In re Karyl Anderson Krug, No. 08-0082. This petition for mandamus relief was denied in today’s order list — just two days after it was filed. This is another election-related case. This one concerns an allegation that a candidate is improperly using the title “judge” in campaign materials. The Texas Lawyer Blog suggests that “Krug’s effort to force the Texas Ethics Commission to act immediately [on this complaint] … was short-lived.”
I think that probably overreads the Texas Supreme Court’s action today. The order list cites to Texas Rule of Appellate Procedure 52.3(e), which generally requires mandamus petitions to first be presented to a lower court. That’s the same rule that the Court cited a few weeks ago in dismisslng the first mandamus petition filed by LaRhonda Torry. After Ms. Torry did go through the lower courts (a process that took just a few days), the Texas Supreme Court subsequently granted her mandamus relief in a second proceeding. In re Torry, No. 08-0057.
The Court retains discretion over whether to invoke this aspect of Rule 52.3(e). Here’s what the rule says:
(e) Statement of jurisdiction. The petition must state, without argument, the basis of the court’s jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.
The Court’s action in dismissing these election-related mandamuses speaks volumes about its faith in the ability of the lower courts of appeals to handle mandamus petitions expeditiously. So, an election looming weeks or months away may not be sufficient grounds to skip the lower courts, without some particularly “compelling reason.”
The practice tip is this: Unless yours is a truly exceptional case, take your mandamus petition to the court of appeals and follow whatever procedures that court’s clerks office says are appropriate to signal to the court that expedited action is needed. (That may be a certain notation on the cover, a separate motion, or arranging with the clerk’s office in advance for a courtesy copy to be sent electronically in addition to the paper filing. Each clerk’s office may have different expectations, and calling to ask these questions is itself a good signal to the court that your petition is a time-sensitive one.) The lower court will almost certainly act expeditiously. If it for some reason does not, then present your petition to the Texas Supreme Court with an explanation of the steps you have taken.