Judge Sharon Keller's challenge of an official sanction should be tossed out, the State Commission on Judicial Conduct has said in filings with the Texas Supreme Court. The agency sanctioned Keller — the presiding judge of the Texas Court of Criminal Appeals — in the now-infamous death penalty case in which she refused to keep her offices open past 5 p.m. for a last-minute appeal. She promised to challenge that, and last week, she delivered. In filings with the Texas Supreme Court, she questioned the legality of the "public warning" the commission issued — which she claims conflicts with both the Texas Constitution and the government code — and asked the court to intervene.
But instead of appealing the commission's decision through the usual route — requesting a new trial in front of a special tribunal appointed by the Supreme Court to reconsider its findings — Keller asked the high court to step in and evaluate the constitutionality of the sanction against her in an advisory opinion. She did that through a separate legal vehicle, called a writ of mandamus, which could allow the court to unilaterally reverse the commission's decision. For Keller, there are two possible advantages in this approach: One, it saves her the time of going through the regular appeals process, and two, it puts her case in front of an all-Republican court that she might view as friendly.
The commission filed its response to Keller's charges this morning. (Find the documents above.) It says that even if it did act outside of the constitution — the commission maintains it did not — that Keller erred in asking the Supreme Court to intervene. That's because Keller can only ask for a mandamus from the high court if she has already exhausted all other remedies under law. According to the commission, that hasn't happened, because she hasn't yet asked for a new trial from the specially appointed court to review her case. Keller has until the 30th day after the commission issued its decision — July 16, for those of you keeping track — to challenge it the old-fashioned way.