### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00146-CR

Ca r la D e ann R oll a , A ppe lla nt

v. The State of Texas , Appellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRICT NO. CR-02 -05 2 , HO NORAB LE GARY L. STEEL , JUDGE PRESIDI NG

C O N C U R

R I N G A N D D I S S E N T I N GO P I N I O N Although I

ag ree with the re s u l t o rdered by the majority , for the pr ocedur al and substantive rea sons that follow, Irespe ctfully dissent from the opinion of the majority
. After discoveringthat Rolla’s cer tification of h i s rig ht to appeal wa s missi ng , the cl er k o f this Court properly notified the district cler

k of that fa ct. See T e x. R. A p p . P. 3 4
. 5 ( c ) (2). When the cer

tification was not filed, a

full panel fr om this C ourt shou l d h ave abated the case and direc ted t he district cour

t clerk to file a

supplemental re cord. Id. That did not occur in this case. On J uly 15, 2008, a memorandum opinion was rele ased pur porting to repre sent the unified will of a f

ull panel of this Court. Howeve r, althoug h the opinion corre ctly lists J u stice Pa tte rs on a s th e a uth or of the op ini on , it w a s n ot i ssu e d w iththe a pp ro va l of

a fu ll p ane l f

ro m th is Court. No other justice wa s g iven a copy of t he opinion befor e it was re lease d to the public, and the two non-authoringpanelists wer e not consulted befor e the opinion was issued. Indeed, de spite the2

fac t that the opinion went out with my name on it, I

did not become a

war e of its exist ence until after it had been r elea sed to the public.

My dissent is a direct response to the continuing disre g ard shown by J ustice Patterson in this c a s e f

o r th e r e qu ir e me n t t

h a t a f u ll p an e l o f

th is Co u rt p arti c ip a te in th e o p in io n - ma

king proce ss before an opini on repr esenting the wil l of t he C ourt may be release d. I n light of the author’s contravention of and r efusa l to comply with the rules of a

ppellate pr ocedur e and this Court’s policies reg arding the issuance of opinions, he r ref usal to w ithdraw the uncirc ulated opinion whe n reque sted by a pane list, and her relianc e on a hear say statement that unnec essar ily impugns a

fellow membe r of the judiciar

y , Iam compelled to dissent to the majority ’s many months of refusa l to withdraw the opinion even thoug h Iconcur in its result. Although I am l o at h e t o en g ag e in the ty pe of non-merits-ba sed ar g ument that had until rec en t l y been a nathema to this Court, Ifee l that the circ umstances surr ounding this opinion require it.

The rules of appellate proce dure allow a single justice to a ct on motions in l imited circ umstances. See id. R. 10.4 (authorizing sing le justice to g rant or deny relief that “the r

ules allow to be soug ht by

motion”). Howe ver, none of those circumstance s are prese nt here . Fur ther, no provision of the rules authorizes a single justice to issue an opinion repr esentingthe full will of an appellate court or to spe ak on behalf of the court. This is a ref lection of the f

undamental pr oposition that our cour

ts of appea ls f

unction as unitary bodies: the voice of the c ourt is expressed either by the
en banc court or a pane l. Se e O’ Con no r v. Fir st Cou rt o f A pp e als , 837 S.W .2d 94, 96 (Tex. 1992). By unilatera lly

rele asing an opinion without the participation of a ny other membe r of this Court, the authorin g j u s t i ce v i olated the r ules of appe llate proc edure . As descr ibed3

pr e vio us ly , th e rul es all ow an “ a pp e llate c ourt ,” no t a

sin g le jus tic e , to or de r t

he dis tr ic t c ourt

to produce a ce rtification. Te x . R. App. P. 34.5(c)(2)
. Read in lig ht of the rema inder of the rules, the panel struc ture of the appellate courts, and the absenc e of any authority supporting the notion that a sing le justice may

issue an opinion in these circ umstances, I believe that the rule’s r efe renc e to an “appe llate cour

t” mandate s the participation of a full panel befor e a cer tification order , let alone a n opinion, may

be re lease d. Moreove r, by rele asing her opinion without circ ulating it to the Court, waiting for the revie w per iod to ex pire, o r o b taining the approva l of the two other pa nelists, J ustice Patterson contravened the internal poli cies adopted by this Court reg ardingopinion circulation and the manner in which opinions may be release d. Those poli cies ensure that eac h proposed opinion i s circulated to all panel member s and that those panel members are af forde d a re asonable , desig nated pe riod of time to review a

nd comment on the propose d opinion. After lear nin g of the opinion’s issuance , Irepe atedly asked f or the opinion to be withdrawn so that eac h member of the pane l list ed could have an oppor tunity to participate and be h e ar d in th e matt e r

an d s o th a t a n e w o p in io nc o u ld

b e r e le a s e d

th a t c o mp li e s w it

h th e r u le s of appellate proce dure a

nd our interna l policies. For r eas ons that only she could know, J ustice Patterson, the a

uthor of the major ity

opinion and the justice re s p onsible for its issuance,
re fu se d th os e re qu e sts
.

I n addition to those procedur al problems, I also disag ree with the op i n i o n ’s
unnece ssary

inclusion of the following lang uag e: “The district c lerk has notified this Court that the trial court r efuse s to prepar e a cer tification beca

use ‘the c ertification is not require d in [ revoc ation]The quoted la ng uag e comes from a notice filed by the Hay s County district clerk. In her 1 supplemental opinion, J ustice Patterson ref ers to the notice as a notarized letter. Howeve r, the letter is simpl y a letter from the c lerk be aringher ow n seal. J ustice P atterson’ s ref

usal to withdraw the opinion under the se circ umstances is baf fling 2 g iven t hat an o p in io no nw h ic h s h e w a s a p an e li s t w a s r e c e n tl y

w it h dr aw na t h e r

r e qu e s t. T he orig inal opinion in Ive

y v. State wa s cir c ulate d to the pa ne l for pr op e r r e vie w a

nd wa s is su e d w ith the appr oval of a ll of the panelists, including Justice Patterson. See No . 0 3- 06 -0 06 83 -C R, 2007 Tex. App. L EXI S 7241 (Tex. App.—Austin Aug. 30, 2007, withdra wn). De spite the fac t that the op ini on

wa s c ir c ulate d a

nd iss ue d in c omp lia

nc e wi th t he ru le s o f a

pp e llate pr oc e dure and

wi th 4 case s.’” This statement is wholly unnece ssary to the resolution of this issue and is inappropriate for

1 inclusion in an opinion. By this sentence, the authoringjudge essentially acc used the district cour

t of either being ignor ant of the l aw or knowing ly defy ing the law. The opinion should s imply have stated that the re cord doe s not contain the re quired c ertification of the rig ht to appeal, that a n order
re vo kin g c omm

un ity su pe rv isi on is a n a pp e a la ble or de r, and

that th e di str ic t c ourt

wa s o rd e re d to prepa re a cer tification of Rolla’s rig ht to appeal. Nothing more neede d to be said. I cannot c onceive of a r eason f

or including the alleg ed stateme nt of which we have no independent knowle dg e and c an fi nd no oth e r e xamp le in w hic h th is C ourt ha s c a st this ty

pe of unne c e ssa

ry a sp e rs ion

a g a ins t a
m e mb e r o f t h e j u d i c i ar

y. Be cause the statement is both unnece ssary an d u n fa i rl y

casts a ne g ative lig ht on a fellow membe r of the judicia ry , Ihave strongly urg ed J ustice Patterson to re move that languag e fr om her opinio n , b u t t

h o s e r e qu e s ts w e r e r e f

u s e d
. Ju s ti c e Patt e r s o nh a s s h o w nn o c o n c e r nth a t h er op ini on wa s is su e d in

vio latio n o f t

he ru le s o f a

pp e llate pr oc e dure , that it wa s do ne un de r my name without my

approva l, or that the opinion convey ed an unne cessa ry asper sion ag ainst a member of the jud ic iary . I t is e xtre me ly a larm ingthat any

on e of th ese con c e rn s d oe s n ot s uf fi c e , in Justi c e Pa tte rs on ’s vie w, a s r e a so n to wi thd ra w the op ini on , mu c h le ss a ll o f t he m. J ustice Patterson 2the int e rn a l po lic ie s o f t his Court , Just ic e Pa tte rs on so ug ht t o d iss e nt t o th e or ig ina l opin ion a ft e r i ts issuance, and t he opini on was withdra wn to aff ord her that opportunity
. Se e Iv e

yv . S tate , 250 S.W .3d 12 1 ( Te x. Ap p. —Aus tin

20 07 , p e t. g ra

nte d)
. Gi ve n the pr oc e dura l ir re g ula ri tie s p re se nt i n th is c a se that wer e not pre sent in the I v e y case , I am a t a

los s to e xpla in Jus tic e Pa tte rs on ’s re fu sa l to withdraw this opinion. 5 responde d to my

conce rns only with the sug g estion that Iwrite a dissent if Ididn’t like the content of the majority o p i n i o n . For those rea sons, Idissent from the majority ’s re fusal to withdrawthe J uly 15 opinion issued in my

name without my

knowledg e or c onsent. Iconcur with the outcome. Response to Supplem ental Opinion

As me nti on ed prev iousl y , Just ic e Pa tte rs on e nc oura g e d me to wri te a dis se nt i n response to her re fusal to withdrawher una uthorized opinion. I have done so and circ ulated
accor d ing to c ourt policy . I n response , she finally offe red to withdra

w her opinion and, when I ref used to set aside my

dissent, has now issued a suppleme ntal opinion to her ori gi n al opi nion. B e c a us e he r sup ple me nta l opin ion do e s not ac c ur a te ly re pr e se nt t

he fa c ts l e a din g up to t

he re le a se of the se op ini on s and

inc lud e s an uns ub sta

nti a te d cla im a g a ins t un sp e c if ie d me mbe rs of

thi s Co ur t, Ifee l compelled to re vise my orig inal dissent in order to re spond to t h e s u p p l em ental opini on separ ately
. To provide context to this discussion, a more thoroug h acc ount of the eve nts leading up to the rele ase of

these opinions must be provided.

C I n e arl y Au g us t 20 08 , Ile arn e d th a t Just ic e Pa tte rs on , w ith ou t my a pp ro va l, ha d r e le a se d a

n o pin ion lis tin g me a s a

pa rt ic ipatin g pa

ne lis t.

C On August 14, 2008, Iasked Justi ce Patter son to withdraw the opinion, but sh e did no t r e sp on d to my

re qu e st.6

C On August 18, 2008, I made a second reque st to have the opinion withdrawn.

C OnA u g u s t 2 1 , 2 0 0 8 , o n e w e e k a f te r my in it ia l r e qu e s t, Ju s ti c e Patt e r s on responde d as follows: “we are all so busy rig ht now. Iwill be g lad to meet with y ou . . . next week.”

C On September

4, 2008, Isubmitt ed a p ro p o sed opinion to the panel that remove d the unnec essar

y lang uag e impu gning the trial judg e in this case. J ustice Patterson made no response to the proposed opinion.

C On September

8, 2008, I asked all of t he jus tices of this Court to consider the matt er e n banc. See Tex. R. App. P . 41.1-41.2 (a llowing c ourt to decide wh e the r t o c on sid e r m a tte r en b a nc ). Justi c e Pa tte rs on

imm e diate ly re sp on de d to t hat email a nd inf or me d th e Court

that sh e ob

je c te d to addre ssing the matter en ba nc.

C On Se p te mb e r 2 2 , 2 0 0 8 , a f te r o b ta in in g th e a

p p r o v a l o f a ma

jo r it y of the jus tic e s o n thi s Court , I pla c e d an e n ba nc op ini on on the lis t of

op ini on s to be re lease d that wee k. J ustice Patterson infor med the cle rk of this Court that she objec ted t o the release of the en banc opinion beca use she wa s planning to write a n o t h er opinion in the matter e ven thoug h she had a lrea dy written and re lease d an opinion. Contemporaneously , J ustice Patterson circ ulated a memo to all of the justices statin gthat she fe lt that en banc a ctions were inappropriate i n this case and that “this is a matter that can—a

nd should—be handled by

. . . the assig ned judg e.” I n addition, J ustice Patterson stated that my p r o p o s e d o p in io n was ba sed on “e x parte communications involving more than one judg e.” F inally , J ustice Patterson sug g ested that if Iwas dissatisfied with her opinion, then I

should dissent.

C On Octobe r 17, 2008, i n compliance with J ustice Patterson’s sug g estion, I circ ulated a dissentingopinion.

C On Octobe r 23, 2008, af ter my dissent had bee n circ ulated and a fter ha ving disreg arde d all of my

prior re quests to ha

ve the orig inal opinion withdrawn, J ustice Patterson infor

med the cle rk of this Court that she would like her prior opinion to be withdrawn.

C On Octobe r 24, 20 0 8, Iinformed the Court that I still intended to follow J ustice Patteson’s sug g est i o n that Idissent to her orig inal opinion. On the same da y , J ustice Patterson indicated that she wa nted to write on the matter as we ll and ag ain sug g ested that inappropriate ex par te communications had occur red be tween the district court and me mbers of this Court.7

C On Novembe r 4, on the day that my dissent and J ustice He nson’s conc urre nce wer e set to be r ele ased, Justi ce Patter son circulated a “ Supplemental Opini o n ” an d insisted that the opinion be relea sed with the dissent and concur renc e on that very same day
. As a result of the circ ul at i o n o f her supplemental opinion, the dissent and conc urre nce w ere not relea sed so that the pane l could revie w and r espond to the “Supplementa l Opinion.”
I n her supplemental opinion and in an obvious attempt to shift the focus aw ay from her c onduct in this case, Ju s t ice Patter son now publicly makes a basele ss and improper a lleg ation reg arding“the district judg e and justices on this Court.” She, of course, provides no facts to support her c laim that an improper c ommunication occur red. M o reove r, in her supple mental opinion, J ustice Patterson fa ils to address the fa ct that she re lea s ed an o p i n ion without the knowledg e or
a pp ro va l of

the pa ne l. Th a t fa c t is c on fi rm e d b y the c on c ur

ri ngop ini on

by Justi c e He ns on . Wh ile J ustice Patterson asser

ts that this is a “pre submissi on matter that may be handle d by

a sing le justice,” the rules of

appellate proce dure do not support that a ssertion. Rule 34.5 allows an “ appellate court,” not a sing le justice, to “orde r[] the trial cour t to prepar e and f

ile . . . cer tification of the de fenda

nt’s rig ht to appeal.” Tex. R. App. P . 34.5(c) (2).

Al tho ug h th e re may

be c ir c ums tanc e s in

wh ic h me mbe rs of a court mig ht w ant t o bend or ignore a rule in a par ticular c ircumstance , courts ar e not af forde d the discre tion to do so. The fa ct that J ustice Patterson mig ht wish otherwise doe s not make it so.

__________________________________________ David Pury ear , J ustice Be fore J ustice Patterson, Pury ear and He nson Filed: Nove mber 14, 2008 Do No t Pu

bli sh