Free Bob

COMES NOW ROBERT O. COULSON, Defendant in the above styled and numbered cause, by and through his attorney of record, J. Gary Hart, and submits this his motion to preclude the Court from setting an execution date in the above cause, along with his memorandum in support.

As this Court judicially knows, Coulson was convicted of capital murder on June 22, 1994, and his conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals on October 16, 1996, in an unpublished opinion. Undersigned counsel was appointed to represent Coulson in his state post-conviction application for writ of habeas corpus on December 3, 1996, and he filed Coulson’s state application with the district clerk in Harris County on September 2, 1997. The habeas cause was transferred from the 182nd to the 180th District Court, and soon after, on August 21, 1998, the Presiding Judge of the Second Administrative Judicial Region assigned Senior Judge Sam Robertson to preside over all further proceedings involving Coulson’s state post-conviction habeas corpus application.
See Exhibit A, Order of Assignment by Presiding Judge.
On October 9, 1998, Judge Robertson set an evidentiary hearing, which was conducted on November 3, 1998. On January 5, 1999, Judge Robertson filed his recommended findings of facts and conclusions of law, and ordered that they be transmitted along with the record of the proceedings to the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals denied relief on June 9, 1999, in a written, unpublished order, observing that Judge Robertson’s recommended findings of facts and conclusions of law were supported by the record.
See Exhibit B, Order of the Texas Court of Criminal Appeals.

Petitioner was appointed by the federal district court to represent Coulson in his federal district court to represent Coulson in his federal petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, on June 29, 1999. On December 12, 2000, the federal district court denied Coulson relief in an unpublished memorandum. The United States Fifth Circuit Court of Appeals affirmed the judgment of the district court on August 7, 2001, in an unpublished opinion, and subsequently denied Coulson’s motion for panel rehearing. Coulson’s petition for writ of certiorari to the Fifth Circuit Court of Appeals is currently pending in the United States Supreme Court. The cause is presently set for a hearing in the 180th District Court on February 12, 2002, in which the State will ask the Court to set an execution date pursuant to Article 43, 141, Section (a) (1) of the Texas Code of Criminal Procedure.

Coulson objects to the setting of an execution date on the grounds that the Texas Court of Criminal Appeals had not finally disposed of his initial state post-conviction writ of habeas corpus, filed under Article 11.071 of the Code of Criminal Procedure. Under Article 43-141, Section (a) (1), supra, the convicting court “may not set an execution date before … the court of criminal appeals denies relief[.]” Although the Texas Court of Criminal Appeals purported to deny relief on June 9, 1999, it did so by essentially adopting the recommended findings of fact and conclusions of law entered by Judge Robertson on January 5, 1999. However, Judge Robertson’s proposed findings of fact and conclusions of law were void ab initio. Judge Robertson failed to take the oath of office required by Article 16, § 1 of the Texas Constitution, and so any purported actions he took on behalf of the 180th District Court were absolutely null and void, and of no effect whatsoever. Because the Court of Criminal Appeals adopted proposed findings of fact and conclusions of law which were null and void, its order of June 9, 1999, did not constitute a valid disposition of Coulson’s initial state writ application. Because the Court of Criminal Appeals therefore has never “denied” Coulson’s initial state writ application, this Court is now wholly without authority to set an execution date.

As of date of Judge Robertson’s appointment to preside over Coulson’s state writ proceedings, Article 16, § 1 (c) of the Texas Constitution required all “appointed officers” of the State to take an oath or affirmation of office (hereinafter, “oath”) to faithfully execute the duties of the relevant office and to protect and defend the laws and constitution of the United States and of Texas. Article 16, § 1 (d) also required those same “appointed officers” to “subscribe” to a statement that they have not given some thing of value “as a reward of secure my appointment” to the office (hereinafter, “Anti-bribery statement”). Furthermore, under Article 16, § 1 (f) of the state constitution, those “appointed officers” are expressly required (“shall”) to file the subscribed anti-bribery statement required under Subsection 1 (d) before they take the oath prescribed by Subsection 1 (c).

The Eight Court of Appeals in El Paso has held that retired “senior” district court judges, such as Judge Robertson, constitute “appointed officers” within the meaning of Article 16, § 1. and that, as such, they are required to take the oath required under its provisions, even if they had taken the oath as duly elected judges prior to their taking “senior” status. Prieto Bail Bonds v. State, 994 S.W.2d 316, 319-320 (Tex. App. – El Paso 1999), pet ref’d. This holding is in keeping with earlier pronouncements of the Courts of Criminal Appeals to the effect that “without the taking of the oath prescribed by (Article 16, § 1 of) the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void.” French v. State, 572S.W.2d 934, 939 (Tex. Cr. App. 1978) (opinion on State’s second motion for rehearing), and cases cited therein. See also Davis v. State, 956S.W.2d 555, 559 (Tex. Cr. App. 1997) (recognizing holding in French that appointed judge who did not take Article 16, § 1 oath lacked even the “qualifications” of a judge, and therefore “had no authority over the proceedings and his actions were a nullity.”)

If Judge Robertson failed to take the oath required of him as a senior judge assigned to preside over Coulson’s writ proceedings, then, under Prieto Bail Bond and the authorities it relied upon, any actions he purported to take by virtue of that assignment were null and void, including the evidentiary hearing he conducted and the findings of fact and conclusions of law he made. Under these circumstances, in adopting Judge Robertson’s January 5, 1999, order containing recommended findings of fact and conclusions of law, the Court of Criminal Appeals adopted a void instrument, and thus itself rendered findings of fact and conclusions of law that were no legal effect whatsoever. It is as if the Harris County District Clerk had never forwarded the record of the proceedings to the Court of Criminal Appeals at all, under Subsectuion 9 (f) of Article 11.071, which is a condition precedent to that Court’s review of capital convictions in post-conviction habeas corpus under the legislatively mandated scheme. Any purported order of the Court of Criminal Appeals based upon void factual development presided over by Judge Robertson can have no legal effect. Thus, the Court of Criminal Appeals failed to dispose of Coulson’s initial state application for post-conviction habeas corpus because it neither granted nor denied relief.

In Article 43.141 (a) (1) of the Texas Code of Criminal Procedure, the Legislature has made it unmistakably clear that the convicting court has no authority to set an execution date until such time as the Court of Criminal Appeals “denies relief”. The legislative requirement that the district court wait until the appellate court has finally disposed of the post-conviction habeas application is one of those “absolute requirements … to be observed even without partisan request.” Marin v. State, 851 S.W.2d. 275, 280 (Tex. Cr. App. 1993). To set an execution date before it is authorized by law is analogous to assessing a punishment that is unauthorized by law, an illegality that can be raised at any time, including for the first time in post-conviction habeas proceedings. E.g., Ex parte Beck, 922 S.W.2d. 181, 182 (Tex. Cr. App. 1996). As in Ex parte Seidel, 39. S.W.3d. 221, 225 (Tex. Cr. App. 2001). Judge Robertson’s act in setting the execution date “was more than a variance from the normal conduct, that action was outside the parameters of any rule of procedure in place at that time.” In short, it was “not authorized by law and was, therefore, void.” Id.

Under the express provision of Article 16, § 1 (f), supra, Judge Robertson was required to file his singed anti-bribery statement, mandated under Article 16 , § 1 (d), “before taking the Oath of Affirmation of office prescribed by” Article 16, § 1 (c). (Emphasis supplied). Presumably, then, the Secretary of State should have had Judge Robertson’s subscribed anti-bribery statement on file prior to the date of his assignment to Coulson’s habeas proceedings, or at least prior to the time Judge Robertson actually presided over any such proceedings pursuant to that assignment – that is, if in fact he had signed and filed and taken the constitutionally prescribed oath by that time. However, Coulson has requested that the Secretary of State conduct a search of records filed pursuant to Article 16, § 1 of the Texas Constitution, and the Secretary of State has certified that he has no record that Judge Robertson timely field his anti-bribery statement as required by subsection (f).

Coulson requested that the Secretary of State search his records for any and all filings pursuant to Article 16, § 1 (d) under the name of Sam Robertson as Senior Judge. After searching the records for any such filing, the Secretary of State has certified that “a diligent search for the records … has found a filing for Sam Robertson, as Senior Judge, Harris County County [sic], dated June 12, 2000.”
See Exhibit C, Certificate of Fact, Gwyn Shea, Secretary of State of Texas.
The anti-bribery oath filed on June 12, 2000, was signed by Judge Robertson on June 8, 2000, four days earlier.
See Exhibit D, Certified Copy of Statement of Appointed Officer, Signed June 8, 2000, and Filed June 12, 2000.
Moreover, “[p]lease be advised that the filing shown is the only filing found in our records.”
See Ehibit E, Letter of John Riegler, Statutory Documents Section, Office of the Secretary of State.
Thus, the Secretary of State’s records reveal that Judge Robertson did not sign and file any anti-bribery statement until June of 2000, more than a year and a half after he presided over the evidentiary hearing in Coulson’s writ application, and entered his findings of fact and conclusion of law. But it was only one year after the State’s motion for rehearing in the Eighth Court of Appeals in Prieto Bail Bonds was denied, in July of 1999. This suggests Judge Robertson only executed and filed his anti-bribery statement, and likely only then took his oath, after he was put on notice by Prieto Bail Bonds that he should already have done so long before.

It can thus e inferred from the Secretary of State’s certifications that Judge Robertson did not realize either that he had to sign and file the anti-bribery statement or that he had to take the constitutional oath under Article 16, § 1 (c), until well after he presided over Coulson’s writ proceedings, probably when Prieto Bail Bonds was brought to his attention. Because Article 16, § 1 (f) mandates tha the anti-bribery statement be signed and filed before the oath is taken, and Judge Robertson did not do su until a year and a half after the conclusion of Coulson’s writ proceedings, it may rationally be inferred that Judge Robertson also failed to take the oath itself before presiding over those proceedings. This inference is borne out by records of the Second Administrative Judicial District, which indeed demonstrate that Judge Robertson did not file any Article XVI, Section 1 (c) oath of office until July 16, 1999, at the earliest , more than seven months after he signed the purported findings of fact and conclusions of law in Coulson’s case.
See Exhibit F, Oaths of Appointed Officer for Sam Robertson, dated July 16, 1999 and June 26, 2000. That being the case, any purported judicial action he took was a patent nullity under French v. State, supra.

Thus, the certificate from the Secretary of State and the records from the Second Administrative Judicial District are sufficient to make out a prima facie case that Judge Robertson presided over Coulson’s habeas proceedings without having filed either the anti-bribery statement or taken the oath of office mandated by Article 16, § 1. The Court should therefore deny the State’s request to set an execution date at the present time, since it would be premature and therefore unauthorized under Article 43.141 (a) (1) of the Code of Criminal Procedure. Failing that, the Court should at least conduct a brief evidentiary hearing at which it can be determined whether or not Judge Robertson did in fact timely file the anti-bribery statement and/or take the constitutional oath of office prior to presiding over Coulson’s state post-conviction habeas corpus proceedings.

WHEREFORE, PREMISES CONSIDERED, Defendant prays the Court will deny the State’s request to set an execution date in this cause.

Respectfully Submitted

GARY HART
Texas Bar No. 09147800
2906 Skylark Drive
Austin, Texas 78757
(512) 206-3118 Voice
(512) 206-3119 Fax

ATTORNEY FOR COULSON

I, J. Gary Hart, Attorney for Applicant, do hereby certify that a true and correct copy of the foregoing “Motion to Preclude Court from Setting Execution date and Memo in Support” was delivered by United States mail, postage prepaid, to Roe Wilson, Chief of Post-Conviction Writs, Harris County District Attorney’s Office, 1201 Franklin, Suite 600, Houston, Texas, 77002 on this the 4th day of February 2002.