Ex parte Dawson

Keasler, J.,

filed a concurring opinion,

in which Kellei’, P.J., and Hervey, Richardson, Yeary, and Newell, JJ., joined.

This Court properly denies Albert Dawson’s application for writ of habeas corpus in which he alleged that his ten-year term of confinement for forgery is illegal and he received ineffective assistance of counsel. After reviewing the writ record, including Dawson’s pleadings and trial counsel’s response to the allegations, a writ staff attorney drafted a memorandum analyzing Dawson’s claims and recommended that Dawson’s claims be denied based on the record.

The author of the other concurring opinion, to whom this writ application was administratively assigned, agreed with the writ staff attorney’s recommendation that Dawson’s application be denied because it is meritless. The same author sought the fox-mal votes from the entire Court, but it was not legally necessary. Because this application satisfied the criterion in the Court’s standing internal procedures, she had the authority to lawfully deny Dawson’s application by her signature alone.

The concurrence accuses the Court’s judges of violating the Texas Constitution and statutes in how the Court resolves certain applications for writ of habeas corpus. The accusations require a response. We have never had to explain this long-established practice, much less defend it. Yet today, we find ourselves defending it, and by extension the Court itself, against an attack from one of our own—one who for the last five years has done what she now suddenly condemns. I hope this response provides further insight and transparency into the Court’s inner workings.

Long before I arrived at this Court in 1999, the Court’s judges instituted standing internal procedures and rules permitting certain Texas Code of Criminal Procedure Article 11.07 writ applications to be administratively and randomly assigned to a single judge for review and, if warranted, resolution. The standing procedures regarding these “non-conference” writ applications experienced only slight revisions over the years, as needed, and remain in effect today, substantively unchanged.

“Non-conference” writ applications are narrowly defined. Every application for a writ of habeas corpus this Court receives is initially reviewed by a writ staff attorney who focuses solely on Article 11.07 writ applications and extraordinary writ petitions. After reviewing the entire writ record, including any habeas judge’s findings of fact and conclusions of law, writ staff draft memoranda analyzing every claim an applicant asserts. Only when the writ staff attorney and the assigned judge of this Court (normally in consultation with his or her own staff) agree that an application is meritless may a judge deny or dismiss the application without formally collecting the other Judges’ votes. A significant number of these applications contain a habeas judge’s findings of fact, conclusions of law, and recommendation that this Court deny or dismiss the application. A vast majority of non-conference writ applications fail to allege sufficient facts that, if pleaded and determined to be true, may entitle them to relief,¹ including those asserting the particular claims the concurrence highlights. Ineffective-assistance-of-counsel claims often fail to plead why counsel’s deficit performance prejudiced them. Brady v. Maryland² claims are often unaccompanied by any explanation why certain evidence was material. Some “new evidence” claims arrive without explanations why the evidence is new. Even more assert claims that may not be brought on habeas corpus or are statutorily or procedurally barred. In all other circumstances, an application receives all of the judges’ individual, formal votes. These include, for example, when (1) in a writ staff attorney’s opinion, the record or the law may support an applicant’s claim to relief despite the habeas judge’s recommendation to deny or dismiss; (2) remanding to the habeas court is appropriate to gather additional findings of facts concerning the claim (when the case returns from remand, it also receives all of the judges’ individual, formal votes); (3) the writ staff attorney recommends the application be filed and set to be resolved with an opinion because applicant raises a novel legal argument or the law applicable to a claim is unclear; (4) an adequately pleaded application presents a close legal or factual question of whether the claim should be granted or denied under settled law and the writ staff attorney recommends all judges review the application; (5) the writ staff attorney or the habeas judge recommends granting some form of relief; (6) the assigned judge disagrees with the habeas judge’s or writ staffs recommendation; or (7) the assigned judge, in his or her discretion, calls for the other judges to formally vote.

Texas Code of Criminal Procedure Article 11.07, § 5 provides that “[t]he Court of Criminal Appeals may deny relief upon the findings and conclusions of the hearing judge -without docketing the cause,” or the Court may docket the cause and hear the writ application like an appeal. A single judge’s denial or dismissal of a “non-conference” application is an example of the former; filing and setting an application for an opinion an example of the latter. The concurrence correctly notes that § 5 empowers the Court of Criminal Appeals to decide an application’s merits and grant or deny an applicant relief. But even assuming the statute’s use of “Court of Criminal Appeals” means the Court sitting en banc or in panels, as the concurrence alleges the Texas Constitution requires, the remainder of the opinion mischaracter-izes the Court’s established procedures.

Although required by neither the Constitution nor statute, the Court resolves every habeas corpus application en banc, and does so in a manner consistent with our Constitution. Texas Constitution Article V, § 4(b) mandates, among other things, that when the Court considers a case en banc, “five Judges shall constitute a quorum and the concurrence of five Judges shall be necessary for a decision.” Section 4 imposes no limitations on this Court as to how the necessary concurrence may be achieved. The Constitution does not mention, much less prescribe, the manner of voting on a particular matter. It does, however, permit the Court to establish rules for how the en banc Court convenes.³

The internal operating procedures establish both how the Court convenes on “non-conference” applications and how a concurrence of at least five judges forms. Importantly, the procedures’ adoption required and garnered the concurrence of at least five Judges. By permitting a judge to dispose of specific writ applications, the remaining judges have authorized the judge to whom the application is assigned to sign off on an application on their behalf in those limited, delineated circumstances. So when a “non-conference” application is denied or dismissed, the assigned judge disposes the application with the concurrence of not fewer than five judges of the en banc Court. In practical terms, the application’s denial or dismissal is nothing more than a per curiam order, an action taken for the Court as a whole under very specific circumstances.

The competing concurrence takes issue with the per curiam order analogy because, in her opinion, per curiam orders are only proper based on pre-approved circumstances that do not require assessment of factual matters and on which there is unanimous agreement.⁴ But the proposed boundaries for per curiam orders would not permit many of the Court’s other practices, none of which are contested. For instance, this approach would not permit the Court’s current procedure establishing a rotating “duty judge” to grant or deny certain motions—procedures the concurring author has never contested—that require assessment of factual matters. The Court’s summary dismissals of writ applications fading to comply with the Texas Rules of Appellate Procedure are also notably absent from the concurring author’s concerns. Those applications are dismissed without a judge’s approval, even though we may, and in certain cases do, overlook noncompliance if the application’s merits are clear.⁵ Nonetheless, the concurrence would surely agree that our procedures properly deny or dismiss an application lacking a necessary factual pleading and need not be formally voted on by the en banc Court or even a three-judge panel. After all, there would be no factual matter to assess in applying our legal standards.

Of course, the en banc Court is free to change these institutional practices at any time. But the continued practice of this established procedure by the Court’s majority evinces the judges’ confidence that the Court’s procedures are fair, efficient, and constitutional.

To be sure, the Court’s procedure on non-conference writ applications does not give a single judge a monopoly on that application’s disposition. A judge and his or her staff have always had the ability to review any pleading this Court receives. By virtue of the Court’s move to electronic records maintained in a central repository, judges and their staffs can now more quickly and easily review electronically every pleading shortly after it is received. All of writ staffs memoranda analyzing each claim on every application are available for review electronically in a common repository. And through the Court’s internal case-management system, all judges and their staffs can view the status of any matter and learn to whom it is assigned. The procedures do not prevent a judge from requesting discussion on a particular application, even one not assigned to that particular judge. As a member of this Court for five years, the concurring author is undoubtedly aware that a request to discuss a matter means that all judges discuss the matter in conference and all judges may participate in the matter’s resolution. Allegations that these procedures deny any judge of this Court the ability to review and decide applications, especially to the degree it deprives that judge of purported “rights,” are legally and factually unfounded.

With these comments, I concur in the Court’s denial of Dawson’s claims.

1 . See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985) ("In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief.”).

2 . 373 U.S. 83 (1963).

3 . Tex. Const, art. V, § 4 ("The Presiding Judge, under rules established by the court, shall convene the court en banc for the transaction of all other business and may convene the court en banc for the purpose of hearing cases.”).

4 . See post, at 303-05.

5 . See, e.g., Ex parte Golden, 991 S.W.2d 859, 861 (Tex. Crim. App. 1999).