NEWELL, J., filed a concurring opinion in which SLAUGHTER, J., joined. Once again, Article 43.141(b-1) of the Code of Criminal Procedure creates mischief in the scheduling of an execution. This section provides that once the convicting court has set an execution date: No later than the second business day after the date on which the convicting court enters an order setting the execution date, a copy of the order must be sent by first-class mail, e-mail, or fax to: (1) the attorney who represented the condemned person in the most recently concluded stage of a state or federal postconviction proceeding; and (2) the office of capital writs established under Subchapter B, Chapter 78, Government Code.[1] Seems straightforward enough, but what happens when the trial court sends a copy of the order to the wrong email? That’s what Relator is alleging occurred in this case. The trial court emailed the order to the email address that Relator’s attorney used in the 2015 habeas application. Counsel sent an email to the prosecutor asking the prosecutor to use a new address on January 3, 2020 because he could not open or send from the old email address. And yet, counsel sent a letter to TDCJ on January 24, 2020 that listed this “old” email address. Counsel does not appear to have ever notified the trial court of the new email address, but he did update his email with the State Bar registering the address for electronic service. It is undisputed that the State and court served counsel at the correct address for years prior to this notice. For example, in 2019, the trial court sent notice of a prior execution order to the correct email address. So, who dropped the ball? Was it counsel’s obligation to notify the court of the new email address? The State argues that under common law counsel was required to update his address with the trial court,[2] but there is no statute or rule that requires counsel to file a formal notice of a change of email address.[3] Was the trial court supposed to go to the State Bar website to make sure it had counsel’s most current address? The statute only says the trial court must email a copy of the order “to” counsel.[4] Should the prosecutor have informed the trial court after receiving the email from counsel? Again, the statute places the obligation on the trial court to email a copy of the order, it does not appear to place any obligation on the State in this regard. That this case raises these questions with no apparent resolution is why mandamus relief is inappropriate.[5] But given that the “exclusive remedy” under the statute appears to be a withdrawal of the execution order, it might behoove trial courts to avoid any uncertainty and verify that they have the proper email address for counsel when setting the execution date. Even though the trial court may not be legally obligated to double-check counsel’s email address, it is required to email a copy of the order. Sending a copy of the order to the wrong email address could result in the trial court having to start over again so that counsel has sufficient notice to prepare proper pleadings. The lack of sufficient notice does not appear to be a problem in this case, however. Counsel apparently received notice of the execution date in late June and acknowledged the date in a filing in federal court on August 4, 2022. Counsel has also filed a subsequent application for habeas corpus relief in this case along with the petition for mandamus. With these thoughts, I join the Court in denying mandamus relief. Filed: November 4, 2022 Publish
