WR-61,939-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/29/2015 4:41:19 PM
Accepted 1/30/2015 9:01:55 AM
ABEL ACOSTA
Nos. WR-61,939-01 and WR-61,939-02 CLERK
RECEIVED
COURT OF CRIMINAL APPEALS
IN RE DAVID DOW AND 1/30/2015
JEFFREY R. NEWBERRY, ABEL ACOSTA, CLERK
Respondents.
__________________________________________
MOTION REQUESTING ORAL ARGUMENT
___________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
Now comes David Dow and Jeffrey Newberry by and through their
attorneys and files this request that this Court grant oral argument on their motion
for rehearing and would show this Court the following:
On January 14, 2015, this Court issued its order in which the Respondents
David Dow and Jeffrey Newberry were held in contempt and this Court imposed
punishment for each attorney. The Court’s order presents a number of legal issues
that need to be addressed including:
(1) Whether this Court exceeded its authority in imposing the sanction of
suspending Dow from practicing before it;
(2) Whether the filing at was timely under this Court’s rules; and
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(3) Whether based on the Rule of Lenity, even if the filing was not timely,
the punishment imposed on Dow is excessive.
These issues have never been raised by the Respondents and are important
issues that should be addressed by the Court. According to the State Bar Act, Tex.
Gov’t. Code §81.011 and Article II § I of the Texas Constitution, the authority to
suspend a lawyer from the practice of law in this State rests solely with the
Supreme Court of Texas and not in this Court.1 See In re State Bar, 113 S.W. 3d
730 (Tex. 2003); In re Caballero, 441 S.W. 3d 562 (Tex. App. 2014); Mills v. Ghilain,
68 S.W. 3d 141 (Texas App. 2001).
Accordingly, it is Respondents belief that oral argument would assist this Court in
determining the proper sanctions that should be imposed that is commiserate with the
Respondents’ conduct. Respondents are dedicated lawyers who work hard on behalf of
their clients who are solely on death row. This is difficult work that few lawyers want to
engage in and few lawyers who do this work are dedicated to zealously represent their
clients whom the State seeks to execute.
Dow currently represents at least twelve death-sentenced Texas defendants in
their federal habeas proceedings. Dow was appointed to represent these individuals
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Respondent intend to seek mandamus in the Supreme Court of Texas so that the constitutional
and statutory authority of that Court is preserved.
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pursuant to 18 U.S.C. § 3599. Pursuant to that federal statute, Dow is obligated to
represent those individuals “throughout every subsequent stage of available judicial
proceedings, including … all available post-conviction process, together with
applications for says of execution and other appropriate motions and procedures….” 18
U.S.C. § 3599 (e). As this Court is well aware, fulfilling these obligations often requires
federal habeas counsel to return to this Court.
A second issue that could be addressed by oral argument is the procedure used by
this Court as part of the contempt proceedings. While this Court found Dow in
contempt, the statutorily-allowed punishment for contempt is a “fine of not more than
$500 or confinement in the country jail for not more than six months, or both such a fine
and confinement in jail.” Tex. Gov’t Code § 21.002(b). Normally, when an attorney is
found in contempt, the attorney has a right to appeal and have a determination that in fact
the conduct was contemptuous and the punishment appropriate before an independent
tribunal. This Court’s procedure and sanction deprives Dow of that opportunity. This
Court’s suspending Dow is therefore interfering with the duty he owes to his clients
whose cases are pending in the federal courts.
PRAYER FOR RELIEF
Respondents pray that this Court grant oral argument in this cause.
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Respectfully Submitted,
SCHNEIDER & McKINNEY, P.C.
/s/ Stanley G. Schneider
Stanley G. Schneider
T.B.C. No. 17790500
440 Louisiana
Suite 800
Houston, Texas 77002
Office: 713-951-9994
Fax: 713-224-6008
Email: stans3112@aol.com
NICOLE DeBORDE
712 Main St., Ste 2400
Houston, Texas 77002
Office: 713-526-6300
Fax: 713-228-0034
Email: nicole@debordelawfirm.com
CASIE L. GOTRO
TBN: 24048505
440 Louisiana, Suite 800
Houston, Texas 77002
Office: 832-368-9281
Fax: 832-201-8273
Email: casie.gotro@gmail.com
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the attached and foregoing
Motion Requesting Oral Argument has been mailed and/or hand delivered to the
following listed below on this 28th day of January, 2015.
1. Edward L. Marshall
Assistant Attorney General
PO Box 12548
Austin, Texas 78711
2. 399th District Court – Presiding Judge
300 Dolorosa St., 1st floor
San Antonio, Texas 78205
3. Bexar County District Clerk
101 W. Nueva, Suite 217
San Antonio, Texas 78205
4. Bexar Co. District Attorney
101 W. Nueva, 4th floor
San Antonio, Texas 78205
5. Michael C. Gross
Attorney at Law
106 S. Saint Mary’s, Suite 260
San Antonio, Texas 78205
/s/ Stanley G. Schneider
Stanley G. Schneider
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Paredes, Miguel Angel
Combined Opinion