No Statute, No Mandamus

The history-minded will recall that Marbury v. Madison, 5 U.S. 137 (1803), turned on a tension between the Judiciary Act and the Constitution’s grant of federal-court jurisdiction. So too, Justice Young’s concurrence in the denial of the mandamus petition in In re Dailey, No. 24-0382 (Tex. July 5, 2024), in which the petitioner challenged the handling of an FED petition by a justice of the peace:

Article V, § 3(a) of the Texas Constitution, however, provides that “[t]he Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.” In turn, the statute describing this Court’s general mandamus jurisdiction simultaneously announces some proper respondents (“a statutory county court judge, a statutory probate court judge, a district judge, a court of appeals or justice of a court of appeals, or any officer of state government”) and excludes some potential respondents (“the governor, the court of criminal appeals, or a judge of the court of criminal appeals”). Tex. Gov’t Code § 22.002(a). The only constitutionally impermissible respondent is the governor. See Tex. Const. art. V, § 3(a). But given the enumeration in the current statute, and that the enumeration does not include justice courts (although they are not expressly disclaimed by statute, either), the sounder approach has been to regard this Court’s mandamus jurisdiction as not reaching such courts unless it is necessary to enforce our own jurisdiction. See Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex. 1969).

No. 24-0382 (Tex. July 5, 2024).