            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-26,838-04


                EX PARTE RAUL FERNANDO BARRON, Applicant


           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
         CAUSE NO. 14-04-04074-CR IN THE 435TH DISTRICT COURT
                     FROM MONTGOMERY COUNTY

       YEARY, J., filed a dissenting opinion.
                                 DISSENTING OPINION

       A jury found Applicant guilty of violating a civil commitment order as a sexually

violent predator. The jury then also found three previous offense enhancement allegations

to be true: (1) that on September 13, 1994, Applicant had been convicted of indecency with

a child; (2) that on August 15, 1984, Applicant had been convicted of indecency with a

child; and (3) that on November 22, 1977, Applicant had been convicted of murder. In

accord with its verdict and findings, on April 15th, 2014, the jury assessed Applicant’s

punishment at confinement for life in prison. Today the Court grants post-conviction

habeas relief to Applicant on the ground that his conduct was retroactively decriminalized

by the 84th Legislature in its Senate Bill 746.
                                                                                 BARRON — 2

       Senate Bill 746 purported to retroactively decriminalize the offense for which

Applicant was convicted in cases that had not yet resulted in a final conviction as of its

effective date of June 17, 2015. Applicant’s case was pending in the court of appeals on

that effective date and was therefore not yet final.

       I believe that, insofar as it purports to act on cases such as Applicant’s, Senate Bill

746 was a Legislative usurpation of our Executive Department’s exclusive pardon power

in violation of Article II, Section 1, of the Texas Constitution. TEX. CONST. Art. II, § 1

(“The powers of the Government of the State of Texas shall be divided into three distinct

departments, each of which shall be confided to a separate body of magistracy, to wit:

Those which are Legislative to one; those which are Executive to another, and those which

are Judicial to another; and no person, or collection of persons, being of one of these

departments, shall exercise any power properly attached to either of the others, except in

the instances herein expressly permitted.”). I explained my thoughts on this matter at length

in my dissenting opinion in Vandyke v. State, 538 S.W.3d 561, 583–96 (Tex. Crim. App.

2017) (Yeary, J., dissenting). For the reasons expressed here and in my opinion in Vandyke,

I respectfully dissent.



FILED:        April 29, 2020
PUBLISH
