Petition for Writ of Certiorari — Saylors v. Texas

91-2029

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

BENTON BRETT SAYLORS,

Petitioner

Vv.

THE STATE OF TEXAS,

Respondent

Petition for a Writ of Certiorari

to the Court of Appeals for the

Eleventh District of the State of Texas

Martin L. Peterson

105 W. Washington St.

Stephenville, Texas 76401

(817) 965-5050

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Whether a criminal defendant in a state court, faced

with the possibility of imprisonment, is presumptively

deprived of due process (including effective assistance of

counsel), in violation of the Fourteenth Amendment, when

tried before a judge who has not been required to

demonstrate or prove the degree of his or her legal

competence by any uniform, standardized testing

procedure.

Whether the current county court system in Texas

invidiously denies one class of criminal defendants a

substantial benefit available to another, similarly situated,

class, in violation of the equal protection clause of the

Fourteenth Amendment.

TABLE OF CONTENTS

Questions Presented for Review ...............0.0eceees 1

Reports OF Praee GHOSE soins. ccivcedsecsiccsscnssmass 2

SOMO GE FUTTRGICUIOG 6 iii so oii cissedssdcitersedcnd 2

Constitutional Provisions Involved.................s008 2-3

PME i iis oe ita see 3-4

Reasons for Allowance of the Writ ..................55 5-9

CORNER 65S hse Bee 9

Cortnaete 00 GOGvOls as ccssciics teeta 10

ARBOR FR iii csivinsa viccccnsisacessessntasiaseesaet A-l

ARGRUGE © dai igs tcissiasceene eee A-5

TABLE OF AUTHORITIES

Cases:

Ex parte Craig, 150 Tex.Cr.R. 598, 193 S.W.2d

20. 3 Deeerereeperererte cc 8 we re 4

Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App. 1975) 5

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

yee em i, 26) eer eee 6

Gordon v. Justice Court of Sutter County, 12 Cal.

3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974),

cert. denied, 420 U.S. 938, 95 S.Ct. 1148, 43

L.. 26.08 419 C1999) scccccccovisneenwe 5

Hankamer v. Templin, 143 Tex. 572, 187 S.W.2d

DED (19GD) 0:0 <cnnesesdinecseuwannnea Gennes ees 7

Little v. State, 75 Tex. 616, 12 S.W. 965 (1890) ... 4

Masquelette v. State, 579 S.W.2d 478 (Tex.Cr.

App.), appeal dism’d and cert. denied, 444 U.S.

986, 100 S.Ct. 515, 62 L.Ed. 2d 416 (1979) ...... 5

North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49

LB. 26 33% CEOTOS 3 i-ccedcsdcnee ee eee 5, 8

il

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. ee

FF Wee: BOP CPDAED coco ccsxsusonceccnescoccce.c.....

Reyes v. Wyeth Laboratories, 498 F.2d 1264

(Sth Cir. 1974), cert. denied, 419 U.S.

1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974)

State ex rel. Anglin v. Mitchell, 596 S.W. 2d 779

OI RII av nite ou.ncasecunncsscbacecacedccveceeces.

Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848,

95 L.Ed.2d 620 (1950) ..........cccccccceccceee cece,

Torjesen v. Smith, 114 Ill.App.3d 147, 448 N.E.2d

I 6c hiss sone dodsnvesccenes.o,

Tsiosdia v. Rainaldi, 89 N.M. 70, 547 P.2d 553

aE eg a in os vn gv id ce Ck sodankcohcins

Constitutions and statutes:

United States Constitution

conc nsocncceclecnucns

United States Code

BLES EE eee

LR ee PD)

Texas Constitution of 1876, as amended

he Leen

Texas Government Code (1987), as amended

ee

ka een en

Se © Sa

Texas Family Code (1974), as amended

RS SIE

Texas Probate Code (1956), as amended

I I ogi ong ca ce sn inkivcdcivecelsns..

ill

No.

IN THE

SUPREME COURT OF THE UNITED.STATES

October Term, 1991

BENTON BRETT SAYLORS,

Petitioner

V .

THE STATE OF TEXAS,

Respondent

Petition for a Writ of Certiorari

to the Court of Appeals for the

Eleventh District of the State of Texas

)

Benton Brett Saylors petitions for a writ of certiorari to

review the judgment, in part, of the Court of Appeals for

the Eleventh District of the State of Texas.

REPORTS OF PRIOR OPINIONS

The Texas Court of Appeals ordered that its opinion not

be published.

STATEMENT OF JURISDICTION

The judgment sought to be reviewed was entered on

January 9, 1992. A petition for discretionary review of

same by the Texas Court of Criminal Appeals was denied

by order dated April 15, 1992. The Texas Court of

Appeals declared art. V, §15 of the Texas Constitution to

be valid and not repugnant to the Fourteenth Amendment

to the United States Constitution. Jurisdiction for review

by this Court is therefore conferred by 28 U.S.C. §1257

(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The provisions of the United States Constitution

involved provide in pertinent part:

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the

right...to have Assistance of Counsel for his defense.

Fourteenth Amendment

No State shall...deprive any person of life, liberty, or

property without due process of law nor deny to any

person within its jurisdiction the equal protection of the

laws.

The provision of the Texas Constitution involved

provides in pertinent part:

Article V, Section 15

There shall...be elected in each county, by the qualified

voters, a County Judge, who shall be well informed in the

law of the State...

STATEMENT

Petitioner was adjudged guilty by a jury of being

intoxicated while of driving a motor vehicle in a public

place, an offense punishable by incarceration and fine.

Upon appeal, the Texas Court of Appeals (Eleventh

District) reversed the conviction and ordered the case

remanded on a matter of state procedure. It also ruled,

however, that Petitioner had not been (and would not

again be) deprived of his right under the Sixth and

Fourteenth Amendments ‘2 effective assistance of counsel,

equal protection of the laws, and due process of law, even

though the judge presiding over his trial was not licensed

as an attorney or subject to any testing procedures

designed to assure any particular degree of legal

competence (other than review of performance during

actual trials). This question, by its nature, could not be

raised in the court of first instance, but was timely and

properly raised by point of error, with supporting

argument and authorities, in Petitioner’s brief before the

Court of Appeals.

As provided since 1876 under art. V, § 15 of its

Constitution, Texas’ elected County Judges need not be

Ne

licensed to practice law so long as they are "well informed

in the law." The qualifications of candidates to hold the

office, in this regard, are supposedly determined by virtue

of their success at the polls. Little v. State, 75 Tex. 616,

12 S.W. 965 (1890); Ex parte Craig, 150 Tex.Cr.R. 598,

193 S.W.2d 178, 185 (1946), rev’d on other grounds, 331

U.S. 367, 67 S.Ct. 1249, 91 L.Ed.2d 1546 (1947). Even

so, specialized instruction of sitting county judges is

mandated. The state’s educational program, however,

includes no testing of the participants’ skills or retention

of knowledge and there is no requirement that any

particular number of hours be devoted to the study of

criminal law or procedure.

The trial judge in this case had received no formal legal

training aside from that provided in accordance with

orders of the Texas Supreme Court under §74.025 of the

Texas Government Code, a copy of which appears in

Appendix B. His only direct experience with the criminal

justice system had come during his tenure as Erath County

Judge, since 1987. He had presided over eight jury trials

before Mr. Saylor’s, and one other criminal case in which

the accused entered a plea of not guilty. Prior to his

election as County Judge, he served as the principal of the

Stephenville High School for 16 years. He received a

bachelors degree in science from Texas A & M University

in 1951 and a Masters of Education degree in

Administrative Education from Texas A & M in 1967.

He is certified to teach eleven subject areas in the

secondary schools of Texas.

REASONS FOR ALLOWANCE OF THE WRIT

Denial of Due Process

The decisions of the Texas Court of Criminal Appeals

in Ex parte Ross, 522 S.W.2d 214, 219-20 (Tex.Cr.App.),

cert. denied, 423 U.S. 1018, 96 S.Ct. 454, 46 L.Ed.2d

390 (1975) and Masquelette v. State, 579 S.W.2d 478,

479-80 (Tex.Cr.App.), appeal dism’d and cert. denied,

444 U.S. 986, 100 S.Ct. 515, 62 L.Ed.2d 416 (1979),

cited by the court below as controlling its decision,

conflict with the decision and reasoning of the California

Supreme Court in Gordon v. Justice Court of Sutier

County, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72

(1974), cert. denied, 420 U.S. 938, 95 S.Ct. 1148, 43

L.Ed.2d 415 (1975) concerning this important matter of

federal law. Because this issue can be finally resolved

only by this Court, and is squarely presented in a simple

case with an exceptionally concise record, the opportunity

to settle the question should not be passed by.

For the reasons explained by Justice Stewart in his

dissenting opinion in North v. Russell, 427 U.S. 328, 96

S.Ct. 2709, 2716 49 L.Ed.2d 534 (1976), trial before a

lay judge engenders a high probability that a criminal

defendant will receive only "a teasing illusion" of

assistance from his attorney, or a fair trial. The essential

presupposition of the right to assistance of counsel "is that

the judge conducting the trial will be able to understand

what the defendant’s lawyer is talking about." This is

what led the Supreme Court of Tennessee to say 12 years

ago: "We [now] consider it beyond dispute that the

dictates of fundamental fairness, tie demands of common

sense and the developing law of this modern era require

that the state supply a law-trained judge in all of our

criminal courts of record..." State ex rel. Anglin v.

Mitchell, 596 S.W.2d 779, 788 (Tenn. 1980).

Potential deprivation of due process still clearly exists

if a defendant’s attorney has no one capable of effectively

judging the merits of his arguments or tactics. Also, this

problem cannot be any more acceptably solved through

case by case review of the individual outcomes than was

attempted under Betts v. Brady with respect to the

provision of counsel to those unable to retain their own

attorney. Gideon v. Wainwright, 372 U.S. 335, 344, 83

S.Ct. 792, 796, 9 L.Ed.2d 799 (1963).

It simply makes no sense that a state should require the

representative of the accused to possess far greater

qualifications in the science of law than the person who

controls the results of his efforts. No court has ever

denied that a judge must have reasonable command of

legal principles in order to deal with or assess the

advocacy of each side of the dispute. Indeed, a

requirement that a trial judge be a licensed attorney has

been justified as meeting a "compelling need" to have

judges qualified to deal with legal complexities. Torjesen

v. Smith, 114 Ill.App.3d 147, 150, 448 N.E.2d 273, 275

(1983). See also Reyes v. Wyeth Laboratories, 498 F.2d

1264, 1292 (Sth Cir.), cert. denied, 419 U.S. 1096, 95

S.Ct. 687, 42 L.Ed.2d 688 (1974) (stating that a judge

must be equipped to follow the law). Over the years the

Texas legislature has come to recognize the desireability

(if not necessity) of having a judge with greater lega!

training to decide the issues determined in its County

Courts. See § 51.18, Texas Family Code; § 5 (b), Texas

Probate Code; §§ 26.111, 26.112, Texas Government

Code.

Common sense and experience dictate that evaluative

procedures apart from the mere ability to get elected must

be established in order to gauge with any certainty or

predictability the actual abilities of judges in courts with

jurisdiction over criminal offenses punishable by

substantial fines and imprisonment. The accelerating

growth in the number of statutes regulating every

imaginable “profession” demonstrates beyond reproof that

competency in even rather uncomplicated fields is no

longer reliably ascertained or accepted except through the

process of becoming a licensed practitioner. Someone

who has not demonstrated ability in this or possibly some

other similar manner cannot and therefore should not be

assumed to be qualified for service, no matter how

honorable or well-meaning.

In Ex parte Ross, supra, in analyzing the relationship or

proper "equation" between legal training and judicial

competence, the court conveniently ignored the attributes

which are validly presumed to accompany one licensed as

an attorney. See Hankamer v. Templin, 143 Tex. 572,

187 S.W.2d 549, 551 (1945). It chose instead to mold the

role of a judge to match the qualities of a non-lawyer, and

then apparently went on to assume that the Texas

Constitution reasonably assures its county judges are

persons "interested, competent, and dedicated to the work

of [their] courts." —

Petitioner has no quarrel with the idea that a good judge

will seek to choose fairly and impartially between two

espoused viewpoints. Neither does he doubt that wisdom

and common sense are equally as important as legal

education in this regard. Nevertheless, he must question

why due process does not also demand some real

safeguard that the arbiter will be capable of correctly

administering the substantive law and governing rules of

evidence and procedure.

To correctly interpret the Constitution, this Court need

only recall what it stated when the law was far less

complex than it is today: "[e]ven the intelligent and

educated layman has small...skill in the science of law."

Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 64, 77

L.Ed. 158 (1932).

Denial of Equal Protection

The rational basis for the unequal treatment provided to

defendants in Kentucky under the facts examined by this

Court in North v. Russell, supra, does not exist here. The

Texas county court scheme is not tailored to meet

differences in county population or caseload or availability

of lawyers or financial resources. Certainly, more remote

counties with lesser populations than Erath County have or

have had licensed attorneys as their county judges. In

recent years about one-fourth of Texas county judges have

consistently been attorneys, without any apparent

correlation to the factors mentioned. }

In addition, precisely because Texas does not have any

true minimum qualification standards, as carefully pointed

out by the New Mexico Supreme Court in footnote 6 of its

opinion, cases such as Tsiosdia v. Rainaldi, 89 N.M. 70,

547 P.2d 553 (1976) are also distinguishable. If the Equal

Protection Clause truly means that all persons subjected to

state legislation must (without some compelling reason) be

treated alike, then the system adopted in Texas fails to

conforin. “Equal protection of the laws is not achieved

through indiscriminate imposition of [increasingly

significant] inequalities." Sweart v. Painter, 339 U.S.

629, 635, 70 S.Ct. 848, 850-1, 95 L.Ed.2d 620 (1950).

CONCLUSION

Because of the confusion caused by the majority’s

failure to deny outright the assertions made by Justices

Stewart and Marshall in North v. Russell, supra, a writ of

certiorari should be granted.

Respectfully submitted,

x Martin L. Peterson

105 W. Washington St.

Stephenville, Texas 76401

(817) 965-5050

Counsel for Petitioner

Certificate of Service

I, Martin L. Peterson, a member of the Bar cf the

United States Supreme Court, appearing herein as counsel

for ihe Petitioner, hereby certify that this S7* day of

Mwy, 1992, three copies of the above and foregoing

Petition for Writ of Certiorari were served on all parties

required to be served, by depositing same in the United

States mail, postage prepaid. The names, addresses, and

telephone numbers of counsel are: Phil Nichols, Erath

County Attorney, Erath County Courthouse, Stephenville,

Texas 76401, (817) 965-1453, representing the State of

Texas, and Dan Morales, Attorney General of Texas, P.

0. Box 12548, Austin, Texas 78711, (512) 463-2100, who

is served in accordance with Rule 29.4 (c) of this Court

because 28 U.S.C. § 2403 (b) may be applicable.

Martin L. Peterson

10

APPENDIX A

11th Court of Appeals

Eastland, Texas

Opinion

Benton Brett Saylors,

Appellant

VS. No. 11-91-128-CR

Appeal from Erath County

State of Texas,

Appellee

The jury convicted Benton Brett Saylors of driving

while intoxicated,’ and the county judge assessed his

punishment at 180 days confinement (probated for 2 years)

and a fine of $1,200.* We reverse and remand.

' TEX.REV.CIV.STAT.ANN. art. 6701/-1(6) (Vernon

Supp. 1992) defines the offense.

? TEX.REV.CIV.STAT.ANN. art. 6701/(d) [sic] (Vernon

Supp. 1992) provides that when a person has one prior DWI

conviction the punishment shall be a fine of not less than $300 nor

more than $2,000 and confinement in jail for not less than 15 days

nor more than two years.

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a

Points of Error

Appellant asserts in two points of error that: (1) the trial

court erred in permitting the information to be amended to

charge him with a different offense over his objection; and

(2) appellant was deprived of effective assistance of

counsel, equal protection of the laws, and due process of

law because the judge presiding over his trial was not a

licensed attorney.

Amended Information

The complaint charging appellant with second-offense

DWI was filed on July 31, 1990. The information which

was filed that same day charged appellant with driving

"without a policy of automobile liability insurance."*

Without notice to appellant or his retained attorney and

without a motion for leave of court, the county attorney

filed an amended information on November 28, 1990, to

charge appellant with second-offense DWI.

At trial on January 31, 1991, appellant’s counsel

objected when the amended information was read as the

charging instrument. He argued that the amendment was

made without leave of court and was otherwise improper

under TEX. CODE CRIM. PRO. ANN. art. 28.10(c)

{

> TEX.REV.CIV.STAT.ANN. art. 6701h (Vernon Supp.

1992) defines this offense.

A-2

(Vernon 1989) because the amended information charged

appellant with a different offense (DWI) than that alleged

in the original information which had been filed in the

case (driving without proof of insurance).* The court

overruled the objection. This was error. See Flowers v.

State, 815 S.W.2d 724 at 728 (Tex.Cr.App.1991) (a

"different offense" means a "different statutory offense.")

The Court of Criminal Appeals has held that this type of

error is not subject to the "harmless error" analysis of

TEX.R.APP.P. 81(b)(2). See Sodipo v. State, 815

S.W.2d 551 at 554 (Tex.Cr.App.1990). The first point of

error is sustained.

Qualifications of County Judge

In his second point of error, appellant urges that his

rights were violated because the county judge was not a

licensed attorney. The Texas Constitution requires county

judges to "be well informed in the law of the State, " but

it does not require them to be licensed attorneys. See

TEX. CONST. art V, § 15. This does not violate

appellant’s rights to the effective assistance of counsel,

equal protection of the laws, due process, or due course

of law. See Masquelette v. State, 579 S.W.2d 478 at 479

* Article 28.10(c) provides:

An indictment or information may not be amended

over the defendant’s objection as to form or substance if the

amended indictment or information charges the defendant

with an additional or different offense or if the substantial

rights of the defendant are prejudiced. (Emphasis added)

A-3

(Tex.Cr.App.), cert. den’d, 444 U.S. 986, 100 S.Ct.

515, 62 L.Ed.2d 416 (1979) ; Ex parte Ross, 522 S.W.2d

214 at 219 (Tex.Cr.App.), cert. den’d, 423 U.S. 1018, 96

S.Ct. 454, 46 L.Ed.2d. 390 (1975). Appellant’s second

point of error is overruled.

The judgment of the trial court is reversed, and the

cause is remanded.

BOB DICKENSON

JUSTICE

January 9, 1992

Do not publish. See TEX.R.APP.P. 90.

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APPENDIX B

SUPREME COURT OF TEXAS

JUDICIAL EDUCATION EXECUTIVE COMMITEE

Justice Eugene A. Cook, Chairman

RULES OF JUDICIAL EDUCATION

As Amended Through June 20,1990

RULE 1. AUTHORITY. Pursuant to the inherent and

constitutional authority of the Supreme Court to administer

the judicial affairs of the state and to the provisions of

Section 74.024 and 74.025 of the Texas Government

Code, these Rules of Judicial Education are hereby

promulgated.

RULE 2. APPELLATE, DISTRICT AND COUNTY-

LEVEL COURT JUDGES.

a. Each judge of an appellate court, district court,

statutory county court, and county court performing

judicial functions will, as an official duty:

(1) complete before taking office, or within one

year after taking office, at least 30 hours of

instruction in the administrative duties of

office and substantive, procedural and

evidentiary laws unless the judge has

previously complied with this requirement

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(2)

(3)

and has been absent from the bench less

than one year before taking the present

office, and

each calendar year thereafter, complete at

least 16 hours of instruction in substantive,

procedural and evidentiary laws and court

administration.

Instruction credit completed during any

calendar year in excess of the minimum

number of hours required may be applied to

the following year’s requirement. This

carry-over provision applies to one year

only.

Any program sponsored by the following

organizations or otherwise approved by the

Supreme Court Education Committee, can be

utilized to satisfy the requirements of Rule 2.a.:

(1)

(2)

(3)

(4)

(3)

(6)

(7)

(8)

(9)

Judicial Section of the State Bar of Texas

Texas Center for the Judiciary, Inc.

National Judicial College, Reno, Nevada

Appellate Judges’ Conference of the

American Bar Association, Chicago, Illinois

American Academy of Judicial Education,

Washington, D.C.

Institute of Judicial Administration, N.Y.U.,

New York, N.Y.

Texas College of Probate Judges

National College of Probate Judges

An accredited law school

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Gare er

(10)

(11)

(12)

A local, state or national bar association

A professional organization devoted to

improvement of the legal profession (such as

the Texas Association of Defense Counsel

and the Texas Trial Lawyers Association)

The Texas Association of Counties, the

County Judges and Commissioners

Association of Texas or the V. G. Young

Institute of Texas A & M University.

~< * *

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