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In re Dallas County Public Defender

Court of Criminal Appeals of Texas

April 25, 2018

In re DALLAS COUNTY PUBLIC DEFENDER, Relator

          ON APPLICATION FOR A WRIT OF MANDAMUS IN TRIAL COURT CASE NOS. F17-75436-Q, F17-75468-Q, AND F17-76382-Q IN THE 204TH DISTRICT COURT DALLAS COUNTY

         CONCURRING OPINION.

          Newell, J.

         I share Presiding Judge Keller's concern regarding the interplay between Article 26.04 and Article 26.052 of the Code of Criminal Procedure. These two statutes deal respectively with the appointment of counsel for indigent defendants generally and in capital murder cases. Article 26.04 gives public defenders priority in appointment generally, but it is unclear whether that priority extends to death penalty cases because Article 26.052 does not have similar priority language. So this gives rise to a legal question of statutory interpretation: Is a trial court required to give a public defender's office priority when appointing counsel to indigent defendants in death penalty cases? Presiding Judge Keller is correct, this is an important question of law. However, our mandamus standard of review limits our ability to answer that question if there is any doubt about the statutory terms at issue.[1] A writ of mandamus or prohibition is not the proper vehicle to settle unsettled law.[2] That is why I join the Court's decision to dismiss the motion to stay proceeding and to deny leave to file.

         In civil cases, when deciding whether a petition has shown a clear right to the relief sought, our sister court has noted that questions of statutory construction are reviewed de novo.[3] With respect to resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for that of the trial court.[4] However, a trial court has no "discretion" in determining what the law is or applying the law to the facts.[5] It is only where there is a "clear failure" by the trial court to analyze or apply the law correctly that mandamus relief is appropriate.[6]

         But in criminal cases, we are more deferential to trial courts than our sister court even when the issue is simply a matter of statutory construction. "A clear right to relief is shown when the facts and circumstances dictate but one rational decision under 'unequivocal, well-settled (i.e. from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.'"[7] We have recognized that an issue of first impression can qualify for mandamus relief when the factual scenario has never been precisely addressed, but only if the principle of law has been clearly established.[8] Relief is warranted if the principle of law relied upon is "positively commanded and so plainly prescribed under the law as to be free from doubt."[9]

         Indeed, we held there was no clear right of relief in In re Allen because, after considering many different statutory provisions in the Code of Criminal Procedure and related case law, there was at least some doubt that a defendant had no right to a pre-trial determination of intellectual disability in a death penalty case.[10] Conversely, we granted mandamus relief based upon strict statutory interpretation where a District Clerk had issued a "Bill of Costs" for attorneys fees without an express order for such fees under Article 26.05(g).[11] Ultimately, we take the statute as it is. Any ambiguity in a statute isn't resolved through a de novo statutory analysis, it results in a denial of relief.[12]

         This is why I agree with the Court's denial of relief in this case. Looking at the applicable statutes in this case, there is at least some reason to doubt that our Legislature intended the statutory priority in Article 26.04(f) to apply in death penalty cases. Article 26.04(f) reads as follows:

(f) In a county in which a public defender's office is created or designated under Article 26.044, the court or the courts' designee shall give priority in appointing that office to represent the defendant. However, the court is not required to appoint the public defender's office if:
(1) the court has reason to appoint other counsel; or
(2) a managed assigned counsel program also exists in the county and an attorney will be appointed under that program.[13]

         Article 26.04(f) had previously stated that a trial court "may appoint" a county public defenders office, but our Legislature amended the statute in 2015 to give county public defenders offices a priority in appointment.[14] Of course, the Legislature did not completely deprive trial courts of their discretion in appointing counsel in Article 26.04. It also amended Article 26.04(f) to allow trial courts to appoint other counsel if there is a managed assigned counsel program in the county or if "the court has reason to appoint other counsel."[15]

         Notably, when the Legislature amended Article 26.04 in 2015, it left intact Article 26.052, which governs the appointment of counsel in death penalty cases. Article 26.052(a) reads as follows:

(a) Notwithstanding any other provision in 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 for writ of certiorari in the United States Supreme Court.[16]

         The court of appeals is correct that at least one interpretation of the phrase "notwithstanding any other provision in this chapter" leads to the conclusion that the Legislature intended Article 26.052 to control over Article 26.04.[17] And while Article 26.052 allows for the appointment of a county's public defender's office, it still uses the "may be appointed" permissive language.[18] Rather than indicating a priority for appointment, the statute is only limited by the phrase "as provided by the guidelines established by the public defender's office."[19] There is no indication ...


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