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J. GARY HART
Texas Bar No. 09147800
2906 Skylark Dr.
Austin, Texas 78757
(512) 206-3118 Voice
(512) 206-3119 Fax
ATTORNEY FOR APPLICANT

IN THE COURT OF CRIMINAL APPEALS
STATE OF TEXAS

1. Applicant, the person for whose relief this writ is asked, is ROBERT O. COULSON, who is illegally restrained in his liberty by the Director of the Texas Department of Criminal Justice, Institutional Division, by virtue of a judgment imposing a penalty of death rendered in cause number 9400472 before the 182nd District Court of Harris County, which judgment was affirmed on appeal by the Texas Court of Criminal Appeals in cause number 71,948. On February 12, 2002, after the cause was transferred to the 180th District Court of Harris County, the court set an execution date of June 25, 2002. Applicant presently challenges the validity of the order of February 12, 2002, setting his execution date.
2. Applicant’s restraint is illegal for the following reasons:

(a) The order of February 12, 2002, setting an execution date of June 25, 2002, is void because unauthorized under Article 43.141 of the Texas Code of Criminal Procedure, which prohibits the setting of an execution date until such time as the Texas Court of Criminal Appeals has denied relief on an initial post-conviction application for writ of habeas corpus brought pursuant to Article 11.071 of the Texas Code of Criminal Procedure.

PROCEDURAL HISTORY
As this Court judicially knows, Applicant 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and his conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals on October 16, 1996, in an unpublished opinion.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 Applicant in his state post-conviction application for writ of habeas corpus on December 3, 1996, and he filed Applicant’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 Applicant’s state post-conviction habeas corpus application. See Exhibit A, Order of Assignment by Presiding Judge. On October 9, 1998, Judge Robertson scheduled an evidentiary hearing, which was conducted on November 3, 1998. On January 5, 1999, Judge Robertson filed his recommended findings of fact 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 fact and conclusions of law were supported by the record. See Exhibit B, Order of the Texas Court of Criminal Appeals.

Undersigned counsel was appointed by the federal district court to represent Applicant 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 Applicant 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 Applicant’s motion for panel rehearing. Applicant’s petition for writ of certiorari to the Fifth Circuit Court of Appeals was denied by the United States Supreme Court on March 18, 2002.

On February 12, 2002, a brief hearing was conducted in the 180th District Court for purposes of setting an execution date pursuant to Article 43.141, Section (a) (1) of the Texas Code of Criminal Procedure. See Exhibit C, Certified Transcript of Hearing in the 180th Judicial District Court on February 12, 2002. Prior to the hearing, Applicant filed a written objection 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. See Exhibit D, Motion to Preclude the Court from Setting an Execution Date and Memorandum in Support. 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 habeas 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 Applicant’s initial state writ application. Because the Court of Criminal Appeals therefore has never “denied” Applicant’s initial state writ application, the district court is now wholly without authority to set an execution date. Judge Stricklin expressly overruled Applicant’s motion at the hearing on February 12, 2002, expressing the opinion along the way that she did not have jurisdiction to develop a record even on the issue of her authority to set an execution date, and expressed confidence that this Court “will tell me if I am not right.” Exhibit C, supra, at 9, 10 & 13.

Applicant does not presently challenge his conviction or sentence per se, but only the authority of the district court to set an execution date before the Court of Criminal Appeals has denied relief on his initial writ application. Even so, it is likely that the present application constitutes a “subsequent application” within the purview of Article 11.071, § 5 of the Texas Code of Criminal Procedure. Compare Ex parte Evans, 964 S.W.2d 643 (Tex.Cr.App. 1998), and Ex parte Whiteside, 12 S.W.3d 819 (Tex.Cr.App. 2000). This means that the convicting court may take no action on Applicant’s contentions until the Court of Criminal Appeals issues an order finding that the requirements for reaching the merits of a subsequent writ application have been met. See Article 11.071, § 5 (c), supra. Thus, Applicant must allege specific facts to establish he can meet the criteria of Article 11.071, § 5 (a), supra.

Clearly Applicant meets one of the alternative criteria. Section 5 (a) (1) of Article 11.071 permits the courts to reach the merits of “claims and issues [that] have not been and could not have been presented previously in a timely initial application . . . because the factual . . . basis for the claim was unavailable on the date the applicant filed the previous application[.]” Moreover, “[f]or purposes of Subsection (a) (1), a factual basis of a claim is unavailable on or before a date described by Subsection (a) (1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.” Article 11.071, § 5 (e), supra. The factual basis of Applicant’s instant claim is, of course, that Judge Robertson failed to sign and file the anti-bribery statement or to take the oath of office required of “appointed officers” by Article 16, § 1 of the state constitution before presiding over Applicant’s habeas proceedings pursuant to the order of assignment of August 21, 1998. By definition, that order of assignment, and Judge Robertson’s actions in the habeas proceedings pursuant to that order, came at a point in time after Applicant had already filed his initial writ application, and could not possibly have formed the basis of a claim therein. No amount of “reasonable diligence” prior to the filing of the initial writ application could have uncovered facts that only occurred after the initial writ application was filed! Therefore, Applicant can meet one of the alternative criteria for a subsequent writ application, and the Court of Criminal Appeals should accordingly make a determination to that effect and authorize the convicting court to proceed to the merits of his claim. Texas Code of Criminal Procedure, Article 11.071, § 5 (c). As Judge Womack (joined by Judge Holcomb) observed in a recent (albeit unpublished) dissent in a case in which an identical claim was made, “[w]hen the convicting court receives notice of such a determination, a writ of habeas corpus, returnable to this court, issues by operation of law. [Article 11.071, § 6 (b)] An answer from the State and fact-finding proceedings follow. [Article 11.071, §§ 7-10] These proceedings should not take long in a case such as this. * * * In my view there is nothing in Section 5 (a) [of Article 11.071] that keeps this question from us.” Ex parte Knox, (Tex.Cr.App., No. 18,969-03, delivered July 11, 2002; dissent delivered September 12, 2002) (slip op. at 2-3). Likewise, there is nothing to keep the question from the Court in the instant application.
ARGUMENT AND AUTHORITIES

As of the date of Judge Robertson’s appointment to preside over Applicant’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 to 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 Eighth 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, 318-320 (Tex.App. - El Paso, 1999), pet. ref’d. This Court has held that the purported acts of judges who fail to take their constitutional oaths of office are null and void, since “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, 572 S.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, 956 S.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 he 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 Applicant’s writ proceedings, then, under Prieto Bail Bond and French, 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 of 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 Subsection 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 the void factual development presided over by Judge Robertson can have no legal effect. Thus, the Court of Criminal Appeals failed to dispose of Applicant’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 Stricklin’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.
Judge Robertson’s purported recommendation to this Court that relief be denied on Applicant’s initial habeas corpus application was void. Under the express provision of Article 16, § 1 (f), supra, Judge Robertson was required to file his signed anti-bribery statement, mandated under Article 16, § 1 (d), “before taking the Oath or 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 Applicant’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 it and taken the constitutionally prescribed oath by that time. However, Applicant 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 filed his anti-bribery statement as required by subsection (f).

Applicant 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 of the records . . . has found a filing for Sam Robertson, as Senior Judge, Harris County County [sic], dated June 12, 2000.” See Exhibit E, 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 F, 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 Exhibit G, 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 Applicant’s writ application, and entered his findings of fact and conclusions 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 be 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 Applicant’s writ proceedings, probably when Prieto Bail Bonds was brought to his attention. Because Article 16, § 1 (f) mandates that the anti-bribery statement be signed and filed before the oath is taken, and Judge Robertson did not do so until a year and a half after the conclusion of Applicant’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 duly borne out by records of the Second Administrative Judicial District, which indeed demonstrate that Judge Robertson did not file any Article 16, 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 Applicant’s case. See Exhibit H, 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. This Court should therefore order Judge Stricklin to withdraw the order setting the execution date and the warrant of execution because it was not authorized under Article 43.141 (a) (1).

Since the hearing on February 12, 2002, Applicant has attempted to obtain an affidavit from Judge Robertson admitting he did not timely take the Article 16, Section 1 (c) oath of office. See Exhibit I, Affidavit of Investigator Scott Belshaw. Judge Robertson has stubbornly refused to cooperate, however, refusing to sign a draft affidavit (though not expressly denying the substance of the affidavit) or even to listen to undersigned counsel’s entreaties why such an affidavit is necessary. See Exhibit J, Affidavit of Attorney J. Gary Hart. Applicant has alleged facts which, if true, would entitle him to relief. That he cannot now fully prove those facts is not the result of a lack of diligence on his part, but is a product of Judge Robertson’s failure to cooperate. Applicant requires an evidentiary hearing, affording him compulsory process so that he can compel Judge Robertson to testify whether he took the requisite constitutional oath of office before presiding over Applicant’s state post-conviction habeas corpus proceedings.
PRAYER
For the foregoing reasons, Petitioner prays that a writ of habeas corpus, returnable to the Court of Criminal Appeals, be issued, that the convicting court be permitted to hold an evidentiary hearing, if necessary, and that the Court of Criminal Appeals ultimately enter a judgment setting aside the convicting court’s order of February 12, 2002, which purports to set an execution date of June 25, 2002, and granting Applicant any such other relief, including a new trial, as the law and the facts may require.

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

On this day J. GARY HART, Attorney for Applicant and Petitioner in the above-entitled and -numbered cause, personally appeared before me and after being by me first duly sworn, did aver upon his oath that the allegations of the foregoing “Subsequent Application for Writ of Habeas Corpus” are true, according to his belief.