in Re State of Texas Ex Rel Randall Sims

In the Court of Criminal
Appeals of Texas
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No. WR-94,538-01
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In re STATE OF TEXAS ex rel. RANDALL SIMS,
Relator

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On Motion for Leave to File a Petition for Writ of Mandamus
In Cause No. 39532-D in the 320th Judicial District Court
Potter County
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YEARY, J., filed dissenting opinion.
Real Party in Interest, John Lezell Balentine, filed a motion in
the convicting court contending that the clerk of the court failed to
comply with the notice requirements established in Article 43.15(b) of
our Code of Criminal Procedure. TEX. CODE CRIM. PROC. art. 43.15(b). In
response to that motion, the convicting court entered an order
purporting to “recall” the warrant of execution and the order setting the
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execution date in Balentine’s case. 1 The State has sought mandamus
relief in this Court from the convicting court’s order recalling the
warrant and execution date. And this Court grants relief, reinstating
the execution order and warrant. This Court’s order explains that the
convicting court’s “ruling conflates the requirements of Articles 43.141
and 43.15, and misstates the law.” It also explains that the convicting
court’s order “fails to provide a valid reason to recall the execution order
and warrant.”
I am not as sure as the Court that the convicting court’s confusion
about the reasons listed in its order has anything to do with the validity
of its order recalling the warrant and execution date. It also seems to me
to be a mistake to conclude that the convicting court was required to
“provide a valid reason” at all for its order withdrawing the execution
date and warrant of execution. Our statutes do not seem to require that.
While undoubtedly a convicting court must have a valid reason for
withdrawing an order setting an execution date and a warrant of
execution, nothing in our statutory scheme seems to require a convicting
court to articulate such a valid reason, and I see no clear authority for

1 The convicting court’s order also directs “the state” to “reset the
execution date as soon as practical with proper notice” to the attorney
representing the Applicant. (Emphasis added.) Our code does not permit “the
state” to unilaterally set an execution date, even if ordered to do so by a court.
Pursuant to Article 43.141(b), it is the “convicting court” that enters an order
setting an execution date. TEX. CODE CRIM. PROC. art. 43.141(b). Moreover,
Article 43.15(b) requires “the clerk” to give notice of the issuance of the warrant
to an Applicant’s counsel “at the time the warrant is issued.” Nothing in either
Article 43.141 or in Article 43.15 authorizes the convicting court to order the
State to give the required notice of either the order setting the execution date
or the issuance of the warrant.
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this Court to reverse a convicting court’s order recalling an order setting
an execution date and warrant merely for providing invalid
explanations of its reasons—which explanations were not required in
the first place.
The State also does not seem to make an argument that Article
43.15(b) was complied with. Instead, it seems to argue that the notice
requirement was at least substantially complied with. It does not appear
that this Court has ever said that substantial compliance with Article
43.15 is sufficient. I am also not convinced that the convicting court
lacked the authority to fashion an appropriate remedy for the apparent
violation of Article 43.15, such that it could be said that Relator has
shown a “clear entitlement” to mandamus relief. E.g., In re Daniel, 396
S.W.3d 545, 549 (Tex. Crim. App. 2013).
For these reasons, I dissent to the Court’s order granting
mandamus relief.

FILED: February 8, 2023
DO NOT PUBLISH