Case Information

*0 RECEIVED COURT OF CRIMINAL APPEALS 1/30/2015 ABEL ACOSTA, CLERK *1 WR-61,939-01

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 1/29/2015 5:03:03 PM Accepted 1/30/2015 9:02:34 AM ABEL ACOSTA CLERK Nos. WR-61,939-01 and WR-61,939-02 IN RE DAVID R. DOW AND JEFFREY R. NEWBERRY, Respondents.

__________________________________________ MOTION FOR REHEARING ON ORDER ON SHOW CAUSE AND CONTEMPT HEARINGS FOR UNTIMELY FILED DOCUMENTS ___________________________________________ TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

The Undersigned Counsel file this Motion for Rehearing ^[1] pursuant to Rule 79 of the Texas Rules of Appellate Procedure and presents three arguments in

support.

(1) This Court exceeded its authority when it suspended Dow, a licensed attorney in good standing with the State the Bar of Texas, from practicing law

before this Court.

(2) The pleadings were timely filed pursuant to the Rule of Lenity. *2 (3) The sanctions imposed by this Court are disproportionate, excessive and unnecessarily harsh.

I. This Court exceeded its authority when it suspended Dow from

practicing law before this Court.

The Supreme Court of Texas has exclusive authority to regulate the practice of law. T EX . C ONST . art. II, § 1; T EX . G OV ’ T C ODE § 81.011(c). See Eichelberger v.

Eichelberger , 582 S.W.2d 395, 398-99, 22 Tex. Sup. Ct. J. 358 (Tex. 1979). The

State Bar Act further provides the Supreme Court "administrative control over the

State Bar and provides a statutory mechanism for promulgating regulations

governing the practice of law." State Bar of Texas v. Gomez , 891 S.W.2d 243,

245, 38 Tex. Sup. Ct. J. 140 (Tex. 1994) (citing T EX . G OV ’ T C ODE § 81.011(c)).

Any attorney admitted to practice law in Texas is subject to the disciplinary

jurisdiction of the Supreme Court and the commission for lawyer discipline for the

State Bar of Texas. T EX . G OV ’ T C ODE § 81.071. As part of the Supreme Court's

powers to supervise the conduct of attorneys, the court has established minimum

standards and procedures for processing grievances against attorneys and imposing

sanctions for professional misconduct. T EX . G OV ’ T C ODE § 81.072. Disciplinary

proceedings are initiated by referral to the Chief Disciplinary Counsel of the State

*3 Bar of Texas. T EX . G OV ’ T C ODE § 81.072(c). See In re State Bar , 113 S.W. 3d 730

(Tex. 2003); In re Caballero , 441 S.W. 3d 562 (Tex. App. 2014); Mills v. Ghilain , 68

S.W. 3d 141 (Texas App. 2001).

When this Court found Respondents in contempt court, it relied on Miscellaneous Rule 11-003 to support its order suspending Dow from the practice

of law. The sanctions provided by this rule include, but are not limited to:

(1) referral to the Chief Disciplinary Counsel of the State Bar of Texas; (2) contempt of court; (3) removal from the list of Tex. Code Crim. Proc. Art. 11.071 list of attorneys ^[2] ; (4) restitution of costs incurred by the opposing party ^[3] ; and (5) any other sanction allowed by law (see, e.g., Tex. R. Civ. P. 215.2).

Misc. R. 11-003, § 3

If this Court believed Dow’s conduct was sufficient to warrant suspension from the practice of law, then the Court could have referred the matter the Chief Disciplinary

[2]

Dow is not currently on the list of attorneys that may be appointed pursuant to 11.071. Dow was

on the list previously but has not submitted the renewal documentation regarding CLEs (though as

a full-time faculty member of an ABA-accredited law school, he is entitled to claim a 15-hour

allowance each year).

[3]

It is not believed that the State incurred any costs in opposing the documents filed by Counsel.

While the Bexar County District Attorney’s Office filed a very brief response, it was signed by

attorneys who are apparently already on that office’s payroll.

Counsel of the State Bar of Texas for disciplinary proceedings established by the

Supreme Court.

A. Disciplinary Action

This Court’s determination that the filing was late and that good cause did not exist for the late filing does not amount to “Professional Misconduct” under the

disciplinary rules. Even if a late filing did rise to the level of “Professional Misconduct”

Dow would then be entitled to a trial in the district court or a hearing for disciplinary

findings in lieu of trial. T EX . R ULES D ISCIPLINARY P. R. 2.15. And, while those

proceedings could result in suspension from the practice of law, the Chief Disciplinary

Counsel would not be able to sanction until counsel had been afforded the mandated

process (absent a finding that counsel posed “a substantial threat of irreparable harm to

clients or prospective clients….”). T EX . R ULES D ISCIPLINARY P. R. 14.01.

Suspending Dow from practicing in this Court exceeds this Court’s authority as provided by the Constitution of this State and by the legislature.

B. Contempt of court

This Court, like all other Texas courts, does possess the authority to punish for contempt. T EX . G OV ’ T C ODE § 21.002(a). However, the sanction this Court imposed on

Dow is not permissible in a contempt proceeding. In re Dow & Newberry , Nos. WR-

61,939-01, -02 (Tex. Crim. App. Jan. 14, 2015). By statute, the punishment for

contempt is a “fine of not more than $500 or confinement in the country jail for not

more than six months, or both such a fine and confinement in jail.” T EX . G OV ’ T C ODE §

21.002(b). For the punishment to include suspension, the contempt would have to

“involve[] fraudulent or dishonorable conduct or malpractice.” T EX . G OV ’ T C ODE §

82.061(b). While the statute does not define these terms, they seem to be inapplicable in

this case. As discussed further below, Respondents received a letter from a death-row

inmate who understandably believed that his appointed attorney did not intend to file

anything on his behalf. Respondents diligently investigated the case and prepared filings

on his behalf. While the Court believes those filings were untimely, even if they were

untimely, they were barely so. An untimely filing is neither fraudulent nor dishonorable.

While Newberry’s punishment is apparently permitted under the rules of contempt (if

the pleadings were, in fact, untimely and if, in fact, good cause did not exist to excuse

the lateness), Dow’s punishment exceeds what is permitted by those rules.

C. Any other sanction allowed by law ( see, e.g. , Tex. R. Civ. P. 215.2) This Court’s Rule 11-003 refers parenthetically to Texas Rule of Civil Procedure 215.2. That rule allows a court to sanction an attorney for failure “to comply with

proper discovery requests or to obey an order to provide or permit discovery, including

an order made under Rules 204 [relating to being compelled to submit to a physical or

mental examination] or 215.1 [relating to depositions]” T EX . R. C IV . P. 215.2(b).

Because nothing in the proceedings initiated by Respondents on behalf of Paredes

involved any of these civil discovery procedures, this Rule is inapplicable and could not

support Dow’s punishment. ^[4]

Further, while this Court has authority to preserve its core functions, Respondent’s actions in filing pleadings on behalf of Paredes seven days before his

scheduled execution did not interfere with this Court’s core functions. Respondents filed

all the pleadings on behalf of Paredes by 6:30 p.m. on October 21 (167.5 hours before

Paredes was scheduled to be executed). The Court handed down its rulings denying

relief on all of the pleadings 39.5 hours after the final pleading was filed. Respondents’

actions in filing on October 21 did not interfere with this Court’s ability to carry out its

[4]

Citing Rule 215.2, the Corpus Christi Court of Appeal found that a court has the inherent power to sanction to prevent a party or attorney from interfering with its core functions. Kutch v. Del

Mar College , 831 S.W.2d 506, 510 (Tex. App.—Corpus Christi 1992, no writ). This Court appears

to have adopted the holding from Kutch in an unpublished opinion. See Brager v. State , No. 0365-

03, 2004 WL 3093237, at *2-3 (Tex. Crim. App. Oct. 13, 2004) (not designated for publication).

This Court’s core functions include hearing evidence, deciding issues of fact raised by the pleadings,

deciding decisions of law, entering a final judgment on the facts and the law, and executing a final

judgment. Armadillo Bail Bonds v. State , 802 S.W.2d 237, 239-40 (Tex. Crim. App. 1990).

core functions. Assuming arguendo these actions had interfered with this Court’s core

functions, the sanction was more severe than necessary to satisfy its legitimate purpose.

See TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913, 917 (Tex. 1991); see

also Brager , 2004 WL 3093237, at *3 (recognizing sanctions only available to the

extent that “no lesser sanction was available to preserve judicial integrity and prevent …

significant interference with core judicial functions”). Undersigned Counsel have not

located any case (whether under Rule 215 or otherwise) where a court acting unilaterally

has purported to suspend a member of the Texas Bar from practicing before it.

As the Court noted in its order announcing Dow’s suspension, Dow was before the Court in 2010 after failing to timely file pleadings on behalf of Danielle Simpson. At

that time, the Court took no action against Dow. That Dow did not take the Court’s

warnings lightly that day can be seen in how he has abided by the Rule.

Since 2010, Dow has timely filed pleadings in this Court on behalf of at least five inmates facing execution. See Ex parte Garza , No. WR-70,257-01 (Tex. Crim. App.

Sept. 18, 2013); Ex parte Parr , No. WR-65,443-02 (May 3, 2013); Ex parte Cobb , No.

WR-68,192-03 (Tex. Crim. App. Apr. 19, 2013); Ex parte Thurmond , Nos. WR-62,425-

01, -02 (Tex. Crim. App. Feb. 29, 2012); Ex parte Adams , No. WR-65,598-02 (Tex.

Crim. App. Feb. 18, 2011). ^[5]

At the time this Court questioned Dow following the Simpson execution, the Court inquired why late filings occur. Dow answered that many inmates represented in

state habeas proceedings before the creation of the Office of Capital Writs were

inadequately served. Dow also stated that this Court’s policy of treating supplements or

corrections to timely filed applications as new applications that must themselves satisfy

section 5 creates a pressure on counsel to work on pleadings up until the last possible

moment, to avoid having to correct or supplement a pleading and having that correction

or supplement deemed a new application. Both of these factors were present in the

Paredes case. But it is important to note that while the Paredes case is in many respects

not aberrational, Dow’s late filing in that case (if it was late) was aberrational. During

the five years following the Simpson execution, Dow represented at least half a dozen

inmates under warrant, and his conduct was not admonished or objected to by this Court

*9 in any of those proceedings. Warning Dow in 2010 satisfied the legitimate purpose of

the Rule. To now skip the seemingly intermediate step of fining him and moving

directly to suspending him from practicing before the Court, without leave, is excessive

and outside of the realm of what is permissible pursuant to any sanctioning power this

Court has to ensure its ability to carryout its core functions.

In sum, even if the Court determined that some sanction was warranted, suspending Dow from practicing is certainly not the least severe sanction available.

II. The pleadings were timely filed pursuant to the Rule of Lenity.

This Court’s Rule 11-003 requires that pleadings requesting the Court stay an execution be filed seven days before an execution, and counsel filed the documents

seven days before Paredes’s scheduled execution. Yet the rule contains an example that

seems to indicate such documents must be filed eight days before an execution.

Accordingly, Dow filed a statement pursuant to that rule explaining why counsel was

not able to file the pleadings earlier.

Paredes was executed on schedule, on October 28, 2014. This Court’s Miscellaneous Rule 11-003 requires that:

Inmates sentenced to death who seek a stay of execution or who wish to file a subsequent writ application or other motion seeking any affirmative relief from, or relating to, a death sentence must exercise reasonable *10 diligence in timely filing such requests. A motion for stay of execution, or any other pleading relating to a death sentence, must be filed in the proper court at least seven days before the date of the scheduled execution date (exclusive of the scheduled execution date). ^[6]

That the rule excludes the day of the scheduled execution in computing the seven-day

period is consistent with the manner in which time is computed in other situations in the

state courts. See, e.g. , Tex. R. App. P. 4.1(a) (“The day of an act, event, or default after

which a designated period begins to run is not included when computing a period

prescribed or allowed by these rules, by court order, or by statute. The last day of the

period is included, but if that day is a Saturday, Sunday, or legal holiday, the period

extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.”).

This method of counting is also consistent with the way time is computed in the federal

courts. F ED . R. C IV . P. 6(a)(1).

An ambiguity is created in this otherwise clear rule by an example offered in the Rule, which states: “For example, a request for a stay of execution filed at 8:00 a.m. on a

Wednesday morning when the execution is scheduled for the following Wednesday at

6:00 p.m. is untimely.” The example suggests the documents needed to be filed on

[6]

The requirement in the federal courts is also that filings seeking a stay of execution be made at least seven days before the execution. 5th Cir. R. 8.10. That rule, however, contains no

contrary example and operates as it is expressly written.

October 20 – eight days before the execution, rather than one week before-hand. The

rule itself, however, and the method of counting mandated by Texas Rule of Appellate

Procedure 4, dictates that the pleading filed on behalf of Paredes was timely.

In accordance with the rule of lenity, the filing should be deemed timely. The Rule of Lenity holds that, in the face of an ambiguous rule, courts should adopt the less

harsh or punitive interpretation. See, e.g. , Cuellar v. State , 70 S.W.3d 815, 821-22 (Tex.

Crim. App. 2002) (“[I]t is a fundamental tenet of criminal jurisprudence that, when

courts must choose between two reasonable readings of a statute to determine what

conduct the legislature intended to punish, courts apply the policy of lenity and adopt the

less harsh meaning … [A] person is entitled to be informed of what the law commands

or forbids. A statute that is not sufficiently definite ‘to give a person of ordinary

intelligence fair notice that his conduct is forbidden’ therefore violates constitutional

standards of due process of law. When a penal statute is so ambiguous that its meaning

is uncertain, or its application is broader than what reasonable persons would anticipate,

the statute fails to provide adequate notice of its coverage, and that statute is therefore

void.”) (Cochran, J., concurring) (footnotes omitted); see also DeLay v. State , 443

S.W.3d 909, 928 (Tex. Crim. App. 2014) (noting the rule of lenity applies to penal

provisions outside the Penal Code).

As explained above, under the language of the rule itself, the pleadings were timely filed on October 21. The example contained in the rule suggests that the rule

actually requires pleadings be filed eight days before an execution. Because

Miscellaneous Rule 11-003 is ambiguous on its face, the less stringent interpretation

should apply. Under that interpretation, the pleadings were timely filed.

III. The punishment is excessive and unnecessarily harsh.

In addition, the effect of the Court’s action is to interfere with the representation of other inmates sentenced to death. Dow currently represents at least twelve death-

sentenced Texas defendants in their federal habeas proceedings. Dow was appointed to

represent these individuals pursuant to 18 U.S.C. § 3599. Pursuant to that federal statute,

Dow is obligated to represent those individuals “throughout every subsequent stage of

available judicial proceedings, including … all available post-conviction process,

together with applications for says of execution and other appropriate motions and

procedures….” 18 U.S.C. § 3599 (e). As this Court is well aware, fulfilling these

obligations often requires federal habeas counsel to return to this Court. This Court’s

suspending Dow is therefore interfering with the duty he owes to his clients whose cases

are pending in the federal courts.

PRAYER FOR RELIEF

Respondents request that this Court reconsider its January 14, 2015 order suspending Dow from practicing before it for a period of one year and reform the

punishment to one that is permissible under the Court’s contempt power and in a way

that does not interfere with counsel’s duties pursuant to 18 U.S.C. § 3599.

Respectfully Submitted, SCHNEIDER & McKINNEY, P.C. /s/ Stanley G. Schneider Stanley G. Schneider T.B.C. No. 17790500 440 Louisiana Suite 800

Houston, Texas 77002 Office: 713-951-9994 Fax: 713-224-6008 Email: stans3112@aol.com NICOLE DeBORDE 712 Main St., Ste 2400 Houston, Texas 77002 Office: 713-526-6300 Fax: 713-228-0034 Email: nicole@debordelawfirm.com CASIE L. GOTRO TBN: 24048505 440 Louisiana, Suite 800 *14 Houston, Texas 77002 Office: 832-368-9281 Fax: 832-201-8273 Email: casie.gotro@gmail.com *15 RULE 79.2(C) CERTIFICATION I certify that this motion is grounded in significant circumstances, which are specified in this motion. The motion is made in good faith and not for delay.

s/ Stanley G. Schneider ____________________ Stanley G. Schneider CERTIFICATE OF COMPLIANCE This brief complies with the typeface requirements of Tex. R. App. 9.4(e) because it has been prepared in a conventional typeface using MS Word in Times New

Roman 14-point for body text and 12-point font for footnote text. The petition contains

2,636 words excluding the parts exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Stanley G. Schneider ____________________ Stanley G. Schneider

[1] Texas Government Code §22.002 notwithstanding, Undersigned Counsel anticipate filing a Writ of Mandamus to The Supreme Court of Texas contemporaneously with the instant motion.

[5] On behalf of only one client since 2010 has the timing of Dow’s filings been such that a statement pursuant to this Court’s Rule 11-003 was required, and as Dow explained in that case, the late filing was caused by the fact that the trial court’s order which was appealed to this Court was not itself issued until less than a week before the execution. After receiving Dow’s statement in that case, this Court took no action against him.