Opinion
NO. WR-63,549-02
03-25-2019
IN RE PATRICK HENRY MURPHY, JR., Relator
ON MOTION FOR LEAVE TO FILE A PETITION FOR A WRIT OF PROHIBITION AND MOTION FOR STAY OF EXECUTION IN CAUSE NO. F01-00328-T IN THE 283RD JUDICIAL DISTRICT COURT DALLAS COUNTY RICHARDSON, J., filed a concurring opinion with which KEASLER, HERVEY, and WALKER, JJ., joined. CONCURRING OPINION
Relator, Patrick Henry Murphy, Jr., seeks a stay of execution pursuant to a motion for leave to file a petition for a writ of prohibition he filed with this Court on March 20, 2019, just eight days before his execution. Relator's execution date was set on November 29, 2018 almost four months in advance of his execution and he now claims he is entitled to a stay based on claims made in his pleadings. Relator acknowledges he could file a 42 U.S.C. § 1983 cause of action in federal court. The petition for writ of prohibition is not the appropriate vehicle for seeking relief in this Court. Moreover, Relator has had four months to raise this issue before this Court.
I join in the Court's decision to deny leave to file the petition. Relator is seeking to prohibit his execution based on his asserted right to compel TDCJ to allow a Buddhist priest into the execution chamber with him. The Court correctly denies relator leave to file because he does not have a "clear and indisputable" entitlement to such relief, whether it be via "prohibition" or "mandamus." State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex. Crim. App. 1985) (citing Will v. United States, 389 U.S. 90, 96 (1967)); In re Simon v. Levario, 306 S.W.3d 318 (Tex. Crim. App. 2009) (It is improper to order a "judicial function" in a particular way unless the relator has a "clear right to the relief sought."). Mandamus or prohibition will not lie where the relief sought is based on an uncertain and unsettled issue of law. Id. at 320. The legal basis for relator's request is clearly unsettled. See Dunn v. Ray, 139 S.Ct. 661 (Feb. 7, 2019) (overturning the Eleventh Circuit Court of Appeals's decision to stay Ray's execution).
Additionally, relator provides no authority to support the claim that TDCJ has a ministerial duty to allow anyone other than a thoroughly vetted TDCJ employee into the execution chamber. Relator may certainly meet with the religious clergy of his choice just before his execution, and that clergy is allowed into the viewing room to observe the execution. There has been no "wholesale prohibition on outside spiritual advisors" here. See Dunn v. Ray, (Justice Kagan dissenting). However, there could be a security risk posed by relator's request for an unvetted person to be allowed to have close proximity to him inside the execution chamber. As in Dunn v. Ray, the time to be able to accommodate that request has passed. Relator's execution date has been set since November 29, 2018.
It is not surprising that this never-been-raised-before First Amendment claim by relator was made only eight days before the execution date. "Day eight" was the last possible day to file his writ application without it being considered "untimely." See In re David Dow, No. WR-57,060-03, 2010 WL 2332420 (Tex. Crim. App. June 9, 2010) (The Court issued an Order on Show Cause and Contempt Hearing for Untimely Filed Documents. David Dow filed an untimely pleading and failed to show good cause for the violation); In re David Dow and Jeffrey R. Newberry, Nos. WR-61,939-01, WR-61,939-02, and WR-61,939-03, 460 S.W.3d 151 (Tex. Crim. App. April 1, 2015) (In that case Dow filed four pleadings within the seven day period preceding the scheduled execution. The Court found that Dow failed to show good cause and found him in contempt of this Court). Relying on Alabama v. Ray that was issued over six weeks ago on February 7, 2019, relator now claims the State is in violation of the U.S Constitution in spite of his last minute filings and the holding in Ray. Ray does not stand for that proposition. For these reasons, I concur in the Court's decision to deny relator leave to file. Do not publish
Filed: March 25, 2019
This Court's Miscellaneous Rule 11-003 provides,
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 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). A pleading shall be deemed untimely if it is filed in the proper court fewer than seven days before the scheduled execution date.