EX PARTE DAWUD BURKE COLLEEN BURKE v. << (2026)

Motion for leave to file original application for writ of habeas corpus denied.

The subpoenas that gave rise to the writ application in this case required attendance at a court setting in California that has since passed. The issue regarding the propriety of the subpoenas is now moot. I join the Court's decision to deny leave to file the original habeas application because there is no longer any restraint against the applicants.¹

Here's the underlying problem. The California prosecutor seeking to subpoena residents of Texas submitted a subpoena to secure the attendance of the applicants.² Along with that subpoena, the California prosecutor also included information from a California grand jury establishing the materiality of the witnesses, but under seal. The Texas prosecutor receiving the subpoena redacted the grand jury information, presumably because of Texas law that requires grand jury proceedings to be secret.³ However, the Texas prosecutor submitted the unredacted information to the trial court without providing that unredacted information to the applicants or their attorney.

Here's a solution. The prosecutors from both states need to coordinate on how to include information establishing materiality of the witnesses from sources other than information that was discovered during grand jury proceedings.⁴ Information from an investigating officer, for example, would not need to be submitted under seal or redacted. If the prosecution does that, this issue will not repeat.⁵ If they don't do that, then we can address the issue at the next round of subpoenas, assuming they even issue and the applicants file a new writ application. But right now, there is nothing for the original writ of habeas corpus to remedy.

With these thoughts I join the Court's order denying leave to file.

FOOTNOTES

1.   I question whether the “capable of repetition but evading review” exception to mootness can or should apply to an original writ of habeas corpus application when there is no longer any restraint. This case is not like the mandamus filed in In re Pick in that applicants are not challenging a governmental entity's authority to act in a matter that might persist beyond the current controversy. See In re Pick, 664 S.W.3d 200 (Tex. Crim. App. 2022); see also In re Richardson, 252 S.W.3d 822, 830-31 (Tex. App.—Texarkana 2008) (“noting the purpose of both a writ of mandamus and a writ of prohibition is typically used to protect the subject matter on appeal or to prohibit the unlawful interference with the enforcement of a superior court's orders and judgments). A writ of habeas corpus is directed at a particular restraint. See Ex parte Kleinman, 721 S.W.3d 400, 404 (Tex. Crim. App. 2025) (noting that the writ of habeas corpus is the remedy to be used when any person is restrained in his liberty). Now that the restraint is gone (and there are certainly no collateral consequences that flow from a dead subpoena) the writs cannot issue. Applying a mootness exception would effectively turn a writ of habeas corpus into a writ of prohibition.

2.   Tex. Code Crim. Proc. art. 24.28.

3.   Tex. Code Crim. Proc. art. 20A.202.

4.   Tex. Code Crim Proc. art. 24.28.

5.   Indeed, the issue in In re Pick, did not repeat.