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

This is an original application for writ of habeas corpus filed in this Court. Applicants are Texas residents who were summoned to appear as material witnesses before a California grand jury on February 11, 2026, under the authority of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Uniform Act). Texas has adopted, as part of our Code of Criminal Procedure, the Uniform Act, and this State is a participant in the requirements of that act. See Tex. Code Crim. Proc. art. 24.28; In re Pick, 664 S.W.3d 200, 202 (Tex. Crim. App. 2022) (Yeary, J., dissenting) (“Article 24.28 allows such compelled travel, and submission to the compulsory process laws of another state, only when the proceeding to be attended are ‘criminal’ in nature, or where they are conducted by an actual ‘grand jury.’ ”). Today, the Court denies Applicants leave to file without written opinion. I dissent.

The target of the California grand jury investigation is Applicants’ son, David Burke, who is being investigated for the murder of a 14-year-old girl. Under Article 24.28, before a Texas judge orders a Texas resident to another state to testify, a hearing must be held and the Texas judge must determine that the witness is “material and necessary,” that the travel will not cause undue hardship to the witness, and that the laws of the state to which he is being ordered to travel will protect him from arrest and criminal prosecution. Tex. Code Crim. Proc. art. 24.28(b).

Applicants contend that at a hearing held on February 3, 2026, by a district court judge in Waller County pursuant to Article 24.28(b), the State refused to give Applicants an unredacted version of the petition of attendance attached to the California certificate stating why Applicants were material witnesses in the California grand jury investigation. Applicants state that the district court judge and the State were working with unredacted versions, but Applicants were not allowed to see the full version of the documents, so Applicants were not able to adequately defend against the certificate from the California court (“the notice issue”). The district court nevertheless ordered Applicants to appear before the California grand jury, on February 11th.

The order of events and proceedings in these cases is as follows:

• January 15, 2026 – The California Superior Court issued a certificate for Applicants to appear on February 11, 2026. The summons was supported by a petition for attendance that set out the reasons to believe they had material and necessary information to provide the California grand jury.

• January 18, 2026 – The district court in Waller County, Texas, signed a show cause order for Applicants to appear.

• January 20, 2026 – The district court in Waller County issued the show cause order.

• January 20-22, 2026 – Applicants apparently retained counsel.

• January 23, 2026 – The initial district court hearing occurred.

• February 2, 2026 – A follow-up hearing occurred in the district court, at the conclusion of which the district court served Applicants with a summons to appear before the California grand jury on February 11th.

• February 3, 2026 – Applicants filed an original application for writ of habeas corpus in the district court.

• February 6, 2026 – The district court denied the original application for writ of habeas corpus.

• February 6, 2026 – An original application for writ of habeas corpus was filed in the First Court of Appeals of Texas.

• February 9, 2026 – The First Court of Appeals denied the original application writ of for habeas corpus.

• February 9, 2026 – An original application for habeas corpus was filed in the Texas Court of Criminal Appeals.

• February 10, 2026 – The Court of Criminal Appeals stayed the proceedings, sealed the record, and ordered the district court to respond to certain questions as noted below.

• February 11, 2026 – Applicants would have had to appear before the California grand jury but for this Court's stay.

• February 20, 2026 – The district court responded.

As mentioned, on February 9, 2026, the original application for writ of habeas corpus was filed in this Court. On the same day—just two days before Applicants were to appear before the California grand jury—we also received Applicants’ emergency motions to stay the order compelling Applicants to appear before the California grand jury and their motions to seal the records in this Court. On February 10th, this Court granted both motions and ordered the district court to respond to the following three questions: (1) whether the notice issue is moot; (2) if the notice issue is moot, then whether it is capable of repetition, yet evading review; and (3) if the notice issue is capable of repetition, yet evading review, then whether the witnesses’ due process rights were violated by the district court making its findings in the Article 24.28 hearing with unredacted information while not providing that information to Applicants. In re Burke, No. WR-97,378-01, 2026 WL 377010 (Tex. Crim. App. February 10, 2026) (not designated for publication); In re Burke, No. WR-97,379-01, 2026 WL 376517 (Tex. Crim. App. February 10, 2026) (not designated for publication).

The district court found that the notice issue is now moot, rendered so by this Court's stay of the proceedings, which relinquished Applicants’ obligation to appear before the California grand jury. However, even though this issue is now moot, the district court found that it is almost certain that the California court will issue another certificate requesting Applicants to testify “in the foreseeable future[,]” and that, thus, the situation is capable of repetition while the notice issue will continue to evade review. (Implicit in this finding/conclusion is that the district court would once again limit Applicants’ access to the unredacted petition of attendance in any future Article 24.28(b) hearing.)¹ Finally, the district court reviewed the case on the merits and found that the petition of attendance supporting the California certificate was sufficient—with or without the redacted information—to show that the witnesses are material and necessary to the California grand jury's inquiry. The district court also found that there was nothing in 24.28(b) that prevented it from making its decision based on the unredacted information even though the witnesses themselves were not provided with the redacted information.

I would file and set this case so this Court can examine the following questions: first, whether the notice issue is capable of repetition and evading review, since it is likely that Applicants will be facing another imminent summons from California to testify, with little time to react and respond; and second, if so, whether a judge holding a hearing pursuant to Article 24.28(b) may prohibit Applicants from reviewing an un-redacted version of the petition of attendance offered in support of the certificate requesting their summons in the interest of preserving grand jury confidentiality.

I believe that Applicants have presented at least a prima facie case that relief is warranted as an “exception to ordinary rules related to mootness” and that we should grant review of the questions presented before us. Pick, 664 S.W.3d at 203 (Yeary, J., dissenting). “Th[e] doctrine [of the exception to ordinary rules related to mootness] only applies in exceptional circumstances where two circumstances are simultaneously present: 1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and 2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Pick, 664 S.W.3d at 201–202 (Newell, J., concurring). It is almost certain that Applicants will be facing another Article 24.28 certificate from the California court. Given the gravity of the California offense under investigation, we will likely be in a similar position: presented once again with the notice issue but with insufficient time to resolve it before Applicants are required to appear in California, thus causing us to once again stay the proceedings. These circumstances warrant our review of the notice issue now under the capable-of-repetition-but-evading-review exception to mootness.

I can envision four possible outcomes from this Court's decision today to deny Applicants leave to file. The first possible outcome is that the California court simply decides not to issue another Article 24.28 certificate for Applicants to appear before the California grand jury. This is an unlikely outcome, as the district court found, given the gravity of the offense and, especially if, as the California court claims, Applicants are truly necessary and material witnesses.

The second possible outcome is that the California court does decide to issue another Article 24.28 certificate but this time the district court in Waller County decides to provide Applicants with the unredacted version of the petition of attendance, thus eliminating the notice issue. In this scenario, the notice issue would not recur. However, this scenario is highly unlikely given the district court's response to our remand, in which it justified the redaction for the sake of grand jury secrecy—a justification we cannot presently examine if we declare the notice issue to be unripe because it is moot.

The third possible outcome is that the California court decides to issue another Article 24.48 certificate, but the district court once again provides Applicants only the redacted petition of attendance and this Court is once again provided with insufficient lead time to review the case and must therefore once again stay the proceedings. This seems the most likely scenario, and it would certainly establish that the notice issue is capable of repetition while evading review. In that case, we should be able to reach the merits of the issue now.

The fourth possible outcome I can envision is that the California court decides to issue another Article 24.28 certificate, but this time the proceedings in the district court in Waller County provide us with enough lead time to fully consider the notice issue before it should once again become moot by the necessity of another stay order to preserve the status quo. In this situation, we would certainly be able to reach the merits of the notice issue in this case in the foreseeable future.

The last two scenarios—far and away the most likely—all require the California grand jury, Applicants, the attorneys, the State, the district court, potentially the court of appeals, and this Court to go through virtually the same steps again, but weeks, if not months, down the road. This seems like an utterly unjustifiable delay. Should we ultimately find it necessary to stay the proceedings a second time (outcome three), we will undoubtedly declare the notice issue cognizable, and reach it then, since it demonstrably recurred. But even if we can reach this issue next time because we are provided with adequate time to resolve before we would render it moot with a stay order (outcome four), we are just postponing the inevitable, making the parties go through the numerous steps again that are duplicative of the original Article 24.28 proceedings, but to no good end. For these reasons, I think that there is no call to be so rigid in our application of the mootness-exception doctrine simply to postpone the inevitable when it clearly does not make any kind of logistical sense for anybody or any party involved.

Because the Court summarily denies leave to file, review of these issues will only be needlessly delayed. I would file and set today to determine the notice issue in these cases. Because the Court does not, I respectfully dissent.

FOOTNOTES

1.   Both during the Article 24.28 hearings and in its response to this Court pursuant to our February 10th order, the district court made clear the reason it believed Applicants were not privy to the redacted portions of the petition of attendance: grand jury secrecy. “Both California and Texas law specifically mandate that subpoenas and summons relating to Grand Jury investigations be kept secret to prevent unauthorized disclosure of Grand Jury matters.” Findings of Fact and Conclusions of Law at 12.

Yeary, J., filed a dissenting opinion.