Running Again. Place 3 in 2014.

I’m running for Texas Court of Criminal Appeals Place 3 Judge. I’ll have a Republican and a Democratic opponent.

Here’s what Grits for Breakfast had to say back in September about likely Republican candidates:

Lined up to challenge or replace Judge Price in Place 3 is San Angelo District Judge Barbara Walther, whose biggest claim to fame was approving the most sweeping search warrant on American soil since King George III. Walther allowed indiscriminate searches of dozens of homes and seizures of hundreds of children at the YFZ Ranch, operated by a polygamous Mormon sect called the Fundamentalist Latter Day Saints and led by widely recognized nutball and pedophile Warren Jeffs. The Third Court of Appeals tossed out her orders seizing the kids but upheld the search warrants in the criminal cases. Walther was unapologetic and exhibited a fervent bias toward approving extraordinary uses and abuses of state power. Veteran San Antonio District Judge and former AUSA Bert Richardson has also jumped into the race. I’ve heard good things, but only third-hand, hearsay stuff. Until further notice, though, count me in the “Anybody but Walther camp.”

I’ll happily debate principles with any of the candidates.

These Are Not My Voters

One third of Americans would accept a “TSA cavity search” in order to fly. (Jonathan Turley, via TSA News.)

I’m not going to pretend that the Court of Criminal Appeals has much of a say about the Transportation Safety Administration, but anyone who thinks that the minimal and speculative danger of a terrorist attack is worth letting a government agent poke around in his backside would, on general principle, be unhappy with me as a judge.

Can’t Secede? Declare Judicial Independence. [updated]

More than 42,000 people have signed a petition asking the White House to “Peacefully grant the State of Texas [the right] to withdraw from the United States of America and create its own NEW government.”

You don’t like what Washington is doing? You think we’re on the path to despotism? I agree.

But the issue of states’ rights to secede was settled on the battlefields of the Civil War [update: Justice Scalia agrees], and the resolution was adverse to Texas. Contrary to rumor, Texas did not, when it rejoined the Union, reserve the right to secede.

So assuming that the United States doesn’t allow Texas, with its oil and its barbecue, to take its ball and go home (the President might happily let Texas, with its 34 Republican electoral college votes, go, but it would not be up to him), I propose an alternative or, if you like, an intermediate step between statehood and nationhood:

Give the Texas Constitution some meaning, starting with the Texas Bill of Rights.

America’s founders built a bulwark against despotism; they called it the Bill of Rights. The U.S. Supreme Court’s erosion of the Bill of Rights has brought us steadily closer to tyranny over the last two hundred years. When trying to interpret Texas’s Bill of Rights, Texas’s Court of Criminal Appeals looks to opinions of the U.S. Supreme Court. There is no reason for this.

Texas is bound by the U.S. Supreme Court’s interpretation of the U.S. Constitution, but the only U.S. Supreme Court opinions that are relevant to the interpretation of the Texas Bill of Rights are those that Texas’s founders would have known of when they wrote that portion of the Texas Constitution—mostly in 1836. There were almost no Supreme Court cases on the Bill of Rights before 1836.

So Texas’s high court for criminal cases is free to interpret the Texas Bill of Rights for Texans. This will make us all a little more free, a little less subject to government interference in our personal lives. If that’s not enough of a reason, it will also send the message that Texas really is different, that we are prepared to seize our own destiny, and that we can do just fine with less interference from Washington.

What’s the downside?

The Texas Declaration of Rights, 1836

In 1836 Texas declared independence from Mexico and adopted a constitution. The Texas Constitution of 1836 included a “Declaration of Rights”:


This declaration of rights is declared to be a part of this constitution, and shall never be violated on any pretence whatever. And in order to guard against the transgression of the high powers which we have delegated, we declare that everything in this bill of rights contained, and every other right not hereby delegated, is reserved to the people.

1st. All men, when they form a social compact, have equal rights; and no men or set of men are entitled to exclusive public privileges or emoluments from the community.

2nd. All political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit; and they have at all times an inalienable right to alter their government in such manner as they may think proper.

3rd. No preference shall be given by law to any religious denomination or mode or worship over another, but every person shall be permitted to worship God according to the dictates of his own conscience.

4th. Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege. No law shall ever be passed to curtail the liberty of speech or of the press; and in all prosecutions for libels the truth may be given in evidence, and the jury shall have the right to determine the law and fact, under the direction of the court.

5th. The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable searches and seizures, and no warrant shall issue to search any place or seize any person or thing, without describing the place to be searched or the person or thing to be seized, without probable cause, supported by oath or affirmation.

6th. In all criminal prosecutions the accused shall have the right of being heard, by himself or counsel, or both; he shall have the right to demand the nature and cause of the accusation; shall be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. And in all prosecutions by presentment or indictment, he shall have the right to a speedy and public trial, by an impartial jury; he shall not be compelled to give evidence against himself, or be deprived of life, liberty, or property, but by due course of law. And no freeman shall be holden to answer for any criminal charge but on presentment or indictment by a grand jury, except in the land and naval forces, or in the militia when in actual service in time of war or public danger, or in cases of impeachment.

7th. No citizen shall be deprived of privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land.

8th. No title of nobility, hereditary privileges, or honors shall ever be granted or conferred in this republic. No person holding any office of profit or trust shall, without the consent of congress, receive from any foreign state any present, office, or emolument of any kind.

9th. No person, for the same offence, shall be twice put in jeopardy of life or limbs. And the right of trial by jury shall remain inviolate.

10th. All persons shall be bailable by sufficient security, unless for capital crimes, when the proof is evident or presumption strong; and the privilege of the writ of habeas corpus shall not be suspended, except in cases of rebellion or invasion the public safety may require it.

11th. Excessive bail shall not be required, nor excessive fines imposed, or cruel or unusual punishments inflicted. All courts shall be open and every man for any injury done him in his lands, goods, person, or reputation shall have remedy by due course of law.

12th. No person shall be imprisoned for debt in consequence of inability to pay.

13th. No person’s particular services shall be demanded, nor property taken or applied to public uses, unless by the consent of himself or his representative, without just compensation being made therefor according to law.

14th. Every citizen shall have the right to bear arms in defence of himself and the republic.

The military shall at all times and in all cases be subordinate to the civil power.

15th. The sure and certain defence of a free people is a well-regulated militia; and it shall be the duty of the legislature to enact such laws as may be necessary to the organizing of the militia of this republic.

16th. Treason against this republic shall consist only in levying war against it, or adhering to its enemies, giving them aid and support. No retrospective or ex post facto law, or laws impairing the obligations of contracts, shall be made.

17th. Perpetuities or monopolies are contrary to the genius of a free government, and shall not be allowed; nor shall the law of primogeniture or entailments ever be in force in this republic.

Why does the constitution from the nine years (1836-1845) when Texas was an independent nation matter to citizens of the State of Texas, or to appellate judges?

It matters because the Bill of Rights of the Texas Constitution of 1876 is the direct descendant of the Declaration of Rights of 1836. When analyzing the language of the Texas Bill of Rights (and lawyers need to force the courts to do this more often), the courts should reflect on what the 58 Texans who wrote the Declaration of Rights might have done. It’s not all the courts should consider, but  how those gentlemen would respond to a particular invasion of a citizen’s privacy by the government should surely carry more weight in interpreting our constitution than does any pronouncement the United States Supreme Court has made about the U.S. Constitution.

Texas’s culture and ethic have always been different than those of the tidewater states. Even where the language of the Texas Declaration of Rights and Bill of Rights is the same as that of the U.S. Bill of Rights, any U.S. Supreme Court case interpreting the U.S. Bill of Rights after 1876 is interesting and may be persuasive, but it does not bind Texas courts in interpreting the state constitution.

(There are instances in which the Texas Constitution gives less protection to freedom than the U.S. Constitution, and instances in which it gives more. In all of these cases, Texans get the benefit of the constitution that better defends liberty.)


One million, three hundred twenty-six thousand, five hundred twenty-six: that’s how many votes I got in the race for Place Seven of the Texas Court of Criminal Appeals.  That’s more votes than any other Libertarian candidate in Texas got. It is more votes than Libertarian presidential candidate Gary Johnson got nationwide. I would not be surprised if it were more votes than any other Libertarian candidate anywhere got.

(Unfortunately for the cause of individual liberty, my opponent got many more.)

I had hoped for a million votes, and wildly exceeded that goal.

Gary Johnson got 88,110 votes in Texas. Assume that all of those people voted for me. Where did the other 1.2-million-plus votes come from?

A few of them came from friends, family, and others who know me personally, know my reputation, or know me from my writings at Defending People. A few more came from people I reached by talking to the Dallas Morning News, the League of Women Voters, or directly to voters. (One of the pleasant surprises of this initial foray into judicial politics was how many people were eager to learn about the office, the issues, and my philosophy.)

Most of the votes, however, were likely “anyone but the Republican” votes.

I thank you all.

In the course of this election, I’ve developed something of a judicial philosophy. I’m going to continue to use this space to try to bring more people around to my way of thinking so that if I ever run again (maybe in 2016 against Mike Keasler, one of the troika of Court of Criminal Appeals judges most dangerous to freedom, or in 2018 against Sharon Keller or again against Barbara Hervey) I can hope for a million and a half.

The Importance of the Court of Criminal Appeals

“The Court of Criminal Appeals is more important to that element of the community that is going to be looking at jail time. But for the rest of us, it’s the Texas Supreme Court, because they handle civil matters,” [SMU political scientist Cal] Jillson [, who is frequently called upon by reporters for his astute observations of state and national politics] said. “And civil matters are matters of, what happens to a regular citizen when they are harmed by a corporation?”

(Peggy Fikac, 3 seats up for grabs on state’s highest civil court, Houston Chronicle.)

This is what we’re up against: the attitude that, if you’re “a regular citizen,” not part of “that element of the community that is going to be looking at jail time” (would that be the criminal element?) the Court of Criminal Appeals is not very important. The Texas Supreme Court? Well, if you’re harmed by a corporation what the Texas Supreme Court says will be important.

While I suspect that more people have their rights violated by the government every year than are harmed by corporations, I’m not going to say that the Texas Court of Criminal Appeals is more important than the Texas Supreme Court. The Texas Supreme Court manages the relationships between corporation and citizen in approximately the same way that the Texas Court of Criminal Appeals manages relationships between government and citizens: each court tells the institution what it can (and occasionally what it can’t) get away with when dealing with the people.

The relationship between our government and us should be of utmost concern to regular people, people who can’t imagine themselves ever facing jail time. Never mind that even people who can’t imagine themselves ever facing jail time wind up facing jail time; even if you were a regular person and you somehow knew that you would never be charged with a crime, the actions of the Texas Court of Criminal Appeals should be of grave concern to you.

Why? For three reasons:

First, what the government can do to a factually guilty person accused of a crime, it can do to a factually innocent person accused of a crime. This is true because of the presumption of innocence. Since everyone is presumed innocent in court, everyone (innocent or otherwise) gets treated the same.

Second, what the government can do to a factually guilty person suspected of a crime, it can do to a factually innocent person suspected of a crime. This is true for the same reason—because there has not been a legal determination, guilt can’t affect what the government does.

Third, what the government can do to a factually innocent person suspected of a crime, it can do to a factually innocent person not suspected of a crime. This is true not because of a principle—in fact, there is a legal standard (probable cause) that allows police to treat people suspected of crimes differently—but because of the way we punish the government for violating peoples’ rights.

We punish the government for violating our rights by excluding the evidence it obtains. Because civil-rights lawsuits are largely toothless, the only thing the government has to worry about when it’s considering violating rights protected by the Fourth, Fifth, or Sixth Amendment to the United States Constitution (or Article I Sections 9–15 of the Texas Constitution) is that anything it finds might be excluded from evidence. If the police stop you illegally and search you (in violation of your rights under the Fourth Amendment and Article I Section 9) and don’t find anything and let you go, you have essentially no remedy (it’s actionable under the Civil Rights Act of 1871, but good luck finding a lawyer to take that case for a contingent fee).

Because we have decided that the best way to punish the government for violating our rights is to exclude the evidence it discovers as a result of the violation, it is the Court of Criminal Appeals that sets the rules for how government will deal with people. And because acquitted defendants’ cases are never appealed, so it is in cases involving guilty people that the court sets the rules for how the government will deal with people who are never even charged.

If you can imagine yourself being innocent and accused of a crime, the importance of the Court of Criminal Appeals should be clear. Likewise if you can imagine yourself suspected of a crime. (Not being able to imagine yourself suspected of a crime is a failure to confront reality.)

If you don’t trust the government to respect your rights even when you are not suspected of a crime, the importance of the Court of Criminal Appeals should be even more obvious.

Here, I suspect, is where the problem lies: Texans generally trust their government—not necessarily because the government has earned their trust, but because they want to trust the government (it’s a scary world otherwise) or because they haven’t given it much thought. They think that, because they and their loved ones follow the law, they will never be “looking at jail time” and the Texas Court of Criminal Appeals is not important to them. That is far from true.

Stare Decisis and the Texas Court of Criminal Appeals: A One-Way Ratchet

To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Texas Constitution of 1876, Art. 1, Sec. 29.

In other words, this generation may not constitutionally give up the next generation’s freedom. Opinions of the Texas Court of Criminal Appeals that incorrectly interpret the Texas Constitution to constrict Texans’ freedom (and expand government’s power), are void.

This constitutional rule trumps the common-law principle of stare decisis, which requires a court generally to follow its own decisions.

Without violating principles of stare decisis the Court of Criminal Appeals may revisit any decision in a way that constricts government’s power (and expands freedom), but may not do so in a way that expands government’s power (and constricts freedom).

Indeed, a Texas appellate court that doesn’t continually revisit its past decisions in criminal cases, to see if they might have been incorrectly decided in favor of the government, is not doing what the Texas Constitution requires of it.

The Conservative Choice

A high-school classmate of my wife’s, when told about my candidacy, said, “Why would I vote for a liberal?”

She knows little about my politics, but this is a person who fancies herself a conservative (obviously) and anyone who disagrees with her a liberal. But what does her conservatism mean?

She has a “Legalize the Constitution” bumper sticker on the back of her car, which is a conservative principle that I wholeheartedly adopt.

The tendency of the Court of Criminal Appeals in the last fifteen years has been toward results-oriented jurisprudence: deciding what result the voters would desire (“the government wins”) and then writing the law to reach that result (one example) at the constitutions’ expense. There is nothing conservative about results-oriented jurisprudence. It’s not judicially conservative, and it’s not socially conservative. It may appeal to “conservative” voters, though, whose idea of conservatism is “whatever the majority that I belong to wants.”

I am often critical of the Texas Legislature:

This is not the first time that the Texas Legislature has incompetently written a penal statute. It won’t be the last time. Texas legislators are, after all, mostly products of Texas’s public education system, and most of them were highly stupid to begin with. When the Texas Legislature manages to get it right, it’s the exception rather than the rule. Sometimes it even passes statutes intending to do one thing but doing the exact opposite.

But if elected I will follow the law as the people’s generally cretinous elected representatives in Austin have written it, except for this: if the law (or other government action) violates either the U.S. Constitution or the Texas Constitution of 1876, I will strike it down.

Returning meaning to the US and Texas Constitutions is the most conservative of actions. We can only return meaning to these laws by strictly enforcing them against the government officials who would break them.

For the most part Texas courts have, where there is a related provision in the US Constitution, blown off the Texas Constitution and decided the matter based on the U.S. Constitution. But the Texas Constitution may restrict government action more than the US Constitution. Instead of lazily interpreting its provisions with reference to decisions of the east-coast Supreme Court, the Texas Court of Criminal Appeals must set about determining how Texans of 1876 would have felt about the action the government is trying to justify, and then use that information to apply the constitution that those Texans adopted to the question before them.

It’s long past time to legalize the Texas Constitution. There’s nothing “liberal” about it.

Reform the Texas Commission on Judicial Conduct

Who watches the watchmen? Who judges the judges
With all of their humors and tantrums and grudges?
When you don’t have a lawyer so they take back your bail,
Who’s there to correct them? Who puts them in jail?
Who reins them back in when they trample your rights?
When they scurry in shadow, who turns on the lights?
Who is it that makes sure they follow the laws?
Who raps their knuckles and points out their flaws?
Who halts their transgressions? Impedes their offenses?
Checks their abuses? Brings them back to their senses?
Who tells the world when they get out of hand?
When they abuse you, who takes a stand?
When they get off-track, who gives them a nudge?
Who judges the watchman? Who watches the judge?

The Texas Commission for Judical Conduct is a hole in the ground with a million-dollar budget. Its purpose is not to discipline judges, but to protect them. It keeps judges’ bad behavior out of the public eye by giving people a place to complain. It gives people a place to complain about judges, but it is the place where judicial complaints go to die. The commission delays and dithers, and very rarely takes any action in response to even heinous misconduct.
Continue Reading »

A New Constitutional Convention?

I confess: I can’t think like a law professor. I can’t sustain interest in abstraction for long without bringing it down to the concrete, to where the abstraction affects or is affected by human beings, with their whims, desires, fears, and general messiness.

So when I read Sanford Levinson’s post suggesting that a new Constitution convention might be a good idea and Richard Epstein’s post opposing a new Constitutional Convention, I wasn’t theoretically opposed to the idea of a new Constitution (I’d like to see separation of corporation and state). But my mind leapt immediately to the practical consequences. Continue Reading »