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: jason@[Link]
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 [Link]@[Link] 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
[Link] 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
[Link] 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
[Link] 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
jason@[Link]
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 [Link]@[Link] 9/22/2022 10:34:41 AM SENT
