Ex parte Ben

Keller, P.J., filed a Concurring Opinion in which Keasler, J and Hervey, JJ., Joined. I address Judge Alcala’s concurring opinion because it and her recent concurrence in Ex parte Dawson1 evidence some confusion about our Court’s procedures and statistics. Although both opinions concern the same issue, the concurrence in Dawson is more detailed in some respects, so I discuss both concurrences in this opinion. In Dawson, the concurring opinion estimated that we would spend, on average, about fifteen minutes per case for every case of every Mnd if we followed the author’s suggestions.2 These “per case” numbers are grossly inadequate and they should have prompted the author to rethink her calculations. This Court did not dispose of 9,823 cases in 2015;3 we disposed of 9,823 matters. This is significant because, for example, over 2600 of these matters were motions for extension and other such motions. Most of these motions are either ruled on by a single judge or disposed by the Clerk’s office in accord with prior instructions by the Court without a judge ever seeing the individual motion. For instance, the Court has standing orders regarding certain motions for extension of time. No one expects a judge to be an expert at math, but the concurrence’s calculations are just wrong.4 [299] There are more serious problems with Judge Alcala’s position though. Her position, as expressed in her concurring opinions in this case and in Dawson, is internally inconsistent on its core issue. On the one hand, she says, “Nothing in the Texas Constitution, therefore, authorizes a single judge on this Court to alone decide a habeas application or any other matter.”5 On the other hand, she “... agree[s] with this Court’s internal procedures that permit a single judge to act as a ‘duty’ judge to resolve certain types of procedural motions ... ”6 She also believes that, “[I]t is proper for courts to use standing orders or proxy votes in limited circumstances”7 that “do not require assessment of factual matters and on which there is unanimous agreement .... ”8 The conclusion that such standing orders must have unanimous agreement is contrary to the concurrence’s acknowledgment that the Constitution allows the Court to act with the agreement of only five judges.9 No explanation is offered as to why such orders must have unanimous agreement and no constitutional basis is cited for the suggestion that the matter under consideration not involve the assessment of factual matters.10 The habeas dispositions about which the concurrence complains are per curiam orders by an en banc court based on pre-approved circumstances. If, as the concurrence says, our internal procedures for motions are authorized by the Texas Constitution, then our internal procedures for habeas applications are authorized by the Constitution. The concurrence says there is a distinction between habeas applications and motions, but it does not even attempt to rely on the Constitution for the distinction. However logical the author of the concurrence might find the distinction, it is still just made up. Every judge on this Court has easy access to every habeas application and its accompanying staff memorandum. Viewing them does not require “going to this Court’s clerk’s office;”11 it just requires looking at a computer. If the author of the concurrence really wanted to read every application or staff memorandum, all she would have to do is read them. She could ask the Court to discuss any case in conference, and we would do so. But she does not want to read them, and I do not blame her, because it would not make any difference. In her opinion in Dawson, she complains about her lack of “meaningful participation” in habeas matters and says that even if she read all of the applications her vote “would not be given any legal effect.”12 She is correct. But the reason her [300] vote would not be given any legal effect is not because of our internal procedures; it is because she has just one vote. When that vote is contrary to the vote of the majority of the judges, it has no legal effect.13 And that, I believe, is the heart of the matter. Voting in panels of three would give a judge’s single vote a better chance of having “legal effect” because that judge would have to persuade only one other judge to vote her way.14 The Court does not want cases decided by panels though; it wants every case decided en banc. Our current procedure accomplishes that.15 I join the Court in denying relief. Footnotes [1] Ex parte Dawson, 509 S.W.3d 294, No. 85, 612-02, 2016 WL 6946927, 2016 Tex. Crim. App. LEXIS 1440 (Tex. Crim. App. November 23, 2016) (Alcala, J., concurring.). [2] Id., at 307, 2016 WL 6946927, *11, 2016 Tex. Crim. App. LEXIS 1440, *35. [3] See id., at 306-307, 2016 WL 6946927, *11, 2016 Tex. Crim. App. LEXIS 1440, *34 (claiming that “this Court disposed of 9,823 cases”). [4] If the author of the concurrence believes (as she says) that her proposal would give the judges more time to resolve other matters, I would again suggest that the calculations need rethinking. [5] Id., at 300, 2016 WL 6946927, *5, 2016 Tex. Crim. App. LEXIS 1440, *16-17 (emphasis added). [6] Id., at 302-303, 2016 WL 6946927, *9, 2016 Tex. Crim. App. LEXIS 1440, *26. [7] Id. [8] See Ben, slip op. at 13 (Alcala, J., concurring). [9] See id.; Dawson, at 300, 303-304, 305, 2016 WL 6946927, *5, *9, *9-10, 2016 Tex. Crim. App. LEXIS 1440, *16, 26, 31 (Alcala, J., concurring). [10] Ben, passim (Alcala, J., concurring), [11] See Dawson, at 304-305, 2016 WL 6946927, *9, 2016 Tex. Crim. App. LEXIS 1440, *29 (Alcala, J., concurring) (“But even assuming I could theoretically review the pleadings for each Article 11.07 writ application that has been designated for resolution by a single particular judge by going to this Court’s clerk’s office and examining all of the habeas filings that are pending in this Court ....”) [12] Id., at 305, 2016 WL 6946927, *9, 2016 Tex. Crim. App. LEXIS 1440, *30-31. [13] Many non-conference habeas applications have been brought to conference at Judge Alcala’s request. The Court has always disposed of these cases consistently with the staff attorney’s recommendation, so the disposition is the same as it would have been if they had not been brought to conference. [14] On several occasions, Judge Alcala has persuaded a single judge to join her dissenting opinions on non-conference applications. [15] I address only the most serious flaws in the concurrences’ position, but it is worth noting that we do not vote “by proxy,” we do not "delegate” our discretion to others, and “docketing” a case does not mean what the concurrence appears to think it means.