Last edited: February 14, 2005

Delay Could Help Gay-Rights Forces Fight Sodomy Law in Court

Houston Chronicle, June 10, 2000
801 Texas Avenue, Houston, TX  77002
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By Steve Brewer

It could be next year before the Texas Court of Criminal Appeals reviews a decision to overturn the state’s sodomy law, and lawyers say that helps gay-rights groups because of an expected shift in the court’s politics.

"You don’t have to have the legal acumen of Ken Starr to realize this is a substantial break for these guys," said Brian Wice, a local appellate attorney who has argued before the Austin panel.

"Simply stated, you’re trading out two of the most conservative justices on the panel for what could be a pair of moderates."

The two conservatives – Republicans Michael McCormick and Steve Mansfield – will leave at the end of the year, and their likely replacements are politically moderate, according to court watchers.

Republican Charles Holcomb, a former appeals court judge from Tyler, is running for Mansfield’s spot. With no Democratic opponent, he faces Libertarian Rife Scott Kimball in November.

And Republican Barbara Parker Hervey, a San Antonio prosecutor, is facing Democrat William R. Barr in November for the vacancy created by Justice Sharon Keller, who is vying to replace McCormick as presiding judge of the all-Republican court.

Keller faces Democrat Bill Vance in November.

If the recent history of judicial elections in Texas means anything, Hervey and Holcomb will win easily, says Wice and others. Keller’s chances appear good, too.

Hervey and Holcomb could affect the court’s conservative bent, which defense lawyers bitterly criticize.

"The Texas Court of Criminal Appeals is a bizarre, bizarre place because it’s so political," said Houston appellate lawyer Stanley Schneider.

In the court’s history, he says, it has bent with political winds so much that it’s not uncommon to find contradictory decisions from the justices that support just about any position a lawyer wants to argue.

"The complexion of the court could be entirely different by the time this case gets up there," Schneider said. "For the first time, in a long time, there could be people listening. There’s no telling what they’re going to do and how they’re going to do it."

Robert Morrow, another appellate lawyer who has argued before the high court, agreed, though he said he knows little about the sodomy case.

"I think, generally, a new court gives us hope. We may have lived through the most disappointing times," Morrow said. "You’d certainly think it would help (the chances of throwing out the sodomy law) because you want people there who will listen to you, think about your decision and realize why the law is wrong."

Harris County District Attorney John B. Holmes Jr. has said the 14th’s decision will be appealed. His office has 30 days to file a request for a review.

It’s conceivable the current court could get the case in time to decide it before the new justices come aboard, but no one thinks that will happen.

The request for review will be filed during the jurists’ vacation time, which can stretch into the fall. If, as expected, the review is granted, the state has 30 days to file a brief and defense attorneys have another 30 days to file a response.

The defense can also ask for an additional 30 days. That would delay the hearing until the end of the year, and court watchers say it’s likely the justices will pass the issue to the new court.

Holmes and Assistant District Attorney Calvin Hartmann say they never consider an appellate court’s politics when they appeal.

Holmes says the 14th Appeals Court was simply legally wrong to overturn the sodomy law based on the fact that it violates the Texas Equal Rights Amendment.

"Maybe it’s na´ve of me, but that’s not a question for me. I don’t shop or analyze the personalities. Maybe my client gets a bad deal out of that. I’m naive enough to think they will follow the law," Holmes said

Hartmann said considering such things would be "forum-shopping."

"I don’t do that, like a lot of lawyers. There are nine people up there who are elected by the people of Texas, and if we think a decision is wrong, we take it up there no matter the composition of the court," Hartmann said. "Though quite candidly, I wish I could forum-shop in the (local appeals courts) sometimes. But I can’t, so that doesn’t matter."

Hartmann said the decision not to ask for a full review by all the justices on the 14th Court of Appeals, which prosecutors could do, is not an attempt to get the case heard before the court changes. He said it’s simply because a review by the full 14th would probably bring the same result.

Neil McCabe, who filed a "friend of court" brief on behalf of the men arrested on the sodomy charges, said putting things in a political context when talking about the court is distasteful.

"I would have to agree that if the court becomes more moderate, the chances are better (for having the decision affirmed)," said McCabe, a professor at South Texas College of Law, "but I hate to put that kind of political terminology on it."

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