                                                                           WR-61,939-01
                     WR-61,939-01,02                        COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                          Transmitted 3/25/2015 2:35:06 PM
                                                            Accepted 3/25/2015 2:43:50 PM
                                                                              ABEL ACOSTA
                           Nos. WR-61,939-01                                          CLERK

               ______________________________________          RECEIVED
                                                        COURT OF CRIMINAL APPEALS
                               IN THE                          3/25/2015
                                                          ABEL ACOSTA, CLERK
                  TEXAS COURT OF CRIMINAL APPEALS
               ______________________________________




                            In re David Dow,
                               Respondent


               _______________________________________

                    MOTION FOR LEAVE TO FILE AND
              EMERGENCY MOTION TO STAY ENFORCEMENT
              _______________________________________



Nicole DeBorde                     Casie L. Gotro
TBN: 00787344                      TBN: 24048505
712 Main St., Ste 2400             440 Louisiana, Suite 800
Houston, Texas 77002               Houston, Texas 77002
Office: 713-526-6300               Office: 832-368-9281
Fax: 713-228-0034                  Fax: 832-201-8273
Email: Nicole@debordelawfirm.com   Email: casie.gotro@gmail.com

                                   Attorneys for Respondent
                                   David Dow




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                  IDENTITY OF PARTIES AND COUNSEL

Respondent certifies the following is a complete list of the parties and their
attorneys in accordance with Texas Rule of Appellate Procedure 53.2(a).

1.    RESPONDENT

      David R. Dow
      University of Houston Law Center
      Texas Bar No. 06064900
      100 Law Center
      Houston, Texas 77204-6060
      Tel. (713) 743-2171
      Fax (713) 743-2131

      Counsel for David Dow:

      Nicole DeBorde
      TBN: 00787344
      712 Main St., Ste 2400
      Houston, Texas 77002
      Office: 713-526-6300
      Fax: 713-228-0034
      Email: Nicole@debordelawfirm.com

      Casie L. Gotro
      Texas Bar No. 24048505
      440 Louisiana, Suite 800
      Houston, Texas 77002
      Office: 832-368-9281
      Fax: 832-201-8273
      Email: Casie.gotro@gmail.com




                                         2
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       Respondent David Dow (“Dow”) files this Motion for Leave to File

Emergency Motion to Stay Enforcement pursuant to Rule 72.1 of the Texas Rules

of Appellate Procedure and in support would show this Honorable Court the

following:

                              Emergency Conditions

       Dow is appointed to represent Robert Pruett, a death sentenced inmate, in

the United States District Court – Southern District of Texas. Exhibit A, Affidavit

of David R. Dow. Pruett is scheduled for execution on April 28, 2015. Id. While

there are various pleadings pending for Pruett in federal court, Dow is obligated by

federal statute to:

       “…represent the defendant throughout every subsequent stage
       of available judicial proceedings, including pretrial
       proceedings, trial, sentencing, motions for new trial, appeals,
       applications for writ of certiorari to the Supreme Court of the
       United States, and all available post-conviction process,
       together with applications for stays of execution and other
       appropriate motions and procedures, and shall also represent
       the defendant in such competency proceedings and proceedings
       for executive or other clemency as may be available to the
       defendant.”

18 U.S. CODE §3599(e)(emphasis added).

       Under federal law, therefore, Dow is obligated to return to this Court to seek

relief for Pruett should further litigation in this Court become necessary. This
                                          3
Court’s order requiring Dow to first obtain leave from this Court before pursuing

relief imposes an additional burden on Dow and an unacceptable risk to Pruett.

Pruett’s right to pursue relief is now predicated on this Court’s discretionary act.

Substitute counsel for Pruett at this late hour, if even possible, would result in

irreparable harm to Pruett and/or an unnecessary delay in justice.

                   Brief Statement of Emergency Relief Requested

       Dow respectfully requests this Court stay enforcement of its order

suspending Dow from practicing before the Court, without leave, for one year.

Dow asserts his suspension is unlawful and wholly disproportionate to the

perceived infraction. Unlawful or not, Dow has a right to due process and due

course of law as guaranteed under the United States Constitution and the Texas

Constitution. Dow is without clear statutory guidance as to which court may

provide adequate relief, but justice and fairness demand he be afforded the

opportunity to seek relief.1

       While undersigned counsel navigates this jurisdictional quagmire, Pruett’s

April 28th execution date creeps closer and closer. Without immediate relief from

this Court’s unlawful order, Dow and Pruett suffer needless, irreparable harm.
1The Texas Supreme Court that has exclusive authority to regulate the practice of law and
counsel asserts that court has the power to issue writs of mandamus to even this Court as
“necessary to enforce its jurisdiction.” TEX. CONST. art. II, § 1; TEX. CONST. art. V, § 3(a); TEX.
CONST. GOV’T CODE § 81.011(c); see Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99
(Tex. 1979).

                                                 4
Dow respectfully requests this Court stay enforcement of its suspension order.

Because lives literally hang in the balance, Dow respectfully requests this Court

act on this emergency motion within 24 hours.

                     Factual and Procedural Background

      On January 14, 2015, in a per curiam order, this Court issued an order of

contempt suspending Dow from practicing before the Court, without leave, for one

year. Dow filed a Motion for Rehearing on January 29, 2015. On February 6,

2015, the Southern District of Texas issued an order under its reciprocal

disciplinary rules suspending Dow from practicing before that court and

terminating his filing privileges. Exhibit B, Notice from Clerk of the Southern

District. On February 25, 2015, this Court denied Dow’s Motion for Rehearing. On

March 18, 2015, Dow filed a Petition for Declaratory Judgment or, in the

Alternative, Writ of Mandamus in the Texas Supreme Court. On March 19, 2015,

having considered Dow’s petition for reconsideration, the Southern District lifted

the reciprocal discipline and reactivated Dow’s filing privileges. Exhibit C,

Attorney Admissions Email, March 19, 2015.

                    Federal Rules of Reciprocal Discipline

      Dow is admitted to practice in the three remaining United States District

Courts in Texas (“Western District” “Eastern District” & “Northern District”), the

United States Court of Appeals for the 5th Circuit (“5th Circuit”) and the Supreme
                                        5
Court of the United States (“U.S. Supreme Court”). Exhibit A. Each of the

aforementioned courts have reciprocal discipline rules that impose an affirmative

duty on admitted attorneys to promptly notify the court of any suspension or

disciplinary action affecting the attorney’s license to practice.              2   Undersigned

counsel believes the reciprocal discipline rules anticipate a suspension imposed by

the State Bar of Texas, or the Texas Supreme Court, not a unilateral act of a single

court.   Nevertheless, and in an abundance of caution, Dow notified each the

aforementioned federal courts of this Court’s order of suspension. The Eastern

District has not yet made a decision. Both the Northern and Western Districts have

elected to hold the matter in abeyance while the matter is resolved in the state

courts. Dow has not yet received a response from either the 5th Circuit or the U.S.

Supreme Court.

2 See N.D. TEX. R. 83.8(d) (“Any member of the bar of this court who has … been disciplined,
publicly or privately, by any court … shall promptly report such fact in writing to the clerk,
supplying full details and copies of all pertinent documents reflecting, or explaining, such
action.”); E.D. TEX. R. AT-2(b)(1) (“A member of the bar of this court shall automatically lose
his or her membership if he or she loses, either temporarily or permanently, the right to practice
law before any state or federal court for any reason other than nonpayment of dues, failure to
meet continuing legal education requirements, or voluntary resignation unrelated to a
disciplinary proceeding or problem.”); W.D. TEX. R.. AT-7(e)(2) (“A member of the bar of this
court must promptly report in writing to the clerk, with full details and copies of pertinent
documents, if … the attorney loses or relinquishes, temporarily or permanently, the right to
practice in any court of record….); FED. R. APP. P. 46(b)(“A member of the court's bar is subject
to suspension or disbarment by the court if the member…has been suspended or disbarred from
practice in any other court….): R. S.C. of the United States 8(a) (“Whenever a member of the
Bar of this Court has been disbarred or suspended from practice in any court of record…the
Court will enter an order suspending that member from practice before this Court and affording
the member an opportunity to show cause, within 40 days, why a disbarment order should not be
entered….”
                                                6
                      De Facto Suspension in Federal Court

      Dow has a statutory obligation to represent Robert Pruett at every

subsequent stage of judicial proceedings and specifically, returning to this Court

for further relief. See 18 U.S. CODE §3599(e). Moreover, Pruett has a right to

expect nothing short of effective counsel and zealous representation at this last

stage of litigation. These rights should not be contingent upon a discretionary act

of this Court. This Court’s unlawful order has already caused irreparable harm

when it triggered a reciprocal suspension for Dow in the Southern District. So

long as the order remains in effect, it creates an unnecessary and unjustifiable

burden for both lawyer and client. Because this Court’s order creates an

impediment to Dow’s advocacy on Pruett’s behalf, temporary relief is appropriate

and necessary in this case.

                                   Conclusion

      This Court should stay enforcement of its order of suspension because

justice and fairness demand it do so. Dow’s suspension, as expressly articulated by

this Court, was intended to be a “sanction” not a unilateral suspension from the

practice of law. If Dow’s suspension is in fact a “sanction” meant only to punish

him, and not his clients, and is meant to punish him without interfering with his

duties under federal law, then this Court should stay enforcement of this

punishment to prevent further unwarranted and unintended harm that has resulted
                                         7
or may result in the federal courts. Dow respectfully requests this Court grant

leave to file this motion and consider the merits thereof as soon as possible.

                                     PRAYER

      WHEREFORE PREMESIS CONSIDERED, Dow prays this Court grant

Motion for Leave to File this Emergency Motion to Stay and stay enforcement of

the order of suspension as soon as practical to prevent further, irreparable harm to

Dow and Pruett. Dow further requests this Court rule on this motion within 24

hours. Dow requests all further relief to which he may be entitled.

                                       Respectfully submitted,


                                             /s/ Casie L. Gotro
                                       By: ___________________________
                                             Casie L. Gotro
                                             State Bar No: 24048505
                                             440 Louisiana, Suite 800
                                             Houston, Texas 77002
                                             Office: 832-368-9281
                                             Fax: 832-201-8273
                                             Email: Casie.Gotro@gmail.com

                                              AND

                                              Nicole DeBorde
                                              TBN: 00787344
                                              712 Main St., Ste 2400
                                              Houston, Texas 77002
                                              Office: 713-526-6300
                                              Fax: 713-228-0034
                                          8
                                            Email: Nicole@debordelawfirm.com

                                            Attorneys for David Dow


                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this Motion for Leave to File this
Emergency Motion to Stay was served pursuant to Texas Rule of Appellate
Procedure 9.5 on Sian Silhab, General Counsel of the Court of Criminal Appeals
via email to Sian.Silhab@txcourts.gov on this the 25th Day of March, 2015.

                                                  /s/ Casie L. Gotro
                                            _________________________
                                            Casie L. Gotro



                               VERIFICATION

       I certify that I have reviewed this motion pursuant to Texas Rule of
Appellate Procedure 10.2 and have concluded that every factual statement is
supported by competent evidence included in the appendix or the pleadings filed
with this Honorable Court.

                                                  /s/ Casie L. Gotro
                                            _________________________
                                            Casie L. Gotro


                     CERTIFICATE OF COMPLIANCE

      This motion complies with the requirements of Tex. R. App. 9.4(e).

                                                  /s/ Casie L. Gotro
                                            ____________________________
                                            Casie L. Gotro


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