# Faulder v. State > Court of Criminal Appeals of Texas · July 2, 1980 · 612 S.W.2d 512 URL: https://www.frixlaw.com/law-library/cases/5054306 ## Case - **Full name:** Joseph Stanley FAULDER v. The STATE of Texas, Appellee Joseph Stanley FAULDER, Relator v. Odis R. HILL, Criminal District Attorney, Gregg County - **Court:** Court of Criminal Appeals of Texas - **Decided:** July 2, 1980 - **Citations:** 612 S.W.2d 512; 1980 Tex. Crim. App. LEXIS 1280 - **Precedential status:** Published - **Opinion:** Concurring in part by Roberts - **Judges:** Article, Clinton, Dally, Discussion, Douglas, Except, Odom, Onion, Phillips, Roberts, Teague - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5054306 ## Opinion text ROBERTS, Judge, concurring and dissenting. I. A majority of the Court apparently agree on the threshold questions in this case: that this Court has jurisdiction to issue a writ of prohibition, that petitions to the Supreme Court for writs of certiorari are “appeal[s] in criminal cases,” 1 and that this case involves the constitutional powers of the State of Texas rather than the supremacy clause in Article VI of the United States Constitution. 2 With these holdings I concur. On the remaining, crucial question the Court is unable to speak with a majority voice. II. “The State shall have no right of appeal in criminal cases.” Texas Constitution, Article V, Section 26. I believe that this provision means what it says. White v. State, 543 S.W.2d 366 (Tex.Cr.App.1976) (opinion of Roberts, J.). Its meaning has been accepted for a hundred years. When a constitutional provision is so clear and unequivocal, and its meaning is so well settled, its apparent command should be overridden by only the most compelling considerations. The majority have not advanced any compelling argument to support their result. The opinion for a plurality 3 of three judges would hold that Article V, Section 26, applies only to appeals among the courts of our state. And what is the support for this assertion? It is that, “Article 5 of the Texas Constitution is entitled ‘Judicial Department.’ It establishes the structure, powers, and responsibilities of the judicial branch of the State of Texas. As such, it .. . does not speak to the relation of that system or a part of that system to entities beyond, such as the federal judiciary.” Of course, that assumes the very thing that is at issue: whether part of Article V does speak to the relation of Texas to the federal judiciary. In logic this fallacy is called petitio principii — begging the question. Even on its own terms the argument fails. Consider Article IV of our Constitution; it is entitled “Executive Department,” and it establishes the structure, powers, and responsibilities of the executive branch of the State of Texas. Nonetheless it does speak to the relation of that system to entities beyond; see Texas Constitution, Article IV, Section 10. 4 The drafters of the Constitution evidently did not think that the title “Executive Department” limited the scope of Article IV to intrastate matters; why should the title “Judicial Department” limit the scope of Article V? That would be to decide an important constitutional question on irrelevant, superficial grounds. Even worse, the plurality opinion ignores the will of the people who adopted the Constitution of 1876. If today’s plurality opinion were followed, the state would be forbidden to appeal a directed verdict of not guilty (for example) to this Court, but it could appeal to the Supreme Court of the United States. Can the plurality believe that the Constitution of 1876, which declares in its very first section that “the *517 maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government unimpaired to all the States,” was designed to allow the State to turn to a federal court more easily than to the state courts? Can the plurality believe that the voters of 1876, who had lately seceded from the United States and who were repealing the reconstruction Constitution of 1869, intended to submit to a federal court questions which they would not entrust to their state courts? The plurality opinion ignores this history, as it ignores the century of agreement on the meaning of the plain words in Section 26. Its reasoning does not even support, much less compel, its result. A fourth judge reiterates his view which he expressed in White v. State, 543 S.W.2d 366, 370 (Tex.Cr.App.1976) (opinion of Douglas, J.), that states have federally-created rights to appeal which cannot be denied even by their own constitutions. He is alone in that view of constitutional law. Harrison v. St. Louis & S. F. R. R., 232 U.S. 318 , 34 S.Ct. 333 , 58 L.Ed. 621 (1914) is irrelevant. There a state tried to prevent a separate entity (a corporation) from exercising its right to litigate in federal court. Had the corporation simply chosen not to litigate, no federal question would have been presented. The question before us is whether the State of Texas has chosen, in its Constitution, never to appeal a criminal case. No separate entity would be prevented from doing anything; 5 the question is one of internal choice, not external coercion as in Harrison . The final opinion that would deny the writ of prohibition does not concede that “appeal” as used in Section 26 includes review by writ of certiorari. Because that opinion is the deciding one, it effectively determines the law. Our holding today, therefore, is that the State can petition the United States Supreme Court for a writ of certiorari; we have not decided whether the State can appeal. In effect the meaning of our state constitution turns on the procedural vagaries of Title 28 of the United States Code. I cannot believe that the Constitution of 1876 was intended to grant or deny an organic power on such an extraneous basis. An important constitutional question has come before us. The Court has effectively rewritten our constitution, without the approval of the voters, by accumulating two inadequate reasons and one misunderstanding of constitutional law. This is not a bright day in the history of this Court. To the denial of the writ of prohibition, I dissent. PHILLIPS, J. joins. . Only Judge Dally does not agree with this holding. . Only Judge Douglas does not agree with this holding. . If “plurality” were used in its root sense of “more,” the true plurality would be the four dissenting judges who share a common view that Section 26 forbids further appeal. By custom “plurality” also refers to the opinion on the prevailing side which has the most support. In this case, as in White v. State, 543 S.W.2d 366 (Tex.Cr.App.1976), the leading opinion does not have majority support on the meaning of our constitution: to borrow Judge Odom’s phrase, it is “plurality dictum.” .“[The Governor] ... shall conduct, in person, or in such manner as shall be prescribed by law, all intercourse and business of the State with other States and with the United States.” . Misunderstanding of this elementary fact is revealed in the concurring opinion’s statement: “The Constitution of the State of Texas can no more prevent the State from seeking relief in our federal courts than it could prevent a defendant ....” This is to speak of the State as though, like a defendant or a railroad, it were an entity apart from the Constitution of the State of Texas. The question cannot be whether the State has-an inherent power which it is being prevented from using; it is whether Article V, Section 26, means that it is without a power to appeal this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5054306. Public record. Not legal advice.