IN THE

TENTH COURT OF APPEALS

No. 10-08-00259-CV

IN RE DONNA MURRAY

Original Proceeding

O P I N I O N

Donna Murray seeks a writ of mandamus compelling Respondent, the 

Honorable George Allen, assigned judge to the 13th Judicial District Court of Navarro 

County, to dismiss or abate a lawsuit seeking her removal as justice of the peace and to 

vacate an order suspending her without pay. We deny the relief requested.

FACTUAL BACKGROUND

Murray is Justice of the Peace, Precinct 3, in Navarro County. John Jackson, 

elected judge of the 13th Judicial District Court of Navarro County, and Connie 

Mayfield, another justice of the peace in Navarro County, filed a complaint with the 
In re Murray Page 2

State Commission on Judicial Conduct,1 alleging that Murray had committed several 

acts of official misconduct and incompetence. After Murray was indicted for possession 

of methamphetamine, the Commission entered an order suspending Murray with pay.

The State, acting through and on the relation of Jackson and Mayfield, 

subsequently filed a petition in district court requesting Murray’s removal on the same 

grounds as those alleged in their administrative complaint. Jackson recused himself

and Respondent was assigned to the case. The district attorney’s office also moved for 

recusal in light of Murray’s pending drug charge and requested that Respondent

appoint the Criminal Justice Division of the Attorney General’s Office as special 

prosecutor. Respondent granted the motion.

Respondent further suspended Murray without pay, after which Murray filed 

three separate motions. In a motion to show authority, she argued that the assistant 

attorney general assigned to the case had no authority to act as attorney pro tem. In a

motion to abate, she contended that, because a complaint had been filed with the 

Commission first, the Commission has primary jurisdiction over the case and the 

lawsuit should be abated pending a final decision by the Commission. In a motion to 

dismiss, Murray sought dismissal on jurisdictional grounds. Respondent denied these 

motions.

In her petition for mandamus, Murray argues that: (1) Respondent should have 

granted either her motion to dismiss or her motion to abate because the Commission 

 

1 The Commission is an agency of the Judicial Department of state government, created by the 

Texas Constitution, and the Legislature is authorized to pass consistent laws to further carry out its 

purpose. See TEX. CONST. art. V, § 1-a.
In re Murray Page 3

possesses primary jurisdiction over the removal proceedings (issues one and two); and 

(2) Respondent should have granted her motion to show authority because the Attorney 

General lacks authority to act (issue three).

2

MANDAMUS REQUIREMENTS

Generally, mandamus relief is available only to correct a clear abuse of discretion 

when there is no adequate remedy by appeal. In re Bexar County Criminal Dist. 

Attorney’s Office, 224 S.W.3d 182, 185 (Tex. 2007) (orig. proceeding); In re Tex. Dep't of 

Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006) (orig. proceeding). 

Mandamus is also available where: (1) the order being challenged in a mandamus 

proceeding is void; or (2) jurisdictional conflicts exist between a trial court and an 

administrative agency. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) 

(void order); In re Keeling, 227 S.W.3d 391, 395 (Tex. App.—Waco 2007, orig. proceeding)

(same); In re Entergy Corp., 142 S.W.3d 316, 321-22, 324 (Tex. 2004) (orig. proceeding) 

(jurisdictional conflicts); In re Luby’s Cafeterias, 979 S.W.2d 813, 816-18 (Tex. App.—

Houston [14th Dist.] 1998, orig. proceeding) (same).

JURISDICTION

Murray’s first and second issues are based on the theory that Respondent was 

required to either dismiss or abate the lawsuit because the Commission possesses 

 

2

In an unpublished order, we stayed further proceedings in the trial court, including enforcement 

of the order suspending Murray without pay. In a separate published order, we requested amicus 

briefing from potentially interested parties, including the Office of the Attorney General, the State 

Commission on Judicial Conduct, and the Justices of the Peace and Constables Association of Texas. See

In re Murray, 257 S.W.3d 861 (Tex. App.—Waco 2008, order) (per curiam). We received an amicus brief 

from the Commission.
In re Murray Page 4

primary jurisdiction over the removal proceedings, thereby depriving Respondent of 

authority to act and making void his order suspending Murray without pay.

Applicable Law

An agency can have exclusive or primary jurisdiction.3 See Subaru of Am. v. David 

McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). Exclusive jurisdiction gives the 

agency “sole authority to make an initial determination in a dispute.” Id. Exclusive 

jurisdiction applies when a pervasive regulatory scheme is the exclusive means of 

remedying the problem addressed. See id. If an agency possesses exclusive jurisdiction, 

the trial court must dismiss the suit. Id.

Primary jurisdiction “allocate[s] power between courts and agencies when both

have authority to make initial determinations in a dispute.” Id. Primary jurisdiction 

applies where: (1) an agency is typically staffed with experts trained in handling the 

complex problems in the agency’s purview; and (2) great benefit is derived from an 

agency’s uniformly interpreting its laws, rules, and regulations, whereas courts and 

juries may reach different results under similar fact situations. Id. If an agency 

possesses primary jurisdiction, the trial court should abate the suit and “suspend finally 

adjudicating the claim until the agency has an opportunity to act on the matter.” Id.

Whether an agency has exclusive or primary jurisdiction is a question of law that 

we review de novo. See id. at 222.

 

3 For purposes of analyzing its jurisdiction vis-a-vis the courts, we consider the Commission’s 

powers in the same way that we would analyze the powers of an agency of the Executive Branch of state 

government. 
In re Murray Page 5

Analysis

Under Article V of the Texas Constitution, both the Commission and the district 

court possess authority to make initial determinations in disputes involving the 

removal of a justice of the peace. Section 1-a gives the Commission authority to 

recommend removal. See TEX. CONST. art. V, § 1-a(6)(A); see also TEX. GOV’T CODE ANN.

§ 33.002(a) (Vernon 2004) (Commission was established under section 1-a and has the 

powers provided by that section); In re Rose, 144 S.W.3d 661, 672 (Tex. Rev. Trib. 2004)

(section 1-a applies to justices of the peace); TEX. R. REM’L/RET. JUDG. 1(b) (West 2008) 

(“‘Judge’ means...any Justice of the Peace”). Section 24 gives the district court authority 

to order removal. See TEX. CONST. art. V, § 24 (“...justices of the peace...may be 

removed by the Judges of the District Courts...”). As these two provisions make clear, 

the Commission does not possess exclusive jurisdiction over the removal of a justice of 

the peace, but the primary-jurisdiction doctrine potentially applies. See Subaru, 84 

S.W.3d at 221. For this reason, dismissal would not be appropriate. Id. Abatement 

would be the proper remedy if primary jurisdiction applies. Id.

Citing section 1-a(13), In re Carrillo, 542 S.W.2d 105 (Tex. 1976), and In re Lowery, 

999 S.W.2d 639 (Tex. Rev. Trib. 1998), the State suggests that the Commission does not 

have primary jurisdiction because both a removal proceeding before the Commission 

and a removal proceeding before the district court may be pursued simultaneously. 

The Commission’s amicus brief supports this position.

Section 1-a(13) provides that removal by the Commission is “alternative to and 

cumulative of” other methods of removal provided in the Constitution. TEX. CONST. art. 
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V, § 1-a(13). In Carillo, the Commission initiated removal proceedings against Carillo, a 

district judge, pursuant to section 1-a. See Carrillo, 542 S.W.2d at 106. The Commission 

appointed a master to hear evidence and file a report. Id. A pending impeachment 

proceeding in the Texas Senate was postponed to await the master’s report. Id. at 107. 

After the master found Carrillo guilty of eleven of twelve charges, the Senate voted to 

remove Carillo from office. Id. at 106-07. The Commission subsequently filed its own 

findings with the Supreme Court and recommended removal. Id. at 106. Carrillo filed a 

petition to reject this recommendation, alleging in part that the case was moot because 

of the impeachment proceeding. Id. The Supreme Court disagreed because the 

Constitution provides several methods for removal of district judges, none of which is 

an “exclusive remedy.” Id. at 108. “[M]ore than one method may be pursued 

concurrently.” Id.

In Lowery, Justice of the Peace Lowery challenged the Commission’s 

recommendation of removal under section 1-a, arguing that section 24 “specifically 

includes justices of the peace, it is a more specific provision, taking precedence over the 

more general provisions of § 1-a.” Lowery, 999 S.W.2d at 649. The Review Tribunal 

rejected this contention:

Although the Constitution provides multiple methods for the removal of a 

judge, none is an exclusive remedy and more than one may be pursued 

concurrently. In the instant matter, the proceedings to remove Respondent 

were conducted under art. V, § 1-a. Subsection 13 specifically provides 

that § 1-a is an alternative to, and cumulative of, the methods of removal 

of persons holding an office named in Paragraph A of Subsection 6. In 

turn, Paragraph A of Subsection 6 authorizes the removal of any justice or 

judge of the courts established in art. V, § 1. This latter provision clearly 

encompasses justices of the peace.
In re Murray Page 7

Id. at 649-50 (emphasis added).

Murray attempts to distinguish Lowery on grounds that “Lowery attempted to 

avoid the Commission by arguing it should have been a civil removal action.” This 

distinction does not render Lowery inapplicable. The Review Tribunal’s ruling suggests 

that proceedings would have been proper under either section 24 or section 1-a. See id. 

Its reasoning is relevant to whether different proceedings may occur simultaneously.

As for Carillo, Murray argues that the Senate’s postponement of its proceeding to 

await the master’s report demonstrates that two proceedings cannot be pursued 

simultaneously. See Carrillo, 542 S.W.2d at 107. However, the Commission made its 

recommendation of removal after the Senate voted to remove Carillo. Id. at 106-07. 

Proceedings before the Commission were ongoing at the time the Senate proceeded 

with the impeachment process.

Murray next contends that Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78

(Tex. 2008), refutes the theory that proceedings may be pursued simultaneously. In Igal, 

the Supreme Court considered “whether TWC’s final adjudication denying recovery of 

wages precludes the subsequent filing of a common law wage claim for the same wages 

in state court.” Igal, 250 S.W.3d at 81. Igal had filed a wage claim with the TWC and,

after receiving unfavorable rulings, filed suit in district court. See id. The trial court 

found that res judicata barred Igal’s suit. Id.

The Supreme Court held that the Payday Law, which authorized Igal’s 

administrative complaint, is not the “sole and exclusive remedy...but is rather an 
In re Murray Page 8

alternative remedy that is cumulative of the common law.” Id. at 88. It “offers an 

alternate means to the same remedy.” Id.

Employees were then given a choice between an administrative process 

designed to adjudicate quickly relatively small claims or to have their day 

in court and the longer and more involved process of the judicial system. 

The Legislature could have created two consecutive procedures (an 

administrative proceeding followed by a new judicial proceeding for the 

dissatisfied party) for adjudicating these claims, but there is no indication 

that it did. In Texas parlance, the claimant selects which horse to ride. 

Once the horse crosses the finish line, a claimant cannot switch horses and 

run the same race again, hoping for a different outcome.

Id. at 92 (internal citations omitted). Igal’s suit was barred because he could either file 

an administrative proceeding under the Payday Law or a common law debt action in 

state court, but chose the former. See id. at 93.

We note three important distinctions between Igal and Murray’s situation. First,

in Igal, the TWC had issued a final decision at the time Igal filed suit; thus, the Supreme 

Court’s decision hinged on application of the res judicata doctrine. Id. at 92-93. Here, 

the Commission has not yet issued a final decision and the res judicata doctrine is not at 

issue.

Second, Jackson and Mayfield had a duty to file a complaint with the 

Commission. See TEX. CODE JUD. CONDUCT, Canon 3(D)(1), reprinted in TEX. GOV’T CODE 

ANN., tit. 2, subtit G app. B (Vernon 2005) (requiring judges to take “appropriate action” 

after receiving information “clearly establishing” a violation of the Code of Judicial 

Conduct). After filing a complaint, they have little or no further involvement in the 

administrative process. See TEX. R. REM’L/RET. JUDG. 1-18 (West 2008) (rules governing 

the disciplinary process); see also TEX. GOV’T CODE ANN. §§ 33.021-.038 (Vernon 2004) 
In re Murray Page 9

(Commission’s powers and duties, including requirement in section 33.033 that the 

Commission notify the complainant of the case disposition and complainant’s right to 

reconsideration of a dismissed complaint as provided by section 33.035).

Third, unlike the Payday Law, section 1-a(13) contains specific language 

authorizing concurrent removal proceedings. See TEX. CONST. art. V, § 1-a(13). Case 

law confirms this interpretation. See Carrillo, 542 S.W.2d at 108; see also Lowery, 999 

S.W.2d at 649-50.

Accordingly, we hold that the Texas Constitution expressly allows for the pursuit 

of concurrent removal proceedings against a justice of the peace before the Commission 

and in district court. See TEX. CONST. art. V, § 1-a(13); see also Carrillo, 542 S.W.2d at 106; 

Lowery, 999 S.W.2d at 649-50. The Commission possesses neither exclusive nor primary 

jurisdiction. Respondent did not abuse his discretion by denying Murray’s motion to 

abate or her motion to dismiss.

AUTHORITY TO ACT

In issue three, Murray contends that Respondent abused his discretion by 

denying her motion to show authority, arguing that neither constitutional nor statutory 

provisions authorize the Attorney General to act on behalf of Jackson and Mayfield. 

The county or district attorney ordinarily represents the State in a civil removal 

action. See TEX. LOC. GOV’T CODE ANN. § 87.018(d)-(e) (Vernon 2008).4 However, 

Navarro County does not have a county attorney and the district attorney was recused. 

 

4 Article V section 24 of the Texas Constitution is one of the “constitutional directives” from which 

Subchapter B of Chapter 87, which governs civil removal proceedings, is derived. In re Bazan, 251 S.W.3d 

39, 44 (Tex. 2008) (orig. proceeding).

 
In re Murray Page 10

Respondent could thus appoint an attorney pro tem.

5 See In re Guerra, 235 S.W.3d 392, 

410 (Tex. App.—Corpus Christi 2007, orig. proceeding).

Citing State ex rel. Downs v. Harney, 164 S.W.2d 55 (Tex. Civ. App.—San Antonio 

1942, writ ref’d w.o.m.), and Garcia v. Laughlin, 285 S.W.2d 191 (Tex. 1955), Murray 

argues that the Attorney General is not the proper authority to prosecute a civil removal 

action. In Downs, the San Antonio Court concluded that, “since there is no 

constitutional or statutory provision which vests in the Attorney General the power, or 

makes it his duty, to institute actions for the removal of county officers under the 

provisions of Art. 5, §24, of the Constitution, and Art. 5970 of the Statutes [now Chapter 

87], supra, the Attorney General cannot assert or exercise such power and duty in this 

action.” Downs, 164 S.W.2d at 58. “[S]uch power and duty vests in the county 

attorney.” Id. In Garcia, the Supreme Court relied on Downs in reaching its decision 

that the “Attorney General does not possess the power to institute [] removal 

proceedings.” Garcia, 285 S.W.2d at 195 (emphasis added).

In both Downs and Garcia, the Attorney General participated in instituting the 

removal action. Here, the Attorney General did not join in the institution of removal 

proceedings against Murray, but was appointed as attorney pro tem. He was not acting 

in the capacity of Attorney General. Garcia and Downs are, therefore, inapplicable to the 

specific facts of this case. The appropriate question then becomes whether the Attorney 

General could act as attorney pro tem.

 

5 Under section 87.018(e) and (f), a county attorney from an adjoining county shall be appointed by 

the commissioners where the county or district attorney is the subject of the removal action. See TEX. LOC.

GOV’T CODE ANN. § 87.018(e), (f) (Vernon 2008). 
In re Murray Page 11

The State suggests that article 2.07 of the Code of Criminal Procedure expressly 

authorizes this appointment. Under Article 2.07, a judge may appoint “any competent 

attorney,” including an assistant attorney general, to represent the State where the

“attorney for the state is disqualified to act in any case or proceeding, is absent from the 

county or district, or is otherwise unable to perform the duties of his office, or in any 

instance where there is no attorney for the state.” TEX. CODE. CRIM. PROC. ANN. art.

2.07(a), (f) (Vernon 2005) (emphasis added). The State argues that article 2.07 applies to 

civil cases because it does not distinguish between civil and criminal cases. See Hatch v. 

State, 958 S.W.2d 813, 815-16 (Tex. Crim. App. 1997) (“plain language” of section 62.201 

of the Government Code “makes no distinction between civil and criminal cases” and 

the “Legislature knew how to restrict statutes to civil cases,” as it had done in section 

62.202); see also TEX. CODE. CRIM. PROC. ANN. arts. 1.051, 1.05, 2.01, 3.02, and 31.05 

(Vernon 2005 & 2006 & Supp. 2008) (specifically referencing criminal cases); TEX. GOV’T 

CODE ANN. § 402.028 (Vernon 2005) (authorizing the Attorney General to provide 

assistance to a county, district, or criminal district attorney in criminal cases, but not

“prohibit[ing] an assistant attorney general from appointment as attorney pro tem” 

under article 2.07).

Murray responds that the Code governs criminal proceedings alone. See TEX.

CODE CRIM. PROC. ANN. art. 1.02 (Vernon 2005) (“The procedure herein prescribed shall 

govern all criminal proceedings”); see also TEX. CODE CRIM. PROC. ANN. art. 1.26 (Vernon 

2005) (“The provisions of this Code shall be liberally construed, so as to attain the 

objects intended by the Legislature: The prevention, suppression and punishment of 
In re Murray Page 12

crime.”); Baxter v. Tex. Dep’t of Human Res., 678 S.W.2d 265, 267 (Tex. App.—Austin 

1984, no writ) (“Code of Criminal Procedure applies only to criminal actions”). 

According to Murray, the Legislature could have “expressly provided for the Attorney 

General to be appointed attorney pro tem in a civil removal action,” but has not done so. 

We find the reasoning in Guerra instructive. In Guerra, the Corpus Christi Court 

considered a judge’s authority to “appoint an attorney pro tem to assist a grand jury in 

investigating a district attorney’s conduct when the district attorney has not sought 

recusal.” Guerra, 235 S.W.3d at 411. Several other states had already determined that a 

“court has the inherent power to appoint an attorney pro tem when the county elected 

attorney is under grand jury investigation,” even in the absence of statutory authority.

Id. at 411-414 (emphasis added). Moreover, an 1862 Texas Supreme Court case had 

recognized that, “[i]n case of a vacancy in the office of district attorney, or in case of the 

district attorney’s temporary disability to act, or in any particular case where there might 

exist special reasons why he should not act, any other competent person might act in the 

preparation of indictments, by the authorization of the court.” Id. at 414 (emphasis 

added) (quoting State v. Gonzales, 26 Tex. 197, 199 (1862)). Accordingly, the Corpus 

Christi Court held that “respondent was authorized to appoint a competent person to 

act in relator’s place, and...this authorization is explicitly derived from article 2.07 of 

the code of criminal procedure.” Id. The appointment was also “implicitly authorized 

by a court’s inherent power.” Id. at 415 (emphasis added).

Assuming, without deciding, that article 2.07 does not apply to civil proceedings, 

we conclude that, in the absence of a specific statutory provision, Respondent’s inherent 
In re Murray Page 13

power authorizes the appointment of an attorney pro tem to represent the State where 

the district or county attorney cannot act. See id. at 414; see also Trigg v. State, 49 Tex. 

645, 675 (1878) (in a removal proceeding filed pursuant to section 24, “[i]t would seem 

proper, also, for the district attorney or county attorney, when not disqualified, to 

prosecute the case on behalf of the State, --not doubting, however, the authority of the 

judge to request other attorneys to act, where the State, for any cause, is not otherwise 

represented, or to act as assistants of the State’s counsel”). In such circumstances, the 

attorney pro tem assumes all duties of the office, which includes representation of the 

State in a civil removal action. See Guerra, 235 S.W.3d at 409 (“A ‘district attorney pro 

tem’ is appointed by the district court, and after taking the oath of office, assumes the 

duties of the elected district attorney and, in effect, replaces the latter in performing 

germane functions of office for purposes contemplated by the appointment.”); see also

TEX. LOC. GOV’T CODE ANN. § 87.018(d).

Respondent’s appointment did not give the Attorney General the authority to 

institute removal proceedings, thereby enlarging the Attorney General’s power, but 

merely authorized an assistant attorney general to act as a substitute where the county 

or district attorney was unable to act. See Guerra, 235 S.W.3d at 409. We, therefore, hold 

that Respondent acted within his inherent power when appointing the Attorney 

General as attorney pro tem and did not abuse his discretion by denying Murray’s 

motion to show authority.
In re Murray Page 14

CONCLUSION

Because Murray has not established her right to mandamus relief, we deny her 

petition for writ of mandamus. Our July 23, 2008 stay order will remain in effect for 

fourteen days following the date of this opinion.

 

FELIPE REYNA

Justice

Before Justice Vance, 

Justice Reyna, and

Justice Mazzant6

Writ denied

Opinion delivered and filed November 5, 2008

[OT06]

 

6 The Honorable Amos L. Mazzant, Justice of the Fifth Court of Appeals, sitting by assignment of 

the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(a) of the Government Code. 

See TEX. GOV’T CODE ANN. § 74.003(a) (Vernon 2005).