D I S M I S S I N G  A P P L I C A T I O N

In article 46.04(a), the legislature set out the duty of the judicial system in regard to the execution of persons who assert that they are incompetent at the time of the scheduled execution: "A person who is incompetent to be executed may not be executed." The rest of the statute sets out procedures by which to effectuate that duty; it does not in any way negate or reduce the duty placed on the judicial system and this Court by article 46.04(a). Because the majority reads the rest of the statute to negate that duty in some circumstances, I dissent.

I

The majority first finds that, "[a]lthough the trial court could appoint counsel in any given case, the trial court does not abuse its discretion by failing to do so . . . ." Ante at 5. Using that logic, an applicant who is obviously incompetent to be executed can be executed, in direct violation of legislative intent as stated in article 46.04(a), merely because the trial court refused to appoint counsel to file the appropriate motions. The existence of a right, statutory or constitutional, is meaningless without knowledge of the right and a means of asserting that right.

If an applicant is, in fact, incompetent, filing the required motions pro se is an impossibility; the applicant will have neither the knowledge of the right nor the means to assert it. The absence of a provision in article 46.04 which explicitly deals with the appointment of counsel should not be read as negation of the constitutional right to counsel at critical stages of a criminal prosecution. Silence is not negation.

II

The holding of the majority that this Court may review only findings of incompetence is equally disturbing. In support, the majority points to the statute, which speaks explicitly of the procedures to be applied if the trial court makes a finding of incompetence, but is otherwise silent. Under the majority's logic, a trial court may insulate itself from review by this Court by the simple expedient of finding all applicants competent. Surely, the legislature would not want its stated intention of not executing incompetent persons to be so easily over-ridden. I would find that this Court does have authority to review a finding of competence. Silence is not prohibition.

The majority's holdings today effectively gut the provisions and intent of article 46.04. An incompetent applicant without the financial resources to hire an attorney and a psychiatric expert has protection from execution only on paper. We do violence to the statute and justice when we allow such a result. I therefore dissent.

Johnson, J.

Date Delivered: August 28, 2000

Publish