BASTROP COUNTY, Texas (KXAN) – The judge who signed Rodney Reed’s execution order on July 23, sent a letter 17 days later telling the Texas Supreme Court he’s “retiring” as a Texas judge.
Judge Doug Shaver’s letter also asked the court to “please remove my name from the list of judges who receive assignments.”
Shaver also sent an email that same day to Judge Billy Ray Stubblefield; the presiding judge over the Third Administrative Judicial Region where Shaver lives. In that email, Shaver cited concerns over his own competency to rule on cases.
“This has been an extremely difficult decision for me. I believe that I am still in excess condition mentally and physical [sic]. The problem is that I simply have been lucky to get old, I have been in fear that I would or would not do something that could affect the outcome of some important legal matter,” Shaver wrote in the August 9 email.
Shaver did not respond to a request for an interview, but responded by email saying, “you are reading something into it that is incorrect.” Shaver’s email continued :
“I have no concern, nor does anyone else about my mental facilities. I’m simply getting older & my energy level is not what it was.”Judge Doug Shaver
Shaver was already retired as a Texas District Court judge but was on the state’s list of retired judges who would take on judicial assignments to preside over cases around the state.
Presiding Judge Olen Underwood sent Shaver a letter in May 2014 telling him he would preside over a one-day hearing in the Rodney Reed case. Underwood is the presiding judge in the Second Administrative Judicial Region where Bastrop County is located. But the official assignment document filed in the clerk’s office does not show an end date to Shaver’s assignment or what case Shaver would hear.
Shaver has presided over the Reed case ever since.
On July 23 — five years and two months after his assignment — Shaver signed his name to the document ordering the execution of Rodney Reed. A Bastrop County jury convicted Reed of capital murder in the 1996 rape and death of Stacey Stites.
Reed has lost every attempt to appeal his conviction and death sentence.
The jury sentenced Reed to death, and his execution is set for Nov. 20.
DID SHAVER RETIRE?
“Please remove my name from the list of judges who receive assignments, as I am retiring,” Shaver wrote in a letter to the Texas Supreme Court on August 9.
Shaver did not include a date for his retirement and did not indicate whether he plans to continue presiding over the Reed’s case.
Bastrop County court records shows Shaver is still actively presiding over the Reed case. Proposed orders filed in October show Shaver’s name at the bottom of the documents awaiting his signature.
A message left for Underwood seeking answers on whether he’s terminated Shaver’s assignment or when Shaver’s retirement goes into effect has not yet been returned.
The judge’s assistant in the Third Administrative Judicial Region confirmed Friday that Judge Shaver would no longer receive any new assignments out of that division. The office could not provide answers as to whether Shaver officially retired after the August 9 message or what his intentions on continuing to preside over the Reed case were.
IS SHAVER STILL THE JUDGE?
In May 2017, Rodney Reed’s attorneys attempted to have Judge Doug Shaver removed from the case. Shaver made an “inexplicable” error on a DNA testing request in 2016, according to court filings.
The judge signed two opposing orders: one granting prosecutors’s motion to deny further DNA testing of evidence and one granting Reed’s side the permission to re-test evidence for DNA.
After that, Reed’s attorney sent Underwood a letter asking the presiding judge to replace Judge Shaver. “Request denied,” Underwood wrote in a letter dated June 1, 2017.
In new filings in the Reed case, his attorneys have asked for a hearing to settle whether Shaver had the legal authority to sign the July 2019 execution order.
“It is very common for judges to fill in when needed,” Reed’s attorney Bryce Benjet told KXAN by phone on Friday. “But, it is limited.”
Benjet argued in a Nov. 4 filing that the Texas Constitution “anticipates” that people who live in a particular court district elect the judges who preside over those court cases. Shaver, who lives outside the Second Administrative Judicial District that encompasses Bastrop County, has now served under his 2014 appointment longer than a judge would have served under an elected term.
“People expect judges to be elected, not appointed,” Benjet said. “Underwood does not have the authority to appoint a retired judge for life.”
“At some point, it has to end,” he added.
In the Nov. 4 filing, Benjet argues Shaver’s assignment “lapsed” well before the time Shaver signed Reed’s execution order on July 24. Reed’s attorney is asking for the court to “void” the execution order and assign the case to either an elected judge in the 21st District or to “a properly assigned judge as the Texas Constitution anticipates.”
‘THE STATE OPPOSES’
That one line sums up the response Assistant Attorney General Matthew Ottoway wrote into his filing the day after Reed asked for his execution order to be voided. Ottoway wrote in the filing that Reed’s side is trying to “forum shop after disappointment in another judge’s ruling.”
Ottoway cited Reed’s successful attempt in the past to have a prior judge removed from his case. That judge, Reva Towslee-Corbett, recused herself from the case in 2014. Corbett’s father, former district judge Harold Towslee, presided over Reed’s first trial.
The assignment, Ottoway wrote, continues “until terminated by the Presiding Judge.” That quote comes directly from Underwood’s 2014 assignment of Judge Shaver.
“Judge Shaver retains judicial authority over the Reed case,” Ottoway argued in his Nov. 5 filing, saying until Underwood terminates the assignment, Shaver is still under a lawful order to preside over the Reed case.
The state also argues in the filing that Reed’s legal team had multiple chances to raise the issue of Shaver’s assignment long before now. Shaver has presided over the Reed case in every hearing since May 28, 2014.
“And, in any event, Reed has forfeited the right to complain about Judge Shaver’s assignment to his case or the scope of his authority,” Ottoway wrote. “Reed had to object before Judge Shaver heard any matter in this case because, ‘Once an assigned judge has heard any matter in a case, the parties have waived their right to object to that judge,’” Ottoway continued.
“Judge Shaver is the proper presiding judge in this matter. No other judge has authority to act. As such, the State requests that Judge Shaver deny Reed’s motion to declare the execution order void,” Ottoway wrote in his closing in the Nov. 5 filing.
A hearing is set for Nov. 13 in Bastrop County where Reed’s attorney expects to be heard on the pending motions.