Fortunato Benavides

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Fortunato Pedro Benavides
Senior Judge of the United States Court of Appeals for the Fifth Circuit
Assumed office
February 3, 2012
Judge of the United States Court of Appeals for the Fifth Circuit
In office
May 9, 1994 – February 3, 2012
Appointed byBill Clinton
Preceded byThomas Gibbs Gee
Succeeded byGregg Costa
Personal details
Fortunato Pedro Benavides

(1947-02-03) February 3, 1947 (age 72)
Mission, Texas
EducationUniversity of Houston (B.B.A.)
University of Houston Law Center (J.D.)

Fortunato Pedro "Pete" Benavides (born February 3, 1947) is a Senior United States Circuit Judge of the United States Court of Appeals for the Fifth Circuit. His chambers are in Austin, Texas.

Education and career[edit]

Born in Mission, Texas, Benavides received a Bachelor of Business Administration degree in 1968 from the University of Houston. He received a Juris Doctor in 1972 from the University of Houston Law Center. He was in private practice in McAllen, Texas from 1972 to 1977, from 1980 to 1981 and from 1993 to 1994. He was a Judge of the Hidalgo County, Texas Court-at-Law Number Two, from 1977 to 1979. He was a Judge of the Hidalgo County, Texas Ninety Second District Court, from 1981 to 1984. He was a Justice of the Thirteenth Court of Appeals of Texas, from 1984 to 1991. He was a Judge of the Texas Court of Criminal Appeals, from 1991 to 1992. He was a Visiting Judge of the Supreme Court of Texas in 1993.

Federal judicial service[edit]

Benavides was nominated by President Bill Clinton on January 27, 1994, to a seat on the United States Court of Appeals for the Fifth Circuit vacated by Judge Thomas Gibbs Gee. He was confirmed by the Senate on May 6, 1994, and received commission on May 9, 1994. He assumed senior status on February 3, 2012.


Lawyers who practice before Judge Benavides consider him an ideological moderate.[1] His opinions are distinguished by their attention to the importance of precedent.[2] Additionally, Judge Benavides is reputed as a succinct writer.[1] His most noteworthy rulings include Burdine v. Johnson, Tennard v. Cockrell (also known as Tennard v. Dretke),[1] and Texas Democratic Party v. Benkiser.[3]

Burdine v. Johnson[edit]

In 2000, Benavides sat on a three-judge panel of the Fifth Circuit to hear the case of Burdine v. Johnson. Burdine, who had received a death sentence for capital murder in Texas, had petitioned the federal courts for a Writ of Habeas Corpus. Burdine's central complaint was that his court-appointed attorney, Joe Cannon, had fallen asleep repeatedly during his trial.

After hearing the case, Judges Rhesa Barksdale and Edith Jones ruled for the Court that Burdine's claim did not, in and of itself, warrant issuance of the writ and grant of a new trial. Rather, Barksdale and Jones reasoned, Burdine would have to show that he was prejudiced by his sleeping lawyer; that is, Burdine would need to show that there was a reasonable likelihood that the outcome of his trial would have been different had his lawyer not repeatedly dozed off.[4]

Judge Benavides issued a strong dissent. Benavides wrote that it shocks the conscience that someone could be sentenced to death after being represented by a lawyer who slept through substantial portions of his trial.[5] In Benavides' view, no further analysis was necessary to find that Burdine had been denied his Right to Counsel.

Judge Benavides' views were later vindicated when the entire Fifth Circuit, sitting en banc, took up the case and reversed the panel's judgment. Writing for the en banc court, Judge Benavides held that Supreme Court precedent provided a presumption of prejudice where a defendant's lawyer sleeps repeatedly throughout his trial.[6]

Both Judge Benavides' panel dissent and his en banc opinion were covered in the New York Times.[7]


In Tennard v. Cockrell (Tennard I),[8] Judge Benavides applied longstanding precedent of the Fifth Circuit Court of Appeals to an esoteric issue of death penalty law: He affirmed Tennard's death sentence, holding that Texas' capital sentencing law adequately took into account Tennard's evidence of low IQ before he was sentenced to death. The United States Supreme Court took up the case, and in a sharply-worded opinion (Tennard II), held that the Fifth Circuit law Judge Benavides had used was wrong. Justice Sandra Day O'Connor wrote that Judge Benavides' opinion had merely paid "lipservice" to important principles and had used a test that "has no foundation in the decisions of this Court."[9] The case was sent back to the Court of Appeals to apply the right standards as articulated by the Supreme Court.

On remand, Judge Benavides, writing for the majority of a three-judge panel (Tennard III), reversed Tennard's death sentence using the Supreme Court's rule, holding that Texas law had failed to attach sufficient import to Tennard's low IQ evidence.[10] In the course of his new opinion on remand, Judge Benavides chided the Supreme Court for giving inconsistent and indeterminate guidance in the death penalty area, likening the High Court's jurisprudence to the Augean stables.

Court of Appeals Judge Jerry Edwin Smith has since called the Supreme Court's Tennard opinion an unfair "tongue-lashing" that singled out the Fifth Circuit for abuse when the Court of Appeals was only trying to honestly apply the High Court's own "sundry pronouncements."[11]

TDP v. Benkiser[edit]

In TDP v. Benkiser,[12] Judge Benavides weighed in on a controversial election-year ballot dispute. After Congressman Tom DeLay resigned from Congress, the Republican Party of Texas sought to replace him with another candidate on the ballot shortly before the 2006 election. Texas law, however, forbids candidates from being replaced in the months leading up to an election unless they are ruled ineligible. The Texas Democratic Party sued the Republican Party to stop the switch. In court, the Republican Party argued that Tom DeLay was in fact ineligible to run for Congress in Texas because he had recently moved to Virginia.

Judge Benavides, writing for a unanimous three-judge panel of the Fifth Circuit that included conservative Republican appointee Edith Brown Clement, ruled in favor of the Democrats. According to Benavides, the plain language of the Constitution says that candidates for Congress only need be residents of the requisite state, here Texas, as of election day. Since Tom DeLay had not yet failed to reside in Texas on election day (because that day had not yet come), he remained eligible.

Judge Benavides' opinion was hailed both by academics and by the press. Professor Rick Hasen called the opinion's reasoning "solid."[13] The Houston Chronicle wrote, "The laudable impartiality by the judges making these politically sensitive rulings should strengthen the confidence of all parties that they can get a fair day in federal court."[14] The Washington Post applauded Benavides' ruling as both correct as a matter of constitutional law and preferable as a matter of public policy.[15]


  1. ^ a b c "Benavides, Fortunato Pedro - Federal Judicial Center".
  2. ^ See, e.g., Comacho v. Texas Workforce Comm'n, 445 F.3d 407, 411 (5th Cir. 2006).
  3. ^ "Court refuses to replace DeLay on Texas ballot". 3 August 2006.
  4. ^ Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000).
  5. ^ Id. at 966.
  6. ^ Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc).
  7. ^ " Search".
  8. ^ 284 F.3d 591 (5th Cir. 2002).
  9. ^ Tennard v. Dretke, 542 U.S. 274 (2004).
  10. ^ Tennard v. Dretke, 442 F.3d 240 (5th Cir. 2006).
  11. ^ Nelson v. Quarterman, 2006 WL 3592953 (5th Cir. Dec. 11, 2006) (en banc) (Smith, J., dissenting).
  12. ^ 459 F.3d 582 (5th Cir. 2006)
  13. ^
  14. ^ "Pinned to the ballot: Texas Republican Party down to its last legal swing to replace DeLay as 22nd District candidate," Houston Chronicle, August 6, 2006.
  15. ^ "Not So Fast, Mr. DeLay; It looks as if Democrats will get to run against him after all," Washington Post, August 6, 2006.


Legal offices
Preceded by
Thomas Gibbs Gee
Judge of the United States Court of Appeals for the Fifth Circuit
Succeeded by
Gregg Costa