             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-1067-15



               Ex parte JAMES RICHARD “RICK” PERRY, Appellant



                    ON APPELLANT’S AND STATE’S PETITIONS
                         FOR DISCRETIONARY REVIEW
                     FROM THE THIRD COURT OF APPEALS
                               TRAVIS COUNTY

       A LCALA, J., filed a concurring opinion.

                                 CONCURRING OPINION

       I join, in its entirety, the lead opinion by Presiding Judge Keller that renders a judgment

in favor of James Richard “Rick” Perry, appellant. I write separately to explain why I believe

that, with respect to the cognizability question in Count I, the approach taken by the lead

opinion is the one that lower courts should follow in determining which claims are cognizable

through pretrial habeas corpus. As the numerous opinions issued today demonstrate, our case

law in this area is in need of clarification in light of the fair criticism that it has been

“somewhat difficult to extract from the case law any general principles indicating what issues
                                                                            Perry Concurrence - 2

are properly raised pretrial by means of the writ.” George E. Dix and John M. Schmolesky,

43 T EX. C RIMINAL P RACTICE AND P ROCEDURE , § 35.16 (3d ed. 2011); see also id. (opining

that “case law concerning the cognizability of matters in pretrial habeas corpus is in need of

development”). Given that our decisions in this area have been less than clear in providing

a workable framework for determining the cognizability of matters in pretrial habeas corpus,

the Court’s splintered resolution of the cognizability question in this case does little to clarify

matters. I nonetheless support the approach taken by the lead opinion and would urge this

Court to adopt that approach going forward as the governing framework for analyzing pretrial

cognizability questions.

       In setting forth the pretrial-cognizability standard that should apply to this case, the

lead opinion suggests that certain types of as-applied challenges are cognizable on pretrial

habeas when “the rights underlying those claims would be effectively undermined if not

vindicated before trial.” More broadly, the lead opinion seeks to clarify that, in assessing

whether an as-applied challenge is cognizable on pretrial habeas, courts should not engage in

a subjective evaluation of whether review at that stage would be better or more efficient, but

rather must conduct an objective legal inquiry into whether pretrial review is necessary in

order to protect “the applicant’s substantive rights,” or, stated differently, whether “the nature

of the constitutional right at issue entitles [the defendant] to raise [his] claims by pretrial

habeas corpus.” By indicating that it is the nature of the constitutional right at stake that

drives the pretrial-cognizability inquiry, this principle-based approach adheres to the
                                                                             Perry Concurrence - 3

underlying purpose of the writ of habeas corpus. See Ex parte Kerr, 64 S.W.3d 414, 419 (Tex.

Crim. App. 2002) (“The purpose of a writ of habeas corpus is to obtain a speedy and effective

adjudication of a person’s right to liberation from illegal restraint.”) (citing Blackledge v.

Allison, 431 U.S. 63, 71 (1977) (“[T]he very purpose of the writ of habeas corpus [is] to

safeguard a person’s freedom from detention in violation of constitutional guarantees.”)).

       In general, I disagree with this Court’s past inconsistent and unclear approach in

resolving questions of pretrial habeas cognizability. This Court’s precedent has employed a

category-of-the-claim approach that has also included consideration of certain factors, but this

approach has failed to provide a clear standard for pretrial cognizability. The category-of-the-

claim approach appears to be based on the theory that pretrial cognizability should depend on

whether a particular type of claim has historically been permitted for pretrial habeas review.

The problem with this approach is that it has failed to provide guidance to lower courts with

respect to novel claims for which this Court has never before addressed questions of pretrial

cognizability. Furthermore, historically, this Court has been inconsistent in deciding whether

to permit pretrial habeas relief for as-applied constitutional challenges. On the one hand, this

Court has consistently held in the past fifteen years that as-applied constitutional challenges,

as a group, were impermissible for pretrial habeas relief in Ex parte Weise,1 Ex parte Ellis,2


        1
          In Ex parte Weise, this Court held that as-applied challenges were not cognizable in a
pretrial writ. Ex Parte Weise, 55 S.W.3d 617, 618 (Tex. Crim. App. 2001). In Weise, this Court
considered “whether a pretrial writ of habeas corpus may issue on the ground that a penal statute is
being unconstitutionally applied because of the allegations in the indictment or information,” and
the Court concluded that “it may not.” Id. In rejecting Weise’s as-applied constitutional claim as
non-cognizable at a pretrial stage, this Court stated,
                                                                                 Perry Concurrence - 4

and State ex rel. Lykos v. Fine.3 On the other hand, this Court held in Ex parte Boetscher that

pretrial habeas relief was appropriate in an as-applied constitutional challenge.4 I conclude



        Weise has not claimed that the illegal dumping statute is unconstitutional on its face.
        Nor has Weise alleged any deficiencies in the information that we have recognized
        as cognizable on a pretrial writ for habeas corpus. We find that the issue of whether
        the illegal dumping statute requires a culpable mental state is not yet ripe for review.

Id. at 621.
        2
          In Ex parte Ellis, this Court held that as-applied challenges were not cognizable in a pretrial
writ. Ex parte Ellis, 309 S.W.3d 71, 79, 82 (Tex. Crim. App. 2010). This Court explained that the
applicants’ pretrial habeas claim was disguised as a facial challenge and that it was instead an “as
applied” challenge that was not cognizable on pretrial habeas. Id. at 81. This Court did not attempt
to set forth a definitive general test for cognizability of pretrial habeas, but instead more narrowly
described categories of cases that were not available for pretrial habeas review, such as cases testing
the sufficiency of the charging instrument, those construing the meaning and application of the
statute defining the offense charged, and those advancing an “as applied” challenge, but this Court
further clarified that pretrial habeas could be used to bring a facial challenge to the constitutionality
of the statute that defines the offense. Id. at 79. Ellis, therefore, appears to stand for the broad
proposition that an “as applied” challenge is not cognizable on pretrial habeas. See id. Ellis
definitively said, “Pretrial habeas can be used to bring a facial challenge to the constitutionality of
the statute that defines the offense but may not be used to advance an ‘as applied’ challenge.” Id.
        3
         In State ex rel. Lykos v. Fine, this Court held that as-applied challenges were not cognizable
in a pretrial writ. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011). This
Court rejected a capital-murder defendant’s as-applied challenge to the capital-sentencing statute,
opining that an as-applied challenge must be “brought during or after a trial on the merits, for it is
only then that the trial judge and reviewing courts have the particular facts and circumstances of the
case needed to determine whether the statute or law has been applied in an unconstitutional manner.”
Id. The Court further observed that “there is no basis under Texas law to conduct a pretrial
evidentiary hearing to determine the ‘as applied’ constitutionality of a state penal or criminal
procedural statute.” Id. at 919.
        4
         In Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991), this Court held that an as-
applied challenge was cognizable in a pretrial writ, and it granted relief. In that case, the Court
considered a defendant’s claim that his prosecution for felony non-support of his minor children
violated equal protection, based on the statutory provision that elevated his offense to a felony based
solely on the fact that he was a resident of another state. Id. at 603. Reaching the merits of
Boetscher’s claim, this Court held that the “equal protection clause of the Fourteenth Amendment
prohibits the application of [the felony non-support provision] to appellant under this indictment.”
                                                                                Perry Concurrence - 5

that this inconsistency that, without any clear explanation of the Court’s reasoning, appeared

to arbitrarily permit some as-applied constitutional challenges while disallowing others has

produced an unworkable standard for deciding habeas pretrial cognizability.5 Today, by

deciding that relief may be granted on an as-applied constitutional challenge in apparent

conflict with this Court’s decisions in this area in the last fifteen years, this Court implicitly

rejects the category-of-the-claim approach. I agree with this Court’s implicit rejection of that

approach. On the other hand, because the Court fails to reach a consensus about the proper

cognizability analysis in this case, it is unclear to me what the proper approach will be going

forward. In order to provide the lower courts with clearer guidance, I would expressly reject

the category-of-the-claim approach because it injects immaterial or subjective considerations

into what should be a case-by-case objective legal determination, and I would adopt the

approach taken in the lead opinion that looks to the nature of the constitutional right at stake



Id. at 604.
        5
          Aside from the twenty-five year old Boetscher case, see id., which had permitted the as-
applied constitutional challenge through a pretrial writ, all of the more recent precedent in the last
fifteen years has uniformly held that as-applied constitutional challenges are not a proper matter for
consideration in a pretrial writ application. Relying on this more recent precedent, the trial court and
court of appeals below held that appellant’s claim was not cognizable. See Ex parte Perry, 471
S.W.3d 63, 69 (Tex. App.—Austin 2015) (“[W]e reach the same conclusion that the district court
did—under the Court of Criminal Appeals’s binding precedents, Perry cannot bring his ‘as applied’
constitutional challenges through pretrial habeas corpus.”); see also id. at 84 (“As the district court
concluded, these precedents would appear to make ‘crystal clear’ that Perry’s ‘as-applied-to-the-
indictment’ claims are not cognizable in pretrial habeas.”). Because they relied on this Court’s more
recent precedent, which they considered to be binding, I believe that it is inappropriate to criticize
the analysis or the conclusion reached by the trial court or the court of appeals. I conclude that the
errors in this case resulted from this Court’s failure to set forth a clear and workable standard for
pretrial habeas cognizability.
                                                                          Perry Concurrence - 6

and the particular facts presented.

       In addition to consideration of the category of the claim, this Court historically has

discussed various factors that were considered to be relevant to determining pretrial habeas

cognizability, but this approach is also unclear, and I conclude that it has failed to set forth

a workable standard that lower courts can follow. Although I agree that some of the

considerations in the various Weise factors are appropriate for discerning whether the

substantive right at issue may be decided through a pretrial writ, I conclude that some of the

other considerations are clearly inappropriate, and, therefore, I would explicitly abrogate

Weise by eliminating certain factors from the cognizability analysis. See Weise, 55 S.W.3d

at 620. The Weise Court referred to several “factors” that it had previously found relevant to

determining whether an issue was cognizable on pretrial habeas, including “whether the

alleged defect would bring into question the trial court’s power to proceed”; whether the

resolution of the claim in the applicant’s favor would result in his “immediate release”; and

whether the rights at issue “would be effectively undermined” if the claim were not

cognizable. Id. at 619-20. Although these factors are proper considerations, the Court also

included other factors that, I conclude, are immaterial and appear to be inappropriately

subjective or discretionary. Those factors include whether an issue might be “better addressed

by a post-conviction appeal,” or whether the conservation of judicial resources might counsel

against pretrial review. Id. at 620. By suggesting that an as-applied constitutional challenge

is cognizable based on the nature of the substantive right at issue, without considering all of
                                                                            Perry Concurrence - 7

the remaining Weise factors, the approach taken by the lead opinion implies that Weise may

be narrowed to a fewer number of more appropriate considerations, and, as I already discussed

above, it effectively abandons the category-of-the-claim approach. For these reasons, I agree

with that approach.

        I conclude that, by basing its cognizability determination in this case on the nature of

the constitutional right at stake without considering judicial economy, the lead opinion

implicitly determines that judicial economy need not be considered when a defendant’s

substantive rights are at stake. I agree with this analysis. I, however, would go a step further

by more broadly holding that judicial-economy considerations may never play a proper role

in determining matters of pretrial cognizability. In Weise, this Court suggested that pretrial

habeas should be reserved for “situations in which . . . the conservation of judicial resources

would be better served by interlocutory review,” or in which claims would be “better

addressed by a post-conviction appeal,” but I disagree. See id. at 620. An applicant’s claim

should either be deemed cognizable at a pretrial stage based on a substantive legal assessment

that the right at issue compels review at that stage, or it should be deemed non-cognizable on

the basis that the type of right at issue can be vindicated on direct appeal and, thus, the

applicant has an adequate remedy by appeal that renders pretrial review unnecessary.

Introducing judicial-economy considerations into the analysis presents the possibility that

courts will make such determinations based on a subjective assessment of whether a particular

claim is better suited to pretrial review, or whether it would be more efficient or easier for the
                                                                             Perry Concurrence - 8

court to delay review until some later stage of the proceedings. But, as the lead opinion

indicates, the primary consideration in determining questions of pretrial cognizability must

be an objective assessment of whether a defendant’s constitutional rights would be unduly

infringed upon by the lack of pretrial review. In light of this fact, I cannot see how subjective

considerations of judicial economy could ever properly influence a court’s pretrial-

cognizability analysis.

        Along these same lines, I also disagree with Weise’s suggestion that courts might base

a pretrial-cognizability analysis on consideration of whether an issue would be “better

addressed by a post-conviction appeal.” Id. That type of subjective inquiry is inappropriate

for pretrial habeas cognizability. Instead, a court should focus on the other Weise factors that

more appropriately examine whether an applicant’s substantive constitutional rights compel

a pretrial resolution.

       Having determined that the category-of-the-claim approach and that certain Weise

factors are inappropriate tools for deciding matters of pretrial cognizability, I agree with the

lead opinion’s continued application of the remaining Weise factors, although I would further

clarify that these are not “factors” at all. Rather, there are certain principles that must underlie

any decision to grant pretrial habeas relief, and it is these principles that must be the sole focus

of any pretrial-cognizability determination. Here, as in double-jeopardy claims in general, the

substantive right at issue “would be effectively undermined” if the claim were not cognizable

at a pretrial stage. Id. at 619-20. In other types of claims, however, pretrial consideration of
                                                                          Perry Concurrence - 9

a claim might be appropriate when “the alleged defect would bring into question the trial

court’s power to proceed.” See id. And it is further possible that situations will arise that do

not precisely fall within any of the existing Weise factors, but which nevertheless compel

pretrial review in light of the purpose of habeas corpus. See Blackledge, 431 U.S. at 71. In

any case, it is the underlying principles that should guide the analysis about whether pretrial

habeas relief is appropriate, rather than the category of the claim or a consideration of

exclusive factors that, as this case demonstrates, may not be relevant to the analysis in any

way.

       With these comments, I join the lead opinion.

Filed: February 24, 2016

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