Ex parte Coronado

¶1filed a concurring opinion

¶2I 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.

¶3*262In Dawson, the concurring opinion estimated that we would spend, on average, about fifteen minutes per case for every case of every kind 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

¶4There are more serious problems with Judge Alcala’s position though.

¶5Her 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 ‘duty1 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 *263Constitution for the distinction. However logical the author of the concurrence might find the distinction, it is still just made up.

¶6Every 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 ease 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 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

¶7And 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

¶8I join the Court in denying relief.

¶24CONCURRING OPINION

¶25filed a concurring opinion,

¶26This Court properly denies Marco Coronado’s two applications for writ of habeas corpus. The habeas judge entered findings of fact and conclusions of law and recommended that this Court deny the application. After reviewing the judge’s findings and conclusions, a writ staff attorney drafted a memorandum detailing Coronado’s claims, determined the findings and conclusions are supported by the record, and recommended that Coronado’s claims be denied based on those findings.

¶27The author of the other concurring opinion, to whom this writ application was administratively assigned, agreed with the habeas judge’s and the writ staff attorney’s recommendation that Coronado’s application be denied because it is meritless. The same author sought the formal votes *264from the entire Court, but it was not legally necessary. Because this application satisfied the criterion in the Court’s standing internal procedures, she had the authority to lawfully deny Coronado’s application by her signature alone.

¶28The concurrence accuses the Court’s judges of violating the Texas Constitution and statutes in how the Court resolves certain applications for writ of habeas corpus. The accusations require a response. We have never had to explain this long-established practice, much less defend it. Yet we find ourselves defending it today, and by extension the Court itself, against an attack from one of our own—one who candidly admits to willfully doing for the last five years what she now suddenly condemns. I hope this response provides further insight and-transparency into the Court’s inner workings.

¶29Long before I arrived at this Court in 1999, the Court’s judges instituted standing internal procedures and rules permitting certain Texas Code of Criminal Procedure Article 11.07 writ applications to be administratively and randomly assigned to a single judge for review and, if warranted, resolution. The standing procedures regarding these “non-conference” writ applications experienced only slight revisions over the years, as needed, and remain in effect today, substantively unchanged.

¶30“Non-conference” writ applications are narrowly defined. Every application for a writ of habeas corpus this Court receives is initially reviewed by a writ staff attorney who focuses solely on Article 11.07 writ applications and extraordinary writ petitions. After reviewing the entire writ record, including any habeas judge’s findings of fact and conclusions of law, writ staff draft memoranda analyzing every claim an applicant asserts. Only when the writ staff attorney and the assigned judge of this Court (normally in consultation with his of her own staff) agree that an application is meritless may a judge deny or dismiss the application without formally collecting the other Judges’ votes. A significant number of these applications contain a habeas judge’s findings of fact, conclusions of law, and recommendation that this Court deny or dismiss the application. Even more assert claims that may not be brought on habeas corpus or are statutorily or procedurally barred.

¶31In all other circumstances, an application receives all of the judges’ individual, formal votes. These include, for example, when (1) in a writ staff attorney’s opinion, the record or the law may support an applicant’s claim to relief despite the habe-as judge’s recommendation to deny or dismiss; (2) remanding to the habeas court is appropriate to gather additional findings of facts concerning the claim (when the case returns from remand, it also receives all of the judges’ individual, formal votes); (3) the writ staff attorney recommends the application be filed and set to be resolved with an opinion because applicant raises a novel legal argument or the law applicable to a claim is unclear; (4) the writ staff attorney or the habeas judge recommends granting some form of relief; (5) the assigned judge disagrees with the habeas judge’s or writ staffs recommendation; or (6) the assigned judge, in his or her discretion, calls for the other judges to formally vote.

¶32Texas Code of Criminal Procedure Article 11.07, § 5 provides that “[t]he Court of Criminal Appeals may deny relief upon the findings and conclusions of the hearing judge without docketing the cause,” or the Court may docket the cause and hear the writ application like an appeal. A single judge’s denial or dismissal of a “non-conference” application is an example of the former; fifing and setting an application for an opinion an example of the latter. *265The concurrence correctly notes that § 5 empowers the Court of Criminal Appeals to decide an application’s merits and grant or deny an applicant relief. But even assuming the statute’s use of “Court of Criminal Appeals” means the Court sitting en banc or in panels, as the concurrence alleges the Texas Constitution requires, the remainder of the opinion mischaracter-izes the Court’s established procedures.

¶33Although required by neither the Constitution nor statute, the Court resolves every habeas corpus application en banc, and does so in a manner consistent with our Constitution. Texas Constitution Article V, § 4(b) mandates, among other things, that when the Court considers a case en banc, “five Judges shall constitute a quorum and the concurrence of five Judges shall be necessary for a decision.” Section 4 imposes no limitations on this Court as to how the necessary concurrence may be achieved. The Constitution does not mention, much less prescribe, the manner of voting on a particular matter. It does, however, permit the Court to establish rules for how the en banc Court convenes.1

¶34The internal operating procedures establish both how the Court convenes on “non-conference” applications and how a concurrence of at least five judges forms. Importantly, the procedures’ adoption required and garnered the concurrence of at least five Judges. By permitting a judge to dispose of specific writ applications, the remaining judges have authorized the judge to whom the application is assigned to act on their behalf in those limited, delineated circumstances. So when a “non-conference” application is denied or dismissed, the assigned judge disposes the application with the concurrence—or agreement and assent—of not fewer than five judges of the en banc Court. In practical terms, the application’s denial or dismissal is nothing more than a per curiam order, an action taken for the Court as a whole under very specific circumstances. Of course, the en banc Court is free to change this practice at any time. But the continued practice of this established procedure by the Court’s majority evinces the judges’ confidence that the Court’s procedures are fair, efficient, and constitutional.

¶35To be sure, the Court’s procedure on non-conference writ applications does not give a single judge a monopoly on that application’s disposition. A judge and his or her staff have always had the ability to review any pleading this Court receives. By virtue of the Court’s move to electronic records maintained in a central repository, judges and their staffs can now more quickly and easily review electronically every pleading shortly after it is received. All of writ staffs memoranda analyzing each claim on every application are available for review electronically in a common repository. And through the Court’s internal case-management system, all judges and their staffs can view the status of any matter and learn to whom it is assigned. The procedures do not prevent a judge from requesting discussion on a particular application, even one not assigned to that particular judge. Allegations that these procedures deny any judge of this Court the ability to review and decide applications, especially to the degree it deprives that judge of purported “rights,” are legally and factually unfounded.

¶36With these comments, I concur in the Court’s denial of Coronado’s claims.