V. The Pacas opinion

The underlined portion of the foregoing quotation is revealing. The Dabney

Court acknowledged that accepting the appellant’s argument would cause a huge upset

to the system. All statutes permitting jury waivers would be void. Thus, an untold

number of convictions would be void. Of course, this is not a proper basis for an

appellate-court ruling. The question of whether a constitutional provision’s explicit

language must be respected does not depend on whether doing so would invalidate

particular legislation.

In his dissenting opinion in Farris, Justice Goodman recognized that accepting

Mr. Farris’s argument “would be a major disruption to the Texas criminal justice

system.”57 But, he essentially said, this should not matter when it comes to deciding

appeals:

Some will argue that an acknowledgment by the Court of Criminal Appeals of the mandate contained in article I, section 10 of the Texas Constitution requiring jury trials in all prosecutions for Old Code felony crimes would be a major disruption to the Texas criminal justice system and would place Texas in a unique position among the other state in the Union—I agree on both counts. Texas is large, and Texas has never shied away from taking actions that distinguish it from other states. The fact that this striking, mandatory requirement stems from the earliest constitution of the Republic of Texas only emphasizes the importance that Texans place on the mandate for and the right to jury trials.58

57 Farris v. State, 581 S.W.3d at 929 (Goodman, J., dissenting). 58 Id. at 929-30.

The Dabney Court did have a bit more to say after pointing out that accepting

the appellant’s argument would invalidate numerous legislative acts. As set out above,

Dabney went on to say “[w]e are not in accord with appellant’s opinion.”59 But the

Dabney Court expressed no independent reasoning for its non-accord. Rather, the

Court simply said “Sections 10 and 15 must be considered together as was done in

Moore v. State.”60 So as in Delrio and McMillan, the Court of Criminal Appeals

sidestepped any direct analysis of Article I, Section 10 in Dabney. Instead, the Court

relied on yet another previous opinion – Moore. But Moore is short on legal analysis

too.

Indeed, the Moore Court did quote Article I, Section 10’s unique language. But

the Court ignored that language in deciding the case. The Court spoke only of the

“right to trial by jury” (as set out in Article I, Section 15) in its analysis, saying:

It would appear to be the better view that the sense in which such expressions as “the right to trial by jury shall remain,” etc., or similar language are used, is that the right of a defendant to such a mode of trial shall not be withheld from him against his consent, not that a jury trial is in any sense a necessity.61

The Moore Court’s conclusion “is fine insofar as Article I, Section 15 of our

Constitution is concerned.” But a consideration of the unique language of Article I,

Section 10 – guaranteeing defendants a jury trial in all criminal prosecutions – was

59 Dabney v. State, 60 S.W.2d at 451. 60 Id. (citing Moore v. State, 2 S.W. 634 (Tex. Ct. App. 1886). 61 Moore v. State, 2 S.W. at 636.

entirely missing. Accordingly, Moore does not stand for any proposition whatsoever in

regard to Article I, Section 10.

Dissenting Justice Goodman noted that Moore did not directly address Article I,

Section 10:

Neither the Texas Legislature nor the Court of Criminal Appeals has directly confronted section 10’s clear and absolute mandate. Instead, Texas courts have interpreted article I, section 15—the general right to trial by jury applicable to both criminal and civil proceedings—in a way that ignores section 10’s distinct guarantee. That interpretation, which the majority believes requires it to reject Farris’s appeal, is not faithful to its plain language, its historical purpose, or its meaning in the context of the Constitution as a whole.62

So the Farris case relies on Delrio which relies on Dabney which relies on Moore.

But Moore does not consider Article I, Section 10 (other than to acknowledge that the

constitutional provision exists). And Moore does not even come from the Court of

Criminal Appeals.63 It is not binding precedent.

IV. The Lemus Opinion

As mentioned in Part II, Farris is not the only time Harris County’s Public

Defender’s Office has advanced its argument concerning Article I, Section 10. The

62 Farris v. State, 581 S.W.3d at 925 (Goodman, J., dissenting). 63 The Moore opinion emanated from the Texas Court of Appeals which was a predecessor of sorts to the Texas Court of Criminal Appeals. The Texas Court of Appeals was created by the 1876 Texas Constitution and was given appellate jurisdiction in all criminal cases and a few civil cases. The Greenbook: Texas Rules of Form Appendix B, p. 102 (Texas Law Review Ass’n ed., 12th ed. 2010). Only the opinions in criminal cases were officially reported. Id. The Texas Court of Appeals ceased to exist in 1892 when it was replaced with the present-day Texas Court of Criminal Appeals. Id. at Section 3.3, p. 1376.

argument was also advanced in Lemus v. State64 and Pacas v. State.65 In both cases, the

intermediate appellate court said it was bound by precedent to reject the argument. The

Lemus Court said:

“As an intermediate appellate court, we lack the authority to overrule an opinion of the Court of Criminal Appeals.” Merrit v. State, 529 S.W.3d 549, 554 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Mason v. State,416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis.”). Dabney expressly considered the very issue which appellant puts to this court. See Dabney, 124 Tex. Crim. Dabney, 124 Tex. Crim. at 22. We are bound by such authority as well. Because the Court of Criminal Appeals has already considered this argument and decided against appellant, we overrule appellant's first issue.66

It can hardly be said that the Court of Criminal Appeals has “deliberately and

unequivocally” decided this issue. As explained above, the various opinions from the

Court of Criminal Appeals on this issue have just cited previous cases. There has been

no independent analysis. Ultimately, all of the opinions lead back to the 1886 Moore

opinion which did not really analyze Article I, Section 10 at all. In fact, the best the

Lemus Court could say about Moore was this:

Appellant argues that the court in Moore v. State, while acknowledging that it was considering the constitutionality of the statute at issue in connection with both Article I, Section 10 and 15, “considered only constitutional provisions ... that spoke of the ‘right’ to a jury trial. The Court said nothing

64 Lemus v. State, No. 14-18-00905-CR, 2020 WL 4521124 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020, pet. ref’d) (mem. op., not designated for publication). 65 Pacas v. State, 612 S.W.3d 588 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). 66 Lemus v. State, 2020 WL 4521124 at *2 (emphasis added).

about the unique, absolute-requirement language of Article I, Section 10.” See Moore, 22 Tex. Ct. App. 117, 2 S.W.634. However, the Moore court was clearly aware of both constitutional provisions at issue, citing to both provisions at the outset of its analysis. The court went on to hold that “[w]e are of opinion that our statute, ... allowing a waiver of a jury trial in misdemeanors, is not in conflict with our constitution.” Id. at 120, 2 S.W. at 636 (emphasis added). The Moore court did not state that its holding was limited to application or analysis of Article I, Section 15 of the Texas constitution. See id.; see also Dabney, 124 Tex. Crim. at 22.67

So the deliberate and unequivocal ruling on which the Lemus Court relied was

that the Court68 was “clearly aware of” Article I, Section 10. The Moore opinion did not

really come to grips with Article I, Section 10.

V. The Pacas Opinion

Unlike Farris and Lemus, the Pacas opinion actually did contain independent

analysis.69 The Pacas opinion looked at the two provisions in the Texas Bill of Rights70

dealing with juries. The two provisions, of course, are Article I, Section 10 and Article

I, Section 15. In pertinent part, Section 10 says:

In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury.

67 Id. (emphasis added). 68 Of course, the “Court” is not the Texas Court of Criminal Appeals. 69 Pacas was authored by Justice Kelly. He was joined by Chief Justice Radack. The third member of the panel, Justice Goodman, dissented as he did in Farris. 70 The Texas Bill of Rights is the entirety of Article I of the Texas Constitution. Notably, Section 29 of Article I reads as follows: Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is exempted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

The relevant portion of Section 15 says: The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.

The Court of Appeals correctly found that the two provisions are in pari materia

because they both deal with the same general subject. That subject is the right to a jury

trial. The Court said:

Because article I, sections 10 and 15 are in pari materia, we read them in harmony, and when there is a conflict, the specific provision controls over the general provision.71

The Court of Appeals then found the two provisions to be in conflict. This

was an implicit finding. The closest the Court came to saying the two provisions were

in conflict was this:

it is illogical to read the state constitution to simultaneously allow for the waiver of trial by jury in one provision while also mandating a trial by jury in another provision.

72

Having found the two provisions to be in conflict, the Court proceeded to apply

the rule that the specific provision controls over the general provision. The Court then

reached this conclusion:

We read the sections together, and because they each articulate rights with respect to a jury trial, the more specific article controls. See Vasilas, 253 S.W.3d at 273. Article I, Section 15, titled “Right to trial by jury” is more

71 Pacas v. State, 612 S.W.3d at 593. 72 Id. at 592.