IN RE Honorable Judge John YEAGER, Relator

NO. WR-89,018-01

Court of Criminal Appeals of Texas.

Filed: October 31, 2018

Ross Fischer, State Bar No. 24004647, The Gober Group PLLC, P.O. Box 341016, Austin, Texas 78734, for Appellant.

Honorable Eric M. Shepperd, Travis County Court at Law No. Two, 1000 Guadalupe, Room 211, Austin, Texas 78701, Stacey Soule, State's Attorney, Austin, for State of Texas.

MOTION FOR LEAVE TO FILE ORIGINAL APPLICATION FOR WRIT OF MANDAMUS DENIED.

In this case, a municipal prosecutor has "mandamused" a municipal court judge in a county court at law. That municipal court judge, the relator, has petitioned this Court for mandamus relief from the order issued by the county-court-at-law judge, the respondent, granting mandamus relief to the municipal prosecutor. I join the Court's order denying mandamus relief because I agree with the Court that relator must try again by filing his petition for writ of mandamus in the court of appeals. As we have held, a petition for a writ of mandamus against a judge of a district or county court should first be presented to the court of appeals unless there is a compelling reason not to do so.1 I agree with the Court that there is no compelling reason to exercise mandamus jurisdiction in this case.

I write separately to observe that the municipal prosecutor raises a criminal procedural claim, and relator responds with an argument that the county-court-at-law judge's ruling interferes with this Court's rule-making authority. But the Court of Criminal Appeals only has express rule-making power over rules of post-trial, appellate review procedure, and evidence.2 Arguably, the Court can rely upon its inherent authority to issue rules necessary for exercising its jurisdiction to promulgate rules of criminal procedure.3 Mandamus is not the proper vehicle to recognize, let alone exercise, such implied power.

Our Legislature should make that authority explicit. In fiscal year 2017, municipalities filed 4,588,165 new criminal cases.4 Municipal courts are some of the hardest working courts in Texas. Yet, for these daunting case loads, the code of criminal procedure has one chapter (out of 64) devoted to these courts. Rules of criminal procedure to supplement these statutes could fill in obvious gaps left by the relevant statutes without abridging, enlarging, or modifying the substantive rights of the litigants.

Without such rules, appellate courts could be forced to rely increasingly upon mandamus proceedings to settle disputes *450over criminal procedure similar to the one presented in this case. This, in turn, could result in a watering down of standards for mandamus review for criminal cases across the board. Making this Court's rule-making authority for rules of criminal procedure explicit would lead to promulgation of rules that could prevent that outcome.

With these thoughts I join the Court's order.

1*Padilla v. McDaniel* , 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (per curiam ).

2*See* Tex. Gov't. Code §§ 22.108, 22.109.

3*See* Tex. Gov't. Code § 21.001(a) ("A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction.").

4 Office of Court Admin., Annual Statistical Report for the Texas Judiciary (2017).

--------