Can the Texas Legislature Give Someone a Break? Or Must It Follow Court Judgments?

This post starts with a Beaumont case we discussed in February, Roger Dale Vandyke v. State, 485 S.W.3d 507, (Tex. App.--Beaumont Feb. 10, 2016) pet. granted July 4, 2016. Now the Court of Criminal Appeals has reversed it. Roger Dale Vandyke v. State, __ S.W.3d ___, No. PD-0283-16, (Tex. Crim, App., Dec. 20, 2017) (Judge Newell wrote the opinion joined by Presiding Judge Keller, and Judges Hervey, Alcala, Richardson, Keel, and Walker.).

Vandyke had been civilly committed as a sexually violent predator, and was convicted of failing to progress in sexually violent predator treatment and received a sentence of 25 years for that. But, afterwards, a new law was enacted in Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 13, 2015 Tex. Gen. Laws 2700, 2704. The Legislature amended section 841.085 to limit prosecution to violations of civil commitment requirements under subsections (1), (2), (4), and (5). Id. Thus, under the amended statute's plain language, failure to complete sex offender treatment is no longer a basis for prosecution.

Section 841.085's limitation on prosecution applies to an offense committed before, on, or after the amendment's effective date, “except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected[.]” Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 41, 2015 Tex. Gen. Laws 2700, 2711.

Isn't Vandyke's conviction not final?

if Vandyke's conviction is on appeal, then the State (and the Beaumont Texas Ninth Court of Appeals) is going to say that his conviction is not final.

Can the Legislature "undo" a conviction by changing the law?

The Court of Appeals says "No."

There are two oddments of Texas legal history that explain why the Court of Appeals's opinion is twelve pages long and the Criminal Court of Appeals's opinions (Judge Yeary wrote a dissent that Judge Keasler joined.) total 41 pages.

1. Governor James E. "Pa" Ferguson granted 1,774 pardons and 479 conditional pardons between 1915 and 1917.  Pa was forced to resign in 1917. When his lieutenant governor Mr. W.P. Hobby, succeeded him, Hobby granted 1,319 pardons and 199 conditional pardons between 1917 and 1921, , Governor Miriam A. "Ma" Ferguson granted 384 pardons and 777 conditional pardons between 1925 and 1926. This led to a demand to curb the governor's pardoning power, and in 1936 the constitution was amended so as to create a constitutional Board of Pardons and Paroles, and to limit the clemency powers of the Governor by providing that in all criminal cases except treason and impeachment, the Governor should have power, after conviction, “on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons.” The Governor may grant one reprieve, not to exceed 30 days, in a capital case without action of the board.

Tex. Const. art. IV, § 11, Interpretive Commentary

    2.   The branches of the government of the State of Texas have a history of struggling with             one another." " . . . [N]one of the three governmental branches 'shall exercise any                     power properly attached to either of the others, except in the instances herein                           expressly permitted.' Tex. Const. art. II, § 1"  (Beaumont Vandyke at 5).This separation           of powers clause is violated in one of two ways: (1) “when one branch of government
          assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’             to another branch[;]” and (2) “when one branch unduly interferes with another branch           so that the other branch cannot effectively exercise its constitutionally assigned                         powers.” Armadillo Bail Bonds v. State, Armadillo Bail Bonds v. State, 239 (Tex. Crim.           App. 1990). (Beaumont Vandyke at 5, again).  Citing Ex parte Giles favorably , 502                   S.W.2d 774 (Tex. Crim. App. 1973), Beaumont accepts the State's contention that by                 amending the statute to decriminalize certain conduct, the Legislature “improperly                 assumed the executive branch’s clemency power.”

In the Court of Criminal Appeals, Judge Newell cited cases in which the Legislature changed statutes and thereby decriminalized actions:  Williams v. State, 476 S.W.2d 307, 309 (Tex Crim. App. 1972); Mendoza v. State, 460 S.W.2d 145, 147 (Tex. Crim. App. 1970) Cox v. State, 234 S.W. 531 (Tex. Crim. App. 1921) (noting that a statutory amendment removing the act of possessing equipment for making intoxicating liquor from the forbidden conduct in a penal offense constitutes a repeal of the law under which the defendant was convicted).

Austin's dissenters accepted Beaumont's argument that not following through on punishing Vandyke would be to pardon him-- a thing that no Texas court can do.

Note One- When Presiding Judge Sharon Keller-- my fellow philosophy major-- gives her vote to a defendant-appellant-petitioner: that is noteworthy, and seems to me to be a sign on first face that that petitioner's case is strong on the merits. She has a history of liking the State's side very much.

Note Two- There is an unsung hero here, my fellow Conroe criminal trial and appellate lawyer Scott Pawgan, truly an absolutely first-rate attorney. He boldly and cleverly argued the merits of the 2015 amendment to a hostile Beaumont Court of Appeals which rejected his arguments, but which Pawgan used to persuaded seven out of nine CCA judges, even the super-hard-to-sell Presiding Judge. A lesser advocate might well have failed.

Objection re Right to Trial Counsel in Proceeding Must Be Asserted to Overturn Judgment

Darcy v. State, No. PD-1094-15 (Tex. Crim. App. Apr. 27, 2016)  (Keller, P.J. writing for Keasler, Hervey, Alcala, Richardson, and Yeary, JJ.) Meyers, J., filed a concurring
opinion. Johnson, J., filed a concurring opinion. Newell, J., concurred. (no pet. h.).
During the trial of this case, defense counsel learned about a possible right-to-counsel violation that occurred before trial. Evidence involving and relating to the alleged violation was admitted at trial, but counsel did not complain until appeal. The court of appeals reversed appellant’s conviction without considering preservation of error. We conclude that the court of appeals erred in failing to address preservation of error, and we hold that appellant forfeited his complaints by failing to raise them at trial.
 The State suspected that unauthorized messages were being smuggled into and out of the jail. As part of his investigation, Christopher Earl Darcy's friend Rebecca Morris was asked to write a note to him and pass it to the jail cook, which she did.
 Morris testified for the State at trial.. During cross-examination, defense counsel produced the note that she had written to Darcy and had her read it. The prosecutor does not object. The trial court and defense counsel clarified that defense counsel was not offering the note into evidence. The prosecutor then said that the State would offer the note into evidence. Defense did not object. The note is admitted into evidence. On redirect, the Morris says that she was asked to write the note by an d.a.'s investigator, that the note was merely a ruse, designed to determine whether a message would get through to appellant while he was residing in the county jail. On further cross-examination, defense counsel questioned Morris-- note had not turned up until trial day and that he himself did not know how it got here.” No objection to note's admission nor any related testimony.
On appeal, Darcy complained about the State causing the note to be written and sent to him. Court of appeals said that jail smuggling investigation made appellant look like a criminal and harmed him., The court of appeals reversed the trial court and remanded. CCA said tthat it had held that the right to counsel at a critical stage of trial is a waivable-only right,  and that Darcy failed to raise any complaint to the trial court with respect to Morris’s note and sought relief for the first time on appeal. He has failed to preserve error. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.