In Re State of Texas Ex Rel. Kim Ogg

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-95,880-01

IN RE STATE OF TEXAS EX REL. KIM OGG, Relator

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
AND PETITION FOR WRIT OF MANDAMUS
IN CAUSE NO. 0760321
IN THE 338TH CRIMINAL DISTRICT COURT
HARRIS COUNTY

Per curiam.

OPINION

Before us are (1) the State’s motion for leave to file a petition for a writ of

mandamus and (2) the accompanying petition, styled “Relator’s Emergency Petition for a

Writ of Mandamus Requiring Judge Ramona Franklin to Withdraw the Court’s Order

Recalling the Execution Order and Death Warrant of Arthur Lee Burton.” Because this

case involves a death sentence, it was proper for the State to file the motion and petition

in this Court. Cf. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003).
IN RE STATE OF TEXAS EX REL. KIM OGG—2

Real-Party-in-Interest Arthur Lee Burton was convicted of capital murder and

sentenced to death in June 1998. On direct appeal, this Court affirmed the judgment of

guilt but reversed Burton’s death sentence and remanded the case for a new punishment

trial. Burton v. State, No. AP-73,204 (Tex. Crim. App. Mar. 7, 2001) (not designated for

publication). In September 2002, following a second punishment trial, Burton was again

sentenced to death. On direct appeal from this resentencing, this Court affirmed Burton’s

death sentence. Burton v. State, No. AP-73,204 (Tex. Crim. App. May 19, 2004) (not

designated for publication). Mandate issued June 2004.

To date, Burton has filed two postconviction habeas applications under Texas

Code of Criminal Procedure Article 11.071: one attacking his conviction and initial death

sentence, the other attacking his second death sentence. 1 This Court ultimately denied

relief on both applications. See Ex parte Burton, No. WR-64,360-02 (Tex. Crim. App.

Apr. 22, 2009) (not designated for publication) (first application); Ex parte Burton, No.

AP-75,790 (Tex. Crim. App. Apr. 1, 2009) (not designated for publication) (second

application). As of the date of this opinion, Burton has not filed a third 11.071

application.

On May 1, 2024, 2 Respondent, Judge Ramona Franklin of the 338th District Court

of Harris County, Texas, entered an order (Execution Order) scheduling Burton’s

Unless otherwise specified, all mentions of “Articles” and “Chapters” in this
1

opinion refer to the Articles and Chapters of the Texas Code of Criminal Procedure.
2
Unless otherwise specified, all subsequent dates in this opinion refer to the year
2024.
IN RE STATE OF TEXAS EX REL. KIM OGG—3

execution for August 7. The record before us suggests that, on the same day Respondent

entered the Execution Order, the clerk of the convicting court signed and stamped with

the court’s seal multiple documents styled “DEATH WARRANT.” As relevant here:

• Burton’s counsel received one of these signed, stamped documents in person

and in court on May 1 (Death Warrant “A”);

• Burton’s counsel received another of these signed, stamped documents through

the mail on May 2 (Death Warrant “B”); and

• On May 31, there came to be filed in the convicting court another signed,

stamped document, missing at least one page but including a filled-out

“RETURN” section, attesting that the Harris County Sheriff had delivered

“this warrant” to “the Director of the Texas Department of Criminal Justice –

Correctional Institutions Division on the 29th of May, 2024” (Death Warrant

“C”).

Death Warrants “A,” “B,” and “C” do not appear to be photocopies of one another.

Indeed, the State concedes that “each document was individually signed and certified,

rather than one original signed and copied.”

On July 19, Burton filed in Respondent’s court a “Motion to Recall Death Warrant

for Noncompliance with Mandatory Statutory Requirements of Tex. Code Crim. Pro.

Arts. 43.15 and 43.16.” Burton argued that the irregularities between Death Warrants

“A,” “B,” and “C” showed that, at some point, someone (perhaps the convicting court

clerk, perhaps the Sheriff of Harris County, perhaps both) failed to comply with Articles

43.15 and/or 43.16. He therefore urged Respondent to “issue an order recalling the
IN RE STATE OF TEXAS EX REL. KIM OGG—4

operative death warrant.”

Following a contested hearing on Burton’s motion, and over the State’s objection,

Respondent granted Burton’s motion via an order dated July 26 (Recall Order). The

Recall Order states, “The Execution Order and Death Warrant are hereby recalled and

shall be modified to reflect a new execution date.” The Order also directs the State to

“propose a new execution date in compliance with Tex. Code Crim. Pro. Article 43.141.”

Relator Kim Ogg, the District Attorney of Harris County, promptly brought this

mandamus action challenging the Recall Order. She offers three arguments in support of

mandamus relief. First, Relator argues that Article 43.141 contemplates only two

circumstances under which a convicting court can withdraw or modify an execution date

once it has been set, neither of which is present in this case. See Art. 43.141(b-2), (d).

Second, Relator contends that even if Articles 43.15 and 43.16 were violated in this case,

Respondent was not at liberty to remedy those violations, because Articles 43.15 and

43.16 do not (as Article 43.141 does) expressly authorize a convicting court to remedy

instances of noncompliance. Third, Relator posits that there was no Article 43.15 or

43.16 violation in this case—so that even if convicting courts are sometimes authorized to

remedy Article 43.15 and Article 43.16 violations, Respondent’s remedial action in this

case was unauthorized.

After receiving and reviewing Burton’s “Response to Relator’s Motion for Leave

to File Petition for Writ of Mandamus and Petition for Writ of Mandamus,” and “Motion

for Stay of Execution,” we invited Respondent to explain her rationale as to why, and by

what jurisdiction and authority, she issued the Recall Order. In re State ex rel. Ogg, No.
IN RE STATE OF TEXAS EX REL. KIM OGG—5

WR-95,880-01, at 4–5 (Tex. Crim. App. Jul. 29, 2024) (not designated for publication).

Respondent promptly and respectfully informed this Court that she would stand on the

explanation and rationale she gave at the hearing on Burton’s motion.

Leave to file is granted. To obtain mandamus relief from this Court, Relator has to

establish two things. First, she must show that she has no adequate remedy at law to

redress her alleged harm. In re State ex rel. Young, 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007). Second, she must show that the act she seeks to compel is “ministerial.” Id.

This second requirement is satisfied if the relator can show she has a clear right to the

relief sought—that is, when the facts and circumstances dictate but one rational decision

under unequivocal, well-settled, and clearly controlling legal principles. See id. Here,

Burton does not dispute that Relator has no adequate remedy at law from the Recall

Order. This case will therefore turn on the second, ministerial-act prong.

It is well settled that a trial court must derive its jurisdiction from either the Texas

Constitution or legislative enactments. See, e.g., Staley v. State, 420 S.W.3d 785, 795

(Tex. Crim. App. 2013). When a conviction has been affirmed on appeal and mandate has

issued, general jurisdiction is not restored in the trial court. Id. A trial court can obtain

postconviction jurisdiction over a matter statutorily—for example, to set an execution

date, conduct DNA testing, or determine whether an inmate is competent to be executed.

Id. But the statutes bestowing jurisdiction over these matters also define the scope of that

jurisdiction. Id. And even when a trial court has jurisdiction over a matter, it may lack

authority to take a certain action. Id.
IN RE STATE OF TEXAS EX REL. KIM OGG—6

As relevant here, Article 43.141 endows a convicting court with limited

jurisdiction to “reset[] . . . the execution date” or otherwise “modify or withdraw the

order of the court setting a date for execution in a death penalty case.” See Art.

43.141(b-2), (d). But as mentioned, the statute bestowing that jurisdiction also defines its

scope. Staley, 420 S.W.3d at 795. And as Relator correctly observes, Article 43.141 sets

out only two circumstances under which the convicting court may exercise that

jurisdiction. First, when the appropriate parties have not been timely provided a copy of

the order setting the execution date, “the exclusive remedy . . . is the resetting of the

execution date.” See Art. 43.141(b-1), (d). Second, if the convicting court determines that

additional proceedings are necessary on an application for a writ of habeas corpus filed

under Article 11.071 or a motion for forensic testing of DNA evidence submitted under

Chapter 64, “[t]he convicting court may modify or withdraw the order of the court setting

a date for execution.” Art. 43.141(d).

For Respondent to exercise the limited jurisdiction bestowed by Article 43.141,

she needed a pleading before her properly invoking it. See In re State ex rel. Hicks, No.

WR-95,092-01, at 6–7 (Tex. Crim. App. Sept. 18, 2023) (not designated for publication)

(reasoning that the convicting court lacked jurisdiction because it had no “pleading before

[it] invoking a legitimate source of district-court jurisdiction”). Here, Burton presented

Respondent with a “Motion to Recall Death Warrant” expressly invoking Articles 43.15

and 43.16. And while the Motion alleged several instances of noncompliance with those

statutes, at no point did it allege facts that would trigger Article 43.141’s limited grant of

district-court jurisdiction to reset, withdraw, or modify an already-set execution date.
IN RE STATE OF TEXAS EX REL. KIM OGG—7

Burton argues that Articles 43.15 and 43.16 are themselves legitimate sources of

district-court jurisdiction. But those articles do not expressly provide for remedies in

cases of noncompliance, as Article 43.141 does. Compare Arts. 43.15, 43.16, with Art.

43.141(b-2). What this shows is that when the Legislature wishes to give convicting

courts limited jurisdiction to oversee certain processes pertaining to executions, it knows

how to do so. See Art. 43.141(b-1), (d). Here, the plain import of Articles 43.15 and

43.16, when read in concert with Article 43.141, is that the Legislature has declined to

give convicting courts jurisdiction to remedy instances of noncompliance with Articles

43.15 and 43.16. So even if Burton’s “Motion to Recall” substantiated one or more

violations of Articles 43.15 and 43.16—and we express no opinion on that question

here—the Motion nevertheless failed to invoke a legitimate source of district-court

jurisdiction.

By issuing an order when she had neither general jurisdiction nor a pleading

before her invoking a legitimate source of special or limited jurisdiction, Respondent

violated a ministerial duty. See In re Medina, 475 S.W.3d 291, 298 (Tex. Crim. App.

2015) (“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.”) (internal quotation

marks omitted); see also State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002)

(plurality op.) (“Without jurisdiction, the trial court has no power to act.”). She therefore

has a ministerial duty to “undo” that violation. See Medina, 475 S.W.3d at 298.
IN RE STATE OF TEXAS EX REL. KIM OGG—8

Relator has shown that she is entitled to mandamus relief. Relief is granted.

Respondent shall immediately rescind her order of July 26 purporting to recall the

execution order and death warrant. In light of this holding, Burton’s Motion for Stay of

Execution is denied. No motions for rehearing will be entertained. The Clerk of this

Court is instructed to issue mandate immediately.

Delivered: July 30, 2024
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