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.
MEMORANDUM OPINION ON REHEARING.
DOUGLAS S. LANG JUSTICE.
the Court is respondent's motion for rehearing. We deny
the motion for rehearing. We withdraw our prior opinion in
this case, substitute this opinion in its place, and deny
relator's petition for writ of mandamus. The following is
now the opinion of the Court.
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 of mandamus, 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 deny the petition for
writ of mandamus and dismiss the petition for writ of
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)).
case presents the Court with the task of interpreting two
statutes: articles 26.04 and 26.052 of the Texas Code of
Criminal Procedure. We review questions of statutory
construction de novo. In re Lee, 411 S.W.3d 445,
450-51 (Tex. 2013). Our fundamental objective in interpreting
a statute is "to determine and give effect to the
Legislature's intent." Id. at 451 (quoting
Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368
(Tex. 2012)). "The plain language of a statute is the
surest guide to the Legislature's intent."
Id. (quoting Prairie View A & M Univ. v.
Chatha, 381 S.W.3d 500, 507 (Tex. 2012)).
"[U]nambiguous text equals determinative text, "
and " '[a]t this point, the judge's inquiry is
at an end.' " In re Office of Attorney
Gen., 422 S.W.3d 623, 629 (Tex. 2013) (quoting Alex
Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d
644, 652 (Tex. 2006)). For example, use of the word
"notwithstanding" indicates a legislative intention
that the provision using the term should control over other
provisions. In re Lee, 411 S.W.3d at 454 ("the
use of the word 'notwithstanding' indicates that the
Legislature intended section 153.0071 to be
controlling") (citing Molinet v. Kimbrell, 356
S.W.3d 407, 413-14 (Tex. 2011) (holding that a
"notwithstanding any other law" provision evidenced
clear legislative intent to resolve any interpretation
conflicts in favor of the statute containing the provision)
and Tex. Lottery Comm'n v. First State Bank of
DeQueen, 325 S.W.3d 628, 639 (Tex. 2010) (holding that a
statute "manifest[ing] clear legislative intent that
conflicting statutes are ineffective" controlled over
such conflicting statutes)).
inappropriate to resort to rules of construction or
extratextual information to construe a statute when its
language is clear and unambiguous. In re Lee, 411
S.W.3d at 451. Under this text-based approach, we must study
the provision at issue and the statute as a whole.
Id. "If a general provision conflicts with a
special or local provision, the provisions shall be
construed, if possible, so that effect is given to
both." Tex. Gov't Code § 311.026(a). However,
in the event that any such conflict is irreconcilable, the
more specific provision will generally prevail. Id.
§ 311.026(b); see also In re Allcat Claims Serv.,
L.P., 356 S.W.3d 455, 470-71 (Tex. 2011).
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). Article 26.052 is titled "Appointment of
counsel in death penalty case; reimbursement of investigative
expenses." Article 26.052(a) provides:
(a) Notwithstanding any other provision of this chapter, this
article establishes procedures in death penalty cases for
appointment and payment of counsel to represent indigent
defendants at trial and on direct appeal and to apply ...