EX PARTE REED v. << (2019)

CONCURRING OPINION

I join the Court's order staying Reed's execution and remanding the cause to the convicting court for further development of his first, second, and fourth allegations. I write separately to address the dissenting opinion's opposition to the Court's unremarkable observation that Judge Shaver continues to sit by assignment in this case.

Judge Shaver was originally appointed to the 21st Judicial District Court on May 28, 2014, “for the primary purpose of hearing cases and disposing of any accumulated business requested by the court.” The assignment was to continue “as may be necessary for the assigned Judge to dispose of any accumulated business and ․ all other matters growing out of accumulated business or cases heard before the Judge herein assigned, or until terminated by the Presiding Judge.” The letter to Judge Shaver enclosed with the assignment order expressly stated that Judge Shaver was being assigned “to hear Cause No. 8701; State of Texas vs. Rodney Reed.” The dissent nevertheless complains that this letter “is not an assignment order.”

The document signed by the regional presiding judge, the Honorable Olen Underwood, and styled an “Order of Assignment by the Presiding Judge,” directs the “Clerk of the Court to which this assignment is made” to “post a copy of this order in a prominent place in the public area of the Clerk's Office.” This instruction was made so as to “constitute ‘Notice of Assignment’ as required by Section 74.053, Texas Government Code.” Section 74.053, in turn, requires the presiding judge, “if it is reasonable and practicable and if time permits,” to “give notice of the assignment to each attorney representing a party to the case that is to be heard.”¹ The page bearing Judge Underwood's signature does not contain an express reference to Rodney Reed's case. But the enclosed document styled a “Notice of Assignment” does.² It is or ought to be crystal clear that Judge Underwood's “order” includes the enclosed notice of assignment by reference. If the only things that Judge Underwood “order[ed]” were contained within the four corners of the page bearing his signature, then posting the “order” as such would fail to give notice to “each attorney representing a party to the case that is to be heard ․ by the assigned judge.”

Later events should further vanquish any doubt that Judge Shaver was appointed to Reed's case. In 2017, this Court remanded to the convicting court one of Reed's subsequent writs. In a letter to Judge Underwood, Reed's defense counsel recognized that Reed's case had been assigned to Judge Shaver but asked Judge Underwood to reassign the case “to an active, elected judge who has the resources necessary to handle this complex and important matter.” Judge Underwood acknowledged receipt of the correspondence and denied the request in a letter he signed. Matters are and have been regularly proceeding in Reed's case, and there is no indication that Judge Underwood ever terminated Judge Shaver's assignment.

Finally, the dissent argues that this issue is not before the Court. However, just recently the elected judge of the 21st Judicial District Court scheduled a hearing on two motions that were pending in Reed's case. The parties disputed whether the elected judge was authorized to do so. And because we are now remanding Reed's case, leaving this dispute unresolved would essentially leave the parties in limbo as to who has authority to oversee the Court's remand order. If nothing else, judicial economy counsels our resolving this issue before needless and time-consuming additional litigation is generated. With these observations, I join the Court's order.

APPENDIX

CONCURRING AND DISSENTING OPINION

I agree with the Court's decision to grant Applicant's motion to stay the execution and remand the cause to the convicting court for further development of his first, second, and fourth claims. When this Court finds that the requisites of Article 11.071, Section 5, have been satisfied, authorizing an applicant to proceed with a subsequent post-conviction application for writ of habeas corpus in a capital case, the writ “shall issue by operation of law” and “the convicting court” may proceed to adjudicate it. Tex. Code Crim. Proc. art. 11.071, §§ 5 & 6(b). That is all the Court's order need authorize today. The Court has appropriately dismissed the State's application for writ of prohibition opposing Judge Campbell's participation in the earlier, now-moot proceedings in the case,¹ and it has no occasion to make such a finding in the context of Applicant's subsequent application for writ of habeas corpus and motion for stay of execution.

Which judge should be the one to preside over “the convicting court” for purposes of adjudicating Applicant's subsequent writ application is not an issue presently pending in any pleading before the Court, and we should not pass on it at this juncture. I therefore oppose the Court's “finding” that Judge Shaver “continues to sit by assignment as the judge” of the convicting court “for Applicant's case.” Court's Order at 4.

The Court's order also does not explain how it comes to the conclusion that Judge Shaver “continues” to preside over Applicant's case, and that assertion seems to me to be at least somewhat in question. The State, as Relator in the earlier, now-moot application for writ of prohibition, attached an order to its application that appears to be a general assignment of Judge Shaver to the 21st Judicial District Court, on May 28, 2014. The only designation of the purpose for the assignment appearing in the order itself is the following phrase: “for the primary purpose of hearing cases and disposing of business requested by the court.” Nothing in the order expressly designates Judge Shaver as the permanent judge of the 21st Judicial District Court, and perhaps more importantly, nothing in the order even expressly designates Judge Shaver “to sit” on Applicant's case. Instead, the only document transmitted to this Court by the State having any tendency to suggest that Judge Shaver might ever have been assigned specifically to Applicant's case is an enclosure letter appearing to accompany the assignment order and transmitting it to Judge Shaver. That enclosure letter is signed not by the Regional Presiding Judge but by his administrative assistant.

I recognize that an administrative assistant may be presumed to work closely with the judge that she serves, and perhaps may even be presumed to know what the judge she works for is thinking about a particular matter, but her enclosure letter is not an assignment order. Perhaps there is a different order that we have yet to see. Perhaps a statute makes clear that the particular type of assignment order signed by the Regional Presiding Judge in this case empowers an assigned judge to override the authority of the elected judge when that judge returns to his bench. None of those things have been demonstrated at this point to my satisfaction. That this Court would now presume that Judge Shaver “continues to sit by assignment as the judge of the 21st Judicial District Court of Bastrop County for Applicant's case” seems to me—at best—premature.² While I certainly remain open to persuasion on the question by facts or law that would lead clearly to that conclusion, I would wait for a proper pleading even to address the issue. The Court cannot reasonably invoke “judicial economy” to justify addressing issues that are neither raised by the pleadings presently before us nor even fairly necessary to resolution of the issues that are raised by the pleadings, namely, whether Applicant should be allowed to proceed on the claims made in his subsequent writ application under Article 11.071, § 5.

There remain unanswered questions with respect to which judge ought to preside over “the convicting court” in this case moving forward. But that issue is not properly before us at this time, and I would not presuppose an answer to any of them in our present order.

FOOTNOTES

1.   Tex. Gov't Code § 74.053.

2.   See Appendix at 3 (“NOTICE OF ASSIGNMENT”) (italics in original).

1.   Applicant filed a motion in the convicting court requesting that his execution date be rescheduled pursuant to Article 43.141 of the Texas Code of Criminal Procedure. Tex. Code crim. Proc. art. 43.141. He filed a separate motion arguing that the order setting the execution date was void because it was signed by a visiting judge, Doug Shaver, whose authority to preside over the case, Applicant claimed, had lapsed. The State filed an application for writ of prohibition in this Court to prohibit the currently elected judge of the convicting court, Judge Carson Campbell, from holding a hearing and ruling on Applicant's motions. The Court's order today staying Applicant's execution renders Applicant's motions—and hence, the State's prohibition application—moot.

2.   Judge Campbell set a hearing to consider Applicant's motions to withdraw the execution date, notwithstanding that Judge Shaver had presided over Applicant's case up to that point, and this was what prompted the State's now-moot application for writ of prohibition. Should Judge Campbell similarly decide to preside over Applicant's subsequent writ application following this Court's remand today, it is likely the issue will present itself again, and the issue would then be ripe for this Court's disposition.