Convenience vs. the Constitution: CCA habeas procedures value former over latter, says high-court judge

Thanksgiving is over, but Grits is grateful for Texas Court of Criminal Appeals Judge Elsa Alcala, without whom I wouldn't have been aware of this major problem with the court's habeas corpus procedures.

In an opinion released this week, Alcala pulled back the curtain on the court's internal policies to reveal how most habeas writs are decided by a single judge, in her opinion in contradiction to requirements in Texas' Constitution and statutes. This is a must-read opinion for anyone interested in Texas habeas corpus matters.

Basically, the CCA has identified entire classes of cases which are segmented out by staff and routinely denied by a single judge. Alcala agreed the writ in this case should be denied, but filed this concurrence to expose problems with the process.

In Alcala's view, "the Texas Constitution requires a decision by a quorum of judges on this Court, and thus a denial of habeas relief by a single judge on this Court fails to comply with this requirement." She believes that, "the Texas Constitution’s mandate that a quorum of judges decide this Court’s cases is not satisfied by what is effectively a standing order of this Court that permits an individual judge to act as a proxy for a quorum of the judges on this Court on the basis of a pre-vote on a category of cases that are never actually individually seen by any judge other than the proxy judge."

In non-death penalty cases, she points out, the Texas Constitution (Art. V, Sec. 4) permits a panel of three CCA judges to consider habeas writs, but not individual judges as is this court's practice. In a panel of three, two judges constitute a quorum. So by that reckoning, at least two judges must participate for these writ denials to be valid.

The Texas Constitution does give individual members of the CCA power to issue habeas writs, she argues, but not to deny them. And in any event, the court's authority "is subject to regulation by the Legislature, which has decided not to permit the exercise of that power for Article 11.07 writs," which is most of them. Those writs are issued through the convicting court and the CCA's statutory role only begins after that court does its work.

The issue is important because there are three, maybe four CCA judges who reflexively side with the government in all cases. These judges can be counted on to reject defense arguments not so much because they're wrong, but simply because they come from the defense, whom they like to blame even for problems that prosecutors cause. So any writ that goes to Sharon Keller, Barbara Hervey, Michael Keasler, and in non-death cases, probably Kevin Yeary, are apt to get rejected and round-filed no matter what the situation. The court remains sharply divided and the difference between how different judges might view cases is substantial.

In that light, requiring at least two out of three judges on a panel to consider a case provides at least some check on members of what Grits has dubbed the Government-Always-Wins faction on the court, which includes the Presiding Judge who assigns cases. If the answer to a habeas petition is just that "Michael Keasler said 'no'," it's hard to assess whether that's because the petition itself was inadequate, or just because certain judges walk into most cases having settled on a predetermined, pro-government outcome.

IANAL, so I'm not sure what recourse there is when a majority of high-court judges choose to disregard the law for their own convenience. (Maybe such things can get appealed to SCOTUS? Some more knowledgeable person, please enlighten us in the comments.) But Judge Alcala deserves thanks for making public an internal, procedural practice that violates the constitution and limits the application of justice. If she didn't say something, how could we know?

CLARIFICATION: The original post implied individual CCA judges could "grant" habeas writs when Alcala's opinion made clear they may only "issue" them, ordering a defendant to appear before a trial-court judge. In her view, individual CCA judges are not authorized to grant or deny 11.07 habeas writs under their own authority. Read Alcala's opinion for a more complete explication of these issues. Grits regrets any confusion.