AUSTIN, TX (KXAN) – In an order to indefinitely delay Rodney Reed’s Nov. 20 execution that was handed down last Friday, it’s clear the justices who signed the order are split over a major issue in the case.
Is Reed’s judge legally appointed?
A dissenting opinion attached to the order staying Reed’s execution contained arguments that District Court Judge Doug Shaver might not be legally presiding over the case. Shaver—who signed Reed’s execution order in July 2019—would also decide the issues the appeals court remanded to Shaver’s court in the Friday order.
Unless another judge is appointed to replace Shaver he’s still the presiding judge in the Reed case.
Shaver told the TX Supreme Court on August 9 to take his name off the assignment roster as an active, retired judge. Shaver also wrote his boss that same day stating his personal concerns “that I would or would not do something that could affect the outcome of some important legal matter,” Shaver’s email showed.
“I therefore oppose the Court’s “finding” that Judge Shaver “continues to sit by assignment as the judge” of the convicting court “for Applicant’s case,” Judge Kevin Patrick Yeary wrote in his dissenting opinion Friday.
“The Court’s order also does not explain how it comes to the conclusion that Judge Shaver ‘continues’ to preside over Applicant’s case, and that assertion seems to me to be at least somewhat in question,” Yeary wrote.
Shaver’s appointment came into question when Reed’s legal team filed a motion to have Shaver’s July execution order voided. The arguments were that Shaver’s 2014 appointment to preside over Reed’s cases ended some time in 2014. Shaver was a then-retired district court judge who was on a list of judges who could be assigned to help out in courtrooms across the state.
The arguments against Shaver’s appointment centered on the language in the assignment that did not provide any detail on which case Shaver would preside over. Yeary described Shaver’s assignment as a “general assignment,” which he wrote doesn’t appear to have assigned Shaver to the Reed case.
The language assigning Shaver to Reed’s case came in a letter from the appointing judge’s assistant, which was not signed by the presiding judge.
Shaver’s assignment order stated his assignment in Bastrop County was “for the primary purpose of hearing cases and disposing of business requested by the court.”
“I recognize that an administrative assistant may be presumed to work closely with the judge that she serves, and perhaps may even be presumed to know what the judge she works for is thinking about a particular matter, but her enclosure letter is not an assignment order,” Yeary wrote.
“The page bearing Judge Underwood’s (Judge Olen Underwood is the presiding judge who appointed Shaver to the Reed case) signature does not contain an express reference to Rodney Reed’s case. But the enclosed document styled a “Notice of Assignment” does. It is or ought to be crystal clear that Judge Underwood’s “order” includes the enclosed notice of assignment by reference,” Judge Mike Keasler wrote in the appeals court order handed down last Friday.
“That this Court would now presume that Judge Shaver “continues to sit by assignment as the judge of the 21 Judicial District Court of Bastrop County for Applicant’s case” seems to me—at best—premature,” Yeary’s dissent stated.
Judge Olen Underwood of the Second Administrative Judicial Region’s office told KXAN the judge “has the paperwork on his desk” concerning Shaver’s assignment, but has not made a decision on where that stands.