Office of the Governor MEMO Austin, Texas 78711 Phone (512) 475-3901 TO: Willis Whatley FROM: Max Hamilton 4E. DATE: March 19, 1981 RE: Execution of Rudy Esquivel, #606 The above case set for execution on March 20, 1981 will not be carried out due to a stay order issued by the 180th District Judge of Harris County, Pat Lykos. We have received no written order or any type of communication from this Judge. We have received a telephone call on March 18 from Dorothy Coleman at the Texas Department of Corrections informing us of the order of Judge Lykos. On the basis of this tele- phone call, and after my discussing the case with Assistant Attorney General Gerald Carruth, it is my understanding there will be no execu- tion on March 20, 1981. On March 19, 1981, I talked again with Assistant Attorney General Carruth. It is his opinion, and apparently that of the Attorney General, that the stay order issued by Judge Lykos is without legal authority, in that once the State District Court has entered its order setting an execution date it is thereafter divested of any further jurisdiction. Any orders issued thereafter, except from a Federal Court, are in the nature of a commutation or reprieve which only the Governor may legally issue. Carruth indicated, rather strongly, that the "key" to this matter rests on the Governor. The Attorney General has "no standing" to challenge the stay order since the Harris County District Attorney "has agreed to the stay order." He asked me to have the Governor request an Attorney General's opinion on the matter or to have the Governor request the Attorney General to initiate a lawsuit in his behalf to challenge the State District Judge's order. MAX HAMILTON
