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The State of Texas v. Robert Michael Gault
Case Number: 01-22-00157-CR
Judge: Honorable Judge 339th District Court
Court of Appeals
First District of Texas
On appeal from the 339th District Court of Harris County
The Honorable Kim K Ogg
Jessica A. Caird
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Dallas, Texas – Criminal Defense lawyer represented defendant with a felony offense of murder charge.
On February 13, 2022, officers from the Jersey Village Police Department
were dispatched to an apartment complex related to a shooting. When they arrived,
the officers found the deceased body of an adult man, identified as Dontrae Rashad
Thomas, lying in the parking lot. Richard Michael Gault was standing near Thomas’s
body. Gault told the police that he had shot Thomas six times with a firearm but
claimed that he had done so in self-defense.
1 The underlying case is The State of Texas v. Robert Michael Gault, Cause No.
1758852, pending in the 339th District Court of Harris County, Texas, the
Honorable Te’iva Bell, presiding.
Gault was holding his cell phone in his hand, and one of the police officers
told Gault to drop the phone so that Gault could be handcuffed. The police removed
other items, including keys, from Gault’s pocket and placed them on the ground.
Gault was arrested, and the police collected Gault’s cell phone, keys, and other items
from the scene as evidence, securing them in the police department’s property room.
The next day, the State presented a complaint against Gault, which was filed
with the district clerk and assigned to the 339th District Court of Harris County (the
district court). In the complaint, the State alleged that Gault had committed the
felony offense of murder. See TEX. PENAL CODE § 19.02(b).
On February 21, 2022—eight days after Thomas was killed—Gault filed a
“Motion for Return of Seized Property,” asking the district court to order the police
to return his cell phone and his keys. He stated that the police had been holding his
property since his arrest “without any probable cause or a valid search warrant” and
“solely [for] the purpose of a fishing expedition.”
That same day, the district court conducted a hearing at which Gault asked the
court to reduce the amount of his bond. Gault also asked the court to grant his motion
to return his cell phone and his keys. The State informed the district court that the
alleged murder offense had just occurred eight days before the hearing, it did not
“have an offense report,” and could not “confirm one way or the other the
circumstances about the defendant’s property whatsoever.” The district court stated
that, because it did not see a warrant for Gault’s cell phone in its file, “[t]here’s no
legal authority to hold the phone.” The district court then signed an order granting
Gault’s motion, ordering the return of the cell phone and keys.
The next day—February 22, 2022—Gault’s counsel emailed the district court,
stating that the Jersey Village Police Department was “refusing to follow the [district
court’s] order to return Mr. Gault’s cellphone and his keys.” The attorney explained
that she had spoken with the police department, which indicated that they “would
not give us the phone” because they intended to obtain a search warrant for it.
That day, the State also filed a motion to reconsider the district court’s order
granting the return of the seized property. The State asserted that it had learned from
the police that Gault’s cell phone contained evidence related to the murder and that
the police were “in the process” of obtaining a search warrant for it. In response,
Gault filed a brief in support of his previously granted motion to return the seized
property. He asserted that his cell phone should be returned to him because the State
had not provided evidence showing that his phone contained “contraband” or
evidence related to the alleged murder offense. The district court emailed the parties
instructing them to appear for a hearing on February 23, 2022, to discuss the return
of Gault’s property.
At the February 23 hearing, the State asked the district court to reconsider its
order requiring the police to return Gault’s cell phone. The State informed the district
court that Lieutenant H. Hawley of the Jersey Village Police Department, who had
participated in the investigation at the murder scene, was present in the courtroom
and had signed a search-warrant affidavit for the cell phone. Lieutenant Hawley also
testified at the hearing. He explained that the police took the cell phone, marked it,
and placed it in the police property room because “it was in the middle of a crime
scene [as] determined by officers when they arrived on-scene.” The State also asked
the district court to “bifurcate the warrant and leave out the keys,” indicating that the
State agreed that the keys should be returned to Gault. The district court rejected the
State’s search-warrant application for the cell phone. At the end of the hearing, the
district court stated that it would issue its order regarding the State’s motion to
reconsider the next day.
On February 24, 2022, the State filed a brief in support of its motion to
reconsider. The State argued that the order to return Gault’s cell phone was void
because, at that stage of the proceedings, the district court had no authority to issue
the order. At a hearing that day, the State told the district court that it had intended
to elicit testimony from Lieutenant Hawley at the earlier hearing to show that the
decedent, Thomas, and Gault had a relationship before Thomas was killed, but the
State asserted that it was prevented from eliciting the testimony because the district
court had “stopped” Lieutenant Hawley’s testimony. The State asserted that “[the]
relationship will be highly relevant evidence to a murder prosecution where the
defendant is claiming self-defense.” It stated that it was attempting “to get to the
probable cause statement necessary for a search warrant,” but “[the] investigation
ha[d] not been completed yet” because it had only been ten days since the murder.
The State also informed the district court that it did not oppose returning the
keys to Gault, but the court denied the State’s request to separate the return of the
keys from the return of the cell phone. The district court instructed the parties to file
what they wanted the court to consider by 5:00 p.m. the next day and to file any
response to the other party’s filing by 5:00 p.m. the following day. The court also
informed the parties that it would issue its order regarding the State’s motion to
reconsider on March 1, 2022.
Gault filed a motion for a restraining order, requesting the district court to
restrain the State from using or copying his keys or from “viewing, inspecting,
downloading, or copying any of the contents of [his] cell phone.” On February 25,
2022, the district court held a short hearing to address the motion. The court did not
grant the motion, stating that a restraining order was not necessary because the
court’s order requiring the return of Gault’s property already prevented the State
from engaging in the conduct that Gault sought to restrain. The State reiterated its
willingness to return the keys to Gault but not the cell phone. The district court again
stated that it would not handle the return of the keys and the cell phone separately
for reasons of “judicial economy.” The parties also filed additional briefing.
Disposing of the State’s motion to reconsider, the district court signed an
“Order to Return Seized Property” on March 1, 2022, ordering the State [to] appear
in the 339th District Court on March 2, 2022 at 10:00 a.m. and return Mr. Gault’s
keys and [A]ndroid cell phone that is currently being held by the Jersey Village
Police Department.” The order recited that the court had “reviewed the probable
cause statements, search warrants, testimony, hearings and all of the case law
provided by both parties.” The district court found that the State had “not met its
burden in establishing the probable cause necessary to obtain a search warrant for
the items in question.” The court further found that the State had “failed to establish
a nexus between the items seized and the crime that was committed.” To support the
order, the district court also cited Code of Criminal Procedure article 18.13, which
provides that if “the magistrate” is “not satisfied, upon investigation, that there was
good ground for the issuance of the warrant, he shall discharge the defendant and
order restitution of the property taken from him, except for criminal instruments.”
TEX. CODE CRIM. PROC. art. 18.13.
The district court also conducted a hearing on March 1. At the hearing, the
court explained the content of the March 1 order and provided the parties with a
copy. During the hearing, the State informed the district court that the judge of
another criminal district court—the 209th District Court of Harris County—had
issued a search warrant for Gault’s cell phone.
As required by the March 1 order, the 339th District Court instructed the
parties to return to court the following morning with Gault’s cell phone and keys.
The court also instructed the State to bring the search warrant signed by the judge of
the 209th District Court so that the court could review the search-warrant affidavit
to determine whether it was sufficient to support the warrant.
That same day, the State filed a notice of appeal. In the notice, the State
indicated that it was appealing the February 21 order requiring the police to return
Gault’s cell phone and keys and the March 1 order, which implicitly denied the
State’s motion to reconsider the February 21 order and required the State to return
the keys and cell phone the next day. The State also filed an emergency motion for
temporary relief asking this Court to stay the district court’s orders and “all trial
court proceedings.” On March 2, 2022, we granted the motion, staying the February
21 and March 1 orders and all trial court proceedings pending disposition of the
On March 2, 2022, the parties returned to the 339th District Court, and the
State informed the court that it had appealed the orders. Gault renewed his request
for a restraining order to enjoin the State from searching his cell phone pursuant to
the search warrant issued by the 209th District Court. The district court denied
Gault’s request for a restraining order. The court stated that a restraining order was
not necessary because the court’s “preexisting order” requiring the return of Gault’s
cell phone “render[ed] any search of the phone invalid” and that, “if there is a
standing Court order in place to return and it’s [searched] in violation of the Court
order, then [the court] anticipate[d] there [would] be problems with the admission of
said evidence” obtained by the search warrant. The district court also remarked that
there may be “ramifications” if the police relied on the 209th District Court’s search
warrant and searched Gault’s phone.
On May 12, 2022, the State also filed a petition for writ of mandamus in this
Court complaining of the February 21 and March 1 orders. In the petition, the State
asserts that, if its interlocutory appeal is dismissed for lack of jurisdiction, then it is
entitled to mandamus relief, requiring the district court to vacate the February 21
and March 1 orders because they are void.
Although we had already issued an order in the interlocutory appeal staying
the two orders and all trial court proceedings, the State also filed a motion for
emergency temporary relief with its mandamus petition. The State asked that we stay
all trial court proceedings to ensure that a stay remained in effect if we ruled against
the State in the appeal. On May 19, 2022, we granted the motion for temporary relief,
staying the February 21 and March 1 orders and all trial court proceedings until we
disposed of the mandamus petition or “until further order of this Court.”
Return of Seized Property
In the interlocutory appeal and in the original mandamus proceeding, the State
argues that the February 21 and March 1 orders (the orders), requiring the State to
return Gault’s cell phone and keys, are void because the 339th District Court did not
have jurisdiction over the criminal case and the district court judge, acting as
magistrate, lacked authority to issue the orders.
A. Interlocutory Appeal
Gault asserts that this Court lacks jurisdiction over the State’s interlocutory
appeal. We agree.
The State is entitled to appeal an order in a criminal case as authorized by law.
TEX. CONST. art. V, § 26. Code of Criminal Procedure article 44.01(a) lists the type
of orders that the State is permitted to appeal. See TEX. CODE CRIM. PROC. art.
44.01(a). However, article 44.01(a) “does not authorize the State to appeal an order
returning seized property.” In re Search Warrant Seizure, 273 S.W.3d 398, 400 (Tex.
App.—San Antonio 2008, pet. ref’ d) (dismissing appeal of order that returned
In determining our jurisdiction, we find the case of In re Gambling Devices &
Proceeds instructive. 496 S.W.3d 159, 161 (Tex. App.—San Antonio 2016, pet
ref’d). There, the State seized property from the appellees’ home pursuant to a search
warrant. Id. The appellees then filed a motion “seeking the return of all personal
property taken from their home pursuant to article 18.13 of the Texas Code of
Criminal Procedure.” That article “provides that if the magistrate is not ‘satisfied,
upon investigation, that there was good ground for the issuance of the warrant, he
shall discharge the defendant and order restitution of the property taken from him,
except for criminal instruments.’” Id. at 161–62 (quoting TEX. CODE CRIM. PROC.
art. 18.13). Following an evidentiary hearing, the trial court granted the appellees’
motion and ordered law enforcement to return appellees’ property to them pursuant
to article 18.13. See id. at 162. The State then appealed the trial court’s order, but
the court of appeals held that it did not have jurisdiction to consider the appeal
because article 44.01(a) “[did] not grant the State the right to appeal a trial court’s
order [issued] pursuant to article 18.13.” Id. at 163–64.
Here, as its jurisdictional basis, the State points to article 44.01(a)(5), which
permits the State to appeal a trial court’s order granting a motion to suppress
evidence. TEX. CODE CRIM. PROC. art. 44.01(a)(5). The State also relies on the
principle that it may appeal an order if the order’s effect is the same as an order
expressly listed as appealable in article 44.01(a). See, e.g., Garcia v. State, 638
S.W.3d 679, 685 (Tex. Crim. App. 2022) (holding that, because order granting new
trial is appealable under article 44.01(a), and order granting habeas corpus relief and
vacating appellees’ conviction was “the functional equivalent of an order granting a
new trial,” State could appeal order).
The State acknowledges that the district court’s orders do not expressly grant
a motion to suppress evidence, but it contends that the district court’s orders
requiring the return of Gault’s property effectively operate as an order granting a
motion to suppress because, if executed, either order “will result in the State’s loss
of the cell phone, which will necessarily prevent the State from introducing evidence
from the phone at trial.” The State contends that “[t]his is true even though another
judge has signed a search warrant authorizing a search of the phone.”
As support for its contention, the State points to the remarks by the district
court that its “preexisting order” requiring the return of Gault’s cell phone
“render[ed] any search of the phone invalid” and that, “if there is a standing Court
order in place to return and it’s [searched] in violation of the Court order, then [the
court] anticipate[d] there [would] be problems with the admission of said evidence”
obtained by the search warrant issued by the other court. The State also points to the
district court’s remark that there may be “ramifications” if the police relied on the
search warrant and searched Gault’s phone.2
We disagree with the State that the effect of the district court’s orders
requiring the State to return Gault’s cell phone were effectively the same as granting
a motion to suppress. As one court noted, “Suppression of evidence and return of
In an earlier hearing, the district court referred to Gault’s motion to return his
property as a motion to suppress, but later, the court clarified that it did not view the
motion as a suppression motion.
property are not the same relief.” In re Search Warrant Seizure, 273 S.W.3d at 400
(citing State v. Thirty Thousand Six Hundred Sixty Dollars and no/100, 136 S.W.3d
392, 404 (Tex. App.—Corpus Christi 2004, pet. denied)).
As defined by the Court of Criminal Appeals, “a motion to suppress evidence
is one in which the defendant (or the State) claims that certain evidence should not
be admitted at trial for a constitutional, statutory, evidentiary or procedural reason.”
State v. Medrano, 67 S.W.3d 892, 901 (Tex. Crim. App. 2002). Thus, the relief
provided by an appealable order granting a motion to suppress is the exclusion of
evidence at trial. See id. at 901–02. That is its purpose. See id. In contrast, the relief
provided by the district court’s February 21 and March 1 orders, in response to
Gault’s motion to return the seized property, was the restoration to him of his keys
and cell phone. The remarks of the district court judge relied on by the State do not
change that. As discussed, the reason for the district court’s remarks, indicating that
it anticipated “problems” with the admissibility of the evidence obtained from
Gault’s cell phone, was to explain why the court believed a restraining order was
unnecessary to prevent the State from searching the cell phone. The district court
was not making an evidentiary ruling, which at that point would have been
theoretical. Thus, the district court’s orders to return Gault’s property to him do not
have the same effect as an order granting a motion to suppress.
Because article 44.01 does not authorize the State to appeal the orders
requiring the return of the seized property to Gault, we do not have jurisdiction to
consider the interlocutory appeal. TEX. CODE CRIM. PROC. art. 44.01(a).
Accordingly, the appeal is dismissed for lack of jurisdiction. See In re Gambling
Devices, 496 S.W.3d at 163–64; In re Search Warrant Seizure, 273 S.W.3d at 400.
B. Original Mandamus Proceeding
In the original proceeding, the State seeks issuance of a writ of mandamus
directing the district court to vacate its orders requiring the State to return the seized
property. As in the appeal, the State bases its request for relief on its assertion that
the orders are void because the 339th District Court was without jurisdiction over
the criminal case and the district court judge, as magistrate, was without authority to
1. Standard of Review
A relator is entitled to mandamus relief against a trial court when (1) the
relator has no other adequate legal remedy and, (2) the act sought to be compelled is
purely ministerial. In re State ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App.
2021). Regarding the first prong, here, the State has no adequate remedy because, as
discussed, it has no right to an interlocutory appeal of the orders and because any
later right to complain depends on events that may not occur, such as an appeal from
an order granting a motion to suppress evidence obtained from Gault’s cell phone.
See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (“The State has no
adequate remedy because it had no immediate right to appeal the trial court’s order
refusing to disqualify counsel and because its only ultimate right to complain would
be a cross-point that depends on the defendant taking an appeal from a conviction.”).
The Court of Criminal Appeals has also “held that an appeal from a void proceeding
does not constitute an adequate remedy at law for purposes of a mandamus
proceeding.” State ex rel. Wice v. Fifth Jud. Dist. Ct. of Appeals, 581 S.W.3d 189,
194 (Tex. Crim. App. 2018). And we have recognized that “mandamus will issue to
vacate a void order even when there is an adequate remedy by appeal.” In re Off. of
Att’y Gen. of Tex., 264 S.W.3d 800, 805 (Tex. App.—Houston [1st Dist.] 2008, orig.
Regarding the second prong, “[a]n act is purely ministerial if the relator has a
clear and indisputable right to the relief sought, i.e., when the facts and
circumstances of the case dictate but one rational decision under unequivocal, wellsettled, and clearly controlling legal principles.” In re Yeager, 601 S.W.3d 356, 358
(Tex. Crim. App. 2020). “This requirement of a ministerial duty is sometimes
discussed in terms of a trial court’s authority or jurisdiction.” In re Gambling
Devices, 496 S.W.3d at 164. “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. (quoting 43B Dix & Schmolesky, TEX. PRAC. § 61:29
(2011)). In other words, a trial court has a ministerial duty to vacate a void order.
See State ex rel. Thomas v. Banner, 724 S.W.2d 81, 85 (Tex. Crim. App. 1987) (orig.
proceeding) (“Absent proper jurisdiction, it was the trial court’s ministerial duty to
vacate the orders.”).
A trial court’s order is void if the record shows the trial court had no
jurisdiction over the parties, no subject-matter jurisdiction, no jurisdiction to enter
the order, or no capacity to act as a court. In re Paxton, Nos. 05-17-00508-CV, 05-
17-00509-CV, ––– S.W.3d ––––, 2017 WL 2334242, at *3 (Tex. App.—Dallas May
30, 2017, orig. proceeding). And, when a judge acts lacks authority to issue an order,
the order is void. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 425 (Tex.
Crim. App. 1990) (orig. proceeding) (en banc) (holding that, because district court
judge, sitting as magistrate, “did not have the authority” to issue orders “restraining
State from presenting evidence of the liable offenses before the grand jury,” orders
In short, “[m]andamus is available when a judge acts outside of his court’s
jurisdiction, i.e., when the judicial act is void.” In re Off. of Att’y Gen. of Tex., 264
S.W.3d at 805. And “[i]f a district judge enters an order for which he has no statutory
authority, mandamus will issue.” Salinas, 784 S.W.2d at 423. Thus, here, if the
district court lacked jurisdiction or the district court judge lacked statutory authority
to issue the orders requiring the return of the seized property, then the State is entitled
to mandamus relief.
The Texas Constitution requires that, unless waived by the defendant, the
State must obtain a grand jury indictment in a felony case. Teal v. State, 230 S.W.3d
172, 174 (Tex. Crim. App. 2007) (citing TEX. CONST. art. I, § 10). “The presentment
of a valid indictment vests the district court with jurisdiction of the cause.” Jenkins
v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (citing TEX. CONST. art. V §
12(b)); see Teal, 230 S.W.3d at 174–75 (“Absent an indictment or valid waiver, a
district court does not have jurisdiction over that case.”); Garcia v. Dial, 596 S.W.2d
524, 527 (Tex. Crim. App. 1980) (orig. proceeding) (“[I]t is well settled that a valid
indictment, or information if indictment is waived, is essential to the district court’s
jurisdiction in a criminal case.”).
“A trial court’s jurisdiction over a criminal case consists of the power of the
court over the ‘subject matter’ of the case, coupled with ‘personal’ jurisdiction over
the accused.” Jenkins, 592 S.W.3d at 898. “Unlike in civil cases, where personal
jurisdiction over a party may be had merely by that party’s appearance before the
court, criminal jurisdiction over a person requires the filing of a valid indictment or
information.” Id. “[S]ubject-matter jurisdiction requires both a general grant of
authority to the trial court and a charging instrument that invokes that jurisdiction
over the particular case.” Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App.
2009) (emphasis omitted).
The attachment of jurisdiction “conveys upon that court the power to
determine all essential questions and to do any and all things with reference thereto
authorized by the Constitution and statutes, or permitted district courts under
established principles of law.” Garcia, 596 S.W.2d at 527–28 (internal quotation
marks omitted). “[T]hat jurisdiction embraces everything in the case and every
question arising which can be determined in the case, until it reaches its termination
and the jurisdiction is thereby exhausted.” Id. at 528.
Here, when the 339th District Court signed the orders to return the seized
property, no indictment or information had been presented, and Gault had not waived
indictment. Only a complaint had been filed. Thus, the court lacked jurisdiction over
this case “to determine all essential questions.” See Jenkins, 592 S.W.3d at 898; Teal,
230 S.W.3d at 174–75; Garcia, 596 S.W.2d at 527–28.
District court judges are authorized by Code of Criminal Procedure article
2.09 to sit as magistrates. See TEX. CODE CRIM. PROC. art. 2.09. We have previously
recognized, “It is the custom in Harris County for district judges, before the return
of an indictment, to sit as a magistrate on complaints filed in their court.” McBee v.
State, 981 S.W.2d 694, 697 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (citing
Salinas, 784 S.W.2d at 424; TEX. CODE CRIM. PROC. art. 2.09).
In Salinas, the Court of Criminal Appeals addressed the authority of a
The duties and authority attending to the role of magistrate “within the
meaning of” the Code of Criminal Procedure are clearly set out in Arts.
2.10 and 2.11, V.A.C.C.P. A magistrate is provided the authority to
hold an examining trial by virtue of Art. 16.01, V.A.C.C.P.
784 S.W.2d at 424. The court explained that the traditional and statutory purposes
of an examining trial are to determine whether probable cause exists, to set bail, to
appoint counsel, and to perpetuate the testimony of witnesses. Id.; see TEX. CODE
CRIM. PROC. art. 16.01. The Salinas court recognized that Government Code section
21.001 provides that a court has all the powers necessary for exercise of its
jurisdiction and enforcement of its lawful orders. 784 S.W.2d at 425–26 (citing TEX.
GOV’T CODE § 21.001). But the court explained that “a court of limited jurisdiction,
such as an examining court, is not provided with greater authority than necessary to
fulfill its statutory role.” Id.
Here, the judge of the 339th District Court had no greater authority than
necessary to fulfill her statutory role as magistrate. See id. Because there was no
indictment when the district court judge signed the orders requiring the return of the
seized property, the judge “had only the power to act as a magistrate, the same
authority a justice of the peace has under [article 2.09 of the Code of Criminal
Procedure].” McBee, 981 S.W.2d at 697; see TEX. CODE CRIM. PROC. art. 2.09
(listing, among others, justice of the peace and district court judges as officers that
can function as magistrates). That power does not include the authority to order the
return of seized property. See McBee, 981 S.W.2d at 697 (holding that, in case where
no indictment had been returned, district court judge only had authority of a
magistrate; thus, judge had no power to dismiss case with prejudice based on ground
of collateral estoppel and district court’s dismissal order was void). Because the
district court did not have jurisdiction over the criminal case and ordering the return
of the seized property was beyond the statutory authority of the district court judge
as magistrate, the orders requiring the return of Gault’s seized property are void. See
Salinas, 784 S.W.2d at 525; Banner, 724 S.W.2d at 85.
In his response to the State’s mandamus petition, Gault contends that the
339th District Court was authorized to issue the orders. He points to a 2006 Harris
County Direct Filing Order—signed by the former Administrative Judge, Criminal
Division—governing “the filing, assignment, and docketing of felony cases” in
Harris County criminal courts.3 The Direct Filing Order provides that the “district
clerk shall accept and file all felony complaints presented and initiate a case file and
identify each case with a unique file number.” The “cases shall be assigned to one
3 Gault provided the following link to the Harris County Direct Filing Order:
er%202006.pdf. We note that we are permitted to take judicial notice of “a fact that
is not subject to reasonable dispute because it: . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” TEX.
R. EVID. 201(b)(2); see id. 201(c)(1) (providing court “may take judicial notice on
of the district courts trying criminal cases” by using an automated, random
Gault relies specifically on the following provision of the order: “Upon the
filing of said complaint, jurisdiction is vested in the district court sitting as a
magistrate to which the case has been pre-assigned.” Gault contends that the 339th
District Court “was vested with jurisdiction under the Harris County Direct Filing
Order once the State filed a complaint against Mr. Gault on February 14, 2022.”
Gault implies that the Direct Filing Order provided the district court with jurisdiction
over the instant criminal case without the presentment or waiver of an indictment.
However, Gault’s reading is contrary to the established principle that “[a]bsent an
indictment or valid waiver, a district court does not have jurisdiction over [a] case.”
Teal, 230 S.W.3d at 174–75. In accordance with this principle, we do not read the
Direct Filing Order to give the district court jurisdiction over the criminal case;
rather, we read it to mean that the judge of the district court, to which the complaint
has been assigned, will sit as the magistrate for that case. Our reading is also
consistent with our previous recognition that “[i]t is the custom in Harris County for
district judges, before the return of an indictment, to sit as a magistrate on complaints
filed in their court.” McBee, 981 S.W.2d at 697. And, as discussed, a district court
judge, sitting as a magistrate, lacks the authority to issue an order to return seized
property.4 See id.
Gault also contends that, as magistrate, the judge of the 339th District Court
had the authority to order the return of the seized property pursuant to Code of
Criminal Procedure article 18.13—one of the grounds mentioned in the March 1
order. As noted, article 18.13 provides that if “the magistrate” is “not satisfied, upon
investigation, that there was good ground for the issuance of the warrant, he shall
discharge the defendant and order restitution of the property taken from him, except
for criminal instruments.” See TEX. CODE CRIM. PROC. 18.13. Gault argues that,
under this provision, the judge of the 339th District Court had the discretion to
review the search warrant for his cell phone issued by the judge of the 209th District
Court and, after the review, return the phone to him. We disagree.
Chapter 18 of the Code of Criminal Procedure governs search warrants. See
id. arts. 18.01–18.24. In In re Cornyn we determined that “Chapter 18 uses ‘the
4 Even if we were to read the Direct Filing Order as Gault advocates, we find no
authority to support any assertion that the administrative judge for the criminal
courts in Harris County had the power to enlarge the jurisdiction of the district courts
by giving them jurisdiction over a criminal case before the filing or waiver of an
indictment. Government Code section 74.092 lists the duties of a local
administrative judge at the county level. See TEX. GOV’T CODE § 74.092. These
duties include the requirement that the local administrative judge “shall . . .
implement and execute the local rules of administration, including the assignment,
docketing, transfer, and hearing of cases,” but the statute provides no authority for
the administrative judge to enlarge the jurisdiction of the courts in the county in
which he or she presides. See id. § 74.092(a)(1).
magistrate’ to mean the one to whom the search warrant is ordered returned.” 27
S.W.3d 327, 334 (Tex. App.—Houston [1st Dist.] 2000, original proceeding)
(emphasis in original). Here, the search warrant signed by the judge of the 209th
District Court was ordered returned to that court. Thus, as we determined in Cornyn,
the judge of the 339th District Court was not “the magistrate” under article 18.13
who could order restitution of the seized property. That provision provided no
authority to the 339th District Court to order restoration of Gault’s property to him.
Moreover, as the State points out, Gault’s cell phone was not seized from him
pursuant to the search warrant, rather it was seized by the police when he was
arrested at the murder scene.
Gault further argues that, even if article 18.13 does not support the district
court’s orders, we should nonetheless deny the State’s request for mandamus relief
based on the equitable doctrine of unclean hands. Gault does “not dispute Cornyn’s
holding that Chapter 18 uses ‘the magistrate’ to mean the one to whom the search
warrant is ordered returned,” but he asserts that “the State’s petition should be denied
because [it] acted with ‘unclean hands’ by manipulating procedures in bad-faith” to
the deprive the 339th District Court judge, as magistrate, authority over his motion
to return the seized property. Gault contends that “the State got a search warrant
from a different magistrate so that under Cornyn, [the judge of the 339th District
Court] effectively had no authority under Chapter Eighteen.” He asserts that, “[e]ven
if [this] Court does not agree that [the judge of the 339th District Court] had
jurisdiction and authority to order the return of Mr. Gault’s property, the Court
should reject the State’s argument and deny its petition for want of good faith” based
on the doctrine of unclean hands.
Because the orders restoring the seized property are void due to the district
court’s lack of jurisdiction and authority, the equitable doctrine of unclean hands
cannot apply. See In re Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.—Fort
Worth 2012, orig. proceeding) (holding that equitable doctrines “such as laches,
waiver, or estoppel are not applicable when the order that is the subject of the
mandamus proceeding is void”). An equitable remedy, such as unclean hands,
cannot confer jurisdiction when jurisdiction is lacking. See Davis v. Dallas Cnty.
Sch., 259 S.W.3d 280, 286 (Tex. App.—Dallas 2008, no pet.) (holding that subjectmatter jurisdiction cannot be conferred by equitable doctrines of waiver or estoppel)
(citing, inter alia, Wilmer–Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293,
294–95 (Tex. 2001) (per curiam) (“A party cannot by his own conduct confer
jurisdiction on a court where none exists. Even if the District misled Sullivan as she
claims, her failure to exhaust her administrative remedies is fatal to her action.”)).
Finally, Gault contends that the State is not entitled to mandamus relief
because it “flouts controlling precedent by using its petition as a substitute for
appeal.” Gault cites the following principle: “The effect of an appeal is to suspend
and arrest all further proceedings in a case in the trial court, until the judgment of
the appellate court is received by the trial court.” Ray v. State, 227 S.W.2d 216, 218
(Tex. Crim. App. 1950). Gault then points out that, in its mandamus petition, the
State requested a stay of the trial court proceedings “in the event that this Court
denies the State’s appeal prior to ruling on this writ of mandamus.” Gault asserts that
“the State is using its petition as a proxy for the powers of appeal by effectively
requesting this Court to ‘suspend and arrest all further proceedings . . . until the
judgment of [this Court] is received’” by the district court. Gault then asserts, “Such
relief is strictly reserved for appellate courts, yet the State uses its petition to compel
actions that can only be granted but upon appeal.” However, Gault is incorrect in his
assertion. Rule of Appellate Procedure 52.10 permits a relator, such as the State, to
“file a motion to stay any underlying proceedings or for any other temporary relief
pending the court’s action on the petition” in an original proceeding. TEX. R. APP. P.
52.10(a). The rule also provides that this Court may “grant any just relief pending
the court’s action on the petition.” Id. 52.10(b).
As discussed, the State filed a motion for temporary relief in the interlocutory
appeal, asking us to stay the February 21 and March 1 orders and all trial court
proceedings, which we granted. See id. 29.3 (“When an appeal from an interlocutory
order is perfected, the appellate court may make any temporary orders necessary to
preserve the parties’ rights until disposition of the appeal . . . .”). While the State
requested in its mandamus petition the temporary relief cited by Gault, the State also
filed, along with its petition, a motion for temporary relief as allowed by Rule 52.10,
asking us to stay the February 21 and March 1 orders and all trial court proceedings.
We granted that motion as well, staying the orders and all trial court proceedings as
permitted by Rule 52.10. Thus, Gault’s assertion that we should deny mandamus
relief because the State has “flout[ed] controlling precedent by using its petition as
a substitute for appeal” is without merit.
In sum, we conclude that the 339th District Court’s orders, requiring the State
to return Gault’s property, are void because the district court lacked jurisdiction over
the criminal case and the district court judge, sitting as magistrate, lacked authority
to sign the orders. Thus, we hold that the State is entitled to the mandamus relief that
Outcome: In appellate cause number 01-22-00157-CR, we dismiss the appeal for lack of
jurisdiction. In appellate cause number 01-22-00364-CR, we conditionally grant the
State’s petition for writ of mandamus and direct the 339th District Court to vacate
its February 21, 2022 and March 1, 2022 orders requiring the State to return Gault’s
keys and cell phone to him. We are confident that the district court will promptly
comply, and the writ will only issue if it does not.5