Barron, Raul Fernando ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-26,838-04
EX PARTE RAUL FERNANDO BARRON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 14-04-04074-CR IN THE 435TH DISTRICT COURT
FROM MONTGOMERY COUNTY
YEARY, J., filed a dissenting opinion.
DISSENTING OPINION
A jury found Applicant guilty of violating a civil commitment order as a sexually
violent predator. The jury then also found three previous offense enhancement allegations
to be true: (1) that on September 13, 1994, Applicant had been convicted of indecency with
a child; (2) that on August 15, 1984, Applicant had been convicted of indecency with a
child; and (3) that on November 22, 1977, Applicant had been convicted of murder. In
accord with its verdict and findings, on April 15th, 2014, the jury assessed Applicant’s
punishment at confinement for life in prison. Today the Court grants post-conviction
habeas relief to Applicant on the ground that his conduct was retroactively decriminalized
by the 84th Legislature in its Senate Bill 746.
BARRON — 2
Senate Bill 746 purported to retroactively decriminalize the offense for which
Applicant was convicted in cases that had not yet resulted in a final conviction as of its
effective date of June 17, 2015. Applicant’s case was pending in the court of appeals on
that effective date and was therefore not yet final.
I believe that, insofar as it purports to act on cases such as Applicant’s, Senate Bill
746 was a Legislative usurpation of our Executive Department’s exclusive pardon power
in violation of Article II, Section 1, of the Texas Constitution. TEX. CONST. Art. II, § 1
(“The powers of the Government of the State of Texas shall be divided into three distinct
departments, each of which shall be confided to a separate body of magistracy, to wit:
Those which are Legislative to one; those which are Executive to another, and those which
are Judicial to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others, except in
the instances herein expressly permitted.”). I explained my thoughts on this matter at length
in my dissenting opinion in Vandyke v. State, 538 S.W.3d 561, 583–96 (Tex. Crim. App.
2017) (Yeary, J., dissenting). For the reasons expressed here and in my opinion in Vandyke,
I respectfully dissent.
FILED: April 29, 2020
PUBLISH