A Houston judge who ruled last week that the procedures surrounding the Texas death penalty are unconstitutional rescinded his ruling Tuesday to schedule a hearing for lawyers on both sides to submit arguments on the issue.

State District Judge Kevin Fine said, in effect, he was holding his ruling in abeyance until April 12, when prosecutors and lawyers for capital murder defendant John Green can submit briefs. A hearing was scheduled for April 27.

Fine reiterated that his ruling was limited to whether the Texas Code of Criminal Procedure allows for the execution of innocent people. He said there was no precedent to guide him.

“There's nothing in my research that says it is OK to execute innocent people so that we may have a death penalty,” Fine said from the bench.

He said society's standards of decency and fairness have changed and, “what we know, without burying our heads in the sand, is that we have executed innocent people.”

Fine ruled last week that the Texas capital murder statute, Article 37.071 of the Code of Criminal Procedure, violates due process provisions of the U.S. Constitution. If the decision stood, and survived appellate review, it would have taken the death penalty off the table in Green's case.

Green is facing the death penalty after being accused in the robbery and fatal shooting of Huong Thien Nguyen, 34, on June 16, 2008.

Ruling draws fire

Prosecutors said Green approached Nguyen and her sister outside her home in the 6700 block of Bellaire Gardens about 1:20 a.m. Green is accused of robbing them and shooting both women. Her sister, My Huong Nguyen, survived.

Fine's original ruling last week drew fire from Pat Lykos, Harris County's district attorney, Texas Attorney General Greg Abbott and Gov. Rick Perry for what they called “judicial activism.”

Fine's decision to rescind his ruling Tuesday had courthouse observers scratching their heads.

“It's great to shoot first and ask questions later, isn't it?” said Adam Gershowitz, an associate professor at the University of Houston Law Center. “It's not as if there's not three or four decades of death penalty litigation that you might want to consult before ruling the entire death penalty unconstitutional in the state of Texas.”

Gershowitz, who said he personally opposes the death penalty, said Fine's actions may be considered noble by some, but the mechanics of his rulings have been bizarre.

“The idea that a judge is going to rule unconstitutional long-settled public policy in the state of Texas without thorough briefing is bizarre,” he said.

More litigation

Prosecutors and Green's attorneys said they looked forward to an expanded hearing.

“Clearly, I'm thrilled that he has rescinded his order,” said Assistant Harris County District Attorney Kari Allen. “I understand that is not necessarily him saying that he disagreed with his order, but I am grateful that we have a chance to more fully litigate it.”

“For the first time in the state of Texas, or anywhere, we're going to have a hearing about whether innocent people get executed,” said defense attorney Casey Keirnan. “What I keep saying is, it's the beginning of the end of the death penalty in Texas.”

brian.rogers@chron.com