In Re Smith Barney, Inc., Relator

Justice Hankinson filed a concurring opinion, in which Justice Enoch, Justice Spector, and Justice Baker joined.

Because the trial court did not clearly abuse its discretion by following binding legal precedent, the Court correctly concludes that mandamus should be denied. The consequence of that conclusion should be that the relief sought by the relator is denied. But by overruling H. Rouw Company v. Railway Express Agency , 154 S.W.2d 143 (Tex. Civ. App. -- El Paso 1941, writ ref'd), the Court effectively grants Smith Barney all the relief it seeks and firmly establishes a new basis for mandamus relief in general: "[A]lthough a lower court ordinarily should not be said to have abused it discretion in following existing law, even if that law is no longer valid or should be significantly changed, in denying mandamus relief it is appropriate to state what the correct law is in order to permit the lower court to reconsider its decision." ___ S.W.2d at ___. In my view this approach undermines the requirements of Walker v. Packer , 827 S.W.2d 833 (Tex. 1992), and creates more uncertainty in an already uncertain area of practice. Accordingly, while I concur in the judgment, I write separately to explain my view that the Court has moved far afield from the mandamus standards it recites and purports to follow.

Generally, mandamus should not issue unless the relator shows that the trial court committed an abuse of discretion for which there is no adequate remedy at law. See Walker, 827 S.W.2d at 839. The Court agrees that the trial court did not abuse its discretion by following Rouw . As for the second requirement, adequacy of an appellate remedy, the Court has previously determined that the expense of pursuing trial and appeal does not of itself justify mandamus relief. See, e.g. , CSR Ltd. v. Link , 925 S.W.2d 591, 596 (Tex. 1996); Walker , 827 S.W.2d at 842. Under these circumstances, the Court's decision to consider the merits of Rouw gives relator the benefit of an ultra vires interlocutory appeal.

The uncertainty created by the Court's approach in this case is even more troubling. When the Court makes relief available in the absence of a trial court's abuse of discretion and a showing that an ordinary appeal would be inadequate, litigants are unable to predict what they must show to obtain relief. In lieu of standards, and without guidance, litigants are simply put to guessing what issue will catch the attention of five justices at any given time. Unpredictability may well encourage more petitions, with the result that resources will have been wasted on mandamuses that should never have been filed.

Finally, the authority the Court cites to support its argument that it must change the law in this proceeding for the benefit of the trial court and parties does not help. Although the Court claims to follow "a consistent line of mandamus cases," ___ S.W.2d at __, these cases either are distinguishable or represent aberrations in the Court's mandamus jurisprudence, which, to the extent they are persuasive, do not justify the uncertainty they engender. For example, Doctors Hospital Facilities v. Fifth Court of Appeals , 750 S.W.2d 177 (Tex. 1988), involved violations of legal duties to perform a ministerial act by a court of appeals panel. The case was not decided under the clear abuse of discretion standard. Phoenix Founders, Inc. v. Marshall , 887 S.W.2d 831 (Tex. 1994), and National Tank Co. v. Brotherton , 851 S.W.2d 193 (Tex. 1993), likewise can be distinguished. Phoenix Founders involved a motion to disqualify a law firm, while National Tank involved privileged documents. Cases such as these traditionally prompt us to emphasize that the harm at issue cannot be remedied by appeal. This case, in contrast, involves a motion to dismiss -- an incidental pretrial ruling that is not typically appropriate for mandamus relief. See Abor v. Black , 695 S.W.2d 564, 566-67 (Tex. 1985) (citing Pope v. Ferguson , 445 S.W.2d 950, 953-54 (Tex. 1969)).

While Street v. Second Court of Appeals , 756 S.W.2d 299 (Tex. 1988), and Crown Central Petroleum Corp. v. Garcia , 904 S.W.2d 125 (Tex. 1995), did involve some modification of the underlying substantive law in a mandamus proceeding, Lunsford v. Morris , 746 S.W.2d 471 (Tex. 1988), is the only case the Court cites that is squarely like the case presented today. The approach in Lunsford , however, has been roundly criticized, despite its seeming appeal. And the fact the Court has modified the law previously in one or two mandamus proceedings is not a compelling reason to continue to do so. Rather, the Court should leave the question of whether Rouw should be overruled to be considered in due course on ordinary appeal.

By relaxing mandamus standards to in effect grant Smith Barney relief, the Court firmly establishes a practice I cannot but view as unwise. The Court's approach retreats from our mandamus standards and contravenes our duty to promote certainty and predictability in the law. Accordingly, while I agree that mandamus should not issue, I cannot join the Court's opinion.

Deborah G. Hankinson

Justice

OPINION DELIVERED: July 3, 1998