                                                                                   WR-61,939-02
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                  Transmitted 1/29/2015 4:41:19 PM
                                                                    Accepted 1/30/2015 9:01:55 AM
                                                                                      ABEL ACOSTA
                     Nos. WR-61,939-01 and WR-61,939-02                                       CLERK

                                                                       RECEIVED
                                                                COURT OF CRIMINAL APPEALS
                            IN RE DAVID DOW AND                        1/30/2015
                           JEFFREY R. NEWBERRY,                   ABEL ACOSTA, CLERK


                                   Respondents.

               __________________________________________

                MOTION REQUESTING ORAL ARGUMENT
               ___________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

      Now comes David Dow and Jeffrey Newberry by and through their

attorneys and files this request that this Court grant oral argument on their motion

for rehearing and would show this Court the following:

      On January 14, 2015, this Court issued its order in which the Respondents

David Dow and Jeffrey Newberry were held in contempt and this Court imposed

punishment for each attorney. The Court’s order presents a number of legal issues

that need to be addressed including:

      (1) Whether this Court exceeded its authority in imposing the sanction of

suspending Dow from practicing before it;

      (2) Whether the filing at was timely under this Court’s rules; and




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       (3) Whether based on the Rule of Lenity, even if the filing was not timely,

the punishment imposed on Dow is excessive.

       These issues have never been raised by the Respondents and are important

issues that should be addressed by the Court. According to the State Bar Act, Tex.

Gov’t. Code §81.011 and Article II § I of the Texas Constitution, the authority to

suspend a lawyer from the practice of law in this State rests solely with the

Supreme Court of Texas and not in this Court.1 See In re State Bar, 113 S.W. 3d

730 (Tex. 2003); In re Caballero, 441 S.W. 3d 562 (Tex. App. 2014); Mills v. Ghilain,

68 S.W. 3d 141 (Texas App. 2001).

       Accordingly, it is Respondents belief that oral argument would assist this Court in

determining the proper sanctions that should be imposed that is commiserate with the

Respondents’ conduct. Respondents are dedicated lawyers who work hard on behalf of

their clients who are solely on death row. This is difficult work that few lawyers want to

engage in and few lawyers who do this work are dedicated to zealously represent their

clients whom the State seeks to execute.

         Dow currently represents at least twelve death-sentenced Texas defendants in

their federal habeas proceedings. Dow was appointed to represent these individuals



1
  Respondent intend to seek mandamus in the Supreme Court of Texas so that the constitutional
and statutory authority of that Court is preserved.


                                             -2-
pursuant to 18 U.S.C. § 3599. Pursuant to that federal statute, Dow is obligated to

represent those individuals “throughout every subsequent stage of available judicial

proceedings, including … all available post-conviction process, together with

applications for says of execution and other appropriate motions and procedures….” 18

U.S.C. § 3599 (e). As this Court is well aware, fulfilling these obligations often requires

federal habeas counsel to return to this Court.

       A second issue that could be addressed by oral argument is the procedure used by

this Court as part of the contempt proceedings. While this Court found Dow in

contempt, the statutorily-allowed punishment for contempt is a “fine of not more than

$500 or confinement in the country jail for not more than six months, or both such a fine

and confinement in jail.” Tex. Gov’t Code § 21.002(b). Normally, when an attorney is

found in contempt, the attorney has a right to appeal and have a determination that in fact

the conduct was contemptuous and the punishment appropriate before an independent

tribunal. This Court’s procedure and sanction deprives Dow of that opportunity. This

Court’s suspending Dow is therefore interfering with the duty he owes to his clients

whose cases are pending in the federal courts.

                                PRAYER FOR RELIEF

       Respondents pray that this Court grant oral argument in this cause.




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      Respectfully Submitted,

      SCHNEIDER & McKINNEY, P.C.

       /s/ Stanley G. Schneider
      Stanley G. Schneider
      T.B.C. No. 17790500
      440 Louisiana
      Suite 800
      Houston, Texas 77002
      Office: 713-951-9994
      Fax: 713-224-6008
      Email: stans3112@aol.com


      NICOLE DeBORDE
      712 Main St., Ste 2400
      Houston, Texas 77002
      Office: 713-526-6300
      Fax: 713-228-0034
      Email: nicole@debordelawfirm.com


      CASIE L. GOTRO
      TBN: 24048505
      440 Louisiana, Suite 800
      Houston, Texas 77002
      Office: 832-368-9281
      Fax: 832-201-8273
      Email: casie.gotro@gmail.com




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                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the attached and foregoing

Motion Requesting Oral Argument has been mailed and/or hand delivered to the

following listed below on this 28th day of January, 2015.

1.    Edward L. Marshall
      Assistant Attorney General
      PO Box 12548
      Austin, Texas 78711

2.    399th District Court – Presiding Judge
      300 Dolorosa St., 1st floor
      San Antonio, Texas 78205

3.    Bexar County District Clerk
      101 W. Nueva, Suite 217
      San Antonio, Texas 78205

4.    Bexar Co. District Attorney
      101 W. Nueva, 4th floor
      San Antonio, Texas 78205

5.    Michael C. Gross
      Attorney at Law
      106 S. Saint Mary’s, Suite 260
      San Antonio, Texas 78205


                                               /s/ Stanley G. Schneider
                                               Stanley G. Schneider




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