McMillan, Tanya Marie Warrell

In the Court of Criminal
Appeals of Texas
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No. WR-88,970-01
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EX PARTE TANYA MARIE WARRELL McMILLAN,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. CR14-150 in the 4th District Court
Rusk County
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YEARY, J., filed a concurring opinion.

I write separately to take issue with two aspects of the Court’s
opinion today: (1) whether the issue of retroactivity is even properly
before the Court in this case—is it even justiciable?; and (2) whether the
underlying challenge to Applicant’s conviction is even cognizable in post-
conviction habeas corpus proceedings. For the following reasons, I can
McMILLAN – 2

only concur in the result, which I think is undoubtedly correct.
I. JUSTICIABILITY 1
Because both the Court and Presiding Judge Keller seem to agree
that Applicant is not entitled to relief regardless of whether the Court’s
holding in Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018), applies
retroactively, 2 I fail to understand why it is even necessary to decide
that question. If Applicant is not entitled to relief as a matter of Texas
law, regardless of whether Pue is or is not to be applied retroactively,
then what difference does a resolution of the retroactivity question make
in this case? Are the parts of the Court’s opinion regarding retroactivity,
such as they are, not wholly advisory in nature? 3 Is this question even

1 Black’s Law Dictionary defines “justiciability” as “[t]he quality, state,

or condition of being appropriate or suitable for adjudication by a court.”
BLACK’S LAW DICTIONARY 1036 (11th ed. 2019). In defining “justiciability,” it
also quotes from Charles Alan Wright’s FEDERAL PRACTICE AND PROCEDURE:

“Concepts of justiciability have been developed to identify
appropriate occasions for judicial action. . . . The central concepts
often are elaborated into more specific categories of justiciability
– advisory opinions, feigned and collusive cases, standing,
ripeness, mootness, political questions, and administrative
questions.” 13 Charles Alan Wright, et al., Federal Practice and
Procedure § 3529, at 278−79 (2d ed. 1984).

Id. (emphasis added).

2 See Majority Opinion at 6−7 (“All of Applicant’s appeals were
exhausted and mandate issued before she was arrested for the offense under
question here.”); Keller, P.J., Concurring Opinion at 1 (“[A] construction of a
statute that impacts the punishment range for an offense must be applied
retroactively.”).

3 See Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim. App. 2021)
(“Texas courts are not empowered to give advisory opinions[.]”).
McMILLAN – 3

justiciable? 4 What am I missing here? 5
II. COGNIZABILITY
In any event, until the Court definitively explains why a
challenge to an enhancement provision such as this is even cognizable
in state post-conviction habeas corpus proceedings to begin with, all
questions of retroactivity aside, I cannot agree that it is appropriate to
grant relief in such cases. See Pue, 552 S.W.3d at 239 (Yeary, J.,
dissenting) (“[N]ot every claim of ‘illegal sentence’ rises to [the] level of
systemic requirement or prohibition so as to justify entertaining it when
it is only raised for the first time in an initial habeas corpus collateral
attack.”).
The only thing I can agree with is the Court’s bottom line: Relief
should be denied. I therefore concur only in the result.

FILED: May 1, 2024
PUBLISH

4 See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012)

(“The Texas Constitution—the source of the requirements of justiciability in
Texas—bars our courts from rendering advisory opinions[.]”); Patterson v.
Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 442 (Tex.
1998) (citing TEX. CONST. art. II, § 1) (“The constitutional roots of justiciability
doctrines such as ripeness, as well as standing and mootness, lie in the
prohibition on advisory opinions, which in turn stems from the separation of
powers doctrine.”).

5 The Court says it addresses the merits of the retroactivity issue in this

case for two reasons. Majority Opinion at 2 n.3. First, we need to decide which
law to apply. Id. But if the choice of law makes no difference to the bottom line
in this case, we need not—and should not—decide it here. Second, other
pending cases also depend upon resolution of the retroactivity issue. Id. To the
extent that any of those cases do turn on which choice of law applies, that is
undoubtedly so. But, if so, the Court should choose one of those cases to resolve
the issue, not this one.