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Court of Criminal Appeals of Texas.


NOS. WR-62,924-06

Decided: December 14, 2016

HERVEY, J., filed a concurring opinion in which Keller, P.J., and Keasler, J., joined.


I write separately to dispel any notion that criminal defendants, rich, poor, or otherwise classified, receive anything less than full and just review of their cases before this court.

The manner in which we address writs of habeas corpus has been much debated but that issue was decided years ago and was recently reconfirmed by a majority of our members. However, condemnation of our policy continues and therefore I write to add a few points in support of our majority position. First, I do not read the much cited Texas Constitution to prevent an individual judge from taking action on an individual writ. This has been a feature of our procedures for decades, and to alter that process at the suggestion of one judge ignores all of the work of the men and women “behind the curtain,” the judges, their staff, and the collective ability and years of practice reading, researching, discussing and making decisions on all of the matters presented to this court, of last resort. It also ignores all of the work and legal knowledge applied by the parties in courts below.

Yes, this court handles thousands of writs a year but a writ can allege very simple matters, or they may be demanding and time consuming such as those raising new issues in a capital murder/death penalty case. Each matter is afforded whatever individual time and consideration it demands.

But, unlike detractors from our procedure, I have full faith that our staff is immensely equipped to review an application for habeas corpus and to make appropriate recommendations for appropriate action to be taken by the judges of this court. Many writs, such as those containing complex issues, are automatically distributed to a full court. Others, however, are randomly assigned among the nine chambers where judges and their staff likewise review them. I also have faith in our elected judges to know the law or learn what is necessary and to know when and if additional assistance from the full court and/or our court staff may be required or helpful in deciding appropriate actions to be taken–in any matter, not only applications for post-conviction relief.