Court of Appeals of Texas, Fifth District, Dallas
IN RE DALLAS COUNTY PUBLIC DEFENDER'S OFFICE, Relator
Proceeding from the 204th Judicial District Court Dallas
County, Texas Trial Court Cause Nos. F17-75436-Q,
F17-75468-Q, and F17-76382-Q
Justices Lang, Brown, and Stoddart.
DOUGLAS S. LANG, JUSTICE.
original proceeding, the Dallas County Public Defender's
Office complains of the trial court's denial of the
office's motion to be appointed counsel to represent
Emmanuel Kilpatrick in a capital murder case. The public
defender's office contends that article 26.04(f) of the
code of criminal procedure required the trial court to give
the office priority in appointments and to appoint a member
of the office to represent Kilpatrick unless the trial court
had good cause to appoint other counsel. The public
defender's office specifically asks this Court to grant
the writ, vacate the order denying the appointment, mandate
that the public defender's office be appointed to
Kilpatrick's case, and issue a writ of prohibition that
prohibits the trial court from denying future appointments
sought by the public defender's office. For the following
reasons, we conditionally grant the writ in part and deny it
in part. We conditionally grant the writ only to the extent
that we find that the trial court violated a ministerial duty
by failing to provide a reason for appointing other counsel
on the record and/or in a written order denying the
appointment. We deny the petition for writ of mandamus on all
other grounds and deny the petition for writ of prohibition.
has been indicted on three capital murder charges. The trial
judge initially appointed attorney Richard Carrizales to
represent Kilpatrick. Carrizales is only qualified to sit as
second chair in death penalty cases in Dallas County. On
September 22, 2017, the trial judge appointed Karo Johnson to
represent Kilpatrick and sit first chair. Before
Johnson's appointment, the Dallas County Public
Defender's Office filed a motion to be appointed counsel
to represent Kilpatrick and moved in the alternative for a
hearing to demonstrate good cause for denying the
appointment. Assistant Public Defender Christi Dean also sent
the court coordinator an e-mail requesting "a formal
written ruling on our motion indicating good cause or, in the
alternative, set it for hearing . . . ." The trial judge
denied the motion for appointment by written order without
stating a reason and denied the request for a hearing to
demonstrate good cause. This original proceeding followed.
establish a right to mandamus relief in a criminal case, the
relator must show that the trial court violated a ministerial
duty and there is no adequate remedy at law. In re State
ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App.
2013) (orig. proceeding); In re Wingfield, 171
S.W.3d 374, 378-79 (Tex. App.-Tyler 2005, orig. proceeding).
For a duty to be ministerial, the law must "clearly
spell [ ] out the duty to be performed ... with such
certainty that nothing is left to the exercise of discretion
or judgment." State ex rel. Hill v. Court of Appeals
for the Fifth District, 34 S.W.3d 924, 928 (Tex. Crim.
App. 2001) (quoting Texas Dep't of Corrections v.
Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981)).
In other words, the act must be "positively commanded
and so plainly prescribed" under the law "as to be
free from doubt." State ex rel. Hill, 34 S.W.3d
at 928 (quoting Buntion v. Harmon, 827 S.W.2d 945,
949 (Tex. Crim. App. 1992)). Further, as the party seeking
relief, the relator has the burden of providing the Court
with a sufficient mandamus record to establish his right to
mandamus relief. Lizcano v. Chatham, 416 S.W.3d 862,
862-63 (Tex. Crim. App. 2011) (orig. proceeding) (Alcala, J.
concurring); Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (orig. proceeding).
"ministerial act" requirement has been described as
a requirement that the relator have "a clear right to
the relief sought." State ex rel. Hill, 34
S.W.3d at 927-28. "Mandamus may be used to correct
judicial action that is contrary to well-settled law, whether
the law is derived from statute, rule, or clear, binding
precedent from a court of superior jurisdiction." In
re Wingfield, 171 S.W.3d at 379 (citing State ex
rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim.
App. 1994)). A "discretionary" function may become
"ministerial" when the facts and circumstances
dictate but one rational decision. In re Rivas, No.
13-14-00648-CR, 2014 WL 6085670, at *1 (Tex. App.-Corpus
Christi Nov. 13, 2014, orig. proceeding) (citing
Buntion, 827 S.W.2d at 948 n. 2). Mandamus is
appropriate "to correct judicial action that ignores
clear, binding precedent from a court of superior
jurisdiction" because trial courts "do not enjoy
the freedom to ignore the law." Healey, 884
S.W.2d at 774.
example, in Wingfield, the State Counsel for
Offenders (SCFO) sought mandamus relief from the trial
court's denial of the SCFO's motion to withdraw as
counsel for one of two co-defendants. 171 S.W.3d at 376. SCFO
sought to withdraw from representing Wingfield pursuant to
article 26.051(g), which provides:
The court shall appoint an attorney other than an
attorney provided by the [Texas Board of Criminal Justice] if
the court determines for any of the following
reasons that a conflict of interest could arise from the
use of an attorney provided by the board [for an inmate who
is charged with an offense committed while in the custody of
the Texas Department of Criminal Justice]:
Tex. Code Crim. Proc. Ann. art. 26.051(g) (emphasis added).
The statute then lists three reasons such a conflict of
interest could arise. The court held that "[t]he plain
language of the statute requires the trial court to appoint
non-SCFO counsel if at least one of the three criteria is
met." In re Wingfield, 171 S.W.3d at 379. The
court also determined that "the act of appointing
non-SCFO counsel becomes ministerial once SCFO makes the
required showing." Id.
case presents the Court with the task of interpreting two
statutes: articles 26.04 and 26.052 of the Texas Code of
Criminal Procedure. Article 26.04(f) provides that a court
"shall give priority" in appointment to a
county's public defender's office but "is not
required to appoint the public defender's office if: (1)
the court has reason to appoint other counsel. . . ."
Tex. Code Crim. Proc. art. 26.04(f). The current version of
article 26.04(f) was enacted in 2015. According to the 2015
bill analysis, the author sought to facilitate the increased
use of public defenders and intended article 26.04(f) to
require the courts to give priority to appointing public
defenders unless the court "finds good cause" to
appoint someone else. The enacted version of 26.04(f) does
not, however, include the ...