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Court of Criminal Appeals of Texas.


NO. WR-70,722-02

Decided: February 03, 2017

YEARY, J., filed a dissenting opinion in which KELLER, P.J., and KEASLER, and HERVEY, JJ., joined.


The Court today stays the execution in this cause without ruling on whether to file and set the application for writ of mandamus. I would simply deny the motion for stay and deny leave to file the application for writ of mandamus. Because the Court does not, I respectfully dissent.

The Court seems to operate on the assumption that Subsection (b-2) of Article 43.141 constitutes a mandatory provision that requires a remedy any time there is a failure to comply with the notice provision in Subsection (b-1). TEX. CODE CRIM. PROC. art. 43.141, §§ (b-1) & (b-2). That is not how I read the statute. Subsection (b-2) provides that resetting the execution date is the “exclusive” remedy for failure to comply with Subsection (b-1). It does not say that such a remedy is mandatory any time there is a failure to comply with Subsection (b-1). It is more than possible to read the statute to mean that when it is appropriate to remedy a failure to comply with Subsection (b-1), then the only remedy available is to reset the execution date—not, for instance, to reverse the capital conviction or declare the capital punishment to be forfeited.

The facts of this very case demonstrate how it may not be appropriate to grant any sort of remedy at all in a given situation. Here, Relator's counsel had far more than the 91 days' notice that the statute was designed to afford. The district court's order set the execution for a date 148 days after the date the order was issued. And it was not Relator's counsel who received tardy notice, but the Office of Capital and Forensic Writs. Under these circumstances, it is far from clear to me that any remedy is required at all. The import of the statute is subject to debate, at the very least. That being the case, it cannot plausibly be argued that Relator has shown that he has a “clear entitlement” to the relief he seeks. E.g., In re Daniel, 396 S.W.3d 545, 549 (Tex. Crim. App. 2013). The question simply is not subject to mandamus.

There is nothing to be gained by granting the stay. I respectfully dissent.

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