          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                    NO. WR-84,212-01



          IN RE STATE OF TEXAS EX. REL. BRIAN RISINGER, Relator



       ORDER TO APPEAR AND SHOW CAUSE FOR UNTIMELY FILED
           DOCUMENT IN RAPHAEL DEON HOLIDAY’S CASES
               FROM CAUSE NOS. 10,423, 10,425, and 10,427
               IN THE 278 TH JUDICIAL DISTRICT COURT
                          MADISON COUNTY

              N EWELL, J., filed a concurring statement.

       I join the Court’s order for counsel Frank Blazek and William F. Carter to appear

before this Court to explain why they filed an untimely motion to withdraw the warrant of

execution for their client Raphael Deon Holiday. As the other judge who dissented to this

Court’s denial of mandamus relief regarding Holiday’s motion to withdraw his warrant of

execution, I now feel it incumbent upon me to write separately to explain why I voted against

mandamus relief and why I agree with the Court’s order to show cause.
                                                             Risinger Concurring Statement – 2

             Counsel Filed a Motion to Withdraw the Order of Execution
                              Not a Subsequent Writ

       The Court’s show cause order sets out in detail the timeline of events leading up to

the day of Raphael Holiday’s execution. It is worth repeating that even though Holiday had

four different attorneys purporting to act on Holiday’s behalf (as well as a fifth one

attempting to intervene to provide assistance), none of these attorneys filed a subsequent

application for a writ of habeas corpus pursuant to Article 11.071, Section 5 of the Code of

Criminal Procedure prior to their client’s execution. As early as August 14, 2015, these

attorneys were aware of not only the pending execution date, but also their client’s repeated

attempts to secure legal help to advance his case in various venues.

       The only motion filed in state court was a motion to withdraw the warrant of

execution pursuant to Article 43.141(d)(1). T EX. C ODE C RIM. P ROC. A NN. art. 43.141(d)(1)

(West 2013). There is simply no other way to characterize the motion at issue in this case.

Under its own terms, the motion to withdraw acknowledged that a subsequent application for

a writ of habeas corpus had yet to be filed. It requested the warrant be withdrawn in order

to afford Holiday an opportunity to file one, perhaps with the assistance of Blazek and Carter,

or perhaps with help by another, as-yet-unknown attorney. As further justification for the

motion to withdraw the warrant, the attorneys listed two possible claims they sought to raise

in a to-be-filed application for a subsequent writ of habeas corpus: the use of unreliable

expert testimony as to future dangerousness in Holiday’s trial, and a complaint that one of
                                                                             Risinger Concurring Statement – 3

his three capital murder convictions was barred by double jeopardy.1

         The legal basis for the motion was primarily statutory. The attorneys relied explicitly

upon their interpretation that Article 43.141 allowed a trial court to withdraw an order of

execution even where no subsequent writ of habeas corpus had been filed or was pending

before the trial court. They provided examples of district courts that had signed orders

withdrawing or modifying warrants of execution to grant more time to file a subsequent

application for writ of habeas corpus. They also included an equitable argument that the

warrant of execution should be withdrawn so that Holiday could continue litigating his

requests for representation in federal court as well as have state habeas counsel appointed to

assist with a subsequent writ. The order itself ordered the execution date to be withdrawn

“to permit those proceedings to be filed and adjudicated.”

         It is true that we look to the substance of pleadings in extraordinary matters to

determine their character. In re Daniel, 396 S.W.3d 545, 549 (Tex. Crim. App. 2013).

However, even the substance of the pleadings from the body of the motion to the proposed

order reveals this was exactly what it claimed to be–a motion to withdraw or modify the

execution date. It was not intended as a subsequent application for a writ of habeas corpus.

If it were, there would be no reason for the litigants to argue that they needed more time in


         1
           Attorney Blazek represented Holiday on direct appeal, raising forty-nine points of error related to eighteen
different aspects of the trial. Holiday v. State, AP-74,446, AP-74,447, AP-74448 (Tex. Crim. App. Feb. 8, 2006)
(not designated for publication). He did not raise a challenge based upon double jeopardy even though such a claim
was clearly available prior to trial and on direct appeal. He did challenge the admissibility of unreliable expert
testimony on direct appeal, but this Court has already rejected that argument with only one judge dissenting on that
basis. Holiday v. State, AP-74,446, AP-74,447, AP-74,448, 2006 W L 288661 at *1 (Tex. Crim. App. Feb. 8, 2006)
(W omack, J., dissenting) (not designated for publication)
                                                                               Risinger Concurring Statement – 4

order to file a subsequent application for writ of habeas corpus. Suggesting that the trial

court could have reasonably regarded this unverified motion as a subsequent application for

a writ of habeas corpus blinks reality.

             The Motion to Withdraw was not A Motion in Arrest of Judgment

         If construing the motion in this case as a subsequent writ blinks reality, suggesting it

should be treated like a motion in arrest of judgment alters reality entirely. A motion in arrest

of judgment is a defendant’s oral or written suggestion that, for reasons stated in the motion,

the judgment rendered against the defendant was contrary to law. T EX. R. A PP. P. 22.1. The

rules of appellate procedure provide that a motion in arrest of judgment can be granted on

any of the following grounds: (a) that the indictment or information is subject to an exception

on substantive grounds; (b) that in relation to the indictment or information a verdict is

substantively defective; or (c) that the judgment is invalid for some other reason. T EX. R.

A PP. P. 22.2. It is, in effect, a post-trial motion to quash the indictment limited to any

complaints about the indictment made by timely objection prior to trial. See e.g. Crittendon

v. State, 923 S.W.2d 632, 634 (Tex. App.–Houston [1 st Dist.] 1995, no pet.).2

         Additionally, a motion in arrest of judgment must be filed no later than 30 days after

the date when the trial court imposes or suspends sentence in open court. T EX. R. A PP. P.



         2
              Subsection (c) does not expand the scope of the grounds for a motion in arrest of judgment beyond those
set out in former Article 41.03 of the Texas Code of Criminal Procedure because the legislative grant of rulemaking
authority to this Court does not allow any rules that abridge, enlarge, or modify substantive rights of a litigant. T EX .
G O V ’T . C O D E A N N . § 22.018(a) (W est 2013); Flowers v. State, 935 S.W .2d 131, 132-34 (Tex. Crim. App. 1996).
Former Article 41.03 limited the grounds for a motion in arrest of judgment to exceptions to the indictment or
information. Crittendon, 923 S.W .2d at 634 n. 1.
                                                              Risinger Concurring Statement – 5

22.3. Like a motion for new trial, the trial court has seventy-five days to rule upon the

motion, and it is deemed denied if the trial court does not rule upon the motion within that

time period. T EX. R. A PP. P. 22.4. Tellingly, the effect of a trial court’s grant of a motion

in arrest of judgment is to restore the defendant to the position he or she was in before the

indictment or information was presented. T EX. R. A PP. P. 22.6.

       The motion at issue in this case did not ask to place Holiday in the position he was

before the indictment was presented. It was not based upon arguments he had raised prior

to trial. And it was presented at least a decade after sentence was imposed in open court.

Arguing that this was an arrest of judgment that the State could have appealed has no basis

in law or fact. I can only assume that is why Holiday’s attorneys did not make that argument

in their response to the State’s petition for mandamus relief.

         Article 43.141(d)(1) Explicitly Requires a Pending Writ Application

       After the trial court granted the motion, the State sought mandamus relief with this

Court. In the reply to the State’s petition, Holiday averred through his counsel that “The

motion was predicated on the existence of at least two constitutional claims that Holiday

seeks to raise in a subsequent habeas corpus application, both of which may meet the

requirements of Texas Code of Criminal Procedure Article 11.071 § 5.” Thus, unlike many

“last-minute” death-penalty filings, in this case, the Court was faced with a relatively discrete

issue of law: Does Article 43.141 allow a trial court to withdraw a warrant for execution

when no application for a writ of habeas corpus is pending? A plain reading of the statute
                                                                             Risinger Concurring Statement – 6

reveals that it does not.

         Article 43.15 of the Code of Criminal Procedure explicitly authorizes a trial court to

enter an order setting a date for an execution. T EX. C ODE C RIM. P ROC. A NN. art. 43.15 (West

2013). Article 43.141 addresses scheduling of the execution date, and the trial court’s

authority to withdraw or modify the order of execution. T EX. C ODE C RIM. P ROC. A NN. art.

43.141. Article 43.141(d) reads as follows:


         (d)      The convicting court may modify or withdraw the order of the court
                  setting a date for execution in a death penalty case if the court
                  determines that additional proceedings are necessary on:

                  (1)      a subsequent or untimely application for a writ of habeas corpus
                           filed under Article 11.071; or

                  (2)      a motion for forensic testing of DNA evidence submitted under
                           Chapter 64.

Id. Notably, subsection (d) authorizes the trial court to modify or withdraw an order setting

a date for execution if additional proceedings are necessary. T EX. C ODE C RIM. P ROC. A NN.

art. 43.141 (d) (West 2013). However, that subsection presupposes that the underlying

document that requires additional proceedings has already been filed or submitted. Id. This

limitation of the trial court’s authority may appear to be harsh in its application, particularly

in the context of this case, but the language could not be more clear.3


        3
           It is worth noting that this statutory provision was passed in 1995 as part of a larger effort to streamline
review of death penalty cases. Included as one of many rationales for passage of the statute was the need to decrease
the delay between a capital murder conviction and the imposition of a death sentence. House Comm. on Criminal
Jurisprudence, Bill Analysis, C.S.S.B 440, 74th Leg., R.S. (April 27, 1995) (“1995 Bill Analysis”) (available at:
http://www.legis.state.tx.us/tlodocs/74R/analysis/html/SB00440H.htm). And allowing the trial court authority to
withdraw a valid execution order without a showing of active pleadings would necessarily allow a trial court to delay
                                                                               Risinger Concurring Statement – 7

         This Court has not published any opinions addressing whether a trial court can

nevertheless withdraw or modify an order for execution despite the language of the statute,

but we have weighed in on the issue twice.4 In In re Roach, the trial court withdrew an order

setting the execution of Charles Dean Hood even though there were no active pleadings

before it. No. WR-4116-08, 2008 WL 2486229 at *1 (Tex. Crim. App. June 17, 2008) (not

designated for publication). The trial court then recused itself, thereby transferring authority

to the regional presiding judge. Id. The State subsequently filed an application for a writ of

mandamus to order the regional presiding judge to rescind the order withdrawing the death

warrant. Id. We granted mandamus relief explaining that the trial court lacked authority to

withdraw the order setting the execution date because the plain text of the statute required

a pending or active pleading to justify the modification or withdrawal. Id. at *2.

         Similarly, Ex parte Cannady, this Court considered a third subsequent application for

a writ of habeas corpus in the capital murder case of Rogelio Cannady. No. WR-25462-07,

2010 WL 2006763 at *1 (Tex. Crim. App. May 17, 2010) (not designated for publication).

This Court first determined that Cannady’s third subsequent application for writ of habeas

corpus failed to satisfy the dictates of Article 11.071, § 5, and we therefore dismissed the

application and denied his motion to stay his execution. Id. We went on to address the fact


an execution indefinitely. W hile the legislative history is not necessary to clarify any ambiguity in the statute, it does
reinforce the observation that the limitation of a trial court’s ability to withdraw an execution unless one of two types
of filings are pending is due to a legislative design to decrease delay in post-conviction proceedings.

         4
           I acknowledge that these cases are unpublished and lacking in precedential value. T EX . R. A PP . P. 47.7. I
discuss them because they were cited by the parties in the underlying case. Even if they had precedential value, they
do not support the trial court’s order in this case.
                                                            Risinger Concurring Statement – 8

that Cannady had filed a motion to withdraw the order of execution prior to filing his third

subsequent habeas application. Id. We observed:

       This motion was authorized under Texas Code of Criminal Procedure article
       43.141, and may be ruled upon by the trial court under the dictates of that
       statute. However, in denying the motion, the trial court declared that it was
       treating the motion as a subsequent application, and it opined that it was not
       authorized to modify or withdraw its previous order until this Court
       determined whether the requirements of Article 11.071, § 5, had been met.
               Applicant’s motion standing alone is not, and will not be construed by
       this Court to be, a subsequent writ application subject to Article 11.071
       review.

Id. The trial court apparently denied the motion–as it was required to–under Article 43.141

because no subsequent writ application was pending. Id. This Court’s observation in

Cannady–that the trial court’s stated reason for denying the motion was incorrect because a

motion under Article 43.141 is not a subsequent application for a writ of habeas corpus and

should not be construed as such–did nothing to suggest that a trial court can withdraw an

order of execution when no subsequent habeas application is pending. A defendant is

authorized to file a motion to withdraw under Article 43.141, but a trial court must deny it

(under the dictates of the statute) if there are no active pleadings.        Even assuming

precedential status for these two cases, I see no inconsistency between our holdings in Roach

and Cannady or between our holdings in those cases and the express terms of the statute.

       Additionally, Holiday’s attorneys cited (and provided) several trial court orders

withdrawing an execution date as proof that a trial court has the authority to do so even when

no application for a writ of habeas corpus is pending. However, these orders were not
                                                               Risinger Concurring Statement – 9

brought before this Court on a petition for writ of mandamus, and indeed, at least one was

entered by agreement of the parties.        Consequently, these orders do not support the

proposition that the trial court could properly construe Article 43.141(d)(1) to authorize

withdrawal of an execution order when there is no pending application for a writ of habeas

corpus on file.

      The State’s Petition for Writ of Mandamus Was Not Procedurally Barred

       It is true that the current rules of appellate procedure do not specifically require that

this Court request a response from the trial court before granting relief on a petition for a writ

of mandamus. But it is not at all clear that the rules of appellate procedure governing the

Texas Supreme Court and the courts of appeals do so either. Rule 52.2 designates three

different parties to an original proceeding. T EX. R. A PP. P. 52.2. The party seeking relief is

the relator, the State in this case, while the person against whom relief is sought is the

respondent, in this case the trial court. Id. Rule 52.2 also designates the person whose

interest would be directly affected by the relief sought as a real party in interest and a party

to the case. Id. In this matter, Raphael Holiday was the real party in interest and, by virtue

of his interest in his own case, a party.

       Rule 52.4 of the Rules of Appellate Procedure governs responses in original

proceedings in the Texas Supreme Court and the court of appeals. The rule allows that “any

party may file a response to the petition, but it is not mandatory.” T EX. R. A PP. P. 52.4. The

rule also states “The court must not grant relief–other than temporary relief–before a
                                                            Risinger Concurring Statement – 10

response has been filed or requested by the court.” Id.

       On its face, Rule 52.4 does not require a response, or a request for a response, from

all parties before the court can grant relief. Id. As long as a response has been filed from

the most interested party, a court may grant relief. Id. See e.g. In re Prudential Ins. Co. of

America, 148 S.W.3d 124, 140 (Tex. 2004) (granting mandamus relief where respondent was

trial court, but the real party in interest filed response to petition for mandamus rather than

the respondent); In re Living Centers of Texas, Inc., 175 S.W.3d 253 (Tex. 2005) (same).

Courts of appeals routinely request a response from the real party in interest and proceed with

only that response rather than insisting upon an response from the trial court because,

understandably, the real party in interest has far more interest and investment in the case. See

e.g. In re Victor Enterprises, Inc., 308 S.W.3d 455, 457 (Tex. App.–Dallas 2010, original

proceedings); In re Living Centers of Texas, Inc., 228 S.W.3d 678 (Tex. App.–Corpus Christi

2004, original proceedings), mand. granted, 175 S.W.3d 253 (Tex. 2005); In re Patricia Gist,

974 S.W.2d 843 (Tex. App.–San Antonio 1998, original proceedings). If granting mandamus

relief without requesting a response from the trial court–as opposed to the interested

parties–violates a civil litigant’s right to due process, the Texas Supreme Court has yet to say

so.

       This need for a response from the trial court is a red herring because the real party in

interest filed a response in this case. Holiday did not argue that the State’s petition for writ

of mandamus should be rejected on procedural grounds based upon the lack of a request for
                                                                          Risinger Concurring Statement – 11

a response from the trial court or that the failure to do so violated due process. And this

Court did not grant the State’s petition without receiving Holiday’s response and considering

it. I acknowledge that time for consideration was necessarily condensed, but that was a direct

result of the timing of the motion to withdraw itself. I could not find any cases from the

Texas Supreme Court interpreting the scope of Rule 52.4 as requiring a request for a

response from the trial court even after the real party in interest has responded.5

         Admittedly, the Rules of Appellate Procedure could be clarified to further explain the

scope of Rule 52.4 as well as make it explicitly applicable to original proceedings in this

Court. However, I do not think that the Rules Advisory Committees for either this Court or

the Texas Supreme Court should be faulted for an oversight that would have had no impact

on this case.6 Focusing upon the alleged shortcomings of the Rules of Appellate Procedure

needlessly distracts from the real candidate for correction, Article 43.141. Amending Article

43.141 to expand the trial court’s authority or grant the State a right to appeal such a

withdrawal order would do more to avoid the circumstances presented here than requiring

a request for a response from the trial court even after receiving a response from the real

party in interest.


        5
           The Dallas Court of Appeals has held Rule 52.4 prohibited granting mandamus relief where the relator
was not afforded an opportunity to respond. In re Victor Enterprises, Inc., 304 S.W .3d 669 (Tex. App.–Dallas 2010,
no writ). W hile the court of appeals opined that failing to afford the relator an opportunity to respond violated due
process, the sole support for that holding was the rule itself. Id. More importantly, the opinion was not concerned
with a claim that due process requires a request for a response from the trial court even where the interested parties
have responded.

        6
           As head of the Court of Criminal Appeals Rules Advisory Committee, Judge Alcala is well-positioned to
suggest these changes going forward.
                                                              Risinger Concurring Statement – 12

                    Mandamus Relief Would Have Been Warranted
                    On a Pure Article 43.141(d)(1) Withdrawal Order

       On the merits of the State’s petition for writ of mandamus, I agree with the Court that

the trial court was not allowed to withdraw the order of execution under the terms of Article

43.141(d)(1). In order to be entitled to relief, the State was required to show: 1) that it had

no adequate remedy at law, and 2) that it sought to compel a ministerial act. In re State ex

rel. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013).                  This ministerial act

requirement is satisfied if the relator can show a clear right to the relief sought. In re Bonilla,

424 S.W.3d 528, 533 (Tex. Crim. App. 2014). A clear right to relief is shown when the facts

and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from

extant statutory, constitutional, or case law sources), and clearly controlling legal principles.

Weeks, 391 S.W.3d at 122.

       Additionally, with respect to the “no adequate remedy at law” requirement, we have

explained that a remedy at law, though it technically exists, may nevertheless be so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate. Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645,

648-49 (Tex. Crim. App. 2005). Article 43.141 provides no avenue for appeal for the State

to review the trial court’s order withdrawing an order of execution. State v. ex rel. Lykos v.

Fine, 330 S.W.3d 904, 916 (Tex. Crim. App. 2011) (holding that the State had no adequate

remedy at law to prevent hearing on constitutionality of the death penalty prior to trial where

the State lacked the ability to appeal a trial court’s order preventing it from pursuing a
                                                              Risinger Concurring Statement – 13

capital-murder conviction and a sentence of death). I do not see any other adequate remedy

at law for the State to seek review of the trial court’s order that is not “too uncertain, tedious,

burdensome, slow, inconvenient, inappropriate, or ineffective to be deemed inadequate.”

Greenwell, 159 S.W.3d at 648-49. Acquiescing to the new execution date or trying to

shoehorn the issue into review of the as-yet-unfiled subsequent writ application would still

not provide review of the underlying issue, the propriety of the order to withdraw. See In re

McCann, 422 S.W.3d 701, 710-11 (Tex. Crim. App. 2013) (noting that relator had no

adequate remedy at law even though he could seek relief from his order for contempt through

a writ of habeas corpus because it would not resolve the underlying issue in the case); see

also Ex parte Henderson, 246 S.W.3d 690, 692 (Tex. Crim. App. 2007) (addressing

application for subsequent writ of habeas corpus without addressing propriety of trial court’s

order withdrawing execution date). Holiday’s counsel did not argue that the State had an

adequate remedy at law because the State simply did not.

       The terms of Article 43.141 are clear; a trial court cannot withdraw an order setting

the execution for additional proceedings unless a subsequent or an untimely application writ

of habeas corpus has already been filed. T EX. C ODE C RIM. P ROC. A NN. art. 43.141 (West

2013). In Weeks, we acknowledged that statutory provisions could be the basis for a showing

of a clear right of relief. Weeks, 391 S.W.3d at 124-26. The Court was reasonable in

determining that the statutory provision in this case was clear, and that our own prior actions

(even though they were unpublished opinions) did not contradict the text of Article
                                                                           Risinger Concurring Statement – 14

43.141(d)(1). I cannot fault the majority of this Court for granting the State’s petition for

mandamus relief on this basis.

                 Mandamus was Inappropriate Because the Trial Court
             Retained Inherent Authority to Withdraw or Modify its Orders

         But the attorneys in this case also based their motion to withdraw on a claim that

Holiday’s federal writ counsel had effectively abandoned him. To me, that is the heart of the

matter. As both this Court’s show cause order and the dissenting statement detail, Holiday

had repeatedly requested assistance from Seth Kretzer and James Volberding, Holiday’s

federally-appointed writ counsel. After having exhausted his direct appeal and his first

application for a writ of habeas corpus in this State and litigated his federal writ of habeas

corpus through to the United States Supreme Court, Volberding informed Holiday that he

would not be filing additional appeals or seeking clemency because neither presented a

realistic chance of sparing Holiday’s life. See Brandi Grissom, Condemed Mans’ Lawyers

Stop Helping, Citing “False Hope,” D ALLAS M ORNING N EWS, Nov. 16, 2015 (available at

http://www.dallasnews.com/news/state/headlines/20151116-condemned-mans-lawyer-stop-

helping-cite-false-hope.ece).7             Attorneys Blazek and Carter were aware of these

developments and filed the motion to withdraw the execution date pending the filing of a

subsequent writ after an attorney with no connection to the case suggested filing a motion



         7
           It is worth noting that the United States Supreme Court denied the request for a stay of execution despite
this attorney-abandonment theory. Holiday v. Stephens, 577 U.S. ___ at 1 (Nov. 18, 2015). Even Justice
Sotomayor, who wrote a concurring statement to opine that the trial court should have allowed the substitution of
counsel, ultimately agreed with the Court to deny the stay because counsel had ultimately filed a clemency petition.
Id. at 3.
                                                                             Risinger Concurring Statement – 15

to withdraw the order of execution. While they were unclear as to whether they might be

filing the subsequent writ application, they raised equitable concerns based upon federal writ

counsel’s failures as a basis for the trial court’s order independent of Article 43.141.

         In their response to the State’s petition for writ of mandamus, they observed that

Article 43.141 was not the only source of authority for the trial court to act. Relying upon

the trial court’s “plenary power” to alter its own orders, they argued that the trial court could

modify or rescind its orders through authority independent of the statute. And they also cited

to Ex parte Henderson, where a trial court had recalled the defendant’s death warrant “in the

interest of justice” so that the defendant could have sufficient time to gather additional

material for a subsequent writ application. Ex parte Henderson, 246 S.W.3d 690, 692 n. 1

(Tex. Crim. App. 2007).8 This argument properly focused on what I felt was the central

concern of the case: whether a trial court could–in the interest of justice–withdraw a warrant

of execution where the defendant represents that the defendant’s counsel had effectively

stopped representing him and he needs new counsel. Given that the issue is at least unsettled,

I voted to deny mandamus relief.

         Under the Texas Constitution, district courts are invested with inherent authority to

execute their own judgments. Kelly v. State, 676 S.W.2d 104, 107 (Tex. Crim. App. 1984).

In addition to express grants of power conferred by constitution, statute, or common law,


         8
           In Henderson this Court evaluated the propriety of the subsequent writ application, not the propriety of the
trial court’s order, which was necessarily a moot issue at that point. 246 S.W .3d at 691. Even so, the trial court did
not base its withdrawal order on Article 43.141(d)(1); it justified the withdrawal as being “in the interests of justice”
suggesting reliance upon the trial court’s inherent authority.
                                                            Risinger Concurring Statement – 16

courts have inherent and implied powers that provide a much broader foundation upon which

to act.    State v. Patrick, 86 S.W.3d 592, 601 (Tex. Crim. App. 2002) (Cochran, J.,

dissenting); See also T EX. G OV’T. C ODE A NN. § 21.001 (a) (setting out that a court has “all

powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders,

including the authority to issue the writs and orders necessary or proper in aid of its

jurisdiction”). In Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979), our sister

court recognized this inherent authority of a trial court to aid in the exercise of its

jurisdiction, in the administration of justice, or in the preservation of its independence and

integrity. See also State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991) (citing

Eichelberger). As Judge Cochran observed in her dissenting opinion in Patrick, there are

essentially two contradictory views of a trial court’s authority: whatever is not forbidden is

permitted, and whatever is not explicitly authorized is forbidden. Patrick, 86 S.W.3d at 601.

Because I view the trial court’s authority under the former principle, I would have held that

the trial court properly relied upon its inherent authority by withdrawing its order setting an

execution date in light of the equitable claims raised in Holiday’s motion.

          However, I fully acknowledge that taking this position is almost completely

undermined by Staley v. State, 420 S.W.3d 785 (Tex. Crim. App. 2013). There, this Court

was faced with the difficult question of whether federal or state law prohibited the

involuntary medication of a mentally ill inmate for the purpose of carrying out an order of

execution. Id. at 786. Rather than decide the issue on constitutional grounds, we held that
                                                             Risinger Concurring Statement – 17

Article 46.05 of the Code of Criminal Procedure, which governs a defendant’s competency

to be executed, did not authorize the trial court to involuntarily medicate a mentally ill

inmate. Id. at 796. In doing so, we rejected an argument that such action was justified under

a trial court’s inherent authority. Id. In effect, we took the position that the trial court could

not act unless statute specifically authorized the trial court’s actions even though it had

jurisdiction to rule upon the issue of competency. Id. Returning to Judge Cochran’s dissent

in Patrick, the Court took the “whatever is not explicitly authorized is forbidden” view of

inherent authority, and I disagree with that view. I would have reached the same result in

Staley, but on different grounds.

       Yet, the fact remains that Staley is binding authority that sharply limits a trial court’s

inherent authority to the terms of the statute governing the proceedings. Arguably, the scope

of the rationale we announced in Staley may not extend to orders under Article 43.141, and

the unsettled nature of the scope of the holding in Staley could justify a denial of the State’s

petition for mandamus relief in Holiday’s case. Simon v. Levario, 306 S.W.3d 318, 322 (Tex.

Crim. App. 2009). But I cannot fault a majority of the Court for reading Staley as a

limitation of a trial court’s authority in this case any more that I could fault Judge Alcala for

authoring Staley in the first place.

                 A Show Cause Hearing Guarantees More Information
                             Not a Particular Outcome

       This Court’s Miscellaneous Rule 11-003 is important to the proper consideration of

pleadings relating to an impending execution. In re Dow, 460 S.W.3d 151, 157 (Tex. Crim.
                                                            Risinger Concurring Statement – 18

App. 2015) (Alcala, J., dissenting). The purpose of the rule is to ensure both that a defendant

has an opportunity to raise any issues pertinent to the impending execution and that this Court

has an adequate opportunity to consider those pleadings. Id. Violations of this rule could

harm a defendant if a judge cannot adequately consider a defendant’s pleadings, but it can

also harm society through an unmeritorious stay of execution merely because of the

compressed time a judge has to consider the pleadings. Id. The concerns are weighty,

indeed.

       The dissent advocates passionately that this Court did not have adequate time to

consider the pleadings in this case. But the timing of Holiday’s motion dictated the

compressed time frame. The accompanying statement from the attorneys merely states that

they decided to file the motion to withdraw the execution order the day before the execution

date after being informed by another attorney that they could do so. Contrary to the dissent’s

factual assertions, nothing in Blazek’s or Carter’s statements establishes that these two

attorneys “did not know Holiday needed counsel until the day before the scheduled

execution.” The only reference to the day before the scheduled execution appears in

Blazek’s statement, and it recites that Blazek was contacted by an attorney regarding the

possibility of filing a motion to withdraw the order of execution. This information was

preceded by acknowledgments that Kretzer had told Holiday in August that he did not think

anything else could be done in Holiday’s case, and that another attorney had considered

representing Holiday on October 9, 2015. It may very well be that Blazek and Carter were
                                                            Risinger Concurring Statement – 19

unaware that Holiday needed counsel, but that is not what the good cause certificate says.

I am more than willing to commend Blazek and Carter for stepping into the breach when no

one else would if that is the appropriate response after the hearing, but I have not pre-judged

the issue and would rather hear what they have to say before I decide. And the hearing itself

could provide valuable insight for handling future cases. That is why I join the Court’s order

to show cause.

       With these thoughts, I concur.




Filed: December 16, 2015

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