Opinion
NO. WR-70,722-02
02-03-2017
In re TILON LASHON CARTER, Relator
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS, PETITION FOR WRIT OF MANDAMUS, AND MOTION FOR STAY OF EXECUTION IN CAUSE NO. 0949973D IN THE 371st DISTRICT COURT OF TARRANT COUNTY NEWELL, J. filed a concurring statement, in which RICHARDSON and KEEL, JJ., joined.
The trial court, the State, and even the Texas Legislature just got played. The trial court in this case set Relator's execution date 148 days from the date of the order, providing Relator with well over the 90-day statutory minimum time to prepare. His trial counsel-who was undisputedly still representing Relator-was notified by multiple parties on the day the order was entered and informed of the scheduled execution date. However, it was not until the third business day that the Office of Capital and Forensic Writs (OCFW)-who was undisputedly not representing Relator-was notified via email of the execution date and given a copy of the order. This was a half-a-day late under the statute, but again, it still provided Relator's counsel well over 90 days to prepare any final pleadings. Had the trial court or the State caught this, perhaps the trial court could have quickly issued another order. Had someone sent a copy of the order by snail mail a day before the email was sent it would have complied with the statute even though a copy of the order would have arrived at the same time that the OCFW actually received it by email or possibly even a day later.
But Relator certainly did not alert anyone, nor did he have any reason or incentive to do so. The plain text of the statute at issue, article 43.141 of the Code of Criminal Procedure, reads as follows:
(b-1) No later than the second business day after the date on which the convicting court enters an order setting the execution date, a copy of the order must be sent by first-class mail, email, or fax to:
(1) the attorney who represented the condemned person in the most recently concluded stage of a state or federal postconviction proceeding; and
(2) the office of capital writs established under Subchapter B, Chapter 78, Government Code
(b-2) The exclusive remedy for a failure to comply with Subsection (b-1) is the resetting of the execution date under this article.TEX. CODE CRIM. PROC. ANN. art. 43.141 (West 2015). As we have recently seen, confusion regarding who represents a death-penalty defendant can result in delay in the filing of last-minute pleadings. See e.g. In re Risinger, 2016 WL 1230779 (Tex. Crim. App. Mar. 23, 2016) (not designated for publication). So it makes complete sense that the legislature would require notice to both OCFW and a death-penalty defendant's last-known attorney to ensure that the defendant's case does not fall through the cracks.
The statute is clear. When a trial court schedules an execution, it "must" provide a copy of that order in one of three prescribed ways to both the last-known attorney and the OCFW. The OCFW was entitled to a copy of the order within two business days by first-class mail, email, or fax. The OCFW got an email of the order a half-a-day late. Regardless of the fact that Relator's existing counsel had received sufficient notice, at that point, all Relator had to do was wait, which he did, until about two weeks prior to his execution date to set off a metaphorical time-bomb within these proceedings.
The Texas Legislature intended Article 43.141 to provide death- penalty defendants with a significant time period within which to prepare final pleadings in either state or federal court. It clearly intended these notice requirements to facilitate that objective. I cannot fathom that the Legislature ever imagined this scenario. Nevertheless, that is how the statute is written. The notice in this case was untimely. See e.g. Mendez v. State, 914 S.W.2d 579, 580 (Tex. Crim. App. 1996) (holding that defendant's motion was untimely when filed on December 27th rather than December 24th even though the courthouse was closed on Christmas Eve); see also Castillo v. State, 369 S.W.3d 196, 202 (Tex. Crim. App. 2012) (holding that notice of appeal was one day late and therefore untimely because the relevant rule unambiguously required mail through the United States Postal Service and the appellant mailed his notice via Federal Express). The failure to comply with the statutory notice requirements only allows for one remedy, rescheduling. TEX. CODE CRIM. PROC. ANN. ART. 43.141 (b-2) (West 2015).
That is why I join the Court's order to stay the proceedings below. Rather than file and set the case for an opinion from this Court on Relator's petition for writ of mandamus I would simply lift the stay after the scheduled execution date passes and deny the petition as moot. Filing and setting the case for an opinion from this Court will only ensure greater delay in rescheduling the execution date. Instead, I would urge the Legislature to revisit Article 43.141 to address this issue. I find that course preferable to using yoga-logic to try and explain how a statute that requires both particular notice and an exclusive remedy does not actually require that remedy when the notice is statutorily insufficient. Most importantly, I trust that this is the last time we will see this type of three-day-monte now that trial courts and the State are on notice.
With these thoughts I join the Court's order. Filed: February 3, 2017 Publish