Simon, Thomas Allen
WR-83,783-01
| Tex. App. | Sep 3, 2015Background
- Relator Thomas Allen Simon was indicted on two counts of sexual assault and one count of aggravated assault causing serious bodily injury; he is indigent and had court-appointed counsel.
- The trial court (Respondent Judge Evan Stubbs) initially appointed Tracy D. Cluck as counsel for Simon.
- Cluck filed ex parte requests for unusually large funds for a medical expert and investigative services and told the court he could not provide effective assistance without those funds.
- The judge held an ex parte hearing, concluded Cluck had stated he could not provide effective assistance absent the funds, and removed Cluck for good cause, appointing Gary Prust in his place.
- Real Party in Interest (the District Attorney) argues the judge acted within authority under Tex. Code Crim. Proc. art. 26.04(j)(2) and that mandamus is not available because the removal was a discretionary, record-supported decision.
Issues
| Issue | Plaintiff's Argument (Relator) | Defendant's Argument (Respondent/DA) | Held |
|---|---|---|---|
| Whether the trial court had authority to remove appointed counsel after Cluck said he could not provide effective assistance without requested funds | Removal lacked good cause; judge exceeded authority | Judge had authority under Art. 26.04(j)(2) when he made an on-the-record finding of good cause | Court: removal for on-the-record good cause is within the trial court's authority |
| Whether mandamus relief is available to overturn removal of appointed counsel | Mandamus should compel reinstatement because removal was wrongful | Mandamus not available where the court acted within discretionary authority and made record findings of good cause | Court: mandamus will not lie if the judge had discretion and made record findings of good cause |
| Whether Cluck’s statement that he could not provide effective assistance without funds was either a true factual basis for removal or a disciplinary misrepresentation | Cluck argues his statement reflected actual need for funds to provide effective assistance | DA/respondent argues either Cluck lied (disciplinary violation) or, if truthful, justified removal to protect defendant’s rights and avoid ineffective-representation claims | Court: respondent reasonably relied on Cluck’s statement and surrounding facts to find good cause for removal |
| Whether further relief (writ of prohibition) is necessary given the stay the CCA entered | Relator seeks relief to prevent proceedings under current counsel decision | DA neither joins nor opposes issue; notes CCA stay renders issue moot | Court stayed proceedings; DA argues prohibition would be duplicative/moot |
Key Cases Cited
- Braxton v. Dunn, 803 S.W.2d 318 (Tex. Crim. App. 1991) (mandamus available only when no adequate remedy at law and duty is ministerial)
- Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420 (Tex. Crim. App. 1981) (an act is ministerial only where law leaves no discretion)
- Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App. 1977) (trial court duty to appoint competent counsel for indigent defendants)
- Ex parte Billy Burl Clayton, 350 S.W.2d 926 (Tex. Crim. App. 1961) (attorney must not knowingly misrepresent facts to the court)
- Stotts v. Wisser, 894 S.W.2d 366 (Tex. Crim. App. 1995) (review of whether trial court had authority to remove appointed counsel when good cause is disputed)