EX PARTE DILWORTH v. << (2026)

CONCURRING OPINION

I write only to respond to the dissent's reliance on the Hood cases. The judicial-bias claim in Hood was dismissed as barred by the prohibition against subsequent applications. The Court's handling of that claim—which would have entitled Hood to an entirely new trial if it had been granted—was not in any way avoided by this Court's later decision to grant relief on a punishment-only claim.

Hood was convicted in 1990, that conviction was affirmed on appeal in 1993, and his initial habeas application was denied in 1999.¹ In 2004, he filed a second application that was dismissed the next year as a subsequent application barred under Article 11.071, Section 5.² That statutory provision requires this Court to dismiss a claim in a subsequent application unless a statutorily enumerated exception is met.³ Then, in 2005, Hood filed a third application, raising the sole claim that the nullification instruction in his jury charge was unconstitutional in violation of the Supreme Court's decision in Penry II.⁴ Although this Court initially designated this claim as satisfying an exception to Section 5, it later decided that the claim did not in fact satisfy an exception and dismissed the application.⁵

After the dismissal of the third application, Hood began filing a series of applications that raised the issue of judicial bias from the judge in his case having an affair with the district attorney—the same judge and district attorney at issue in the present case.⁶ This Court dismissed one of these as a subsequent application barred by Section 5 and denied the other applications as improper “original applications.”⁷ After disposing of these applications, Hood then filed another subsequent application raising the judicial-bias claim and also filed a suggestion that this Court reconsider his third application, involving the punishment question.⁸ In a single order, this Court dismissed his judicial bias claim as subsequent under Section 5 but granted reconsideration of the punishment claim and granted a stay to afford time to do so.⁹ Later, the Court granted relief on the punishment claim.¹⁰

Because the Court had already disposed of the judicial-bias claim when it granted relief on the punishment claim, it is inaccurate to contend that this punishment disposition somehow avoided a resolution of the judicial bias claim. Also, the judicial bias claim—if granted—would have required an entire new trial—on both guilt and punishment. Thus, the Court's resolution of the punishment issue in Hood—with the granting of a new punishment hearing—was not an effort to avoid addressing the judicial-bias claim. And since Hood lost on his judicial-bias claim, Dilworth's loss on that claim cannot by any stretch of the imagination be characterized as disparate treatment.

With these comments, I join the Court's decision to deny reconsideration.

DISSENTING STATEMENT

Dilworth alleges within his present motion and his eighth and ninth applications for a writ of habeas corpus that an undisclosed romantic affair between his trial judge and the District Attorney of Collin County, who was responsible for his prosecution, amounted to a due process violation. This Court has denied relief on this motion as well as Dilworth's related efforts,¹ referring to the legislative writ bar ² and, perhaps, the doctrine of laches.³

The participants in the romantic affair denied it for years, though it was litigated heavily in a capital murder case garnering national attention ongoing while Dilworth was behind bars and out of the courtroom, and later admitted to by the pair. See Ex parte Hood, 304 S.W.3d 397 (Tex.Crim.App. 2010). With the same allegations arising in that case (tried during the same era as Dilworth's) and the allegations’ later appearance in generally credible news sources,  ⁴ I believe Dilworth's contentions are sufficiently plausible as a matter of fact and so serious insofar as the structural integrity of our judicial system is concerned, that leaving them unresolved without more meaningful consideration is imprudent. It is also concerning that, despite ultimately granting a new trial in the Hood case, we would refuse to consider the due process rights of a similarly situated applicant in connection with a judgment that has continuing, direct operation.

I would thus grant reconsideration of Dilworth's claim before us, allowing him to develop this claim as a matter of fact (unless the State is prepared to concede the relevant factual assertion) and address the controlling legal questions of (1) whether a litigant has received a fair trial in any meaningful sense of the word when the District Attorney bringing the charges against him was surreptitiously sleeping with the judge presiding over his trial, and (2) whether Dilworth, as the applicant, has waived his due process violation claim via laches or otherwise. Ignoring the obvious answer to the first issue and assuming the answer to the second is not acceptable.

BACKGROUND

Dilworth was convicted of attempted murder in the early 1990s and sentenced to ninety-nine years in prison. The Dallas Court of Appeals affirmed his conviction in 1994, and this Court has dismissed or denied each of his applications for a writ of habeas corpus filed from 1995 forward.⁵ Despite filing seven previous applications, Dilworth's eighth application for a writ of habeas corpus, filed in January of this past year, raised for the first time the allegation he was denied due process because the trial judge presiding over his case was engaged in a romantically intimate relationship with the Collin County District Attorney prosecuting him at the time of his trial.

As noted above, the trial judge and District Attorney denied their intimate relations for a substantial period following the trial in this case. Eventually, they both confirmed the affair when compelled to address the question under oath in depositions taken in connection with the Hood case. See note 4, supra.

Throughout the course of Hood, this Court had repeatedly dismissed that applicant's filings. See, e.g. Hood v. State, No. AP-71,167 (Tex. Crim. App. November 24, 1993) (not designated for publication); Ex parte Hood, No. WR-41,168-01 (Tex. Crim. App. April 21, 1999) (not designated for publication); Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005) (not designated for publication). The Court's multiple decisions against Hood included first dismissing his application for a writ of habeas corpus asserting “he was denied a fair trial because of an alleged relationship between the trial judge and the prosecutor” based on the Article 11.071 writ bar in June of 2008. See Ex parte Hood, Nos. WR-41,168-04 & WR-41,168-05, 2008 WL 2487794 (Tex. Crim. App. June 16, 2008) (not designated for publication), see also Ex parte Hood, No. WR-41,168-06, 2008 WL 2487785 (Tex. Crim. App. June 17, 2008) (not designated for publication) (denying a second original application for habeas corpus). In a subsequent application filed less than three months later, Hood reasserted this same claim of judicial bias impacting his right to a fair trial, but the Court once more procedurally dismissed this claim based on the writ bar. See Ex parte Hood, No. AP-75, 2008 WL 4151666, at*1, 2 (Tex. Crim. App. Sept. 9, 2008). In that same opinion, however, the Court granted Hood's motion for a stay of execution in order to permit, on the Court's own motion, reconsideration of a separate, earlier dismissal of one of Hood's previous applications in light of “developments in the law regarding nullification instructions.” Id., at *2. Doing so allowed the Court to avoid the awkward and obvious due process problem.⁶ In 2010, this Court then disposed of the jury instruction problem and ordered Hood relief on that ground, thus finally avoiding this due process scandal. Ex parte Hood, 304 S.W.3d 397, 409 (Tex. Crim App. 2010).

Despite these facts of Hood's case playing out during Dilworth's incarceration, we have no evidence Dilworth was informed of the affair or had access to proof of its existence prior to this application.

DISCUSSION

I. AT A MINIMUM, DILWORTH'S APPLICATION RAISES COGNIZABLE FEDERAL DUE PROCESS CONCERNS

Although the Supreme Court once concluded neither personal bias nor prejudice alone a sufficient basis “for imposing a constitutional requirement under the Due Process Clause,” the Court has since concluded circumstances exist “in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Caperton v. A.T. Massey Coal Co, 556 U.S. 868, 877, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009)). “[U]nder the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement” in the matter before him, and even the potential for bias alone may disrupt a defendant's due process rights during the course of proceedings. See Williams v. Pennsylvania, 579 U.S. 1, 8, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016).

As for determining that potential, “our system of law has always endeavored to prevent even the probability of unfairness,” but “[t]hat interest cannot be defined with precision. Circumstances and relationships must be considered,” and “ ‘[e]very procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955),  ⁷ citing Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927). In making this decision, courts should consider whether “the average judge in his [or her] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Id., citing Caperton, 556 U.S. at 872, 129 S.Ct. 2252.

These determinations are made by considering an applicant's allegations on a case-by-case basis and thus, as I explained in my opinion in Ex parte Roberson, 726 S.W.3d 290 (Tex. Crim. App. 2025) (Schenck, P.J., concurring in part and dissenting in part),⁸ many process complaints involving relationships and amicability between a judge and litigating attorneys, including potential recusal and disqualification, will not presumptively amount to a due process denial. See Roberson, 726 S.W.3d at 293–95 (Tex. Crim. App. 2025) (Schenck, P.J., concurring in part and dissenting in part). Instructive guidance to our State's judges and litigators echoes this sentiment.⁹

Dilworth's complaint here goes well beyond best practices and routine ethics concerns. To be sure, in his case and most others like it, complaints about the judge's missteps, if not pursued at the earlier stages of a matter, properly become subject to the heightened requirements for habeas on collateral attack of a final judgment. This Court may then decide to hear it—but only if the claim is deemed to fall within one of the exceptions to the writ bar. I believe Dilworth's may.¹⁰

Regardless, I think Dilworth's claim, unlike Roberson’s, is so structurally significant as to compel a forum for disposition on its merits as a matter of due process under both the U.S. and Texas Constitutions, even if it would not fit within the statutory exception. Tex. Const. art. 1 § 19;¹¹ see also id., art. 1 § 12 (“The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”); Ex parte Wood, No. WR-45,746-04, ––– S.W.3d ––––, ––––, 2025 WL 2148862, at *14, 17–18 (Tex. Crim. App. July 30, 2025) (Schenck, P.J., concurring in part and dissenting in part) (explaining the right to the writ promised by the State constitution cannot be voided by legislation); Roberson, 726 S.W.3d at 293–94 (Tex. Crim. App. 2025) (Schenck, P.J., concurring in part and dissenting in part) (“I have previously suggested potentially viable claims of actual innocence in a death case are ill-suited to resolution by procedural means, including defaults and bars to review of a successive application.”).

While these federal constitutional concerns are enough to warrant substantive review here, I doubt they operate alone. Neither we nor our sister court have attempted to develop the questions raised in Caperton under our own Constitution at all—or whether our existing canons and recusal rules are adequate in this respect.¹²

Whether that relief is available despite the passage of time is a different question, requiring examination of what Dilworth knew or should have known, and at what point, despite his incarceration, he should have known it.

II. CONFRONTING DUE PROCESS VIOLATIONS IN CASES SUCH AS DILWORTH'S IS IMPORTANT

Some complaints fit so plainly within the structural elements of a due process right to a fair trial that the failure to recognize them would undermine the ability of the judiciary to render judgments worthy of presumed public acceptance. See Rios v. State, 665 S.W.3d 467, 486 (Tex. Crim. App. 2022) (citing Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Like our federal colleagues, we in the judiciary have “no influence over either the sword or the purse,” making our ability to carry out our core function of checking the other departments of government entirely dependent on the public's confidence that we can be trusted to render judgments free of corrosive external influences. Williams, 579 U.S. at 7, 136 S.Ct. 1899 (“Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.”).

In those rare cases, reliance on finality interests and like barriers to recognition of the obvious constitutional problem yield to first principles. Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (describing a judge's acceptance of bribes in other criminal cases); see also Van Deelen v. Jones, No. 4:23-CV-03729-AM, 2024 WL 3852349 at *16 (S.D. Tex. Aug. 16, 2024) (detailing allegations by one party evidenced “an even clearer conflict: an attorney who is romantically involved with the judge ․.”). I believe Dilworth's contentions are so serious and factually plausible as to require a careful evaluation of the timing questions that appear to animate our decision to deny relief and to strongly militate in favor of resolving the due process question on its merits.

Dilworth's conviction stems from a 1992 murder and a “trial”¹³ the following year. As subsequent reports confirmed, the then-District Attorney of Collin County and Dilworth's trial judge admitted to a sexual relationship during that timeframe, though its exact duration is unclear, and it is equally unclear the relationship continued before, during, or after Dilworth's trial. See Hood, 2008 WL 4946276 at *2 (Tex. Crim. App. November 19, 2008) (“Although both parties stated that the affair had ended by the time of [Hood's] trial, the dates cited in the prosecutor's deposition seem to contradict this assertion.”).¹⁴

Regardless, questions as to the duration of the intimate relationship do not diminish the existence of it or the obvious potential for the finding of a due process violation that should be explored and resolved. In answering like questions of the constitutional impact of a judge's affinities on a defendant, the Caperton Court echoed Tumey’s language, establishing a case-by-case standard that would determine an allegation of bias constitutionally problematic if it involved a “procedure which would offer a possible temptation to the average man as a judge” that might disrupt his ability to “hold the balance nice, clear and true.” Caperton, 556 U.S. at 885, 129 S.Ct. 2252 (quoting Tumey, 273 U.S. at 532, 47 S.Ct. 437).

Caperton’s dissenting justices, in addition to recapping decisions where recusal was proper,¹⁵ would have directed courts towards the relevant state (or federal) statutes in determining whether judicial recusal is necessary to avoid a due process violation. See Caperton, 556 U.S. at 892, 129 S.Ct. 2252 (Roberts, C.J., Scalia, Thomas, Alito, JJ. dissenting).  ¹⁶ While our statutes and rules do not directly delineate a prohibition against a judge maintaining a personal, romantic relationship with a member of the bar, much less one appearing before them, they do mandate recusal where a judge's impartiality might be reasonably questioned. See Tex. Code Crim. Proc. art. 30.01; Tex. R. Civ. P. 18a-18b (requiring recusal under that general rule and “in any proceeding in which ․ a person within the first degree of relationship to” the judge “is acting as a lawyer in the proceeding.”); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (holding procedure for recusal of judges set forth in Rule 18a of Texas Rules of Civil Procedure applicable to criminal cases). In a civil context, Texas courts have read these rules to align with due process requirements so as to permit the collateral reopening of a final judgment where an undisclosed romantic relationship between the judge and counsel was plausibly alleged. Thomas v. 462 Thomas Family Properties, LP, 559 S.W.3d 634, 642 (Tex. App.—Dallas 2018, pet. denied). Given the heightened due process interests involved with a criminal trial and the resultant deprivation of liberty, it seems impossible that a different rule could obtain here.

Just last year, this Court recognized the due process imperative at work in Ex parte Halprin, 708 S.W.3d 1 (Tex. Crim. App. 2024), which Dilworth references in his pleadings. To be sure, Halprin's judge was more vocal about his bias than Dilworth's. But this hardly cuts against Dilworth's request. If anything, the effort to conceal the obvious bias concerns at issue here makes “the probability of unfairness” in Dilworth's case perhaps even more concerning.

III. STRUCTURAL DUE PROCESS VIOLATIONS SHOULD GENERALLY OVERCOME PROCEDURAL HURDLES

I accept that Dilworth may well be guilty and may well have been convicted had he received a fair trial before a judge who was sleeping with the District Attorney. Likewise, I suspect jurors who have received bribes may well render verdicts they would have arrived at had they not been bribed in the first place.¹⁷ But where allegations like this go to heart of the ability of the “trial” to function as a truth-seeking process, the error is constitutional and structural, and is no different than the situation in which there has been no verdict at all. E.g., Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (finding error in misdescribing reasonable doubt in jury instructions to have so fundamentally denied effect of having a verdict to amounted to a structural error equivalent of having no verdict at all).

This Court's ability to function depends on assuring that our judgments and those of all courts hearing criminal law matters are fairly seen as products of a competent and fair process. When a structural error like that undermining Dilworth's trial is ignored, the resulting risk is an undermining of confidence in the entire judicial branch and our ability to function within the parameters thereof and accomplish the tasks delegated to us in our State's Constitution. See Tex. Const. art II § I, art. V §§ 1,8, 11; Williams, 579 U.S. at 7, 136 S.Ct. 1899.

A. The Writ Bar Would Present a Factual Question that Needs Development in Any Event

I accept that Dilworth's eighth and ninth applications pertaining to the attempted murder are by force of arithmetic not his first. I also agree the statutory hurdles drafted into Article 11.07 limit Dilworth's access to pursue these claims. Ultimately, however, I suspect I would find the factual basis of the claim to be unavailable to Dilworth at the time of his original application in view of the extensive efforts to conceal the affair throughout the Hood case. While I suspect that Dilworth's claim would fit within the existing writ bar, I question whether the Legislature would have the power to erect a writ bar preventing access to the courts to address such a basic constitutional right,¹⁸ or preventing the judicial department from entertaining the merits of a petition so basic to the task of policing its own affairs. See Wood, ––– S.W.3d ––––, ––––, 2025 WL 2148862 at *15 (Tex. Crim. App. July 30, 2025) (Schenck, P.J., concurring in part and dissenting in part); Roberson, 726 S.W.3d at 293–95 (Tex. Crim. App. 2025) (Schenck, P.J., concurring in part and dissenting in part).

I instead would find Dilworth's case and others like it involving “demonstrable judicial misconduct” to “invite post-conviction correction despite finality interests that would otherwise preclude relief.” Roberson, 726 S.W.3d at 293–94 (Schenck, P.J. concurring in part and dissenting in part). As it stands, the Court is currently left with procedural questions over the time delay between the public acknowledgement of the affair and Dilworth's pursuit of relief in his eighth application.

B. We Are Not Able to Say or Assume at this Stage Whether the Doctrine of Laches Bars Dilworth's Constitutional Claim

This Court has referred to laches as “a theory which we may, and should, employ in our determination of whether to grant relief in any given [Article] 11.07 case.” Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999). Some may assert the doctrine of laches would bar Dilworth's claims from being heard by this Court. After all, Dilworth was convicted some thirty years ago.¹⁹ Indeed, this Court has cautioned against granting relief in a case the doctrine might otherwise bar to avoid inflicting a “blow to the State's legitimate interest in the finality of its convictions, many years after the fact, without an adequate justification for the delay, and with demonstrable prejudice to the State.” Ex parte Hill, 711 S.W. 3d 221, 226 (Tex. Crim. App. 2025), see also Carrio, 992 S.W.2d at 486 (explaining the doctrine exists to prevent the bringing of claims so far past the date of the crime in question that the State is too greatly prejudiced in its attempt to answer and fend off the issues the claimant has raised), Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013) (explaining the State's interest in and potential for overcoming prejudice by claimant's delay).

In determining whether laches might bar relief, this Court uses a test explaining the longer an applicant waits in bringing his claim, the less evidence is required of the State to show the State would suffer prejudice. Id. at 217. Still, that test and that doctrine are predicated on facts, not assumptions. Even assuming the applicability of the laches doctrine to the claim before us, we lack evidence of when or how Dilworth learned of the facts at issue, whether those involved in the District Attorney's office informed him of them, what cause may have existed for any delay in raising the claim, or what prejudice would result from a new trial.

At this stage, I believe we face a far simpler question: whether Dilworth can file his application and have even that question adjudicated on its merits. We are not, at this point in Dilworth's case, considering what he did to earn his sentence, what he knew at the time of his trial or after it, when he might have or should have discovered such knowledge, or what he should have done to complain about it. Dilworth is not responsible for operating an orderly or functioning judiciary. The only question here is what this Court has done or will do when it becomes aware of a structural problem like this. Given the nature of his claim and the apparent factual basis supporting it, I believe it does far more harm to deny him the opportunity to be heard than to grant it.

I thus suspect I agree with the majority in not seeing Dilworth as a victim insofar as the result of his trial anymore than Hugh Caperton was in the case bearing his name—as Justice Benjamin swore that Massey Coal's aberrant financial relation to him had no effect on his decision. Instead, it is this Court, the judiciary, and the people who appear in our courts who will suffer immeasurably and grievously by our averted posture.

CONCLUSION

When an applicant's claims involve a facially plausible claim of unconstitutional judicial bias, this Court should be slow to evade the merits in reliance on the writ bar in Article 11.07 or the doctrine of laches. In such cases, I question whether the Legislature intended to or even could deny access to the courts or the writ itself without violating the Texas Constitution. Today's majority avoids the issue, so I dissent.

FOOTNOTES

1.   See Hood v. State, No. AP-71,167 (Tex. Crim. App. November 24, 1993)(not designated for publication); Ex parte Hood, No. WR-41,168-01 (Tex. Crim. App. April 21, 1999)(not designated for publication).

2.   Ex parte Hood, No. WR-41,168-02 (Tex. Crim. App. April 13, 2005)(not designated for publication); see Tex. Code Crim. Proc. art. 11.071, § 5.

3.   Art. 11.071, § 5.

4.   See Ex parte Hood, 211 S.W.3d 767, 772 (Tex. Crim. App. 2007) (“That application is the one currently before us, and it advanced a single claim for relief: ‘The nullification instruction in Mr. Hood's case suffers from the same defects that the Supreme Court found unconstitutional in Penry II and [Smith II].’ ”) (emphasis added); see Penry v. Johnson (Penry II), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

5.   Hood, 211 S.W.3d at 780.

6.   See Ex parte Hood, Nos. WR-41,168-10 & AP-75,370, 2008 WL 4151666, *1 (Tex. Crim. App. September 9, 2008) (not designated for publication) (reciting procedural history).

7.   See id. (“In the applications, applicant asserted that he was denied a fair trial because of an alleged relationship between the trial judge and the prosecutor that applicant claimed was “common knowledge” at the time of trial. We dismissed the Article 11.071 application and denied leave to file the original application. On June 17, 2008, this Court denied a second original application for writ of habeas corpus.”) (citations omitted).

8.   See id. at *2.

9.   Id.

10.   304 S.W.3d 397, 409 (Tex. Crim. App. 2010).

1.   I voted to grant relief to Dilworth's original application and recorded my like vote and intention to release a decision in connection with this rehearing suggestion. Due to an administrative error, a notice denying the suggestion was released prematurely while this opinion was being drafted and circulated to the Court. That error has now been corrected.

2.   Texas Code of Criminal Procedure Article 11.07 generally forbids successive applications for a writ of habeas corpus. The text provides two options for overcoming the article's obstacle: “(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.” Tex. Crim. Code Proc. art. 11.07 § 4 (a)(1)-(2).

3.   His ninth writ application for a writ of habeas corpus includes this same allegation, and in July of this year, Dilworth filed a motion to reconsider his applications. In hopes of overcoming the legislatively-imposed bar to subsequent writ applications, Dilworth alleges the Court's recent holding in Ex parte Halprin, 708 S.W.3d 1 (Tex. Crim. App. 2024) qualifies as new law.

4.   See CBSTexas, Imprisoned Plano Murderer: “I Don't Deserve to be Here,” CBSNews (September 26, 2012, 6:35 PM), https://www.cbsnews.com/texas/news/imprisoned-plano-murderer-i-dont-deserve-to-be-here/; KRWG News and Partners, Death Row Inmate Gets Life Sentence; Judge and Prosecutor Had Affair, KRWG Public Media (February 8, 2013, 2:44 PM) https://www.krwg.org/regional/2013-02-08/death-row-inmate-gets-life-sentence-judge-and-prosecutor-had-affair; Morgan Smith, TribBlog: Judges Gone Wild, The Texas Tribune (February 24, 2010, 5:29 PM) https://www.texastribune.org/2010/02/23/former-court-of-criminal-appeals-judge-in-disgrace/; Adam Liptak, Questions of an Affair Tainting a Trial, The New York Times (February 22, 2010), https://www.nytimes.com/2010/02/23/us/23bar.html.

5.   Dilworth has filed nine total applications for a writ of habeas corpus, and six of the nine applications for a writ of habeas corpus pertain to the conviction for attempted murder. Each previously disposed of application has been dismissed or denied.

6.   Judge Parker's concurrence does an excellent job of chronologically describing Hood's multiple filings. However, her description that “Hood lost on his judicial-bias claim” in the same order in which the Court granted a stay of his execution stretches the facts of that claim's dismissal in order to support her conclusion we have no business re-examining Dilworth's claim today. In that order, the Court re-encountered his judicial-bias claim and again avoided its merits. That opinion did not purport to endorse the notion that any litigant deprived of due process minimum can or should be denied relief regardless of when or how he learned of the facts supporting the claim. That decision comes here.

7.   This objective standard “may also require recusal whether or not actual bias exists or can be proved. Due process ‘may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’ ” In re Murchison, 349 U.S. at 136, 75 S.Ct. 623.

8.   There, “Roberson allege[d] Anderson County Judges Calhoon and Bentley violated his due process rights in being ‘at the very least, presumptively biased against him’ ”; however, “none of the activities cited in Roberson's most recent application present[ed] evidence of a due process violation.” Roberson, 726 S.W.3d at 294–95.

9.   See ABA Comm. On Ethics & Prof'l Responsibility, Formal Op. 488, at 4-7 (2019); Comm. On Jud. Ethics, State Bar of Tex., Op. 33 (1978), reprinted in 59 Tex. Jud. Council & Off. Ct. Admin. Tex. Jud. Sys. Ann. Rep. 99 (1987), Op. 35 (1978), reprinted in 59 Tex. Jud. Council & Off. Ct. Admin. Tex. Jud. Sys. Ann. Rep. 99 (1987), Op. 36 (1978), reprinted in 59 Tex. Jud. Council & Off. Ct. Admin. Tex. Jud. Sys. Ann. Rep. 99 (1987), Op. 37 (1978), reprinted in 59 Tex. Jud. Council & Off. Ct. Admin. Tex. Jud. Sys. Ann. Rep. 99 (1987), Op. 38 (1978), reprinted in 59 Tex. Jud. Council & Off. Ct. Admin. Tex. Jud. Sys. Ann. Rep. 99-100 (1987), Op. 39 (1978), reprinted in 59 Tex. Jud. Council & Off. Ct. Admin. Tex. Jud. Sys. Ann. Rep. 99-100 (1987).

10.   At this stage I know nothing about Dilworth's knowledge of the affair or his access to it and believe that question should, at a minimum, be developed prior to a final denial of his complaint.

11.   As I've asserted before, I also believe our duty to respect this provision is elevated pursuant to the category of deprivation at bar. See Addington v. Texas, 441 U.S. 418, 424-425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (explaining the standard of proof “embodied in the due process clause” points to litigants involved in a property interest sharing the risk of error in a “roughly equal fashion,” but an intermediate standard of proof is necessary for deprivation of a defendant's liberty interest).

12.   To the extent our rules permit a judge to sit in a case in which he or she has an undisclosed, aberrant personal or financial relation to one of the protagonists, I believe they wholly fail to comply with either the federal Due Process Clause or the Texas due course of law guarantee. In such cases only one side to the case is left out of an unseemly picture and the failure to disclose is itself an aggravation that would warrant judicial correction even of a stale judgment. See Health Services Acquisition Corporation v. Liljeberg, 796 F.2d 796 (5th Cir. 1986), aff'd, 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (undisclosed financial relation compels reopening of final civil judgment); Thomas v. 462 Thomas Family Properties, LP, 559 S.W.3d 634, 642 (Tex. App.—Dallas 2018, pet. denied) (same result undisclosed romantic relation between judge and counsel).

13.   As I believe a proceeding presided over by a judge who is secretly engaged in carnal relations with one of the protagonists cannot be considered a “trial” in any sense in which that word is used in our constitutional understanding, I hesitate to embrace it.

14.   Other published reports confirm they took a trip together in 1991. See Alan Berlow, Ardor in the court, Part 3, Salon (September 21, 2009, 10:19 AM), https://www.salon.com/2009/09/21/hood_case/.

15.   See, e.g., Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (finding where a defendant who had lobbed expletives and ad hominem attacks towards his trial judge and was subsequently charged with criminal contempt “should be given a public trial before a judge other than the one reviled by the contemnor.”); Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 41 L.Ed.2d 897, (1974) (finding judge had “become embroiled in a running controversy” with the defendant and thus could not preside over defendant's trial); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (finding recusal necessary when allowing the judge to remain on a case involving his personal interests “had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.”); Connally v. Georgia, 429 U.S. 245, 250, 97 S.Ct. 546, 50 L.Ed.2d 444, (1977) (per curiam) (finding a violation of Fourth and Fourteenth Amendment protections where a justice of the peace was paid to issue search warrants but received no like remuneration for denying a warrant).

16.   “All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Tumey, 273 U.S. at 537, 47 S.Ct. 437; see also Lavoie, 475 U.S. at 820, 106 S.Ct. 1580.

17.   Despite a Court's best efforts, this will happen too. See Press Releases, Fifth Juror Bribery Defendant Pleads Guilty to Scheme to Bribe Feeding Our Future Juror, U.S. Att’y’s Office Dist. Of Minn. (Aug. 21, 2025), https://www.justice.gov/usao-mn/pr/fifth-juror-bribery-defendant-pleads-guilty-scheme-bribe-feeding-our-future-juror [https://perma.cc/X4TB-YRK9]. (highlighting juror 52's disclosure of bribery attempt). Our constitutional system is built on a rules-based order that cannot function if courts are less willing than jurors to take the difficult step of confronting challenges like this.

18.   See Tex. Const. art. I, § 12.

19.   Given that thirty years have passed, others might struggle with the concept of whether and how in the last several decades Dilworth could have not presented this claim sooner. See State's Response to Article 11.07 Application for Writ of Habeas Corpus, 3-5, filed Feb. 3, 2025. The answer to this question becomes more clear considering Dilworth's incarceration, away from the news cycles, internet and without access to Westlaw or even this Court's website to make himself immediately aware of ongoings in Hood's case which translate to his. As Dilworth does not present us with the specifics of when his concerns first came to light, without granting him the opportunity to be heard, we may never learn of the relevant timeframe.