05-17-00507-CV, 05-17-00508-CV, 05-17-00509-CV

ACCEPTED
05-17-00507-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/15/2017 7:00:22 PM
LISA MATZ
CLERK

IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS AT DALLAS
NO. __________________

FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
5/15/2017 7:00:22 PM
LISA MATZ
Clerk

IN RE WARREN KENNETH PAXTON, JR., RELATOR
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 416-81913-2015,
416-82148-2015, 416-82149-2015

PETITION FOR WRIT OF MANDAMUS,
PETITION FOR WRIT OF PROHIBITION, AND
REQUEST FOR EMERGENCY RELIEF
__________________________________________________________

Philip H. Hilder
State Bar No. 09620050
Q. Tate Williams
Paul L. Creech
Hilder & Associates, P.C.
819 Lovett Blvd.
Houston, Texas 77006
(713) 655-9111 Office
(713) 655-9112 Fax
philip@hilderlaw.com
tate@hilderlaw.com
paul@hilderlaw.com
EMERGENCY RELIEF HAS BEEN REQUESTED

ORAL ARGUMENT NOT REQUESTED

 IDENTITY OF PARTIES AND COUNSEL
RELATOR:

Warren Kenneth Paxton, Jr.

DEFENSE COUNSEL AT TRIAL
AND COUNSEL ON APPEAL FOR
APPELLANT:

Philip H. Hilder
Q. Tate Williams
Paul L. Creech
Hilder & Associates, P.C.
819 Lovett Blvd.
Houston, Texas 77006
Dan Cogdell
Cogdell Law Firm, PLLC
402 Main Street, 4th Floor
Houston, Texas 77002
William Mateja
Polsinelli, P.C.
2950 N. Harwood, Suite 2100
Dallas, TX 75201
Terri Moore
300 Burnett St., Ste. 160
Fort Worth, TX 76102-2755
Heather J. Barbieri
Barbieri Law Firm, P.C.
1400 Gables Court
Plano, Texas 75075
J. Mitchell Little
Scheef & Stone, LLP
2600 Network Blvd., Ste. 400
Frisco, TX 75034

ATTORNEYS PRO TEM (STATE
OR SPECIAL PROSECUTORS) AND
i

 COUNSEL ON APPEAL FOR
APPELLEE:

Kent A. Schaffer / Nicole DeBorde
712 Main, Suite 2400
Houston, Texas 77002
Brian Wice
440 Louisiana St., Suite 900
Houston, Texas 77002-1635

RESPONDENT
APPOINTED PRESIDING JUDGE
OF THE 416TH JUDICIAL DISTRICT
COURT, COLLIN CO., TX

Hon. George Gallagher
396th District Court
Tarrant County, TX
401 W. Belknap Street
Fort Worth, Texas 76196

ii

 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................................. i
TABLE OF CONTENTS................................................................................................................. iii
TABLE OF AUTHORITIES............................................................................................................v
INTRODUCTION ................................................................................................................................1
STATEMENT OF THE CASE .......................................................................................................3
STATEMENT OF JURISDICTION .............................................................................................4
ISSUES PRESENTED........................................................................................................................5
STATEMENT OF FACTS ...............................................................................................................6
SUMMARY OF THE ARGUMENT ...........................................................................................9
ARGUMENT AND AUTHORITIES ...........................................................................................9
I. Mandamus is Appropriate Because Respondent Erred in Not Removing
Himself as the Presiding Judge and Issuing Orders After He Changed
Venue to Harris County in Contravention of Article 31.09 of the Texas
Code of Criminal Procedure............................................................................................... 10
A. The Appropriateness of Mandamus Relief

............................................................. 10

B. Art. 31.09 Makes Clear that Respondent Had No Discretion to Continue
to Preside Over the Cases Post-Venue Change Given The Lack of
Written Consent of the Accused and Counsel........................................................ 11
C. Relator Has No Adequate Remedy at Law .............................................................. 14

iii

 1. Mandamus Was Appropriate Where Similarly Situated Civil
Litigants Exercised their Statutory Right to Object to the Presiding
Judge .................................................................................................. 14
2. Any Remedy that Exists by Direct Appeal is Inadequate .................. 16
.
II. A Writ of Prohibition is Also Appropriate Because Respondent Has No
Discretion to Continue to Preside over Relator’s Cases ......................................... 17
III. Emergency Relief is Necessary to Prevent Respondent from Presiding in
Harris County ........................................................................................................................... 19
PRAYER ............................................................................................................................................... 19
CERTIFICATE OF REDACTION ............................................................................................. 20
CERTIFICATE OF COMPLIANCE ......................................................................................... 20
RULE 52.3(j) CERTIFICATION .......................................................................... 21
RULE 52.10(a) CERTIFICATION ....................................................................... 21
AFFIDAVIT REGARDING APPENDIX PURSUANT TO RULES 52.3(k)
AND 52.7(a) OF THE TEXAS RULES OF APPELLATE PROCEDURE ............ 22
CERTIFICATE OF SERVICE. ................................................................................................... 23

iv

 TABLE OF AUTHORITIES
Cases
Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997) ........................................13
De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004)....................................19
Fain v. State, 986 S.W.2d 666 (Tex. App.—Austin 1998, pet ref’d) ............... 13, 14
In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015) ...............................................15
In re Amos, 397 S.W.3d 309 (Tex. App. – Dallas 2013, no pet.) ..................... 18, 20
In re Bonilla, 424 S.W.3d 528 (Tex. Crim. App. 2014) ..........................................10
In re Canales, 52 S.W.3d 698 (Tex. 2001) ..............................................................16
In re M.A.S., 05-03-00401-CV, 2005 WL 1039967, at *2 (Tex. App.—Dallas May
5, 2005, no pet.) ....................................................................................................17
In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) ........................................10
In re Medina, 475 S.W.3d 291 (Tex. Crim. App. 2015) ............................ 10, 15, 20
In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013) .......................15
In re Watkins, No. 05-08-00103-CV, 2008 WL 400348 (Tex. App.—Dallas,
February 15, 2008, orig. proceeding) ...................................................................19
Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987) ................................ 11, 18
State ex rel., Wade v. Mays, 689 S.W.2d 893 (Tex. Crim. App. 1985)...................20
Stearns v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989)..................................18
Rules
TEX. R. APP. P. 25.2..................................................................................................12

v

 TEX. R. APP. P. 52 ......................................................................................................3
TEX. R. CIV. P. 18b(b) ..............................................................................................12
Statutes
TEX. CODE CRIM. P. art. 31.02 ...............................................................................1, 5
TEX. CODE CRIM. P. art. 31.05 ....................................................................... passim
TEX. CODE CRIM. P. art. 31.08 § 1(a) ....................................................................... 7
TEX. CODE CRIM. P. art. 31.08 § 2(b) .......................................................................7
TEX. CODE CRIM. P. art. 31.09 ........................................................................ passim
TEX. CODE CRIM. P. art. 44.02..................................................................................12
TEX. CONST. art. V, § 5(c) ..........................................................................................3
TEX. CONST. art. V, § 6 ..............................................................................................3
TEX. CONST. art. V, § 7 ............................................................................................10
TEX. GOV’T CODE § 74.053............................................................................... 12, 13
TEX. GOV’T CODE § 74.053(b) .................................................................................12
TEX. GOV’T CODE § 74.053(d) .................................................................................12
TEX. GOV’T CODE § 22.221(a) ...................................................................................3

vi

 INTRODUCTION
Relator, Warren Kenneth Paxton, Jr., seeks writs of mandamus and
prohibition and requests emergency relief against Respondent, Hon. George
Gallagher, presiding by assignment in the 416th Judicial District Court of Collin
County, Texas, over Relator’s three pending cases for alleged violations of the Texas
Securities Act.1 Emergency relief has been requested. Relator seeks a stay of
Respondent’s order setting a hearing for Thursday, May 18, 2017 at 9:30 a.m.
pending resolution of Relator’s petition.
At the State’s request, Respondent entered an order changing venue from
Collin County to Harris County pursuant to Article 31.02 of the Texas Code of
Criminal Procedure on April 11, 2017. Despite the venue change, Respondent
subsequently entered a scheduling order and continues to preside over the cases
without the written consent of the accused or his counsel. After Relator filed written
notice declaring that consent under Article 31.09 would not be forthcoming,
Respondent expressed in writing his intent to continue to preside over the voir dire
and jury trial in Harris County. Because Respondent had no discretion to enter the
scheduling order after venue was changed to Harris County, mandamus is
appropriate to vacate the scheduling order as well as a subsequent order scheduling

1

Appx. Tab 1.
1

 a hearing on a pleading recently filed by Relator. Moreover, Respondent has stated
that he intends to continue to preside over the case without the consent of Relator or
his counsel and even set a hearing in Harris County on May 18, 2017. A writ of
prohibition is proper to prevent Respondent from continuing to act with respect to
Relator’s cases and emergency relief is necessary to stay any imminent action by
Respondent.

2

 STATEMENT OF THE CASE
Nature of the case:

Trial court:

This is an original proceeding seeking writs of
mandamus and prohibition prohibiting Respondent
from continuing to preside over the case and vacating
orders he has entered since venue was ordered
changed.
416th District Court, Collin County, Texas, Honorable
George Gallagher presiding by assignment.

Course of proceedings:

The State filed a motion to change venue under Article
31.02 of the Texas Code of Criminal Procedure. After
conducting two hearings on the motion, the trial court
granted the State’s motion and changed venue to Harris
County. The trial court subsequently issued a
scheduling order and signaled his intent to continue to
preside over the case after the change without the
consent of Relator or his counsel. Respondent also
recently set a hearing for Thursday, May 18 2017, in
connection with an objection filed by Relator
pertaining to the fact that Relator’s assignment to the
case expired on December 31, 2016.

Trial court’s
disposition:

The trial court entered an order changing venue to
Harris County, and a scheduling order setting trial for
September 11, 2017, and a hearing for May 18, 2017.

3

 STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to Section 22.221 of the Texas
Government Code to “issue writs of mandamus and all other writs necessary to
enforce the jurisdiction of the Court.” TEX. GOV’T. CODE § 22.221(a). This Court
has mandamus jurisdiction over Respondent because the Court in which Respondent
is sitting and continuing to preside is in the district of this Court of Appeals. Id. at §
22.221(b). Jurisdiction to issue writs of prohibition is also conferred to this Court
by Article V, Section 5(c) and 6 of the Texas Constitution. See also TEX. R. APP. P.
52.

4

 ISSUES PRESENTED
Once an order changing venue in a criminal case has been entered, may a
judge continue to preside over the case without the written consent of the Defendant
and his counsel as required by Article 31.09 of the Texas Code of Criminal
Procedure?
If not, will a writ of mandamus should issue to set aside orders entered after
the change as well as a writ of prohibition issue to prohibit the judge from taking
any further action on the case?

5

 STATEMENT OF FACTS
This original action arises from actions of Respondent in continuing to preside
over Relator’s cases after Respondent’s April 11, 2017, “Supplemental Order on
Motion for Change of Venue” and after Relator’s written notice that the written
consent required by Art. 31.09 for Respondent to remain as presiding judge would
not be given. The relevant sequence of events is as follows:
February 9, 2017 The State filed a “Motion for Change of Venue” under
Article 31.02; 2
February 16, 2017 Hearing on State’s contested motion to change venue;
March 29, 2017

Continued hearing on State’s motion to change venue;

April 11, 2017

Respondent ordered a change of venue from Collin
County to Harris County; 3

April 11, 2017

Relator gave written notice that consent required by Art.
31.09 would not be given and requested compliance with
Art. 31.05; 4

April 12, 2017

4:18 A.M. Respondent emailed attorneys of record asking
whether a formal hearing was requested and whether he
should rule on the pleadings;5

April 12, 2017

12:12 P.M. Relator filed a supplement to his written
notice clarifying that no order was sought, only notice that
he expected statutory compliance with Section 31 and
Articles 31.05 and 31.09 specifically to avoid delay; 6

2

Appx. Tab 2.
Appx. Tab 3.
4
Appx. Tab 6.
5
Appx. Tab 7.
6
Appx. Tab 8.
3

6

 April 12, 2017

1:08-1:11 P.M. Relator’s counsel emailed a courtesy copy
of the supplement to his notice to Respondent and
attorneys of record;7

April 12, 2017

2:31 P.M. Respondent emailed all attorneys of record that
he signed a scheduling order and that he intended to
conduct jury selection and the trial; 8

April 12, 2017

Respondent entered his Scheduling Order;9

April 17, 2017

Respondent emailed all attorneys of record inviting them
to accompany him in Harris County to view the courtroom
and other facilities; 10

May 1, 2017,

Relator sends letter to Collin County District Clerk
requesting compliance with Art. 31.05; 11

May 5, 2017,

Collin County District Clerk files letter stating that she
will not comply with Art. 31.05 on account “expressed
and/or implicit” directions of Respondent; 12

May 12, 2017

Respondent entered an order setting hearing on a pleading
filed by Paxton on May 18, 2017;13

May 15, 2017,

Respondent enters an amended order setting hearing on
May 18, 2017. 14

As of the date of this filing, no written consent has been given by the State,
Relator, or Realtor’s counsel, to the Respondent presiding over the case or the use

7

Appx. Tab 9.
Appx. Tab 10.
9
Appx. Tab 11.
10
Appx. Tab 12.
11
Appx. Tab 13.
12
Appx. Tab 14.
13
Appx. Tab 15.
14
Appx. Tab 16.
8

7

 of existing services, and no such consent from Relator or his counsel will be
forthcoming. (Appx. Tab 6-9.) After Respondent ruled that venue would be
changed, Relator’s counsel merely stated that he did not object to venue being
transferred to non-contiguous Harris County. (Appx. Tab 4 at RR 9.) No other
consent was given. And, as noted above, Relator’s counsel objected to the change
and reserved all other rights under Chapter 31. (Appx. Tab 4 at RR 9.) 15 Respondent
acknowledged as much on the record. (Appx. Tab 4 at RR 9.)

15

This objection was made and preserved on the record in the April 10, 2017, hearing. (Appx.
Tab 4 at pp. 8-9.) It is also acknowledged in the “Supplemental Order on Motion for Change of
Venue.” (Appx. Tab 5.)
8

 SUMMARY OF THE ARGUMENT
Writs of mandamus and prohibition are proper because once Respondent
changed venue to Harris County, he was statutorily prohibited from entering further
orders or continuing to preside over the case without the statutorily required written
consent of Relator and his counsel.

ARGUMENT AND AUTHORITIES
Venue for trial may be changed in a criminal case pursuant to Chapter 31 of
the Texas Code of Criminal Procedure. Once a change of venue order is entered,
the Clerk sends the certified copy of the order, bond, together with the originals of
the other documents under seal to the clerk of the court to which venue has been
changed until the exhaustion of appeals. TEX. CODE CRIM. P. art. 31.05 and 31.08 §
1(a). However, “with the written consent of the prosecuting attorney, the defense
attorney, and the defendant,” the judge, clerk, court reporter, and court reporter in
the original county may remain with the case (and keep the original papers) in the
new venue. TEX. CODE CRIM. P. art. 31.09, 31.08 Sec. 2(b). No such written consent
from the accused or counsel has been given or will be in this case. Regardless,
Relator continues to preside over the case in Harris County.

9

 I.

Mandamus is Appropriate Because Respondent Erred in Not Removing
Himself as the Presiding Judge and Issuing Orders After He Changed
Venue to Harris County in Contravention of Article 31.09 of the Texas
Code of Criminal Procedure.
A. The Appropriateness of Mandamus Relief.
It is well settled that mandamus relief is appropriate if it is shown that the act

sought to be compelled by the writ is purely ministerial and there is no adequate
remedy at law. In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (internal
citations omitted). “The ministerial act requirement is satisfied if the relator can
show a clear right to the relief sought because the facts and circumstances dictate
but one rational decision under unequivocal, well-settled, and clearly controlling
legal principles.” In re Medina, 475 S.W.3d 291, 298 (Tex. Crim. App. 2015) (citing
In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014). Similarly, “If a trial
judge lacks authority or jurisdiction to take particular action, the judge has a
‘ministerial’ duty to refrain from taking that action, to reject or overrule requests that
he take such action, and to undo the action if he has already taken it.” Id. “In some
cases, a remedy at law may technically exist; however, it may nevertheless be so
uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as
to be deemed inadequate.” Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App.
1987).

10

 B. Art. 31.09 Makes Clear that Respondent Had No Discretion to
Continue to Preside Over the Cases Post-Venue Change Given the
Lack of Written Consent of the Accused and Counsel.
Texas Code of Criminal Procedure art. 31.09 unequivocally provides, in
pertinent part, “[i]f a change in venue in a criminal case is ordered under this chapter,
the judge ordering the change of venue may, with the written consent of the
prosecuting attorney, the defense attorney, and the defendant, maintain the original
case number on its own docket, preside over the case, and use the services of the
court reporter, the court coordinator, and the clerk of the court of original venue.”
TEX. CODE CRIM. PROC. art 31.09(a) (emphasis added). The necessary corollary
from this provision is that if the defendant and defense attorney do not provide
written consent, the judge ordering the change of venue may not preside over the
case. Respondent was notified of this provision and Relators’ withholding of consent
(Appx. Tab 4). Thereafter, Respondent immediately entered his Scheduling Order
and gave written notice of his intent to continue presiding over the case. (Appx. Tabs
9, 10).
As a matter of law, when Respondent changed venue to Harris County the
mandates of Articles 31.05 of the Texas Code of Criminal Procedure applied.
Because no written consent was or would be given by Relator or his counsel, the
provisions for use of the existing judge and services in Article 31.09 is not
applicable.

Respondent had no discretion to enter the scheduling order and

11

 subsequent order setting a hearing which action this Court must cure by issuing a
writ of mandamus vacating the scheduling order and hearing notice and a writ of
prohibition precluding Respondent from continuing to preside over or taking any
further action in Relator’s case other than to facilitate the change of venue to Harris
County as ordered.
Prior to 1995, there was no vehicle by which a judge could change venue to
another county while still maintaining the case on his or her own docket. This
vehicle came in Article 31.09, but it necessitated the written consent of all parties
before such an action could be taken. Fain v. State, 986 S.W.2d 666, 673 (Tex.
App.—Austin 1998, pet ref’d). A court’s actions that violate statutory procedure,
such as article 31.09, are voidable. Id. at 671 (quoting Davis v. State, 956 S.W.2d
555, 559 (Tex. Crim. App. 1997)).
In Fain, the prosecutor, defense lawyer, and defendant entered into a written
agreement allowing a change of venue to Smith County while maintaining the
court’s docket in Williamson County. Fain, 986 S.W.2d at 671. On appeal, the
defendant’s attorney objected to this arrangement as article 31.09 had not been made
effective until September 1, 1995, nine months after the parties made their
agreement. Id. at 673.
While first assigning this as a constitutional error and reversing the
conviction, the Court of Appeals changed course on rehearing and held that the error

12

 was statutory in nature and must be objected to at trial. Id. The Fain court went on
to describe article 31.09 as an exception to Article V, section 7 of the Texas
Constitution, which requires a district court to conduct its proceedings in the county
seat of the county in which the case as pending. Id., TEX. CONST. art. V, § 7. While
the error was not preserved, the Fain court held that allowing the trial judge to
preside and keep the judge on the Williamson County docket was error. Id. at 676
(“…the trial judge made a procedural error in his attempt to change venue while
maintaining the case on his court’s docket”).
Similarly, here Respondent has attempted to change venue to another county
while continuing to preside over the case an maintaining the case on his docket.
Article 31.09 provides the sole method by which a court may continue to preside
over a case in which venue has been changed. That method is only applicable where
the State, defendant’s counsel, and the defendant give written consent. As the
requisite consent is lacking, the general rule applies and Respondent cannot preside
over the case outside Collin County.
While there is no authority addressing these precise facts, the Texas Court of
Criminal Appeals in Medina, supra, made clear that “an issue of first impression can
sometimes qualify for mandamus relief when the factual scenario has never been
precisely addressed but the principle of law has been clearly established.” Id. (citing
In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013)). A relator

13

 will be entitled to relief on an issue of first impression if “the principle of law he
relies upon is ‘positively commanded and so plainly prescribed under the law as to
be free from doubt.” Id. (citing In re Allen, 462 S.W.3d 47, 50 (Tex. Crim. App.
2015)). The principle of law upon which Relator relies upon is clearly established
by the unambiguous text of Articles 31.05 and 31.09. According to those provisions,
it is crystal clear that Respondent no longer had authority to preside over the case
once he changed venue to Harris County without the requisite written consents.
C. Relator Has No Adequate Remedy at Law.
Neither the “Scheduling Order,” nor Respondent’s subsequent order setting a
hearing on a defense objection, nor the Respondent’s act of continuing to preside are
interlocutory orders that Relator may appeal. See TEX. R. APP. P. 25.2; TEX. CODE
CRIM. PRO. Art 44.02 et seq. Absent intervention by mandamus and prohibition, the
Respondent will continue to unlawfully preside over the case. Thus, Relator has no
adequate legal remedy.
1. Mandamus Was Appropriate Where Similarly Situated Civil
Litigants Exercised their Statutory Right to Object to the
Presiding Judge.
To determine that mandamus is the appropriate remedy to enforce a statutory
right to object to a presiding judge, the Court need look no further than the operation
of Section 74.053 of the Texas Government Code. Mandamus is routinely used to
enforce the similar mandates of § 74.053 which gives a party to a civil case the right

14

 to timely object to a visiting judge. Under that statute, if a party timely objects, the
judge may not hear the case. TEX. GOV’T CODE § 74.053(b). The disqualification of
the assigned judge is automatic and mandamus is appropriate where the judge
erroneously continues to preside after a timely objection. Id.; In re Canales, 52
S.W.3d 698, 701 (Tex. 2001); In re M.A.S., 05-03-00401-CV, 2005 WL 1039967,
at *2 (Tex. App.—Dallas May 5, 2005, no pet.). This is nearly identical to the
similar mandate of Code of Criminal Procedure Article 31.09 at issue in this case.
When the State sought, and obtained a change of venue, it, as well as
Relator, obtained the right to withhold written consent to the Respondent’s continued
involvement in the new court and county. This is a statutorily-created right, just as
civil litigants have the right to object to an assigned judge. After changing venue,
the case goes to a new court with its own clerk. See TEX. CODE CRIM. PRO. Art.
31.05 (“and [the clerk] shall transmit the same [file] to the clerk of the court to which
the venue has been changed”). As a natural consequence of changing venue to a
new court, the case would ordinarily be presided over by the judge of the new court,
unless the parties and their counsel consented. See TEX. CODE CRIM. P. art 31.09.
Relator’s withholding of consent under 31.09 is virtually identical to a timely
objection under § 74.053, both of which are statutorily created rights for litigants.
As mandamus is a proper remedy after a timely objection under that circumstance,

15

 so it is here. As discussed below, any other potential remedy Relator is alleged to
hold is illusory.
2. Any Remedy that Exists by Direct Appeal is Inadequate.
Relator cannot effectively avail himself of any other remedy. While a direct
appeal or separate proceeding may be an alternative remedy, it is not adequate. The
Court of Criminal Appeals has recognized that “[i]n some cases, a remedy at law
may technically exist; however, it may nevertheless be so uncertain, tedious,
burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed
inadequate.” Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987). Under
the circumstances of this case, delaying correction of Respondent’s error until direct
appeal “would be too burdensome and would only aggravate the harm and most
likely result in a new trial compelling relator to again endure a trip through the
system.” Stearns v. Clinton, 780 S.W.2d 216, 225 (Tex. Crim. App. 1989).
In In re Amos, this Court found mandamus appropriate where a judge
continued to issue rulings after the case had been transferred to a new Court. In re
Amos, 397 S.W.3d 309, 315 (Tex. App. – Dallas 2013, no pet.). In that case, the
Fifth Court of Appeals held that if it withheld mandamus relief, further proceedings
would be improper “and any orders or judgments resulting from those proceedings
will be erroneous and subject to reversal, resulting in a waste of judicial resources.”

16

 Id. at 317 citing De Leon v. Aguilar, 127 S.W.3d 1, 7 (Tex. Crim. App. 2004) (orig.
proceeding).
This Court also recently concluded that a trial judge’s order consolidating
criminal cases for trial on its own motion was a circumstance a party had no adequate
remedy at law to address. In re Watkins, No. 05-08-00103-CV, 2008 WL 400348
(Tex. App.—Dallas, February 15, 2008, orig. proceeding). As in this case, the
consolidation order in Watkins was not the type of order that could be challenged by
the relator by interlocutory appeal and violated a clear statutory mandate. Id. at *12. The remaining options available to that relator of seeking a continuance or
dismissing and re-filing the charges, were deemed “uncertain at best.” Id. at *1.
Relator should not be required to prepare for and endure a trial presided over
by a statutorily prohibited judge only to challenge the error by direct appeal, and
then endure another trial before a proper judge. This potential relief is even less
certain than the state’s ability to re-indict a criminal case and present it for trial on
another day to avoid consolidation. Relator’s circumstance in this case is, in fact,
more urgent as he is an elected public official near the end of his term of office.
II.

A Writ of Prohibition is Also Appropriate Because Respondent Has No
Discretion to Continue to Preside over Relator’s Cases.
A writ of prohibition is appropriate to prevent future actions of Respondent in

this case. “A writ of prohibition must meet the same standards as a writ of
mandamus, the former being used to ‘prevent the commission of a future act whereas
17

 the latter operates to undo or nullify an act already performed . . . .” Medina, 475
S.W.3d at 297 (citing State ex rel., Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim.
App. 1985)); See also In re Amos, 397 S.W.3d at 312-13. There is no question that
Respondent intends to continue to preside over Relator’s cases as if consent had been
given under article 31.09. Respondent has entered a scheduling order, visited Harris
County to consider facilities and accommodation for trial, and entered an order
setting a hearing for later this week. (Appx. Tab 15-16). Additionally, Respondent
has informed the Collin County District Clerk of his intention to continue to preside
over the cases, and that the Collin County District Clerk will also continue to serve
as the clerk for the cases, just as if consent had been given and article 31.09 is
applicable. (Appx. Tab 14). As a result, the Clerk will not send the file to Harris
County. Id.
For the reasons articulated in the foregoing application for a writ of
mandamus, Respondent had no discretion to issue the scheduling order or his order
setting a hearing for Thursday, May 18th, all after changing venue, and may not
continue to preside over these cases absent the required consent from Realtor and
his counsel. Relator’s cases have been changed to Harris County where by statute,
they should be presided over by a judge in that venue. Because Relator has no
adequate remedy at law, a writ of prohibition should also issue.

18

 III.

Emergency Relief is Necessary to Prevent Respondent from Presiding in
Harris County.
Respondent has set a hearing in Harris County on a pleading by Relator for

Thursday, May 18, 2017. (Appx. Tab 15-16). Relator requests this Court to issue
an immediate stay of any action in Case Numbers 416-81913-2005, 416-821482005, and 416-82149-2005, until further Order of this Court and any ruling on
Relator’s Petition for Writ of Mandamus and for Writ of Prohibition.

PRAYER
In addition to the emergency stay requested immediately above, Warren
Kenneth Paxton, Jr., Relator, prays that this Court issue a writ of mandamus to vacate
Respondent’s scheduling order of April 12, 2017 as well as any other post-venue
change orders, and a writ of prohibition to prevent Respondent from further
presiding over these cases, including presiding over a hearing Relator has set for
Thursday, May 18, 2017. Relator also prays for such other and further relief, at law
or in equity, to which Relator may be entitled.
Respectfully submitted,
HILDER & ASSOCIATES, P.C.
/s/ Philip H. Hilder
Philip H. Hilder
Texas Bar No. 09620050
Q. Tate Williams
Texas Bar No.: 24013760

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 Paul L. Creech
Texas Bar No. 24075578
(713) 655-9111 telephone
(713) 655-9112 facsimile
philip@hilderlaw.com
tate@hilderlaw.com
paul@hilderlaw.com

CERTIFICATE OF REDACTION
I certify that I have made any necessary redactions in accordance with the
Orders of the Texas Supreme Court. None were required in this case.

/s/ Philip H. Hilder
Philip H. Hilder

CERTIFICATE OF COMPLIANCE
1. This Petition for Mandamus complies with the type-volume limitations of
Tex. R. App. P. 9.4 because it contains 3837 words, excluding the parts of
the Petition exempted by Tex. R. App. P. 9.4(i).
2. This Petition complies with the typeface requirement of Tex. R. App. P.
9.4(i)(3) because it has been prepared in a proportionally spaced typeface
using Microsoft Word 2016 in 14 point Times New Roman font.
Dated May 15, 2017.
/s/ Philip H. Hilder
Philip H. Hilder

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 RULE 52.3(j) CERTIFICATION
I have reviewed the Petition and concluded that every factual statement in the
Petition is supported by competent evidence in the appendix or record.

/s/ Philip H. Hilder
Philip H. Hilder

RULE 52.10(a) CERTIFICATION
I hereby certify that I have complied with TRAP 52.10(a) by notifying all
parties via electronic mail that a request for emergency relief has been filed prior to
or contemporaneous with the filing of this Petition.

/s/ Philip H. Hilder
Philip H. Hilder

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 AFFIDAVIT REGARDING APPENDIX PURSUANT TO RULES 52.3(k)
AND 52.7(a) OF THE TEXAS RULES OF APPELLATE PROCEDURE
STATE OF TEXAS

§
§
COUNTY OF TRAVIS §
Before me, the undersigned notary, on this day personally appeared Philip H.
Hilder, the affiant, a person whose identity is known to me, who under oath, testified
as follows:
1. "My name is Philip H. Hilder. I am Counsel for Relator Defendant Warren
Kenneth Paxton, Jr., in this mandamus proceeding. I am over 21 years of age, of
sound mind, and competent to make this Affidavit. I have personal knowledge of
the facts in this Affidavit, all of which are true and correct. I make this Affidavit on
behalf of the Relator in support of Relator's Petition for Writ of Mandamus.
2. Relator's Petition for Writ of Mandamus is supported by an Appendix containing
district court orders and the Parties' filings in the district court and other documents.
3. In compliance with Rules 52.3(k) and 52.7(a) of the Texas Rules of Appellate
Procedure, I attest that the pleadings, motions, orders, and other documents and
information contained in the Relator's Petition for Writ of Mandamus and its
Appendix are true and correct copies of such documents and information filed with,
or issued by, the district court, or from my file in this case.
4. Further, Affiant sayeth not."

Philip H. Hilder
SWORN to and SUBSCRIBED before me on this the 15th day ofMay 2017.

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 CERTIFICATE OF SERVICE
I certify that on May 15, 2017, I provided a copy of the foregoing Petition for
Mandamus and Request for Emergency Relief to all counsel of record by delivering
a true and correct copy to them by electronic delivery at the time this Petition was
filed.

/s/ Philip H. Hilder
Philip H. Hilder

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