Former Assistant Attorney General Appointed to Empty Dallas State Appeals Court Seat

Jason Boatwright, a former assistant attorney general who worked closely with Governor Greg Abbott when Abbott was Texas Attorney General, has been named to Dallas's state Fifth Supreme Judicial District Court of Appeals. He replaces David Lewis who resigned in lieu of discipline for alcoholism and other mental health problems. Boatwright was chair of the opinions committee of the AG's office. Texas officials may ask the Attorney General to give legal opinions relating to issues in their work (Since AGs are not judges, they may give advisory opinions,) These opinions do not have force of law as published opinions of a court, but (1) they can be gotten much faster than an appeals court opinion, and (2) it gives legal cover to the requester; it may turn out that a court finds an AG opinion wrong, but following that opinion will innoculate the requester from an accusation of bad faith or criminal intent.

Boatwright's professional history is mostly out of Austin, but he's been practicing a few years in Dallas.

Amendments to the Federal Rules of Appellate Procedure Go into Force Today

Amendments to the federal rules of appellate procedure go into force today. This is a link to the rule changes. The most important changes will be to reducing word counts in briefs.

I feel forced to copy this here, because I don't know how long the Fifth Circuit's guidance about reducing word count and cases in briefing will be on the front of their web site.

Guidance regarding reduced word count and cases in briefing.

Reduced word counts became effective December 1, 2016, pursuant to changes to the Federal Rules of Appellate Procedure. To ensure fairness to parties, for cases in briefing where an appellant filed a brief before December 1, 2016, and an appellee's brief will be due on or after December 1, 2016, the appellee's brief may use the former (greater) word count limitation, if necessary.  As the court continues to consider possible changes with respect to new word count limitations, counsel are invited to review Fifth Circuit Circuit Rule 32.4.

Fifth Circuit miscellaneous fees are going up.

Dallas Court of Appeals Justice Resigns in Lieu of Facing Removal Proceedings

David Lewis, a justice on Texas's Fifth Court of Appeals in Dallas, resigned just as removal papers were filed against him with the Texas Supreme Court on Tuesday. Lewis suffered from alcoholism and depression and had been suspended without pay since September 2014. According to the records of the Texas Commission for Judicial Conduct quoted in the Dallas News blog of the Dallas Morning News, Lewis was "erratic, hostile and threatening." A doctor chosen by the Judicial Conduct Commission reported that Lewis's problems began as early as 2013 and that a scan of his brain in 2015 is of a person who is experiencing decreased cognitive function and is trying to cover that up.
Governor Abbott will appoint a person to fill Lewis's seat on the bench until his term ends in 2018. Lewis is a Republican. Texas's Fifth Court of Appeals is the state appeals court for Collin, Dallas, Grayson, Hunt, Kaufman, and Rockwall counties.
Hat tip to the Texas Lawyer newspaper's online bulletin.

The Sneaky Extra Rule You Have to Remember Sometimes When You're Citing the Federal Fifth Circuit

Every part of the United States of America is served by a federal district court, and those-- in turn-- are served by federal circuit courts of appeals. Eleven of them are numbered. Each of those cover a geographical area.

First: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
Second: Connecticut, New York, and Vermont.
Third: Delaware, New Jersey, Pennsylvania, and the Virgin Islands.
Fourth: Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Fifth: Louisiana, Mississippi, and Texas.
Sixth: Kentucky, Michigan, Ohio, and Tennessee.
Seventh: Illinois, Indiana, and Wisconsin.
Eighth: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Ninth: Alaska, Arizona, California, Territory of Guam, Hawaii, Idaho, Montana, Nevada, Territory of the Northern Mariana Islands, Oregon, and Washington.
Tenth: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Eleventh: Alabama, Florida, and Georgia.

There are two other I will save for a later post: the District of Columbia Circuit-- I know, it's kind of geographical-- and the Federal Circuit, which is the only geographically general content-specialized federal court of appeal.

So what's the special rule about the Fifth Circuit? It is Rule 10.8.2 of the Bluebook, A Uniform System of Citation. On October 1 1981, the Fifth Circuit was divided to create the new, smaller Fifth Circuit and an Eleventh Circuit.

So:

1. Cite decisions rendered in 1981 and labeled "5th Cir." by month.
2. Give unit information whenever possible (it seems the court began the transition by having a Fifth Circuit Unit A and a Fifth Circuit Unit B.
3. Designate as "Former 5th" any nonunit judgment labeled as a Former Fifth judgment and rendered after September 30, 1981.

Knowing this rule separates the appellate children from the appellate grown-ups. Although the other circuits have had coverage changes, this separation is the only one the Bluebook cares about.

First Assistant Criminal District Attorney for Rockwall County Craig Stoddart Republican Nominee for Fifth Court of Appeals' Jim Moseley's Old Seat

William Shakespeare famously complained of "the law's delay," But he never said anything about the rapid dispatch of business when a political committee knows its will, and the Republican precinct chairs of Dallas, Collin, Grayson, Hunt, Rockwall and Kaufman counties did not dawdle in naming First Assistant Criminal District Attorney for Rockwall County Craig Stoddart to uphold the GOP banner in this year's November race for the seat in Texas's Fifth Supreme Judicial District Court of Appeals in Dallas formerly held by Jim Moseley.
Stoddart will be in an unusual position until January 2, 2015. He is the justice presumptive-- if the Democrat defeats him

"a lioness . . . [will have] whelped in the streets;

And graves [will] have yawn'd, and yielded up their dead;

Fierce fiery warriors [will have] fought upon the clouds,

In ranks and squadrons and right form of war,

Which . . . [drizzle] blood upon the Capitol;

The noise of battle . . . [will hurtle] in the air,

Horses . . . [will] neigh, and dying men [will] groan,

And ghosts [will]shriek and squeal about the streets."

William Shakespeare, Julius Caesar, act 2, sc. 2

The Democrat county committee chairs have not yet chosen their sacrificial lamb candidate. They appear to intend to next week.

Stoddard is an appellate prosecutor of 22 years' experience, not just in Dallas, but in many other state appeals courts including Texas's highest criminal court-- the Court of Criminal Appeals. He appears to have little or no civil appellate experience. He got a bachelor's degree in political science from the University of North Texas in 1986, and his law degree from Texas Tech in 1990.

Federal Fifth Circuit Combines Statements of the Case and of Facts and Standardizes Record References for Automation

The United States Court of Appeals for the Fifth Circuit adopted proposed rule changes that combine statements of the case and statements of facts in briefs into a single statement of the case. They also standardized record references in briefs so that the references would automatically hyperlink to the record. These changes took effect December 1. The Fifth Circuit is the federal appeals court for Texas, Louisiana, and Mississippi.

Federal Appeals in Texas and Other Parts of the U.S. South

U.S. federal courts are generally organized into district courts, courts of appeals and then the Supreme Court of the United States. The most common federal court that does not fit in this structure is bankruptcy courts, which are below district courts. District courts are the general trial courts of the U.S. federal government. Appeals from bankruptcy court can go to district court or a Bankruptcy Appellate Panel of bankruptcy judges, depending on whether the local federal jurisdiction has set up BAPs. Texas has four federal judicial districts- eastern, northern, southern, and western. I won't go into the boundaries of the districts- they're pretty common-sensical, and you can look them up with the link above.

The courts of appeals for federal district courts are organized into circuits. The Fifth Circuit covers appeals from Texas, Louisiana and Mississippi. Before October 1, 1981, it also included Florida, Georgia and Alabama, but then an Eleventh Circuit was formed for them. It is important to remember if you are citing southern cases from around that time, that Fifth Circuit precedents bind the Eleventh Circuit for cases decided before October 1, 1981. Besides appeals from district courts, the Circuits also hear appeals from some federal agency decisions and from the Board of Immigration Appeals.

Federal jurisdiction is limited. Unless the United States Constitution or a statute allowed by it provides for federal jurisdiction of a matter, the presumption is that federal courts do not have jurisdiction. This contrasts with U.S. state court jurisdiction where there should be some court for nearly any dispute.

Texas's Highest Criminal Court Holds that Man Has Been Waiting 30 Years for a New Trial

According to a recent decision of the Texas Court of Criminal Appeals, Hartfield v. Thaler, No. AP–76,926 (June 12, 2013) a man has been in prison awaiting a new trial for more than 30 years.
Here's how it happened: Hartfield is convicted of capital murder and sentenced to death in Matagorda County, Texas in June 1977. As all Texas death penalty cases do, his case automatically went up on appeal to Texas's highest criminal court-- the Court of Criminal Appeals. The CCA reversed and remanded for a new trial, because a prospective jury panelist was improperly kept off the jury. The State filed a motion for rehearing which was denied January 26, 1983. The CCA's mandate issued March 4, 1983.
A mandate is a final order of an appeals court in a case. If a case of a court of appeals is taken up by yet a higher court, the mandate in the case comes from the higher court and the court of appeals does not issue one. A mandate is practically always the last word in an appellate matter, though there is such a thing as a motion to recall a mandate. The State did not move to recall the mandate in Hartfield.
Now the governor always had the power to commute Hartfield's sentence from death to life in prison, and doing that was discussed as a way to avoid the retrial, but the governor did not commute (or, more accurately, try to commute) Hartfield's sentence until March 15, 1983. The prison system took this purported commutation and held him under a life sentence.
In 2006, Hartfield, without a lawyer, applied for a writ of habeas corpus with the CCA and was denied. In 2007, he applied for a writ of mandamus with the CCA to force the retrial, which was denied. He applied again for habeas with the CCA, which was held to be a subsequent application for habeas under Code of Criminal Procedure 11.07 section 4 and was, therefore, dismissed. Then, without a lawyer, as he had done all of this 21st century work, he filed for habeas with the United States District Court for the Southern District of Texas. Normally, this would have been a fool's errand because of the one-year habeas deadline of the Antiterrorism and Effective Death Penalty Act, but Southern District held that Hartfield was not being held pursuant to a judgment of a state court. Remember the CCA mandate killed the trial court's judgment and no new judgment had taken its place. Southern District held that his was really an application for a pretrial writ of habeas corpus. Somewhere around this time Hartfield picked up federal public defenders. Hartfield's case was moved to the federal Eastern District of Texas where it decided that Hartfield's claim was no good because he had not exhausted his Speedy Trial Clause claim in state court. At first the United States Court of Appeals for the Fifth Circuit-- Texas's federal appeals court-- affirmed the Eastern District's judgment; I blogged about this before. but then changed its mind and sent a certified question to the CCA asking what the status of the judgment in Hartfield's case really was. That how we got to the CCA's decision two days ago.
Matagorda County's District Attorney Steven Reis is going to retry him. Steve is a law school classmate and hired me to be an assistant district attorney for him back in the day. He will be implacable and relentless, and has been superlatively good at his job for a very long time. The murder that Hartfield committed is remembered as a particularly heinous and horrible crime.
Hartfield and his lawyers have been persistent the last seven years. The background of this case teaches appellate criminal defenders that in our AEDPA world it may take as many as seven proceedings-- most of them losses-- to get a prisoner relief.
Hartfield v. Thaler, No. AP–76,926, (Tex. Crim. App., June 12, 2013)