Only Republican judges think checks aren’t cash

Seems that the recent appeals court ruling that may have given viability to the infamous “checks aren’t cash” defense was a partisan decision.

In a dissent unusual for its critical tone, Justice Diane Henson, a Democrat, wrote that three Republican colleagues first delayed the resolution of the case for years, effectively tying the hands of prosecutors, and then issued an opinion about 10 days ago that went too far when it concluded that the state’s money-laundering statute did not cover checks at the time that DeLay is accused of laundering corporate money into campaign donations.

That conclusion was included in the panel’s opinion, which upheld the constitutionality of the state’s money-laundering law. The statute had been challenged by DeLay associates John Colyandro of Austin and Jim Ellis of Washington.

Henson noted that panel’s opinion came three years after the court first got the case and two years after the three Republican justices heard oral arguments in what she said was supposed to be an accelerated pretrial challenge.

She urged that all six justices on the court, not just the Republican panel, rehear the arguments, in what is called an en banc review. The court has four Republicans and two Democrats.

“In a case where the panel has been unable to resolve pretrial proceedings in this accelerated case in even a remotely reasonable period of time, effectively tying the hands of the prosecution for several years and delaying the resolution of charges of public corruption that undermine the very core of our political system, the need for en banc review is evident,” she wrote.

The 3rd Court of Appeals released Henson’s 14-page dissent on its Web site over the holiday weekend after her Republican colleagues denied her request that the entire appellate court rehear the case. Justice Jan Patterson, the only other Democrat on the court, voted with Henson.


In her dissent, Henson disagreed with her colleagues’ reasoning. She wrote that the panel “oversteps the boundaries of this Court’s authority” in deciding a pretrial matter. She said the justices should have decided the constitutionality of the law — on its face — and not delved into the check-versus-cash argument that was not before them. She dismissed it as an “advisory opinion.”

Henson rebutted the panel’s conclusion that the law covered cash but not checks in 2002. The law said that “funds” includes cash, without mentioning checks.

“There is no ambiguity in the legislature’s use of ‘includes’ in the definition of ‘funds.’ By defining ‘funds’ to ‘include’ cash, the legislature plainly did not define ‘funds’ to mean only cash,” Henson wrote.

You can read Justice Henson’s dissent here (PDF). When I asked Cris Feldman about this decision in the interview I conducted last week, he was very critical of it. I have a better understand of why he was so harsh about it now.

The Supreme Court of Texas Blog, which as its name implies does not normally examine criminal cases, says the following:

Despite her disagreements with the panel decision, Justice Henson notes that she would have reached the very same judgment as did the panel (affirming the trial court and allowing the case to proceed) but “without issuing an advisory opinion”:

While I strongly disagree with the panel’s reading of section 34.01(2), their discussion of whether checks are considered “funds” under the statute remains pure dicta, as Ellis and Colyandro have failed to establish that the statute is unconstitutionally vague on its face. I would have affirmed the trial court’s order denying habeas corpus relief without issuing an advisory opinion that not only reaches the merits of an issue that is not properly before this Court, but ignores the plain meaning of the statute in doing so.

In that way, this case is much like the tax case I mentioned last week. In both cases, the Third Court decided a novel question of law — and wrapped that into a judgment that one side cannot appeal and the other has no incentive to.

In both cases, the nominal “winner” of the judgment feels that they lost the rule of law announced in the opinion, and vice versa. The effect is an intermediate court of appeals decision announcing a new rule of law for the appellate district that is, in practical terms, unreviewable by a higher court.

I’ve always wondered what a so-called “activist court” might look like. Now I think I’ve finally found one. Judge Pat Priest will be left to clean up the mess when the defense attorneys for Colyandro, Ellis, and DeLay submit their inevitbale motions for the cases to be dismissed. Good luck with that, Judge.

UPDATE: Rick Casey talks to the sponsors of the bill that added the clarifying language regarding checks, and a couple of prosecutors about whether they’d ever had an issue with this before. It’s pretty revealing.

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