           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-79,465-01



                     EX PARTE AL LETROY SMITH, Applicant

                                              v.

                                THE STATE OF TEXAS

           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        FROM CAUSE NO. 43,698-01-A IN THE 47TH DISTRICT COURT
                          POTTER COUNTY

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       As I have discussed before, I thought instituting laches for writs of habeas corpus was

unfair and had no legal basis. Perez v. State, 398 S.W.3d 206, 219-20 (Tex. Crim. App. 2013)

(Meyers, J., dissenting). Laches was instituted as an equitable doctrine meant to prevent the

supposed hardship that the State might encounter in retrying an applicant if relief were

obtained. See B LACK’S L AW D ICTIONARY 1006 (10th ed. 2014). Perez, however, turned it

into an instrument to allow the State to prevent applicants from obtaining habeas hearings,
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and ultimately, relief.

       The majority in the present case further handicapped applicants by allowing sua

sponte consideration of laches without requiring the State to even argue that the doctrine

should be employed. Even though the State in this case did not assert that it needed laches

to prevent a hardship in retrial, the majority referred the case back to the trial judge to make

findings on Applicant’s reason for delay. From my reading of the majority opinion, it does

not seem that the judge’s findings were based on anything other than the applicant’s

statement of his understanding of his ability to file a writ. It is not based on any analysis of

prejudice the State may encounter in retrying the case. Therefore, I cannot agree with the

conclusion that Applicant should be laches-barred.

       The majority’s action today is not only unfair, it is straight out mean. It is discouraging

to see how this court is continually moving toward limiting defendants’ rights that are both

statutorily and constitutionally guaranteed.

       Because I believe that laches should not have been considered in Applicant’s case and

that we should have heard his application for a writ of habeas corpus, I respectfully dissent.

                                                    Meyers, J.

Filed: June 24, 2015

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