This Texas Lawyer Legal Research column article discusses the Texas Court of Criminal Appeals’ use of discretionary review powers to discourage out-of-staters from setting up a law practice in Texas and the true anniversary date of the Texas Court of Criminal Appeals

Hambleton, James

Paulson, Jim

English

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Of PDRs and Precedent

Texas A&M University School of Law

Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-1992 Of PDRs and Precedent Jim Paulson James Hambleton Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar  Part of the Law Commons Recommended Citation Jim Paulson & James Hambleton, Of PDRs and Precedent, 55 Tex. B.J. 1074 (1992). Available at: https://scholarship.law.tamu.edu/facscholar/3 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact aretteen@law.tamu.edu. I LEGAL RESEARCHOf PDRs and PrecedentBy Jim Paulsen and James HambletonPity the poor Texas Court ofCriminal Appeals! Here it is,the court's one-hundredth birth-day, and nobody seems to becelebrating. A blue-ribboncommission recommends that the supremecourt take direct administrative control ofthe court of criminal appeals, and somepropose to get rid of the court altogether.Even make things worse, the state legisla-ture has just eliminated almost all of theTexas Court of Criminal Appeals' jurisdic-tion by repealing all crimes but murder,effective Sept. 1, 1994. (Yes, they reallydid - just check West's 1992 pocket partfor Title I of the Penal Code. And no, theyreally didn't mean it ... at least, we hopethey didn't. And yes, there's a story behindit, but the story is too long and too boringeven for this column.)Adding insult to injury, people won'teven leave the court's birthday celebrationalone. No less a legal authority than theTexas Lawyer, in its Sept. 14, 1992 edition,announced that the court of criminalappeals dates to 1876, which would makethe centenary celebration about 25 yearstoo late. The Texas Lawyer evidentlyagrees with the Harvard Bluebook, whichhas always insisted on confusing the "old"court of appeals with the court of criminalappeals. This sort of mistake evidently iseasier to make than one might think:LEXIS lists occasional court of criminalappeals rulings as court of appeals deci-sions, and vice versa. Even U.T.'sGreenbook can't get it right. Up throughthe sixth edition, the Texas Rules of Formclaimed the court of criminal appeals datedto 1889. The newest (eighth) edition,issued in September, now swears that thecourt dates to 1891, which would put thebirthday celebration off by a year.Our best guess, though admittedly con-trary to the combined and weighty authori-ty of the Bluebook, Greenbook, and TexasLawyer, is that 1992 really does mark thecentenary of the Texas Court of CriminalAppeals. The enabling legislation did not"Our best guess..., isthat 1992 really does markthe centenary of the TexasCourt of CriminalAppeals. The enablinglegislation did not takeeffect until Sept. 1, 1892and the first reporteddecision is dated Oct. 9,1892."take effect until Sept. 1, 1892 and the firstreported decision - Jim Jones v. State -is dated Oct. 9, 1892. (Mr. Jones, by theway, was convicted of murder in thecourse of attempted horsetheft and sen-tenced to life in prison; so far as the courtof criminal appeals is concerned, he maystill be there.)So, if this really is the court's hundredthbirthday, what sort of contribution can alegal research column make to the celebra-tion? The answer is easy. We propose totake the next couple of pages to demon-strate that the Texas Court of CriminalAppeals is badly underrated in at least onerespect - its use of discretionary reviewpowers to discourage out-of-staters fromeven thinking about setting up a law prac-tice in Texas.The U.S. Supreme Court took more than50 years to complicate the certiorariprocess to the point that even specialistscannot understand it. Likewise, the TexasLegislature and Texas Supreme Courtplayed with the writ of error system fornearly a century before refining it to thepoint that it now generates hate mail fromthe Fifth Circuit. (Check out, for example,Exxon Co. v. Banque de Paris, 889 F.2d674 (5th Cir. 1989)). Yet the Texas Courtof Criminal Appeals, in but a few shortyears, has put the petition for discretionaryreview (or "PDR" to insiders) process on atrack that bids fair to eclipse both of itsillustrious counterparts.A decade or so ago, when the PDR sys-tem went into effect, no one could havesuspected such an outcome - after all, theTexas Court of Criminal Appeals wasgiven so very little with which to work. In1981, when the legislature decided thatcriminal appeals should first be routed tothe various courts of appeals instead ofbeing sent directly to Austin, the court ofcriminal appeals was given discretionaryjurisdiction. The original recommendationfrom the Judicial Planning Committee wasthat the process should be called "writ ofcertiorari," just like that of the U.S.Supreme Court. After vigorous debate, dur-ing which the merits of the Texas SupremeCourt's writ of error notation system wereconsidered repeatedly and specificallyrejected, the certiorari approach was adopt-ed.The only change, and a good one at that,was to replace the plain English phrase"petition for discretionary review" for theunspellable and unpronounceable "writ ofcertiorari." That way, not only could ordi-nary humans understand what was goingon without resorting to a dictionary, but thecourt of criminal appeals could ignoresome of the more questionable aspects ofthe U.S. Supreme Court's certiorari prac-tice - like dissents or concurrences oncertiorari.At first, it looked like the Texas Court ofCriminal Appeals was determined to keepthings simple. In a 1983 decision, the courtwent to great pains to announce that a"PDR refused" is not "an endorsement oradoption of the reasoning employed by thecourt of appeals." So far, so good. That'swhat "discretionary" is all about. But then,only a few months later, the court issued itsopinion in Sheffield v. State (650 S.W.2d813).In Sheffield, the court of criminalappeals refused the petition for discre-tionary review per curiam. The court stat-ed, in what has since become a litany inmany PDR refusals: "As is true in everycase, refusal of discretionary review bythis court does not constitute an endorse-ment or adoption of the reasoningemployed by the court of appeals."The court just would not leave it at that,though. Instead, it continued, in languagequoted many times since:To prevent any misunderstanding, wetake this opportunity to emphasize thatthe summary refusal of a petition fordiscretionary review by this Court is ofno precedential value. This is truewhere the petition is refused withoutopinion, as is the usual practice, as wellas where the petition is refused with abrief opinion disavowing the reasoningemployed by the court of appeals, as inthe instant case. The Bench and Bar ofthe State should not assume that thesummary refusal of a petition for dis-cretionary review lends any additionalauthority to the opinion of the court ofappeals.And the interpretation race was on!The basic problem with the Sheffieldrule, of course, is that it is intuitively unbe-lievable. Think about it for a second: Therefusal of a PDR is never of any preceden-tial value even if some petitions arerefused "with a brief opinion disavowingthe reasoning employed by the court ofappeals"? Sure. A more natural conclusionwould be that if the court of criminalappeals says something when it doesn'tagree with the lower court's reasoning, wecan assume the court is not offended bythose decisions in which it refuses a PDRwithout comment. And that is exactly whata lot of people, including some courts,have concluded.To improve the scholarly tone of thiscolumn a little, we should note that, sinceSheffield, it has become clear that there areat least four types of PDR "refusals." TypeI, or plain vanilla refusals, consist of a sim-ple statement from the court that the peti-tion for discretionary review has beenrefused. Type II, or double-dip vanillarefusals, consist of a notation from thecourt that the petition for discretionaryreview has been refused, together with anadditional statement (usually citingSheffield) to the effect that the refusal real-ly, absolutely, positively doesn't mean any-thing at all. Type III, or chocolate-flavoredrefusals, include some dark hints - as inSheffield - to the effect that the court ofcriminal appeals is displeased with some-thing the lower court did.The Type IV PDR refusal, a rare butter-scotch-flavored variety, turns the court ofappeals' opinion golden, as in the court ofcriminal appeals' conclusion in Gersh v.State that "we have reviewed the recordand agree with the court of appeals opin-ion. We believe that they reached the cor-rect result for the correct reasons in decid-ing this issue." As if this were notcomplicated enough, individual membersof the Texas Court of Criminal Appealsalso have taken to dribbling marshmallowor chocolate topping on some PDRrefusals, in the form of concurrences ordissents, or even just topping off a PDRrefusal with a little red cherry "so-and-sowould grant" notation. Our listing is notexclusive, by the way. Other varieties ofPDR refusal could include chocolate-vanil-la swirl and mocha with sprinkles. But wehave already gone into more than enoughdetail for one column.The result of this wonderfully intricatesystem is predictable: a free-for-all in thelower courts. We can find statements likethe Amarillo Court of Appeals' conclusionthat by refusing a PDR outright (plainvanilla) the court of criminal appeals"approved [the] result," and San Antonio'sconclusion that the PDR "constitutes theonly recent indication of the court's feel-ings," juxtaposed with Eastland's conclu-sion that "refusal of a petition for discre-tionary review adds nothing to theprecedential value of an opinion." The cur-rent majority opinion, to the extent thatany majority can be discerned from thismess, seems to be - in the words of arespected law professor/judge writing inone of our state's law reviews - thatrefusal at least "indicates a finding that thecourt of appeals reached the correctresult." No matter how you slice it, ofcourse, that conclusion makes PDR denialsat least a little bit precedential, and is sure-ly contrary to Sheffield.The impact of the Texas Court ofCriminal Appeals' PDR practice is notlimited simply to speculation over theextent to which a "PDR refused" adds to ordetracts from the value of a court ofappeals opinion. After all, every time any-one on the court of criminal appeals writesanything in the course of a PDR refusal,that becomes an "opinion," printed inWest's reporters. Little wonder that, when-ever authority lies thin on the ground, thetemptation to quote or cite these statementsbecomes irresistible. In highbrow legaltheory, of course, if refusing a PDR meansnothing, anything the court of criminalappeals says in refusing a PDR is dicta,and dissents or concurrences on denialsshould be double dicta, at least.Nonetheless, courts cite "PDR refused" percuriams left and right.At first blush, one might think that thisis exactly the sort of behavior that thecourt of criminal appeals was warningagainst in Sheffield - intense scrutiny ofevery word the court might utter, therebychanging an inherently non-precedentialact into something at least a little bit prece-dential. The court warned in Sheffield thatno aspect of a PDR refusal - includingthe opinion on PDR refusal - is preceden-tial and at least a dozen subsequent PDRrefusals repeat the message.The problem, though, is that the court ofcriminal appeals has gotten itself caught ina classic form of "Do as I say, not as I do"reasoning. Every time the court of criminalappeals writes a PDR denial emphasizingthat PDR denials mean nothing it cites asauthority - you guessed it - Sheffield,nothing more than a PDR denial itself.Little wonder that the lower courts nowcite and discuss, whenever the spirit movesthem, per buriam PDR refusals (Amarillo,Dallas, and San Antonio, at least), or evenconcurrences (Eastland and Houston[14th]) or dissents on PDR refusal (Dallasand Waco). This habit is not necessarilybad - after all, some four-judge concur-rences on PDR denials would seem asauthoritative, in most any way that counts,as one of the court's plurality opinions "onthe merits." In fact, even the court of crim-inal appeals has gotten caught up in theprocess, citing its own PDR refusals (as inCarroll v. State) and even dissents fromrefusals (as in Powell v. State) on the mer-its of issues.And on that note, it is best for us to stop.After all, any more citations and this willstart to sound like a substantive article,with a resulting loss of readership. At anyrate, it should be clear that the Texas Courtof Criminal Appeals, in developing andrefining an ostensibly simple PDR process,has managed to combine all the flexibilityof the U.S. Supreme Court's certiorariprocess with all the message-sending abili-ty of the Texas Supreme Court's writ nota-tions, while simultaneously preserving andimproving upon all the most confusingaspects of each. This is no mean accom-plishment for 10 short years. Just thinkwhat our court of criminal appeals mightdo in its next century!Jim Paulsen (J.D. Baylor, LL.M.Harvard) is assistant professor of law atthe South Texas College of Law. JamesHambleton (J.D. George Washington, MLSMichigan) is professor of law and directorof the law library, Texas WesleyanUniversity Law School. Carl Selesky andUrsula Hall, students at South Texas,assisted greatly, as did Prof. Susan Crump.Others helped in return for a promise tokeep their names out of print. The legalresearch column is a semi-regular featureof the Texas Bar Journal. The writers wel-come criticism, comments, corrections,and suggestions for topics to be covered.

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Of PDRs and Precedent

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