A commenter here has provided a link to a copy of Sharon Keller's request to dismiss the lawsuit against her filed by Michael Richard's wife.
Keller claims in the motion that there was no reason for her to order the court to stay open because other judges on the CCA could have been contacted directly, whether the clerk’s office was open or closed. She does not explain in the motion to dismiss, however, why she did not tell the court's clerk to tell Richard's lawyers to contact the duty judge or why she did not tell the clerk to inform the duty judge that the lawyers wanted to submit an appeal.
Keller told the lawyers for Richard "We close at 5". This was a lie, because according to her own admission, the duty judge and any judge on the CCA can accept after hours submissions. It is also a lie because she acknowledges in her motion to dismiss that she had the authority to keep the clerk's office open after 5, but she chose not to.
A truthful statement would have been, "We close at 5, but I have the authority as presiding judge to keep the court open past five in order to accept your appeal or you may just contact the duty judge on this case who is Judge Cheryl Johnson and here is her phone number".
In the course of arguing that the lawsuit should be dismissed because she was acting in her official capacity, Keller admits that she has the authority as presiding judge to keep the court's clerks open after 5pm. Excerpt:
Texas statutory law provides that the normal office hours of a state agency are from 8 a.m. to 5 p.m., Monday through Friday. It also authorizes, but does not require, the chief administrator of a state agency to keep offices open during other hours if the administrator “considers it necessary or advisable.” Thus, under Texas Law, the CCA closes at 5 p.m. unless Judge Keller exercises her discretion in her capacity as Presiding Judge to keep the court open.
and
Only Presiding Judge Keller had the authority to keep the clerk’s office open beyond the state-mandated hours. However, as discussed above, she was under no duty or obligation to do so
since any CCA judge could have accepted the filing. Richard did not need the clerk’s office to remain open because he could file his motion with the judges that Plaintiff admits remained at the CCA past 5 p.m.
In response to a request for public information to her from the Houston Chronicle, Keller admits that she broke the unwritten rules of the court. For that breach of the rules, she should be removed from office.
Excerpt from Chronicle:
In its public information request, the Chronicle asked for the state appeals court procedures for handling death penalty cases on the day of Richard’s execution.
“No written policies regarding those matters existed on that date (Sept. 25),” Keller wrote. “Subsequent to that date, the court reduced to writing the unwritten policies that did exist on that date.”
The written policy the court later adopted said the judge assigned to the case should stay on duty on the day of an execution until the execution occurs. The policy also said “all communications regarding the scheduled execution shall first be referred to the assigned judge.”
