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February 2020 Rodney Reed Writ of Mandamus

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February 2020 Rodney Reed Writ of Mandamus FILED 20-0128 2/20/2020 10:27 AM tex-41036309 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK NO. __________ IN THE SUPREME COURT OF TEXAS IN RE RODNEY REED, Relator. Original Mandamus Proceeding from the 21st District Court of Bastrop County, Texas Cause No. 8701 PETITION FOR WRIT OF MANDAMUS LEVATINO PACE PLLC BAKER BOTTS L.L.P. Andrew F. MacRae Scott D. Powers State Bar No. 00784510 State Bar No. 24027746 1101 S. Capital of Texas Highway Delaney J. McMullan Building K, Suite 125 State Bar No. 24106287 Austin, Texas 78746 98 San Jacinto Blvd., Suite 1500 512.637.8565 telephone Austin, Texas 78701 512.637.1583 facsimile 512.322.2500 telephone 512.322.2501 facsimile ATTORNEYS FOR RELATOR RODNEY REED ORAL ARGUMENT REQUESTED IDENTITIES OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 52.3(a), the following is a complete list of all parties, and the names and addresses of all counsel: Relator: Rodney Reed Counsel for Relator: Andrew F. MacRae LEVATINO PACE PLLC 1101 S. Capital of Texas Highway Building K, Suite 125 Austin, Texas 78746 Scott D. Powers Delaney J. McMullan BAKER BOTTS L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701 Respondent: Honorable Olen Underwood, Presiding Judge of the Second Administrative Judicial Region Real Party in Interest: State of Texas Counsel for Real Party in Matthew Ottoway Interest: Assistant Attorney General P.O. Box 12548 Capitol Station Austin, Texas 78711 Brian Goertz Bastrop County District Attorney 804 Pecan Street Bastrop, Texas 78602 i TABLE OF CONTENTS Identities of Parties and Counsel ................................................................... i Index of Authorities ..................................................................................... iv Statement of the Case .................................................................................. vii Statement of Jurisdiction ........................................................................... viii Issue Presented ............................................................................................ ix Introduction .................................................................................................. 1 Statement of Facts ......................................................................................... 3 Summary of Argument .................................................................................. 7 Argument ...................................................................................................... 9 I. This Court has jurisdiction to issue a writ of mandamus against a presiding judge who has made an improper judicial assignment. .................................................................... 9 A. The Government Code provides the Supreme Court with jurisdiction over issues related to judicial administration, including the assignment of visiting judges. ............................................................................... 9 B. This Court and the Court of Criminal Appeals consider the nature of the issue presented, not the underlying dispute, to determine whether the case is a “criminal law matter.” .................................................. 10 II. The Assignment Order was not authorized by chapter 74 of the Texas Government Code or the Rules of Judicial Administration. ........................................................................ 13 A. The Assignment Order contravenes chapter 74 of the Texas Government Code ................................................. 14 B. The Assignment Order similarly violates the Rules of Judicial Administration. ................................................. 16 ii C. The unauthorized assignment of a visiting judge violates Mr. Reed’s rights under the law. ......................... 17 III. The circumstances here justify the extraordinary remedy of mandamus relief. ...................................................................... 18 Prayer .......................................................................................................... 19 Rule 52.3(J) Certification ............................................................................ 21 Certificate of Compliance ............................................................................ 21 Certificate of Service .................................................................................... 22 Appendix ..................................................................................................... 23 iii INDEX OF AUTHORITIES Page(s) CASES Brady v. Maryland, 373 U.S. 83 (1963) .................................................................................. vii Ex parte Thuesen, 546 S.W.3d 145 (Tex. Crim. App. 2017) ...................................................19 Harrell v. State, 286 S.W.3d 315 (Tex. 2009) ............................................................... 11, 12 Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) .................................................... 10, 11, 12, 13 In re Hettler, 110 S.W.3d 152 (Tex. App.—Amarillo 2003, orig. proceeding) ............. viii In re Johnson, 280 S.W.3d 866 (Tex. Crim. App. 2008) .................................... 10, 12, 13 In re Keenan, 501 S.W.3d 74 (Tex. 2016) (orig. proceeding) (per curiam) ....................19 In re Reece, 341 S.W.3d 360 (Tex. 2011) (orig. proceeding) ...................................... 18 In re Rio Grande Valley Gas Co., 8 S.W.3d 303 (Tex. 1999, orig. proceeding [mand. denied]) (Hecht, J., dissenting) ......................................................................................... 18 In re Torres, 130 S.W.3d 409 (Tex. App.—Corpus Christi–Edinburg 2004, orig. proceeding) ............................................................................................ viii Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex. Crim App. 1993) ........................................ 12, 13, 17 State Bar of Texas v. Gomez, 891 S.W.2d 243 (Tex. 1994) ...................................................................... 9 iv Tex. Democratic Exec. Comm. v. Rains, 756 S.W.2d 306 (Tex. 1988) (orig. proceeding) ...................................... 11 United States v. Pearson, 203 F.3d 1243 (10th Cir. 2000) ..................................................... 8, 17, 18 TEXAS CONSTITUTION Tex. Const. art. V, § 3 ............................................................................. viii, 9 Tex. Const. art. V, § 7 ................................................................................8, 13 STATUTES AND RULES Bastrop (Tex.) Dist. Cts. Loc. R. 3 ................................................................. 3 Second Admin. J. Region of Tex. Regional R. of Admin. 7 .......................... 17 Second Admin. J. Region of Tex. Regional R. of Admin. 9 .......................... 17 Tex. Gov’t Code Chapter 74 .................................................................passim Tex. Gov’t Code § 24.002 ......................................................................... 8, 15 Tex. Gov’t Code § 24.003 .............................................................................14 Tex. Gov’t Code § 74.021 ...................................................................... viii, 10 Tex. Gov't Code § 74.024 ......................................................................... 8, 10 Tex. Gov’t Code § 74.047 .............................................................................. 15 Tex. Gov’t Code § 74.052 .......................................................................... 8, 15 Tex. Gov’t Code §§ 74.052-.062 ................................................................... 15 Tex. Gov’t Code § 74.053 ........................................................................ 12, 13 Tex. Gov’t Code §§ 74.054-.056 ...................................................................14 Tex. Gov’t Code § 74.055 ............................................................................... 4 Tex. Gov’t Code § 74.059 .............................................................................. 15 Tex. Gov’t Code § 74.092 ..............................................................................14 v Tex. Gov’t Code § 75.001 ............................................................................... 4 Tex. R. App. P. 52.3(e) ................................................................................ viii Tex. R. Civ. P. 330(e) ....................................................................................14 Tex. R. Jud. Admin. 8 ........................................................................... 2, 8, 16 vi STATEMENT OF THE CASE Nature of the Relator Rodney Reed was convicted and sentenced to underlying death in the 21st District Court of Bastrop County on proceeding: May 29, 1998. State of Texas v. Reed, No. 8701 (21st Dist. Ct., Bastrop Cty., Tex.). In November 2019, Mr. Reed filed an application for the writ of habeas corpus in the 21st District Court, raising claims (1) that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) that the State presented false testimony in violation of due process; (3) that Mr. Reed’s trial counsel were ineffective; and (4) that he is actually innocent. App. O (Application for Writ of Habeas Corpus, Ex parte Reed, No. WR-50,961-10 (Tex. Crim. App. Nov. 12, 2019)). The Texas Court of Criminal Appeals remanded all but Mr. Reed’s ineffective assistance claim for further development. App. P, at 3-4 (Order, Ex parte Reed, No. WR-50,961-10 (Tex. Crim. App. Nov.
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