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The CCA Gives the TDCJ a Little Marbury v. Madison What Fer

An opinion delivered by the Texas Court of Criminal Appeals (Johnson) in Ex Parte Bohannan on May 11 will surely lead to changes in the delay (in certain circumstances) of a parolee’s preliminary hearing after arrest for a parole violation, even though the instant case was properly dismissed by the Court. The parolee in this case was denied a timely preliminary hearing (i.e., within 30 days) by the Texas Department of Criminal Justice as required by § 508.2811 of the Texas Government Code. The reasons for TDCJ denying timely hearings in certain circumstances, it said, included the Department’s own statutory interpretation of § 508.2811. Yes, you read that correctly: TDCJ’s interpretation of the law.

A comment about the Court’s opinion from the Texas District & County Attorneys Association (TDCAA) said that the tone of the CCA’s opinion implied “great unhappiness with TDCJ.” Indeed, out of eight judges, the case drew twelve “signatures” to the opinions (two concurring), an admonition to TDCJ, and, perhaps, advice for parolees who find themselves similarly situated in the future. All of this came from the opinions despite the fact that the case was dismissed as non-justiciable. And while the Court is often rightly unhappy with those who attempt to circumvent citizens’ rights, perhaps the “great unhappiness” gleaned from the Court’s opinion was in response to a statement in TDCJ’s amicus brief. In their brief, TDCJ predicted that, since they interpreted § 508.2811 to allow them to delay hearings in circumstances not articulated in § 508.2811, they planned to continue this practice  under the same circumstances in the future. Oops.

Perhaps that statement by TDCJ was not particularly well thought-out. In its amicus brief, TDCJ stated that it was acting within its legal authority [to delay hearings] because if followed the interpretation rules set out in § 311.023 of the Government Code. That section of the Code delineates items and circumstances that might be considered in determining what a statute says and what it does not say, and again, TDCJ claims to have followed these rules when they interpreted § 508.2811. So far, so good, right? Not exactly. Section 311.023 is not speaking to state agencies when it offers guidance for how to determine what a statute says. It is speaking to the courts, and, in fact, § 311.023 says so right in the statute (“a court may consider”). But even if § 311.023 omitted to whom it was speaking, it is unlikely such an omission would have caused widespread confusion based on an wildly obscure case (big smile) entitled: Marbury v. Madison. Indeed, inscribed on the U.S. Supreme Court building are the immortal words from Marbury v. Madison: It is emphatically the province and duty of the judicial department to say what the law is. And so, the CCA did just that. As a result, is unlikely that the TDCJ will delay preliminary hearings under these same circumstances in the future.