisdiction 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 itsjurisdiction or enforce itsjudgments." Care should be taken to understandthat the phrase "as may be necessary to protect itsjurisdiction or enforce its

. judgments" has reference only to "and other such writs" and is not a limitation upon the

authority ofthe courtto 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 ofa committee

. substitute to said Senate Joint Resolution 

### [**10] by Senator Bill Meier of Euless, sponsor of

thejoint 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 authorityto issue writs of habeas corpus. Formerly underthe prior constitutional provision the power ofthe court to issue the writ of habeas corpus was not limited to "criminal matters." 4

FOOTNOTES 4 The original jurisdiction ofthe Court of Criminal Appeals to issue writs of habeas corpus ·underthe 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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