This blog doesn’t usually discuss criminal cases, few of which fall within the Texas Supreme Court’s jurisdiction. But a recent case out of the Third Court raises some broader issues about appellate practice.

That case is Ex parte Colyandro, in which some of former House Speaker Tom DeLay’s associates have been charged with money laundering. On a pre-trial habeas corpus petition, the defendants challenged the constitutionality of Texas’s money laundering statute.


Last month, a three-Justice panel of the Third Court issued what looks like a mixed ruling — holding that the statute was constitutional but, along the way, construing it so narrowly as to exclude money laundering involving checks. (( The relevant discussion is at pages 30-46 of the PDF. )) According to the Third Court, the statute’s reach covers cash, but not other ways that one might wish to move funds around. If the money being laundered couldn’t be stored in a household freezer, then it probably wasn’t illegal in Texas before 2005.

Dissent About the Reasons for En Banc Review

On Friday, the Third Court formally denied a request for rehearing en banc that a member of the Court who did not sit on the panel, Justice Henson, had made before the panel issued its opinion. When the Court was polled, the vote was 4-2 against rehearing. The Court’s per curiam denying rehearing en banc is here. Justice Henson has already issued her dissent to the denial of rehearing en banc. The per curiam suggests that Justice Patterson’s dissent will come soon.

The per curiam says that the Court concluded that “the prerequisites for en banc review are not met” and cited Texas Rule of Appellate Procedure 41.2, the relevant portion of which provides:

En banc consideration disfavored. En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration. …

Justice Henson’s dissent takes issue with the panel decision’s statutory construction. In addition, she argues that the length of time the case was pending (it was argued in August 2006) was itself a reason why en banc review should have been granted. (( ” The delay between oral argument and the issuance of the panel’s opinion suggests that this case presents legal questions of such
magnitude and complexity that en banc review must surely be warranted.” )) While it’s not apparent to an outsider how granting an extra level of review would have sped the process up, this part of Justice Henson’s dissent does say something interesting about the Third Court’s internal process for handling opinions. In the past, there have been very few en bancs from the Third Court because the other Justices have the opportunity to contribute their thoughts before the opinion was published. For whatever reason, the Court’s internal process did not satisfy all the Justices here.

Does the Judgment or Opinion Matter More?

Despite her disagreements with the panel decision, Justice Henson notes that she would have reached the very same judgment as did the panel (affirming the trial court and allowing the case to proceed) but “without issuing an advisory opinion”:

While I strongly disagree with the panel’s reading of section 34.01(2), their discussion of whether checks are considered “funds” under the statute remains pure dicta, as Ellis and Colyandro have failed to establish that the statute is unconstitutionally vague on its face. I would have affirmed the trial court’s order denying habeas corpus relief without issuing an advisory opinion that not only reaches the merits of an issue that is not properly before this Court, but ignores the plain meaning of the statute in doing so.

In that way, this case is much like the tax case I mentioned last week. In both cases, the Third Court decided a novel question of law — and wrapped that into a judgment that one side cannot appeal and the other has no incentive to. (( Here, the party “winning” the judgment, the State, might not be able to file an appeal at all. (I’m not familiar with the Texas Court of Criminal Appeals’s law on whether a nominally “winning” party can file an appeal asking for the same judgment.) And the “losing” party in this appeal has gotten a rule of law that (one suspects) would be very favorable to them in any future trial. ))

In both cases, the nominal “winner” of the judgment feels that they lost the rule of law announced in the opinion, and vice versa. The effect is an intermediate court of appeals decision announcing a new rule of law for the appellate district that is, in practical terms, unreviewable by a higher court.

If there’s a lesson here for the appellate advocate, it’s to choose your arguments carefully. (( This is not to say that the advocates in this case failed to do so. I don’t know if the State ever embraced the argument in this case that the panel decision did — that the statute was susceptible to a narrower construction. )) Even in routine civil cases, there are sometimes ways you can “win” your appeal that will ultimately lose your case on remand. Sometimes those subtle interactions are hard to see before the give-and-take of a live moot argument — and if you skip your moots, perhaps not until you’re inadvertently conceding the point to the court and it’s simply too late.

Other coverage: Justice criticizes colleagues’ handling of DeLay opinion (Austin American-Statesman)