610 SW2D 765 - Ex parte Diaz

CLINTON, Judge,

¶1dissenting.

¶2Whatever the merits on this application for postconviction writ of habeas corpus— and, as my Brother W. C. Davis points out, there are plenty — the application was not “improvidently set.”

¶3This application was set for submission July 16, 1980, hard on the heels of such relief-granting opinions handed down January 8, 1980 in Ex parte Morse, 591 S.W.2d 904 (Tex.Cr.App.1980), and April 9,1980 in Ex parte Lewis Kennedy Harris, 596 S.W.2d 893 (Tex.Cr.App.1980)—each one, it is important to notice, rendered en banc unanimously by the judges who participated. Obviously, we aimed at the compliant attorney with the hope of hitting the “cop-out man.”

¶4The image of assistance of counsel in this cause is but a mirror of the unconstitutional aspects revealed in Morse and Harris, supra. So, at least four members of the Court voted to direct that the cause be docketed and heard as though originally presented in accordance with the custom and practice that began shortly after the writer commenced his term, and pursuant to Article 11.07, § 3,1 V.A.C.C.P. There was nothing “improvident” in my vote to examine the facts of this cause in the light of Morse and Harris, so recently decided, or of the principles implicated in Ex parte Duffy, 607 S.W.2d 507, 516, 517, 518 (Tex.Cr.App.1980), contemporaneously submitted to the Court En Banc on briefs and oral argument June 18, 1980.

¶5According to Article 11.07, § 3, supra, after the cause is docketed and heard, “the court shall enter its judgment remanding the petitioner to custody or ordering his release, as the law and facts may justify.” The majority does that in its own way, but in the doing it takes a swipe at those of us who deliberatively exercised our judgment in directing the cause be set for review. Troubled by both actions, I must dissent.

TEAGUE, J., joins.

¶6. Section 3 is silent as to the vote needed to direct the cause be docketed, and Court Rule 7, reproduced following Article 44.33, V.A.C.C.P., provided a prior procedure of first presenting a report on the application for postconviction relief to a panel of the Court — and still does. But impracticality of following this rule of procedure soon became evident and, consonant with other rules for bringing matters before the Court En Banc, i. e., Rules 11 and 12, the “rule of four” was implemented with respect to such applications and other extraordinary writs and special cases mentioned in the obsolescent Rule 7, supra.