St. Mary's Law Journal
The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making.
In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history and precedents whenever it felt the need to exercise jurisdiction over a case because of the egregious abuse of discretion by the trial court. Apparently, frustrated by being unable to affect the quality of the state judiciary, the court has used its power much like the old common law courts in a general supervisory role as a check and balance of the injustice and the additional costs and delay caused by clearly erroneous trial court decisions. The attempt to expand its jurisdiction with the Prudential balancing test is simply an usurpation of the prerogative of the legislature to expand or contract the jurisdiction of the Supreme Court. It is simply wrong; moreover, it sends the wrong message to the trial bench and the Bar by placing mandamus at the level of an interlocutory appeal. After reflecting on the long history of mandamus jurisprudence, the Court should take the earliest opportunity to reverse the Prudential decision and specifically reject the balancing test; it should return to the tried and trusted traditional approach to mandamus jurisprudence.
Richard E. Flint, The Evolving Standard for the Granting of Mandamus Relief in the Texas Supreme Court: One More Mile Marker down the Road of No Return, 39 St. Mary’s L.J. 1 (2007).