State of Texas v. Ellis, James Walter

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NOS. PD-0826-06, PD-0827-06, PD-0828-06, PD-0829-06,

PD-0830-06, PD-0831-06, PD-0832-06, PD-0833-06

THE STATE OF TEXAS



v.



JOHN DOMINICK COLYANDRO, JAMES WALTER ELLIS, and

THOMAS DALE DELAY, Appellees





ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

TRAVIS COUNTY

Price, J., filed a concurring opinion.

CONCURRING OPINION

For the reasons expressed in Judge Keasler's opinion for the Court, and in Presiding Judge Keller's concurring opinion, I agree that we should not presently overrule the opinions in Moore v. State and Baker v. State. (1) The Court's opinion convincingly demonstrates the legislative ratification of the construction of the statutory scheme that those cases endorsed. And as Judge Keller demonstrates, to apply a new interpretation of the statutory regime retroactively to these appellees to their detriment would, in any event, violate due process. I therefore join the Court's opinion, as well as the Presiding Judge's concurring opinion (which also joins the Court's opinion).

Were we writing on the proverbial pristine slate, construing the statutory scheme for the first time, I would be persuaded by Judge Cochran's dissenting opinion to a different view. She makes a compelling argument why Moore and Baker were wrongly decided. But, in the final analysis, it should take more than an argument, however compelling, that precedent (and especially, as here, legislatively ratified precedent) is wrong to justify overruling it, consistent with principles of stare decisis. This is especially true, as the Presiding Judge points out, with respect to precedent construing penal provisions, in which context the necessity for notice and predictability is paramount. The holdings of Moore and Baker are not so unreasonable or outlandish that we should have expected these appellees to realize that they could not rely upon them in gauging the lawfulness of their conduct. (2)

Having said that, I would not rule out the possibility that, on some future occasion, the Court might justifiably overrule these questionable precedents. Our various opinions in the present cases should arguably serve to notify the public that future reliance upon the holdings of Moore and Baker to justify engaging in a conspiracy to commit a felony not enumerated in the Penal Code would be, at best, unwise. Sometimes the overruling of questionable precedent involves a "two-stage . . . process." (3)

With these additional comments, I join the Court's opinion.



Filed: June 27, 2007

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1.

Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976); Baker v. State, 547 S.W.2d 627 (Tex. Crim. App. 1977).

2.

See Ex parte Lewis, 219 S.W.3d 335, 380 (Tex. Crim. App. 2007) (Price, J., dissenting) (prior precedent not so "unreasonable" or "outlandish" as to justify overruling it just because a present majority of the Court perceives it to be wrong).

3.

See Annotation, Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, §§ 7[a] & [b], at 1393 & 1396 (1966) ("[I]t is now generally recognized that a court has the power . . . to overrule a case purely prospectively and give the overruling decision no retroactive effect whatsoever, that is, to hold that the rule established by the overruling decision will operate only upon future transactions or events and will not even be operative upon the parties to the overruling case.") ("It appears true that a judicial statement purporting to 'overrule' a case wholly prospectively is in fact no more than a dictum, since it is, by hypothesis, inapplicable to the parties or the controversy before the court. However, especially where there has been strong reliance on an earlier decision, the most equitable way of overturning the earlier decision may be to hold that the parties to a particular case are to have their rights governed by the earlier decision, but to warn, by means of dictum, that anyone who subsequently relies upon the earlier decision-after the date of the court's opinion or after some other date specified by the court-will be doing so at his peril. * * * If a person subsequently attempts to rely on an earlier decision despite such a warning against further reliance, the court, in deciding that person's case, can conclude that reliance after the date specified in the warning was unjustified, and the court can then declare, as a holding rather than as dictum, that the earlier decision is overruled. Thus, by using a two-stage overruling process, consisting first of a warning in the form of a dictum and secondly, if necessary, of a holding overruling an earlier decision, the court can achieve a desirable effect by changing a bad rule without defeating any strong reliance interests.").