The Free-Speech Fight
In our fight against Texas’s harassment statute, and against content-based restrictions on protected speech generally, Citizen Lane and I have filed motions for rehearing in Barton and Sanders (links to PDFs of motions).
On Sanders, we learned after the Court of Criminal Appeals ruled that the State had dismissed the case in the trial court before the Court of Criminal Appeals had ruled. So we filed a Suggestion of Mootness with the CCA, because if the case had been dismissed it was moot and the court should not have decided it.
Now that it has won (for the moment) in the Court of Criminal Appeals, the State has argued in the trial court that its own motion for dismissal was ineffective because the habeas appeal was pending.
To understand this issue, you need to know that an application for writ of habeas corpus initiates a new case, separate from the criminal case. Typically the clerk will give (and always should give) the habeas corpus case a new cause number. If an appeal in the habeas corpus case were an appeal of the criminal case, there would be little doubt that it stayed proceedings in the criminal case.
But because the habeas corpus case is a separate case, it is not clear whether proceedings in the criminal case may proceed while the habeas appeal is pending.
In Sanders, this is important because if the trial court had authority to dismiss the case on the State’s motion, Mr. Sanders can stop fighting; he has won.
I see three possible solutions to this problem:
The trial court has unlimited authority to act in the underlying criminal case;
The trial court has no authority to act in the underlying criminal case; or
The trial court has authority to dismiss the underlying criminal case, but no other authority.
1. Unlimited Authority
Two Texas intermediate appellate courts have held that the trial court has unlimited authority to act—that even though the defendant is still arguing in the appellate court that the indictment is void because the statute is unconstitutional, unless the appellate court explicitly orders a stay he may be tried, convicted, and imprisoned in the underlying case.
This is the position that the State has historically taken, because it is the State that wants to put the accused to trial. If the accused is appealing the denial of an application for writ of habeas corpus, it is because he doesn’t want to go to trial. If he wanted to go to trial, he would have challenged the validity of the indictment with a motion to quash instead of an application for writ of habeas corpus.
Unless trial ends in a mistrial, it renders the habeas appeal moot (because whether the accused is convicted or acquitted, he is no longer restrained under the challenged charging instrument). If a defendant wants to go to trial, he gets a ruling on a motion to quash before trial, and he can appeal this ruling after trial.
In the pending Ex parte Claycomb, in the Amarillo Court of Appeals, the trial court announced its intention to put the defendant to trial. The prosecutor—Jeffrey Ford of Lubbock—argued, based on the two court of appeals opinions, that the trial court could put the accused to trial while the habeas appeal was pending.
2. No Authority
We filed a pleading in the court of appeals in Claycomb arguing that, despite the two other intermediate-court opinions to the contrary, the trial court had no authority to put the accused to trial. Our argument was based on article 11.32 of the Texas Code of Criminal Procedure (which the two other intermediate courts had not considered):
CUSTODY PENDING EXAMINATION. When the return of the writ has been made, and the applicant brought before the court, he is no longer detained on the original warrant or process, but under the authority of the habeas corpus. The safekeeping of the prisoner, pending the examination or hearing, is entirely under the direction and authority of the judge or court issuing the writ, or to which the return is made. He may be bailed from day to day, or be remanded to the same jail whence he came, or to any other place of safekeeping under the control of the judge or court, till the case is finally determined.
It seems to me that if the person is no longer detained on the original process (the indictment) but under the authority of the writ of habeas corpus, he cannot be tried on the original process “till the [habeas corpus] case is finally determined.” Here’s a brief on the issue, if you’re interested.
This is a question of personal jurisdiction. The indictment is what gives the trial court personal jurisdiction over the accused, and while the accused is not detained on that indictment, the trial court has no jurisdiction.
The Amarillo Court in Claycomb did not rule on whether the trial could proceed, but issued a stay so in the trial court that it could consider that question, which amuses me because they, having issued the stay to consider it, never have to decide the question. They can decide the substantive issue (the constitutionality of the Online Impersonation statute) while the stay is pending, and the jurisdiction issue will be moot.
“No authority” is what the State—again Jeffrey Ford of Lubbock—is arguing now in Sanders to avoid the mooting effect of its dismissal.
A lawyer sometimes must take directly contradictory positions on behalf different clients. I might argue on behalf of Mr. Claycomb that the trial court has no authority, and argue on behalf of Mr. Sanders that the trial court has unlimited authority (but I shan’t, as I’ll describe shortly). It’s unseemly for a lawyer—Mr. Ford—to take directly contradictory positions on behalf of the same client—the State—at the same time. I’m hoping the fact that Mr. Ford is taking such positions will encourage the CCA to invite the State and us to brief and argue the issue, and to decide this really interesting question.
3. Authority Only to Dismiss
On behalf of Mr. Sanders I will, if invited, argue that both the “unlimited authority” and “no authority” positions are wrong, for reasons that were not relevant in Claycomb.
Article 11.32 is about personal jurisdiction. After the habeas writ has been granted, the trial court does not have jurisdiction over the defendant under the indictment. This rule is somewhat obscured by the fact that usually the habeas court is the same as the trial court. It doesn’t have to be so, but as a matter of comity among trial courts, one trial court will usually be reluctant to hear a challenge to another court’s jurisdiction.
But if you imagine the court-as-trial-court as Court A, and the court-as-habeas-court as Court B, even though it’s the same judge in the same room, you can see how article 11.32 dictates that the court-as-trial-court lose jurisdiction over the accused when the court-as-habeas-court issues the writ.
A trial court without personal jurisdiction over the accused cannot do anything in the case except dismiss the case. Dismissing the case when the court has no personal jurisdiction not only is permissible, but in some circumstances—for example, a civil case in which the defendant has insufficient contacts with the state where he is being sued—is required.
The proper outcome under article 11.32 is that once the writ of habeas corpus has issued, the court can take no action on the underlying criminal case, except to dismiss it.
We filed a motion to extend time to file the motion for rehearing in Nuncio, but the lead lawyer on that case, Oscar Peña of Laredo, got butthurt that we didn’t involve him as much as he wanted to be involved—he’d emailed us a question on the 20th of April, and we hadn’t responded within 28 hours—so he threatened that the client would fire us if we didn’t involve him more.
Cert petitions in these cases are going to be huge projects. If we’ve given you tens of thousands of dollars worth of free legal help for your client, you can wait a couple of days for a response to your emailed question. And if you can’t wait, dealing with cocounsel with a less-than-robust ego tilts the balance from “worthwhile pro bono project” to “someone else’s problem.”
So Haygood and Bennett are off that one.
Sometimes you want lots of friction between parts in a machine (an engaged clutch), sometimes friction is inevitable but you want to minimize it (a piston in a bore), and sometimes you can and should avoid friction entirely (a belt rubbing on a stationary part).
Think of interactions between people as interaction between parts of a machine. Do you want more friction in your relationships? Less? Will the friction help you get what you need, or will it break things unnecessarily?
Take, for example, getting pulled over by the police for a traffic violation. You can minimize friction by being friendly and cooperative, making it more likely that you will be on your way more quickly, but making the cop’s job easier; or you can increase friction by being sullen and uncooperative, making the cop’s job harder, but increasing the odds that you will get a ticket instead of a warning, or will have to spend an extra fifteen minutes by the side of the road, or will wind up arrested or dead. You decide what balance you want to strike.
Sometimes friction is inevitable, sometimes it’s necessary, but mostly life is easier if we avoid friction. It’s largely under your control.
Oscar Peña’s communication in Nuncio is a good example of unnecessary friction that probably should have been avoided. But sometimes ego gets in the way.
Where is your ego causing unnecessary friction right now?