Opinion
NO. WR-91,133-01
05-06-2020
EX PARTE Monica Melissa PATTERSON, Applicant
Cynthia E. Orr, Gerald H. Goldstein, San Antonio, for Monica Melissa Patterson.
Cynthia E. Orr, Gerald H. Goldstein, San Antonio, for Monica Melissa Patterson.
Motion for leave to file original application for writ of habeas corpus denied.
Yeary, J., filed a concurring opinion in which Keller, PJ., and Slaughter, J., joined.
CONCURRING OPINION
While her several felony convictions are appealed, Applicant is presently incarcerated in the penitentiary. She brings to this Court an original application for writ of habeas corpus under the provision of Article 11.25 of the Texas Code of Criminal Procedure, which reads (and has read for many decades, without substantive amendment):
When a judge or court authorized to grant writs of habeas corpus shall be satisfied, upon investigation, that a person in legal custody is afflicted with a disease which will render a removal necessary for the preservation of life, an order may be made for the removal of the prisoner to some other place where his health will not be likely to suffer; or he may be admitted to bail when it appears that any species of confinement will endanger his life.
TEX. CODE CRIM. PROC. art. 11.25. This Court has long construed this provision not to apply to post-conviction felony convicts, "in legal custody" though they may be. Ex parte Baltimore , 616 S.W.2d 205 (Tex. Crim. App. 1981). Accordingly, the Court has denied leave to file.
In Baltimore , the appellant had been convicted of a felony and invoked Article 11.25 as a means of delaying his transfer from jail to the penitentiary. Id. at 206. Baltimore relied upon a case from 1901— Ex parte Smith , 64 S.W. 1052 (Tex. Crim. App. 1901) —at which point the statute read virtually identically to the way it later read in 1981, when Baltimore was decided, and to the way it reads to this day. 616 S.W.2d at 206–07. Following the rationale of Smith , the Court held in Baltimore that Article 11.25 did not authorize the release of an applicant convicted of a felony whose conviction was pending appeal; rather, the statute specifically governing confinement after conviction pending appeal would govern, which statute did not sanction the release of a diseased inmate from confinement. Id.
There has been some suggestion that Baltimore was wrongly decided; that its construction of Article 11.25 is contrary to that provision's plain language. See, e.g. , Ex parte Williams , 595 S.W.3d 328, 329 (Tex. App.—Houston [14th Dist.] 2020, pet. pending) (plurality opinion suggesting that this Court should revisit Baltimore because incarceration in the penitentiary plainly counts as being "in legal custody"). There is every reason to believe, however, that Article 11.25 applies only to release of an inmate prior to conviction, just as Baltimore held. After all, when speaking of "the person in legal custody," the statute provides that, if any "species of confinement will endanger his life[,]" then "he may be admitted to bail[.]" TEX. CODE CRIM. PROC. art. 11.25. But "bail" is defined elsewhere in the Code of Criminal Procedure as "the security given by an accused that he will appear and answer before the proper court the accusation brought against him[.]" TEX. CODE CRIM. PROC. art. 17.01. Ordinary bail (other than bail pending appeal) does not apply to inmates who have already been convicted. And to the extent that bail pending appeal constitutes an exception, that is the very statute ( TEX. CODE CRIM. PROC. art. 44.04 ) that the Court observed would govern any possible release of a convicted felon to the exclusion of Article 11.25, in its in pari materia -like analysis in Baltimore . 616 S.W.2d at 207.
Moreover, once an accused is convicted of a felony and transferred to the penitentiary, an administrative remedy appears to be available, which certain inmates may pursue should incarceration in that venue pose an immediate danger to life. See TEX. GOV'T CODE § 508.146 (governing release of inmates from the penitentiary on medically recommended intensive supervision). In keeping with this specific provision of the Government Code, it still quite sensibly comports with principles of in pari materia to limit the application of Article 11.25's extraordinary remedy to pre-conviction inmates, at least in felony cases.
It is true that the provisions of Section 508.146 will not apply to Applicant because one of her felonies was a capital murder for which she received a sentence of life without parole. Inmates serving sentences of life without parole are excepted from eligibility for medically recommended intensive supervision. See TEX. GOV'T CODE § 508.146(a) ("An inmate other than an inmate who is serving a sentence of death or life without parole may be released on medically recommended intensive supervision ..."). But it appears likely that Section 508.146 is the more specific statute governing the release of penitentiary inmates on account of life-threatening circumstances, not Article 11.25.
The legislative policy represented by the exclusion of those inmates serving capital sentences from medically recommended intensive supervision should not be undermined by a belated construction of Article 11.25 that would allow courts, through habeas corpus proceedings, to release such inmates. Indeed, such a construction of Article 11.25 might even threaten to render it unconstitutional, either as a judicial-department invasion of the legislative prerogative to assign the matter of inmate release on medical grounds to the executive department, or as an invasion of the executive department's prerogative to determine who should be entitled to clemency or pardon. TEX. CONST. art. II, § 1.
I am aware of no justification for revisiting Baltimore at this juncture. Therefore, I concur in the Court's order denying Applicant leave to file her application for writ of habeas corpus under Article 11.25.