Edward B. Lyon, Jr. v. The State of Texas--Appeal from 102nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00142-CV

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EDWARD B. LYON, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 05C1227-102

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Edward B. Lyon, Jr., appeals from an order denying his application for a writ of audita querela and quo warranto. In his application, Lyon attempted to have the trial court, based on newly discovered evidence, revisit his 1988 conviction. // Lyon based his claim on his contention that the judge who presided at his criminal trial was disqualified because the judge was too closely related to the murder victim.

The remedy of audita querela is, according to Black's Law Dictionary, a "writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses." Black's Law Dictionary 141 (8th ed. 2004); see State v. Vasquez, 889 S.W.2d 588 (Tex. App. Houston [14th Dist.] 1994, no pet.). Although the antique remedy was formally abolished in the civil federal system, see Fed. R. Civ. P. 60(b), no such formal action has been taken in Texas.

However, the remedy has been cited only twice in reported Texas opinions. In both cases, a criminal defendant was attempting to set up a collateral attack on a criminal conviction. In McBride v. State, 114 S.W.3d 556, 557 (Tex. App. Austin 2002, no pet.), the court addressed the matter head-on. The court concluded that, under Texas law, the sole method for raising a post-conviction attack on a conviction was through an application for writ of habeas corpus, returnable to the Texas Court of Criminal Appeals. //

In Vasquez, the Houston court concluded the petitioner was not entitled to relief without deciding whether such use of the writ was proper. 889 S.W.2d at 590 91.

We find the reasoning set out in McBride to be persuasive. The statutory language of the Article 11.07 writ was designed to limit collateral attacks on convictions to habeas proceedings. For this reason, the trial court properly dismissed Lyon's audita querela application.

Lyon also sought application of the writ of quo warranto, to challenge the authority of a duly elected district judge. // Lyon argues he should be relieved from imprisonment because it was entered by a district judge who is "constitutionally and lawfully by statute DISQUALIFIED to have presided in this case." The nature of this writ is to inquire into the authority by which a public office is held or a franchise is claimed. See Black's Law Dictionary 1285 (8th ed. 2004). A writ of quo warranto is an ancient common-law writ that gave the king an action against a person who claimed or usurped any office, franchise, or liberty, to inquire by what authority that person supported the claim to hold office. See Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79, 86 (Tex. App. Austin 2004, pet. denied); State ex rel. City of Colleyville v. City of Hurst, 519 S.W.2d 698, 700 (Tex. Civ. App. Fort Worth 1975, writ ref'd n.r.e.).

In the modern context, quo warranto proceedings are governed by statute. Under Section 66.002(a) of the Civil Practice and Remedies Code, only the "attorney general or the county or district attorney of the proper county" may bring an action in the nature of quo warranto. Tex. Civ. Prac. & Rem. Code Ann. 66.002(a) (Vernon 1997); see Wilson v. State, 977 S.W.2d 379, 380 (Tex. Crim. App. 1998). As such, quo warranto actions are described as "those through which the State acts to protect itself and the good of the public generally." Fuller Springs v. State ex rel. City of Lufkin, 513 S.W.2d 17, 19 (Tex. 1974); Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. Amarillo 2004, no pet.). Thus, the State may use a quo warranto action to challenge the authority to engage in certain practices specifically enumerated by statute. See Tex. Civ. Prac. & Rem. Code Ann. 66.001 (Vernon 1997). //

Because of the specific nature of the action and the statutory limitation specifying that only the State may utilize the action to protect itself and its citizens, the remedy is not available for use by Lyon.

We affirm the order of dismissal.

Donald R. Ross

Justice

Date Submitted: February 21, 2006

Date Decided: February 22, 2006