State Ex Rel. Holmes v. Honorable Court of Appeals for the Third District

MEYERS, Judge,

dissenting.

Unfortunately, a great deal of the confusion and controversy surrounding this case arises because the ultimate judicial authority in our State is shared by this Court and the Texas Supreme Court. Our Constitution provides that the Supreme Court’s “appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters ...” Tex. Const, art. V, § 3. This Court, on the other hand, has “final appellate jurisdiction ... in all criminal cases of whatever grade ...” Tex. Const, art. V, § 5. Ideally, it would be desirable to interpret these two provisions as mutually exclusive, such that every appealable ease or controversy falls within the final appellate jurisdiction either of the Supreme Court or of the Court of Criminal Appeals, but never of both. Such an interpretation is only possible, however, if the key phrases “criminal law matters” and “criminal cases” are construed to mean exactly the same thing. Otherwise, it necessarily follows that the Supreme Court and the Court of Criminal Appeals have concurrent appellate jurisdiction in some cases, that neither court has appellate jurisdiction in other cases, or that both jurisdictional conditions are true.

If it were clear that the questions raised by Gary Graham’s suit for declaratory judgment in the 299th District Court of Travis County would ultimately reach this Court on appeal, and not the Texas Supreme Court, we would not entertain the instant cause of action. Under such circumstances, it seems unlikely any judge on this Court would take the view that our prior judgment affirming Graham’s conviction for capital murder, or the mandate making it final, was in danger of compromise. We would undoubtedly be content to let the normal appellate process run its course, confident that such course would ultimately lead to us, and to us alone.

But a majority of the judges on this Court are not confident that the issues raised by Graham’s lawsuit, including the interlocutory controversy now pending before the Third Court of Appeals, will reach this Court by direct appellate review. Consequently, they are willing to interrupt the normal appellate process with an extraordinary writ, commanding the lower courts to relinquish jurisdiction of these matters, precisely in order to prevent the usual appellate process from leading eventually to the Texas Supreme Court or from terminating in the Third Court of Appeals. While I too am concerned that this State’s bifurcated judicial process could sometimes generate conflicting decisions at the highest level on identical questions of law, I am not willing to torture our mandamus and habeas corpus jurisprudence in or *419 der to fight a turf war with other Texas courts.

If there is a problem, it lies with the lines dividing the constitutional jurisdiction of this Court and the Texas Supreme Court. It certainly does not involve, at least not at present, questions of trial court or intermediate appellate court jurisdiction. Thus, it is clear that the 299th District Court did in fact have jurisdiction of Graham’s lawsuit in the ordinary sense, since the Texas Constitution has plainly conferred upon the district courts “exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies,” except as otherwise expressly provided by law. Tex. Const, art. V, § 8. And there is no question but that such jurisdiction extends both to civil and to criminal cases, as well as to matters involving both the civil and the criminal law.

Likewise, the Third Court of Appeals certainly has jurisdiction to determine questions arising from appealable orders and judgments, both final and interlocutory, of the 299th District Court in connection with Graham’s lawsuit, since the Texas Constitution unambiguously pi'ovides that the “Courts of Appeals shall have appellate jurisdiction ... which shall extend- to all cases of which the District Courts ... have original or appellate jurisdietionf.]” Tex. Const, art. V, § 6. This jurisdiction undoubtedly embraces civil and criminal cases alike, extending as well to questions of criminal as to civil law.

Accordingly, whether the controversy between Graham and the Parole Board is a civil or a criminal case within the meaning of the Texas Constitution is irrelevant to the jurisdiction of the lower courts in which it is pending. The only consequence of significance which follows from a determination that the case is criminal or that it involves mattei's of the criminal law has to do with the jui’isdiction of this Court and of the Supreme Court. If, for example, the controversy involves “criminal law mattei’s,” as a majority of this Court has held, such that it is a pi’oper subject for the exei’cise of our mandamus jui’isdiction under article V, section 5 of the Texas Constitution, then we would necessarily also conclude that neither party may appeal an adverse decision of the Third Court of Appeals to the Texas Supreme Court, since the latter does not have appellate jurisdiction of cases involving “criminal law matters.” Tex. Const, art. V, § 3. Because this Court has jurisdiction to “review a decision of a Court of Appeals in a criminal case as provided by law,” Tex. Const, art. V, § 5, the only remaining question affecting the possibility of further appellate review is whether Graham’s lawsuit should be considered a “criminal case” for purposes of constitutional interpretation.

Meanwhile, the entire controversy with which we are here concerned is whether the lower courts may legitimately maintain a state of equilibrium between the parties while they litigate their differences. It strikes me as witless for this Court to prevent such an agreeable result, using its extraordinary powers as a pretext to bring about essentially the same outcome itself. The cruel truth is that this case has little to do with the adequacy of our State’s usual appellate process effectively to vindicate the interests at stake in Graham’s litigation. Indeed, the Court barely disguises its real motive, holding that an appellate remedy is too “tedious, slow, inconvenient, inappropriate or ineffective” for this case because it “would necessarily require relators to wait until final judgment is entered, and the appeals process would likely be through the civil courts.” Op. at 394.

This rationale is an open affectation, lacking even the appearance of legitimacy. Waiting for final judgment is not an unusual or extreme burden on litigants in our system of adjudication. Rather, it is the typical prerequisite to appellate review, common to virtually all cases, both civil and criminal. If the need for finality were to be considered a sound basis for the exercise of our extraordinary writ jurisdiction in general, then the appellate process as a whole would exist only at the pleasure of this Court.

Moreover, the possibility that Graham’s case might pass its entire appellate lifespan in “the civil courts” is an equally transparent bit of fiction. In the first place, the Third Court of Appeals is not a civil court. As already noted, its jurisdiction extends both to civil and to criminal eases. Thus, the only *420 “civil court” to which an appeal of Graham’s case might finally come is the Supreme Court of Texas. Yet, because a majority of this Court seems convinced that the case involves criminal law matters, it conversely must be convinced that the Supreme Court lacks jurisdiction of it. Accordingly, the majority’s own process of reasoning makes it clear that Graham’s case must either come to this Court eventually or expire in the Third Court of Appeals. Why this circumstance should render the appellate process itself inadequate is not evident from the Court’s opinion, but it would appear that the majority simply will not tolerate the possibility, however remote, that the Texas Supreme Court might somehow acquire jurisdiction of these matters.

I am far less concerned, however, about that possibility than I am about this Court rampaging through the civil and criminal jurisprudence of Texas. For no better reason than that Graham was adjudged guilty of capital murder and sentenced to death, and that the judgment against him was affirmed on appeal, this Court holds that the Court of Appeals may not enjoin his execution pending disposition of a lawsuit which might result in his pardon, because it would “circumvent our judgment and disobey our mandate.” Op. at 395. In my view, this attitude is not only misguided as a matter of law, but indefensibly chauvenistic as well.

The judgment of this Court is not an order that Gary Graham be executed. It is merely a declaration that no error in his trial has yet been brought to our attention which would require the judgment of conviction or sentence of death against him to be set aside. Consequently, the order of another court that Graham’s execution be postponed until it can be determined whether the Board of Pardons and Paroles must hold an evidentia-ry hearing on his request for executive clemency does not interfere at all, let alone disobey, this Court’s mandate. Neither our judgment affirming Graham’s conviction nor the mandate making it final are under attack, either in the 299th District Court or in the Third Court of Appeals. Even if Graham prevails on his lawsuit in these courts, the judgment will not purport to unconvict him of capital murder. It will merely adjust his legal relationship with the executive branch of our government.

In the end, what is most subversive about this Court’s decision to terminate Graham’s lawsuit is that it disrespects the legal process. All of the courts immediately affected by our writ of mandamus in this case have thus far comported themselves in a manner entirely consistent with their constitutional jurisdiction and statutory authority. There is simply no reason to believe that they would do otherwise if the normal process of adjudication and appeal were allowed to run its course, free of hysterical interference from this Court. Additionally, there is not the slightest defensible reason to suppose that such process would produce orders or judgments which conflict with the judgment of conviction against Gary Graham, that any erroneous orders or judgments would not be corrected by further discretionary review, or that such further direct review would not be fully adequate to protect the interests of the State of Texas.

To make matters even worse, this Court further concludes that Graham’s claim of innocence is really a proper subject for the exercise of our habeas corpus jurisdiction, even though it is perfectly clear that the relief sought by Graham, an evidentiary hearing before the Board of Pardons and Paroles and an act of clemency from the Governor, cannot be granted by this Court at all. Habeas corpus is a constitutional and legislative remedy to free persons from unlawful restraint. As contemplated by article 11.07, section 2 of our Code of Criminal Procedure, it is a writ to discharge prisoners who are illegally confined on account of final felony convictions. In his lawsuit, Graham does not allege that either one of these circumstances is true, and no one has yet filed an application on his behalf which contends that his conviction is invalid or his confinement illegal.

It may very well be the ease that Graham’s claim of actual innocence is eventually recognized by this Court as a basis for setting aside his conviction and sentence of death, although we have recently been disinclined to entertain such claims from similarly situated *421 death row inmates. It may well be that we someday take cognizance of Graham’s actual innocence claim in a habeas corpus proceeding, although some of our existing case law must be overruled or significantly qualified in order to do so. It may also be that we decide to make the fundamental changes in our habeas jurisprudence which are necessary to achieve these ends. But such issues have nothing to do with whether Graham is entitled to an evidentiary hearing before the Board of Pardons and Paroles, and it would be a cruel irony indeed if he were prevented from litigating the issue of his entitlement to a clemency hearing just because this Court believes that the validity of his conviction should be litigated instead. In fact there is nothing in the logic of our jurisprudence to prevent both actions proceeding at once.

This case is so far from being a just or prudent exercise of our power to issue extraordinary wiits that it slanders the wisdom of those Texans who voted to confer it upon us little more than a decade ago. Today, we have unilaterally defined a boundary marking the limit, not only of its own jurisdiction, but of the Supreme Court’s as well. We have construed article V, section 5 of the Texas Constitution, and by necessary implication article Y, section 3 also. We have done this absent any consultation with our brethren on the Supreme Court and apparently without regard to the impact it may have on then.' jurisdiction. Our entire manner has had the appearance of a guerilla raid, when it should instead have been a cooperative effort to construe fundamental aspects of Texas constitutional law. In the process, we have violated basic principles of our own mandamus jurisprudence, encouraged the misuse of ha-beas corpus, and shamelessly interrupted an appellate process which was running exactly as prescribed by law, and which might very well have produced results better than expected by the majority had it been permitted to proceed to final judgment.

I dissent.

CLINTON and MILLER, JJ., join.