JOHN F.

WARREN
COUNTY CLERK
DALLAS COUNTY
9/22/2022 10:34 AM
DALLAS COUNTY, TEXAS
BY: AE DEPUTY
MC22A-2146
CAUSE NO. _________________

JOSEPH J. SALOMON § IN THE COUNTY CRIMINAL

Petitioner. §
§
v. § COURT OF APPEALS NO. ____
1
§
CITY OF DALLAS MUNICIPAL §
COURT §
Respondent § DALLAS COUNTY, TEXAS

PETITION FOR WRIT OF PROCEDENDO

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Joseph J. Salomon in the above-styled and numbered cause, by and through

his attorney of record, Jason Lee Van Dyke and petitions this Court for a writ of procedendo

directed to the City of Dallas Municipal Court. As grounds therefore, Petitioner states as follows:

I. PARTIES AND FACTS

1.1 Petitioner, Joseph J. Salomon, whose address is 6500 Lazy Oak Lane, Plano, TX 75024 is

the Defendant in Docket No. 0002364132, styled State of Texas v. Joseph J. Salomon

before the City of Dallas Municipal Court. Petitioner is charged by information with the

Class C misdemeanor offense of public intoxication.

1.2 Notice of hearing on this writ should be served on Administrative Judge Preston

Robinson at 1500 Marilla Street, Dallas, TX 75201.

1.3 The facts of this case are not in dispute. Petitioner was arrested for the Class C

misdemeanor offense of public intoxication on April 11, 2010 and taken to jail. Petitioner

denies that he was intoxicated at the time of his arrest and erroneously believed, after he

was released from jail, that he would receive a notice to appear. The case was set for an

initial arraignment on May 2, 2010 at 8:00 a.m. and, due to his erroneous belief, he did

not appear. However, no warrant was issued for Mr. Salomon’s arrest and no further

PETITION FOR WRIT OF PROCEDENDO Page 1 of 10

 effort was made by the State of Texas to prosecute the case.

1.4 Petitioner did not know that charges were still pending against him until he received a

letter demanding payment of a fine in the amount of $590.20 from Linebarger, Goggan,

Blair & Sampson (a law firm used by municipalities to collect debts). Petitioner

immediately retained the undersigned counsel to represent him in this matter, at which

time counsel immediately filed a motion to dismiss the case due to violations of

Petitioner’s right to a speedy trial.

1.5 On September 6, 2022, counsel received a letter from the City of Dallas Municipal Court

stating that his motion would not be set for a hearing because the case required that a

bond be posted. This is despite the fact that, according to the online records of the City of

Dallas Municipal Court, no warrant had been (or has been) issued for Petitioner’s arrest.

A copy of those online records is attached hereto as Exhibit “A” and incorporated by

reference herein.

1.6 Counsel contacted the municipal court to explain the nature of the motion and insisted

that a hearing be scheduled on his motion. The court staff of the Dallas Municipal Court

adamantly refused to set Petitioner’s motion for a hearing and stated that counsel’s only

remedy was to travel to the court in person and speak to a supervisor at the attorney

window. A copy of the letter received by counsel when he attempted to enter his

appearance and file the motion to dismiss is attached hereto as Exhibit “B” and

incorporated by reference herein.

1.7 Frankly, the undersigned counsel has never before been treated with this level of

disrespect and unprofessionalism by any court or any court staff. Petitioner would show

that a Court cannot condition a hearing concerning a criminal defendant’s fundamental

PETITION FOR WRIT OF PROCEDENDO Page 2 of 10

 rights under the Sixth Amendment on that defendant first posting a bond of any kind. The

relief sought by Petitioner from this Court is simple: an order compelling the City of

Dallas Municipal Court to proceed with Petitioner’s case and set a hearing on his motion

to dismiss.

II. ARGUMENT AND CITATIONS TO AUTHORITY

A. A Municipal Court Is Only Permitted To Require A Bond To Secure a Defendant

Presence In Court; It Is Not A Condition Precedent To A Defendant’s Right To Be
Heard

2.1 In this case, there is no evidence of any action taken by the municipal court to move

Petitioner’s or compel Petitioner to appear before it to answer the charges against him

after he mistakenly failed to appear on May 2, 2022. In fact, a justice or judge may not

issue an arrest warrant for a defendant’s failure to appear at an initial court setting,

including a failure to appear as required by a citation under Tex. CCP Art. 14.06(b),

unless further notice is provided to the defendant. Tex. CCP Art. 45.014(e). There is

nothing contained in the municipal court’s record showing that this basic act was

performed, which explains why no warrant was ever issued for Petitioner following his

mistaken failure to appear.

2.2 The Texas Code of Criminal Procedure does permit a municipal court judge to require a

defendant to give a personal bond or a bail bond to secure his appearance. Tex. CCP Art.

45.016(a). However, the code does not authorize a municipal court to require a defendant

to give a bond as a condition precedent to the filing or a motion or a hearing on a motion.

In this case, by the filing of the motion, defendant has now appeared by and through the

undersigned counsel as allowed by Tex. CCP Art. 45.020.

2.3 The lower court is effectively in a “catch-22” situation. The Court has not issued a

PETITION FOR WRIT OF PROCEDENDO Page 3 of 10

 warrant for the arrest of Petitioner. There is nothing in the Court’s record indicating that

the notice required by Tex. CCP Art. 45.014(e) has ever been sent to Defendant. Counsel

has the right to appear on Defendant’s behalf under Tex. CCP Art. 45.020, and since he is

done so, the municipal court is no longer legally permitted to issue a warrant. Instead,

they have refused to hear any motions or other matter relating to Petitioner’s case until he

posts the requested bond. This is impermissible.

2.4 It makes sense that a municipal court cannot be permitted to refuse a hearing on a motion

pertaining to a defendant’s fundamental rights simply because the defendant has not

posted a bond (especially in the absence of an arrest warrant). By means of example, a

defendant confined to jail who has not posted any type of bond is nevertheless entitled to

a hearing on petitions for a writ of habeas corpus, motions to suppress evidence, and

other defense pleadings filed in defense of such an accused’s fundamental rights.

B. Definition of a Writ of Procedendo

2.5 A writ of procedendo is an extraordinary common law writ which issued out of the

common-law jurisdiction court of chancery, when judges of any subordinate court

delayed the parties, for that they would not give judgment either on one side or on the

other, when they ought to do so. In such a case, a writ of procedendo was awarded,

commanding the inferior court to give judgment, but without specifying any particular

judgment. Cavazos v. Hancock, 686 S.W.2d 284, 285 n. 1 (Tex. App. – Amarillo 1985).

In common practice, a writ of procedendo is commonly used by a court to order an

inferior court to execute a pre-existing judgment. Id. at n. 2. It should be noted that,

although specifically referenced in the Texas Constitution as well as case law, there is no

rule or statute defining the precise nature of a writ of procedendo in Texas.

PETITION FOR WRIT OF PROCEDENDO Page 4 of 10

C. The History of Writ of Procedendo in Texas

2.6 The Texas Constitution specifically references writs of procedendo in granting powers to

both the Texas Supreme Court and the Texas Court of Criminal Appeals. Tex. Const. Art.

V § 3 and 5. In this case, Petitioner requests an order from this court commanding the

City of Dallas Municipal Court to proceed to a hearing on his motion to dismiss the

criminal charges against him due to violations of his right to a speedy and impartial trial

under the Sixth Amendment. Naturally, there is a question as to whether a statutory

county court has jurisdiction to enter a writ of procedendo against a municipal court.

2.7 Remarkably, this is a case of first impression. There is no precedent in Texas under with

a statutory county court judge has entered a writ of procedendo against a municipal court

in which said municipal court was ordered to proceed to judgment in cases that had

languished before it for an unreasonable time or where a court was refusing to hold a

hearing on the merits of a motion implicating a criminal defendant’s fundamental rights.

Much discussion of writs of procedendo issues by courts other than the Texas Supreme

Court and the Texas Court of Criminal Appeals are from 19 th century cases in which

appeals from a justice court were made to a district court on a writ of certiorari. See e.g.

P.H. Clark v. Hutton, 28 Tex. 123 (Tex. 1866) (holding that a district court properly

directed a writ of procedendo to a justice of the peace after dismissing a writ of certiorari

in an action for forcible entry and detainer).

2.8 There are several cases in which the state has moved a county court for a writ of

procedendo in matters pertaining to its jurisdiction. In Shill v. State, the First District

Court of Appeals considered an appeal from a county court at laws action in dismissing

an appellants attempted appeal from a municipal court for a trial de novo and issuing a

PETITION FOR WRIT OF PROCEDENDO Page 5 of 10

 writ of procedendo to the municipal court. Cause No. 01-06-01046-CR (Tex. App. –

Houston [1st Dist.] May 3, 2012). The state, in that case, had moved for a writ of

procedendo because the defendant had failed to properly perfect his appeal to the county

court. Id. A similar action was taken in Mann v. Brown when a defendant sought an

injunction from a district court to collaterally attack a municipal court judgment where a

state had sought, and been granted, a writ of procedendo under similar circumstances.

Cause No. 789 (Tex. App. – Tyler Nov. 14, 1974). Accordingly, Texas appeal courts

have at the very least recognized a right of county courts to issue writs of procedendo to

municipal courts in criminal cases (although they have not previously considered their

use in the manner sought by Petitioner).

2.9 This limited authority is important in the context of this petition for an important reasons:

appellate courts have recognized the right of statutory county courts to issue writs of

procedendo to municipal courts in matters pertaining to their own jurisdiction.

D. A Writ of Procedendo Is Necessary In This Case To Enforce This Court’s

Jurisdiction

2.10 The Texas Constitution specifically address a writ of the type requested by Petitioner by

stating that a county court has the power to issue writs “necessary to enforce their

jurisdiction.” Tex. Const. Art. 5, § 16. This power of statutory county court judges is

further enumerated in Tex. Gov’t Code § 25.004(a).

2.11 A county criminal court of appeals in Dallas County has (1) sole jurisdiction in the

county of all appeals from criminal convictions for violation of state law or municipal

ordinances of municipalities located in the county in justice courts, municipal courts, or

municipal courts of record in the county; and (2) concurrent criminal original and

appellate jurisdiction in the county as provided by the constitution and by law for county

PETITION FOR WRIT OF PROCEDENDO Page 6 of 10

 courts. Tex. Gov’t Code § 25.0594(a). The manner in which an appeal from a final

judgment of conviction in a municipal court of record is set forth in Tex. Gov’t Code §

30.00014. See also Tex. CCP Art. 45.042.

2.12 It is obvious, from the clear language of these statutes, that the legislature intended to

grant this court jurisdiction to consider appeals from municipal courts. It is also clear that

both statute and the Texas Constitution grant this Court the power to issue writs

“necessary to enforce its jurisdiction”. Therefore, the remaining question is whether the

writ of procedendo requested by Petitioner is a writ “necessary to enforce the

jurisdiction” of this Court.

D. Although Petitioner Does Not Request That The Municipal Court Enforce A

Judgment, This Writ

2.13 The case is one of first impression because Petitioner is not seeking to execute a

judgment of a lower court. Rather, it is seeking a writ intended to compel a lower court to

hold a hearing on a motion implicating Petitioner’s constitutional right. Whether such a

writ constitutes one “necessary to enforce the jurisdiction” of this Court is a question of

law (and an interesting one at that).

2.14 The appellate authority of this court does not vest until after the entry of a final judgment.

Tex. Gov’t Code § 30.00014; Tex. CCP Art. 45.042. That is precisely why a writ of

procedendo is necessary to enforce the jurisdiction of this Court. The entry of a final

judgment in the municipal court of record triggers a timeline under which either party has

a right of appeal to this Court. Id. An error by a trial court in denying a motion to dismiss

for violations of a defendant’s speedy trial rights is certainly the type of matter which

could – and ought – to be addressed on a motion for new trial before a municipal court, or

PETITION FOR WRIT OF PROCEDENDO Page 7 of 10

 alternatively, before this court on appeal de novo. The failure and refusal of the municipal

court to even set a hearing in Petitioners case operates in such a manner as to depriuve

him of his right to ultimately seek relief from this Court (serving as a bar to its appellate

jurisdiction).

2.12 More simply put, the Dallas Municipal Court has consigned Petitioner’s case to what

might be described as a “judicial purgatory” under which Petitioner has three equally

unacceptable remedies: (a) posting bond as a condition precedent to vindicating his

constitutional rights; (b) risking further incarceration if the municipal judge ultimately

issues a warrant (although, for the reasons stated in this motion, the municipal court

likely lacks authority to do so under the Code); or (c) pleading guilty or no contest to a

crime he did not commit and then posting an even higher bond to appeal his case to this

Court. This Court should not permit a court over which it has appellate authority to

behave in such a manner.

III. CONCLUSION

3.1 Petitioner’s constitutional rights have already by violated by the inexcusable delay of the

State and of the courts in prosecuting the case against him. Now, his constitutional rights

are being further infringed upon by a court’s insistence that he post bond as a condition

precedent to availing himself of those rights and seeking a remedy to which he is entitled

under the law. Further, the municipal court is impeding the jurisdiction of this Court by

requiring a bond as a condition precedent to a hearing and the entry of any judgment

other than a judgment of conviction.

3.2 This Court has the right, both under statute and the Texas Constitution, to enter such

orders as are necessary to enforce its jurisdiction. This Court should enter an order

PETITION FOR WRIT OF PROCEDENDO Page 8 of 10

 compelling the City of Dallas Municipal Court to proceed to judgment in Petitioner’s

case – without specifying the nature of the judgment to be entered – and specifically find

that Defendant’s right to a hearing on his motions cannot be conditioned on the posting of

a bond by Defendant.

IV. PRAYER

4.1 WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Honorable Court

enter a writ of procedendo against the City of Dallas Municipal Court.

Respectfully submitted,

The Marsala Law Group P.L.L.C.

/s/ Jason Lee Van Dyke

Jason Lee Van Dyke
State Bar No. 24057426
1417 E. McKinney Street, #110
Denton, TX 76209
P – (940) 382-1976
F – (469) 453-3031
C – (940) 305-9242
Email: [email protected]

UNSWORN DECLARATION

My name is Jason Lee Van Dyke, my date of birth is April 3, 1980, and my address is 117
Hillcrest Lane, Decatur, TX 76234 in Wise County, Texas. I declare under penalty of perjury
that I am the attorney for Petitioner in the above-captioned petition for writ of procedendo, that I
have read the foregoing petition, and that it is true and correct to the best of my knowledge.

Executed in Denton County, State of Texas, on the 22 nd day of September, 2022

________________________________
Jason Lee Van Dyke

PETITION FOR WRIT OF PROCEDENDO Page 9 of 10

 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was served on the office of the Dallas City
Attorney at [email protected] by electronic delivery through the Texas e-filing
system on September 22, 2022.

/s/ Jason Lee Van Dyke

JASON LEE VAN DYKE

PETITION FOR WRIT OF PROCEDENDO Page 10 of 10

EXHIBIT
"A"
8/29/22, 6:56 PM Citation J10021457-01 | Dallas, TX Record Search

Citation J10021457-01
Docket 0002364132

Defendant
Name JOSEPH J SALOMON

Violations (1)
Citation J10021457
Warrant Violation Docket Status Fine Amount

No J10021457-01 0002364132 INITIAL ARRAIGNMENT (DUE DATE) Pay $590.20

PUBLIC INTOXICATION 5/2/2010 8:00am

General
Citation Information
Offense Description PUBLIC INTOXICATION

Citation Number J10021457

Violation Number 01

Docket Number 0002364132

Citation Date 4/11/2010 2:30am

Violation Location 5600 ALTO AVENUE

Officer Agency DALLAS POLICE DEPARTMENT

Jurisdiction

PD Case Number 98750X

Vehicle Information
Description 0000

https://www.municipalrecordsearch.com/dallastx/Cases/Detail?referrer=Case&citationNumber=J10021457&violationNumber=01&SearchBy=Name&S… 1/3
8/29/22, 6:56 PM Citation J10021457-01 | Dallas, TX Record Search

Status
Warrant Type N/A

Status INITIAL ARRAIGNMENT (DUE DATE)

5/2/2010 8:00am

Court Location UNKNOWN

Plea

Conviction Date

Type of Trial None

Fee Info
Total Costs Bond

Fines $385.00 Bond Set $590.20

Fees/Court Costs $205.20 Bond Posted $0.00

Amount Paid $0.00

Non-cash Credit $0.00

Unpaid Balance $590.20

Judgment
Judgment Details
Verdict None

Offense PUBLIC INTOXICATION

https://www.municipalrecordsearch.com/dallastx/Cases/Detail?referrer=Case&citationNumber=J10021457&violationNumber=01&SearchBy=Name&S… 2/3
8/29/22, 6:56 PM Citation J10021457-01 | Dallas, TX Record Search

Priors
Warrant Violation Docket Name Status Fine Amount

No J10021457-01 0002364132 JOSEPH J INITIAL ARRAIGNMENT Pay $590.20

PUBLIC SALOMON (DUE DATE)

INTOXICATION 5/2/2010 8:00am
Name: JOSEPH J
SALOMON

https://www.municipalrecordsearch.com/dallastx/Cases/Detail?referrer=Case&citationNumber=J10021457&violationNumber=01&SearchBy=Name&S… 3/3
EXHIBIT
"B"
 Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.

Jason Van Dyke

Bar No. 24057426
[email protected]
Envelope ID: 68509451
Status as of 9/22/2022 12:44 PM CST
Associated Case Party: City of Dallas Municipal Court
Name BarNumber Email TimestampSubmitted Status
Dallas CityAttorney's Office [email protected] 9/22/2022 10:34:41 AM SENT