The Third Court of Appeals sits in Austin and covers Bastrop, Bell, Blanco, Burnet, Caldwell, Coke, Comal, Concho, Fayette, Hays, Irion, Lampasas, Lee, Llano, McCulloch, Milam, Mills, Runnels, San Saba, Schleicher, Sterling, Tom Green, Travis, and Williamson counties.
After a court of appeals decision, either party can file a Petition for Discretionary Review (PDR) asking the Texas Court of Criminal Appeals to reconsider the outcome. The CCA grants—agrees to hear—more PDRs from Third Court decisions than from any other Texas court of appeals: about 8.0%. When it takes a Third Court case, it rules against the lower court about 90% of the time—the highest correction rate of any intermediate appellate court in Texas. Six justices cover a district of more than three million people across 24 counties.
This Court hears appeals from pretrial habeas denials (articles 11.08 and 11.09) and from 11.072 rulings (community supervision). Habeas under article 11.07—the main felony route—is filed with the convicting court and decided by the Court of Criminal Appeals. See Direct Appeals and Postconviction Relief for the full map.
Third Court of Appeals—Cases
- Earl v. State, No. 03-23-00427-CR (direct appeal). Deferred adjudication for electronic harassment after a no-contest plea that reserved the constitutional challenge. We argued that section 42.07(a)(7) of the Texas Penal Code is facially overbroad under the First Amendment, that the Court of Criminal Appeals decisions upholding it were wrongly decided, and that they do not survive the Supreme Court’s decision in Counterman v. Colorado or the Legislature’s later addition of section 42.07(a)(8).
- McLean v. State, No. 03-25-00593-CR (direct appeal). Six counts of possession of child pornography after an open guilty plea, with ten-year sentences stacked to sixty years. We argue, as questions of first impression, that a claim that a sentence is “unusual” punishment under article I, section 13 of the Texas Constitution cannot be forfeited by counsel’s silence, and that the disjunctive “cruel or unusual” language of the Texas Constitution gives broader protection than the Eighth Amendment, so that a sixty-year sentence for possessing six images departs from longstanding Texas practice.
- Ex parte Ogle, Nos. 03-18-00207-CR & 03-18-00208-CR (pretrial habeas). Electronic harassment for repeated communications to two police officers under section 42.07(a)(7) of the Texas Penal Code. We argued that the subsection is facially overbroad under the First Amendment because it restricts noncommercial speech by its content and falls within none of the historically recognized categories of unprotected speech under Reed v. Town of Gilbert, United States v. Stevens, and United States v. Alvarez.
- Ex parte Hall, No. 03-18-00731-CR (pretrial habeas). Online impersonation under section 33.07(a)(2) of the Texas Penal Code for allegedly using others’ names to post messages through social-networking sites and a business’s Google page. We argued that the subsection is a content-based restriction subject to strict scrutiny that reaches protected speech, including truthful pseudonymous criticism, and is facially overbroad and not narrowly tailored.
- Ex parte Parker, No. 03-15-00755-CR (pretrial habeas). Online solicitation of a minor under section 33.021(c) of the Texas Penal Code. We argued that the subsection, read with subsection (d), is facially overbroad under the First Amendment, vague under the Fourteenth Amendment, and a violation of the Dormant Commerce Clause.