number ofpoints of error, andnoneofthemare good." And then you stumble ontonumber 16 and you wonder why he buriedhis best point down there. Further, I havedifficulty understanding why an attorneywould makeone point of error number oneand another one that is so closely relatednumber28. And if you'regoingta writeonone of them, you're going to have to writeon the other one, and yet he'll brief it andput all the facts up there about number oneand then he has to rebrief it and say almostthe same thing in dealing with number 28.I don't know why they aren't pulled togethermore, but you find it in briefs thatway. <strong>The</strong>y split themup, they're not closetogether at all.BW: Is there anything in particularthat you want to say to the judges and attorneysof Texas?<strong>Judge</strong> Onion: <strong>The</strong> only thing I canthinkof that I'd really like to say is that if1had to do it all over aeain. I'd still choosethe judiciary. I still think ;hat's an importantpas of thelegal profession. I thinkthatwe should take every effort to encouragemore people to consider the judiciary andgood people, we need good people, wellqualifiedpeople on the bench and I thinkto keep, to get good people and keep themthere, we're going to have to do somethingaboutjudicial salaries. I'msure that Icouldhave nladenlot morenamy practicing lawthiln sittinz - on the bench over all of thescyears. It's hard to say to my son who's alawyer or to other young people who ask,"Do you think there's a chance for me toever be a judge?" and I say, "Oh, yesthere's a chance, but I think you reallyought to seriously consider whether that'swhat you want to do so much that you'rewilling to give up something that you pmbabiycould acquire a lot easier." But, wedo need good, honest people who are goingto call them like they see them. I thinkthat's what the members of the bench andthe bar ought to be looking for. Do somethingtoencouragemoregoodpple to getinto the judiciary.BW: What, ifyou feellikesharingwifhus, are your plans affer you leave theCourt of Criminal Appeals?<strong>Judge</strong> Onion: Oh, I was afraid youwere going to ask me that. I really don'tknow. I'mprobably going to end up sittingby assignment around the various pints ofthe state as a trial judge. Of course, if theyask me to come sit on the appellate courtsometimes I wouldn't be opposed to that.InfactJ'd probably look forward to it. But,I assume that what I'll he doing mostly isaccepting assignments to the trial bench.BW: See you in Couft!Conversation With<strong>Judge</strong> <strong>McC</strong>ormickBill White (BW): What do you see asachange in yorcrrole now thdyou're thenervprwidingjr~dge of the Court?<strong>Judge</strong> <strong>McC</strong>urmick: As far as theopinion writing and all, I don't see that myrole will change; I'll still just be one of 9voting judges and so I don't expect tochange the direction that the court is<strong>Judge</strong> <strong>Michael</strong> J. <strong>McC</strong>on<strong>nick</strong> wasplected to the Court of Criminal Appeals11 1981. In November of 1988, he won:lection to the position of Presidingludge on the Court of Criminal Appealsmd will begin his tenure in January of'989. <strong>Judge</strong> <strong>McC</strong>ormick received hisSD. from the St. Mary's Universityichool of Law in 1970. He graduatedkom St. Mary's as an Honor Graduaterrzd was editor of the St. Mary's Lawmoving philosophically. I don't see thatthat's therolethat peopleperceive, at leastinternally, to be the role of the Presiding<strong>Judge</strong>. I say administratively, carry out thewishes of the court as far as administrativematters, but as far as the practitioner willperceive -I don't perceive that there willbe any change at all other than the changeof whoever thenew member that the governorappoints would impact the alignmentsof the coua.BW: Dayonperceive a change in howthe courf's going to opemte?<strong>Judge</strong><strong>McC</strong>ormiek: Yes, I've got a lotof ideas and I think there are a lot of othergood ideas that other judges have, and Ithink that we can say without hesitationthat if there's some ideas that surface thatmight helpus move cases a little better andbe a little more responsive to the needs Ithink in the system that the majority rulesis one way I'm approaching it. And if thereJorrrnal in 1969 and 1970. hr 1970, hewas named as the Leslie Merrin~ OutstandingLaw Graduate. He received hisundergraduate degree froin the Universityof Texas at Austin.<strong>Judge</strong> <strong>McC</strong>orr<strong>nick</strong> served on theBoard of Directors for the National DistrictAtiorneys Association from 1977rrntil1978. He ws Executive Director ofthe Texas District and County Altorneysas so cia ti or^ from 1976 throrrgh 1980,and served as President of the NationalAssociation of Prosecutor Coordinatorsin 1978. He worked as an Assistant DistrictAttorney in Travis County, Texas&a 1971 until Novernber of 1972 as aChief Felony Prosecutorand Chief of theAppellate Division. <strong>Judge</strong> <strong>McC</strong>ormick~asalsoa bnepngattorneyforthe Courtof Criminal Appealsfrom May of I970through July of 1971.<strong>Judge</strong> <strong>McC</strong>orr<strong>nick</strong> is a member ofnumerous State Bar conmdttees and Iectrrresat many criminal law seminars. HeMas a member of the drafting committeeof the 1973 Penal Code and authoredBranch annotated Penal Code, 3rdedition.<strong>Judge</strong> <strong>McC</strong>ormickalso received theRosewood Gavel Awardfrom St. Mary'sLaw School in 1984.8 VOICE for the <strong>Defense</strong> I January 1989
are five judges that want to try something,I hopethat we'll give it a whirl, unless youtry and you don't know if it's going towork; if it doesn't work we can always goback to whatever the system was before.Yes, so I think there's a number of thingsthat we can probably see tried that are newor novel.BW: Can you think of any way withyour present staff and caseload to speedup getting an opinion out?<strong>Judge</strong><strong>McC</strong>ormick: No, Bill we've gota fantastic staff and they can churn it out. Ithink we'reprobably operating close to themaximum right now. I think that we coulddeemphasize some things. What I wouldlike to do is see that the legislature give1 107 jurisdiction to thecourts of appeals.1think that would then free up - <strong>The</strong>studies that we've done indicate that wespend about 50 man hours, attomey manhours per weekou writs in our central staff,andthat'snotcountingthetimethat they'rereviewed up in our offices. That's essentiallyone very experienced lawyer we useto do take-offs on writs of which 90% arereally frivolous. Each judge has to act onabout 350 writs. Now, if we spread that outto the couits of appeals based on the numberof judges on the cows of appeals, itwould end up that each judge on the couaof appeals would end up doing about 25,about 2 per month.BW: Wouldyon give the corrrt of appealsdeath penalty jurisdiction also?<strong>Judge</strong> <strong>McC</strong>ormick: I would like to, Ithinkat least the issues could be reviewed.I think we could separate a lot of the wheatfrom the chaff there and then handle themon petitions for review much lie we donow. I think that we could do morejusticeto the meritorious issues in thecase insteadof having to write on 47 clearly nonmeritoriousissues and only maybe 4 or 5 goodissues.BW: I have noticed in recenf timesseeing a lot of remands going back to thecourt of appeals to deal with issues ofharmless error. How do you feel aboutthat?<strong>Judge</strong> <strong>McC</strong>ormick: Well, there's a lotof discussion about that. My feeling is weare a court of last resort and when you lookatthebasisupon which petitions for revieware granted, I perceive our role to be that ofthe ultimate decision-maker on issues, andonce we have made an ultimatedetermination,hopefully that determination is goingto be the law for a little while. It is the dutyof the court of appeals then to make thatapplication. And it's only those misapplications that we should be taking a lookat.1 know thatit'screatingalotofworkforthe courts of appeals, but realistically theyhavealready reviewed therecord one time.And it seems like at least it's arguable thatif it were sent back to the court or to thejudges that have already read that recordonce, they would certainly be able to comeup with a solution much easier than ushaving to redo it from the whole cloth.BW: What is your personal judicialphilosophy?<strong>Judge</strong> <strong>McC</strong>ormick: My main approachto the interpretive position that thecow must take is that of a strict constructionisttype of judicial approach. I guessthat comes from the fact that havingworkedwith thelegislatureand seeing howthe legislature functions, I feel that that'sthe legislature's responsibility to write thelaw, and our responsibility to cany out andinterpret that law to cany out the intent ofthe legislature. Whether we agree with theintent or not should not enter into my writingof the opinion. If the expression of thelegislature is clear, if the intent is clear,then I think it's our responsibility as thecourt to carry that out.BW: How do you feel aboirt looking tothe United States Supreme Con~t decisiom~LY being the lasafthe land, insteadoJlonking to oiw State Consliliition lu seewhether il provides greater protectionthan federal law?<strong>Judge</strong><strong>McC</strong>ormick: Well, you're talkingin general terms certainly. We have theright to interpret our State Constitutionwithin the confines of similarprovisions ofthe US. Constitution. I think the issue primarilyevolves around the fundamentalrights of the Bill of Rights as expressed inthe two documents. I have an idea that unlessthere is a clear departure in the languageof the Texas Constitution from thecorresponding provision of the federalconstitution, that thehistorical backgroundis, as a general rule, that which was drawnfrom the federaldocument. History injournalsof the constihltional convention of1845 pretty well bear that out except insomevery limited ways. If you go backandlookatthehistorical basisofthedocument,and clearly see that there was an intent toafford a greater right, I have no qualmsabout that, but I do believe that original intenthas got to be part of my judicial philosophy.Had the people of Texas wanted abroader expression in our constitution,they would have said so.BW: Whatprocess do you go throughin writing an opinion?<strong>Judge</strong> <strong>McC</strong>ormick: Well, I don'tknow. Mine's probably different fromeverybody else's. Just the work load keepsme from writing as much as I would liketo. I've always lied and enjoyed the appellatework, I did it when I was in theD.A.'s office as well as trial work. And Istill do a lot of it outside thecourt with mybooks and stuff. I wish I had more time todo it. As to the way it works now and theway we write opinions in my office, is myresearch assistant and my briefing attomeywill go pickup a case. We'll discuss the is-Classified Ads. Be typed.Be worded as it should appear.Include the number of consecutive issuesit is to appear.. Be prepaid. (M&e checks payable to k-forms, Inc.)Be received by the 15th of the monthpreceding date of publication.Classified Advertising MUWClassifid ads areS15.00 for the Bat 25 wordsand 50C for every word over 25. Advertisingcnov should be submitted to ARTFORMS.6'2% Guadalupe, Austin, TX 78752. 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