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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, May 25, 2012

Of Memorandum Opinions and of Published and Nonpublished Opinions

Diana Tello of the Thirteenth Court of Appeals's Clerk's Office initiated me into some mysteries of how Texas state appellate opinions get published, or not. The applicable rule is Texas Rule of Appellate Procedure 47.
First, all Texas appellate court opinions have to be designated as "opinions" or "memorandum opinions."  "Memorandum opinion" is the default designation, and there are some criteria for them. They are the ones that are supposed to be of the least public interest. A panel justice may require a designation of "opinion."Civil opinions have no further designation. Criminal opinions additionally have an order "Publish" or "Do not publish." A party may move to have the order reversed, but the order can't be changed after the Court of Criminal Appeals has acted, except that the CCA can always require that a "Do not publish" case be published.
What Ms. Tello said that I didn't know was that the decision of whether or not to publish a civil case was West Publishing Company's decision, rather than a court's.
A criminal memorandum opinion may have a "Publish" order, which I wouldn't have thought.

Wednesday, May 23, 2012

Jurisdictional Anomalies of Texas's Courts of Appeals

There are fourteen intermediate courts of appeals in Texas. The areas they cover are called supreme judicial districts. I've previously discussed the strangeness of the First and Fourteenth Supreme Judicial Districts, which cover the same counties and whose work is divided between them generally by the Harris County District Clerk's office.
Hunt County, Texas is in both the Fifth and Sixth Supreme Judicial Districts. This means that you can appeal from there to either Dallas--Fifth S.J.D.-- or Texarkana-- Sixth.
Gregg, Rusk, Upshur and Wood Counties are Texas counties that are in both the Sixth and Twelfth Supreme Judicial Districts. The latter is in Tyler, the former, Texarkana.
Appeals of denials of the rights of property owners to drill oil and gas wells by the Railroad Commission, as well as other actions involving the government of the State of Texas are almost solely limited to the district courts of Travis County- county seat, Austin. Further appeals from there go to the Third Court of Appeals in Austin, unless the Chief Justice of the Texas Supreme Court equalizes the dockets of the state courts of appeals. This makes the Third Court of Appeals in some ways, a first among equals of the Courts of Appeals.

When Can You File Your Writ After Your Appeal Has Been Decided?

The Texas Court of Criminal Appeals has, by opinion, adopted a common-law rule that will simplify knowing when a post-conviction Texas Code of Criminal Procedure article 11.07 application for writ of habeas corpus is timely.
The mandate of a appeals court is rebuttably presumed to have issued at 9:00 AM on the day it was issued. Evidence can be taken to prove that the mandate issued later that day.
It appears to me that the best practice for applying for such a writ would be to schedule it for 9:00 AM local time at the appeals court, calling the appeals court's clerk's office and checking the appeals court's web site to look for the mandate, and not filing in the trial court until the issuance of the mandate is authoritatively confirmed. Remember that El Paso County, where the Eighth Court of Appeals is, is one of two counties in Texas that are on Mountain Time. The other is its neighbor, Hudspeth County. The rest of Texas is on Central Time.
 I got this case from the Texas District and County Attorneys Association Weekly Case Summaries email. The writer there appears not to appreciate how precious time is for a convict seeking post-conviction relief. The Anti-Terrorism and Effective Death Penalty Act of 1996 restricts the time that a convict can have between finality of all court acts and a federal writ of habeas corpus is one year.
As I've said before here, the U.S. Supremes have said that a defendant has to exhaust all the defendant's remedies before such a person can apply for a federal writ of habeas corpus. That means that they have to go through their state appeals and their state habeas remedies before they can get to a federal court. As a practical matter, the only relief that a convicted sex offender is likely to get is from a federal court of which the judges or justices don't have to face the voters afterward.

Monday, May 14, 2012

No Federal Constitutional Right to an Appeal

You'd think you'd have a federal constitutional right to appeal, but you don't. It's not in the U.S. Constitution. McKane v. Durston, 153 U.S. 684 (1894) stands for the proposition that the states don't have to offer you the right to appeal. If they offer anybody an appeal as of right, they have to offer it equally to both indigents and those that can pay, including appointed counsel. They don't have to offer appointed counsel for petitions for discretionary review nor for writs under the federal constitution.
Assuming that there are to rights to appeal in your state's constitution, it is vital that you check the statutes that you are relying on to claim your right to appeal and the appellate court's jurisdiction to hear it.
Where you have to get relief from a trial court in a proceeding from which there is no appeal, a writ of habeas corpus is how you get it. Elsewhere in this blog I've written about some of subtleties and pitfalls of seeking a writ.

Sunday, May 13, 2012

Drive on Those Improved Shoulders!

Donald Lothrop drives up behind another driver who has slowed down before crossing railroad tracks in Boyd, Texas. Lothrop passes that other driver on an improved shoulder as they are both crossing the tracks. A cop stops Lothrop because the pass is illegal. That stop is the occasion for Lothrop's getting arrested for DWI. Was Lothrop's driving illegal? Judge Melton D. Cude of the Wise County Court of Law Number One thought so. The Second Court of Appeals in Fort Worth agreed. But not the Court of Criminal Appeals.  Judge Paul Womack  delivered the opinion of the Court, in which Judges Meyers, Price, Johnson, Hervey, Cochran, and Alcala joined. Lothrop cited the Court to Transportation Code section 545.058(a): "An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only . . . to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn . . . or . . . to avoid a collision." The CCA agreed that Lothrop was passing another vehicle that was slowing on the main traveled portion on the road and that "necessary" in the statute couldn't mean what necessity would normally mean in such a statute, that is, necessity to avoid a wreck, since avoiding a collision is one of the other enumerated allowances for driving on the improved shoulder. Judge Cheryl Johnson wrote a concurrence, emphasizing that driving as Lothrop did is normally very unsafe, but that the testimony in favor of the stop was the testimony of the arresting officer only, who only said that Lothrop's driving was illegal, not that it was unsafe. Johnson says that the result would have been different had the cop testified that Lothrop had been driving unsafely. Judge Michael E. Keasler dissented without an opinion. Presiding Judge Sharon Keller concurred without an opinion: no paper trail for her, she's running for reelection.
Appellate advocacy lesson here is that if the precise language of statute makes the ordinary understanding of an expression in another part of the statute supererogatory, if might make it meaningless.
Thanks to Michael Falkenberg of the CCA staff for correcting an error in an earlier edition of this post.

Monday, May 7, 2012

Law of the Case or Judges Like to Only Rule Once

There you are, reading a case and some point of doctrine is utterly weird is in it, or as you're reading there's some really obvious argument comes to your mind that would blow one of the sides away, but it appears to be ignored by everybody. Now sometimes a judge will get fixated on a strange idea (Wyoming Supreme Court Justice Fred H. Blume's application of Justinian's Institutes and two of the Novels to Wyoming appeals comes to mind.) and sometimes all the lawyers and appellate judges in a room get caught up in groupthink, but more commonly these come up because some argument is foreclosed by the doctrine of the law of the case.
Look at a trial. In a trial, there is hardly any error that does not have to be preserved by an objection, etc. in order for an appellate court to consider that error. Therefore, in a trial, if there is not an objection, etc., no error can be successfully presented on appeal. Furthermore, whatever trial error that is not raised on the first appeal, can generally never be raised again.
Let's check out a successful appeal to an intermediate court of appeal (not a government's highest court) that results in a remand to a trial court. For this hypothetical, the intermediate court of appeal sustained two of three assigned errors and overruled the other. As to anything that was not objected to, etc. that error is waived, and any of those things which might be error has become the law of the case. Any preserved error that was not brought to the attention of the intermediate appellate court, that error is waived, too, and legal doctrines implicit in the possible erroneous rulings of the trial court, they become the law of the case.
Continuing on with the hypothetical, the highest court of the realm sustains the first of the first two trial errors that the intermediate court sustained, overrules the second of the three, and intentionally neglects or refuses to rule on the third overruled error. The intermediate court's rulings on the first and third point are the law of the case and cannot be reversed even though the highest court overruled the second of the first two errors.
Of course, the trial court has to follow the rulings of the highest court in the case, and, to the extent that the rulings of the intermediate court do not conflict with that of the highest court, the intermediate court's rulings are the law of the case.
Common-law courts love finality; once a potential error is waived or definitively ruled on by a higher court, the lower court judges are stuck with it.

Friday, May 4, 2012

Another Reversal for SVP Cases; Gaultney Dissents

The case is In re Commitment of Mohammad Reza Kalati. This is the fifth in the recent series of reversals of  the sexually violent predator trial court, although this time the trial judge being reversed is not Michael Seiler, but Putnam Kaye Reiter. The appellate court for SVP matters is the Ninth Supreme Judicial District Court of Beaumont.  As has been written in this blog before and in the Montgomery County Courier, Beaumont's Ninth Court has been holding that the SVP trial judges have been overly restrictive of the defense in this kind of cases.
There's another surprise here, though, beside the difference in trial judges. Justice David Gaultney, a scholarly and independent-minded jurist, usually a little more open to defense arguments than his fellows on the Beaumont Court, dissented.
In jury selection, the defense asked the venire panel, the group of people from which the jury would be selected, if they could be fair to a person an expert had diagnosed as a pedophile. The prosecution objected that the question was a commitment question, a question seeking to bind one or more jurors to a particular position before the juror had been given the evidence, and also that it made reference to a specific diagnosis. The trial judge sustained the objection. Justice Hollis Horton, writing for himself and Chief Justice Steve McKeithen, overruled the objection and granted Kalati a new trial. They felt bound by In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011).
Justice Gaultney dissented. He said that the question of the effect of a specific diagnosis might be objectionable, an inquiry into the weight that a panelist would give a specific piece of evidence, and the trial judge was never offered a clearly unobjectionable question.
Some observations: I don't hear any request for or implication of commitment in the defense's question. It's not weird for the petitioner to complain that the error as to specific diagnosis is not properly preserved, but I don't see that unclarity there undoes the improper sustaining of the commitment question.
I like how the Beaumont Court just attached the dissent to the end of the majority opinion, less work for the clerk and more convenient for the reader.
I made a mistake earlier today. I thought that this was a fifth reversal for Judge Seiler, but my friend and old colleague Brian Lacour, second chair for the defense at trial, corrected me.