Peterson v. Jones

paid lightly PROC.ANN. Art. 26 and be not prematurely be or taken taxpayers County, of Travis or simply as the Bage, Court. State ex rel. Sutton v. attorney of record on (Tex.Cr.App.1992). relator. See at The who, TEX.CODE CRIM.PROC.ANN. Art. anyone, compensate Krug if will issue of 26.04(a). only I believe that the first issue is attorney for her services as relator’s of rec- proper subject for mandamus action at this ord on is her to a cause action for time. pursue at the that issue has arisen. I time ground hold would that relator’s second pointed attorney/client out As above ripe consideration-by is not this relationship formed between relator and majority’s Court. I dissent to the decision to Krug that Krug rep- entitles relator to have hold otherwise. regardless him appeal, resent on Alabama, wishes of the trial court. Powell v. join majority’s I decision relator is 53-54, 58-59, at 53 S.Ct. at entitled to the issuance of a writ of manda- (1932); Clinton, 77 L.Ed. 158 and Stearnes v. ground only. mus on his first for relief If (Tex.Cr.App.1989). at 222 respondent voluntarily comply would not Respondent acknowledged the existence of Tay- his appointing vacate orders Fannin and relationship reply his to relator’s mo- appeal, lor to relator I on then tion, certainly right “Mr. Stotts has the join issuing would writ Krug, right repre- retain Ms. she has compel respondent mandamus to do so. basis, him pro sent on a bono but she should right taxpayers not have the to force the of McCORMICK, P.J., and MEYERS pay County representation Travis her KELLER, JJ., join opinion. of Mr. Stotts.” Since has con- attorney/elient ceded the existence of the relator,

lationship Krug respon- between appointing dent should vacate orders his Taylor, respectively. Fannin and Mandamus pursuant should be issued to relator’s first ground for relief. Krug

This would leave as relator’s sole attorney appeal. Respondent may on not PETERSON, Martin L. relationship. respon- interfere with that If permitted dent not to be to make an JONES, Judge Donald R. Honorable appointment attorney of another of the 266th District Court of Erath attorney/client that would interfere with the County, Respondent. relator, Krug relationship between Court, Krug second issue before this whether No. 71896. “appointed” simply is an Texas, record, attorney of would be irrelevant En Banc. attempt I relator. believe an to resolve this premature would at issue be this time. March Krug’s status anas would play only request come was into she

payment County pursuant from Travis

provisions likely of Art. most which would place take after she has rendered pay services and voucher submitted County. District Clerk Travis TEX. 26.04(c). CODE CRIM.PROC.ANN. Art. necessary, timely, I it do not believe to issue a writ mandamus on relator’s ground for second relief. Mandamus should Peterson, Stephenville, rela- L.

Martin tor. Jones, respon- Stephenville, R.

Donald dent. Austin, Huttash, Atty., State’s

Robert the State.

OPINION

McCORMICK, Presiding Judge. Respondent is a case. This mandamus Relator, attorney, to who is an indigent appellants in their two until level of of their convictions first Following the were exhausted. appellate court’s affirmance of intermediate in these indigent appellants’ convictions in both appeals, Relator filed cases review, which this Court refused. discre-

After Relator filed the tionary Respondent to he submitted reporting required “form for the services compensation” for request performed petitions for payment for Respondent refused to authorize these services. filed to file a

Relator a motion leave requesting this for writ mandamus directing to issue a writ of mandamus payment. Respondent to Before authorize motion deciding grant Relator’s whether file, Respondent afforded for leave we allega- respond Relator’s opportunity tions, responded. Texas and he has Lawyers also Association Criminal Defense as appear for leave has filed motion in support brief Curiae and a Amicus grant Texas Criminal De- We Relator. Lawyers ny fense Association’s motion for punishable by impris- leave or a misdemeanor Curiae, appear as counsel, Amicus and order its onment poor employ is too papers brief be filed with this case. practicing shall one or more attorneys to him."1 (Emphasis defend Respondent violating claims Supplied). duty by refusing ministerial approve to com- pensation for the services he rendered in 1(e), Former Article Section in 26.05 relevant filing review. part, paid also authorized fees to court- be to have appropriate We held mandamus is the appointed counsel: type vehicle resolve the of claim Relator prosecution “For the to a final conclusion Flack, asserts here. v. See Smith 728 appeal a bona to a court of 784, (Tex.Cr.App.1987). S.W.2d 789-94 fide or Appeals_”2 the Court Therefore, case, in this we revisit two (Emphasis Supplied). right to court-appointed appeal counsel on State, 408, In Polk v. 676 S.W.2d law, this prior eases Court decided under (Tex.Cr.App.1984), this Court construed the statutory provisions construe several foregoing statutory appeal term “bona fide Texas Code of Criminal Procedure. See State, 782, Appeals” Court of Criminal one Boykin v. to mean 818 S.W.2d 785-86 Flack, (Tex.Cr.App.1991); granted which 728 S.W.2d at this Court has a 789. construing In provisions, duty these Therefore, prior our is to review. under attempt legislative law, discern the intent or interpreted applicable this Court has by, reasonably purpose possible, if giving statutory provisions require appoint plain meaning effect of the statutes’ only appeal ment of counsel in “the one and State, language. See Muniz v. 851 S.W.2d right” an has of and one in which dissenting), 238, (Clinton, J., 265 (Tex.Cr.App.) granted this Court a had for discre — denied, -, rt. U.S. S.Ct. ce Polk, 411; tionary review. See 676 S.W.2d at 116, (1993); Boykin, 126 L.Ed.2d 82 818 Ayala, prior at 527-28. Under at S.W.2d 785-86. law, any Relator would not be entitled to compensation for dis Ayala 526, 527-28 cretionary review. (Tex.Cr.App.1982), this Court held the Four- Amendment, teenth and former Articles Polk, Ayala Since this decided 26.05, V.A.C.C.P., imposed 26.04 and duty no Legislature 26.043 has amended Articles provide on this State to counsel to an indi- 26.05,4 1.051(d),5 and added Article gent appellant seeking discretionary V.A.C.C.P., 26.04(a), V.A.C.C.P. Article view this Court. this When Court decided part, provides: relevant now 26.04(a), V.A.C.C.P., Ayala, former Article part, provided: relevant “Whenever the court that a determines charged felony defendant a or a mis- “Whenever the court at an determines ar- by raignment any prior punishable imprisonment or at demeanor is arraign- time charged ment that an justice accused with a felo- or that the interests of 1965, 317, 722, Leg., 1.051(d) p. provides "eligible 1. See Acts ch. 5.Article indi- 59th that an 1, 1, January eff. gent section 1966. See also Histori- court-appointed entitled defendant” is cal Note to current 26.04. Article following appellate postcon- counsel in the (1) corpus a viction habeas matters: 1981, 803, 291, Leg., p. (2) appeals; 2. See Acts 67th ch. court to the Court of 106, 1, September section eff. 1981. See directly also Appeals if is made Historical Note to Article current 26.05. from the trial or court discretion- (3) ary granted; corpus has been habeas 1987, 979, Leg., Acts proceeding 3. See 70th ch. section inter- if the court concludes that the September justice representation; effective 1987. require ests of appellate proceeding other if the concludes justice require representa- Leg., 4. Acts ch. the interests of See 70th section September eff. tion. representation of a in a unless require defendant Tex.R.App. granted. See ap- review has been proceeding, criminal the court shall nothing language in the attorneys to Proc. There point practicing one or more 26.05(a)(3) Article appointed, of either Article him. An under defend 1.051(d)(2) Legislature intend- to indicate subsection shall defen- dismissed, appointment charges until the de- ed dant are acquitted, appeals counsel to file fendant exhaust- ed, or the is relieved his duties replaced the court or other counsel.” addition, 26.04(a), in relevant Article (Emphasis Supplied). court-appointed counsel part, V.A.C.C.P., 26.05(a)(3),

Article relevant indigent “appeals until are ex- appellant an attorney’s 1.051(d) part, authorizes a reasonable fee “ap- hausted.” Article defines those for: indigent appellant for is enti- peals” which an court-appointed to tled counsel. Consistent “preparation appellate of an to brief Ayala, filing with of a for discre- appeals of court or the Court Criminal of tionary any of these is not included in review Appeals.” (Emphasis Supplied). definitions, has no find- the court made and And, 1.051(d)(2), part, Article in relevant re- 1.051(d)(4), pursuant ing, to Article quires a trial to counsel to V.A.C.C.P., justice the interests of “that represent defendant in: quire representation.”6 Ap- “an the Court Criminal of Respondent’s also claims Relator peals directly if the from appeal is made payment the indi failure to violates authorize the trial court or discre- pro gent appellants’ process equal due and (Em- tionary granted.” review has been adequate rights also denies them tection Supplied). phasis Assuming courts. Re access this State’s appoint- of his claims, Relator claims that because we standing has to assert these lator 26.04(a) until all ment under Article reject rejected Ayala and them we them exhausted, Respondent were has ministeri- actually provides protec more now. Texas 26.05(a)(3) duty compen- under al Article indigent appellant appellate tion to an filing dis- sate Relator States proceedings than what United cretionary disagree generally review. We because Ross v. requires. See Constitution 2437, 600, 1987 amendments to Articles 26.04 and 26.05 Moffitt, 94 41 417 S.Ct. U.S. 1.051(d) (1974); and the addition of Article retain Douglas see also v. Cali L.Ed.2d 341 subject holdings Ayala 361-64, and Polk fornia, 83 S.Ct. 1.051(d)(3) exceptions 818-20, set out in Article 811 hold L.Ed.2d We V.A.C.C.P., (4), not applicable automatically which are not enti appellant is here. court-appointed counsel tled assistance

to file a Polk, duty statutory Respondent Article no ministerial Consistent has 1.051(d)(2) appointment payment authorize in this case to filing peti “appeal” performed in an to the Court of Crimi services Relator Polk, Appeals only nal if a discretion review. See tions 411; ary granted, has and Article at 527-28. been S.W.2d at 26.05(a)(3) provides for a reasonable attor Mandamus relief is denied. ney’s preparation of an brief fee for Appeals. appel An to the Court Criminal MEYERS, J., participating. not brief is not filed in the Court Criminal

late Hill, Supreme cer- United Faulder 612 S.W.2d 526-28 States 6. Cf. v. (on reh’g) (Tex.Cr.App.1981) appellant's “appeal”). mot. for tiorari not an J., (State's concurring) (Dally, in the MALONEY, Judge, dissenting. dance 26.04 and with Articles 26.05 of the Texas Code of Criminal and the wrong reaches conclusion 266th District fee schedule for court- Court’s neglects because it to address relator’s claim appointed While counsel.3 relator’s claim is schedule, under the Court’s 266th District fee specifically the Code of based on acknowledge opinion parte our recent in Ex Procedure and the District Court fee sched- Jarrett, (Tex.Crim.App.1994), 891 S.W.2d 935 ule, analysis majority’s any omits refer- reh’g opinion, denied with Feb. ence to the fee schedule. interpreted expanded upon which Ayala 528 (Tex.Crim.App. “Appeals I. Exhausted” 1982), meaningful way and consider equal protection takings realtor’s clause that, Relator because contends relief, Believing claims. relator entitled to appointed him pursuant Texas Code of I dissent. 26.04 Procedure article Milligan Soto and until all were ex- requests this Court to issue a writ hausted,4 respondent duty has ministerial respondent, compel Judge mandamus to County, the 266th District of Erath Court to discretionary initially for review. We must payment to authorize relator for services determine when are exhausted with- court-appointed rendered as counsel. Rela- meaning the of Article 26.04 for court- respondent, tor appointed by pursuant was to appointed counsel. Texas Code of Criminal Procedure Article 26.04, represent Manley Rafael Soto and 633 at this Court Milligan. R. of The Court appellate duty addressed the counsel to Eleventh both District affirmed clients’ con- petitions discretionary file for victions.1 In accordance with his clients’ re- There, appointed counsel filed an Anders5 quests professional judgment, and his relator brief on which direct he stated that prepared petitions discretionary and for filed the merit. was without The court of review to this Court on behalf of his clients. affirmed, agreeing that the spent approximately twenty Relator hours of “wholly was and without frivolous merit.” petitions preparing his time the and used his Ayala, alleged 633 527. Counsel S.W.2d at printing mailing. own funds for We Ayala that petition that he file a demanded petitions.2 filing peti- refused both After the review, discretionary although, pro- in the tions, appropriate relator submitted the com- counsel, judgment fessional no meritorious pensation respondent, respon- forms to but grounds for review existed. Counsel filed a payment. dent refused to authorize Relator petition only ground in which for review claims he is request entitled for the was a that this Court examine the preparation filing two record for error. held that neither the We discretionary to this nor former Arti- review Court accor- United States Constitution Soto, (Tex.App.— that State v. No. 11-92-240-CR Whenever the determines a defen- ref’d); pet. charged felony Milligan, Eastland State v. or a misdemeanor dant with a punishable (Tex.App. pet. by imprisonment S.W.2d 117 or that — Eastland ref'd). require justice representation the interests of proceeding, criminal a defendant in a State, (Tex.Crim.App. practicing 2. Soto v. court shall one or more No. 93-0367 June 9, 1993), denied, 20, 1993; attorneys attorney appoint- reh'g Milligan Oct. An to defend him. (Tex.Crim.App. No. ed under this subsection shall 93-1198 Dec. dismissed, 1993). charges are the de- defendant until exhausted, acquitted, appeals fendant is by provides of his duties 3. The schedule for a fee of not less than is relieved counsel, replaced by (emphasis "Representation $200 other Petition for Discre- court or added). tionary Review.” California, 87 S.Ct. Texas Code of Criminal Procedure article 5. Anders v. 26.04(a) provides; 18 L.Ed.2d 493 review, imposed duty and 26.057 on further filed cíes 26.046 discretionary review. appointed counsel to file a for discre- by tionary this review Court. dis- Ayala and Jarrett address situations case; both in- tinguishable from the instant acknowledge or dis fails appointed at- whose court volve defendants in Ex tinguish this Court’s recent decision petitions for torneys file were reluctant Jarrett, parte (Tex.Crim.App. 891 S.W.2d 935 case is review. The instant 1994), interpreted ex which and somewhat brought by appoint- a court mandamus action Jarrett, panded Ayala. appli upon believed, professional his who ed he alleged cant that was denied effective grounds for dis- judgment, that meritorious of counsel was not assistance because he existed, cretionary prepared he review notified his counsel petitions. and filed the appeals’ judg court of affirmance court, depriving trial him of ment of the thus Appellate Brief and Petition II. opportunity prepare and file Discretionary Review held review. This Court that, appoint- contends because Ayala vitality its retained after the pursuant “appeals until ment Article 26.04 26.04(a). Id., Article amendments to an alternative the are exhausted” includes as that, al at 939. We further held 5.W.2d filing of a though appellate duty no to file a has Arti- duty has a under ministerial Aya under 26.05(a)(8) pre- cle la, petition, if counsel does not he has a file a paring for Soto duty appel 26.04 under Article “to advise the ap- Milligan. Article 26.05 possibility lant “prepa- pointed paid counsel shall be for the expressing judg professional as well as his appellate ration of an to a court of brief possible grounds ment as to for review and Appeals.”8 appeals or the Court of Criminal merit, advantages delineating their and the argues provision this Specifically, disadvantages of any further review.” compensation preparation for of a for the at 940. Id. Appeals to the Court of en- brief compasses preparation petition the a Accordingly, Ayala, “ap- under Jarrett and discretionary Giving effect to the 26.04(a) peals are exhausted” Article under meaning language, of the I plain statute’s court of final when the reaches its State, Boykin disagree. 818 S.W.2d See v. disposition court-appointed ap- of a case and 782, (Tex.Crim.App.1991). 785-86 pellate appel- counsel has the either advised Court, possibility lant of the this Appellate Rules of Procedure The Texas expressing professional possi- petition judgment clearly distinguish as to a for discretion- grounds ary and delin- from a brief the merits. Rule ble meritorious for review on eating advantages disadvantages procedural requirements the the 202 details 7. Former Article 26.05 authorized fees to be 6. to court part: to final conclusion peals. court of section Former Article 26.04 poor Whenever the court him. meanor ment section one or more accused ...” or at 106, Acts appeals or the employ 1., punishable Acts eff. eff. any charged 1965, practicing 1981, September January counsel, time of a 59th determines with a prior 67th Court of bona fide provided, Leg., p. the court shall 1, imprisonment “[f]or leg., p. attorneys 1, felony arraignment at an 317, 803, or a misde- prosecution in relevant to defend ch. arraign- ch. is too paid to a 291, 722, Ap- 8.Texas provides, be public (a) forming appointed counsel: a defendant time and labor case, Appeals. court of paid A preparation Code of Criminal counsel, defender’s sjs the a reasonable relevant the in a following ^[*] other than an required, experience criminal office, ^[*] part: or the Court attorney’s services, appointed to the appellate n proceeding complexity of the attorney n ability based article fee of Criminal brief to a represent ... shall n on the of the 26.05 per- a and the just content of services without and vio- review;9 very equal protection. Rule 203 details lation of procedural requirements different for the fil- Stephan Relator cites ex State rel. v. ing and of a content brief on the merits.10 In Smith, (1987), 242 Kan. 747 P.2d 816 addition, Texas Code of Criminal Procedure Supreme which the Kansas Court held that 1.051(d)(2)implicitly acknowledges article when an required was to advance distinction: An defendant is entitled expense out-of-pocket funds for an court-appointed attorney to a compensation, system without full violat him in “an to the Court of Criminal ed the Fifth Amendment of the United if directly is made from States Constitution. Id. 747 P.2d at 841. the trial court or discretion- similarly Courts in other states have held ary granted.” (emphasis review has been that the type services of an are a added). 1.051(d)(2)suggests Article that the property subject protection appeal process begin does not until a Amendment, Fifth and failure to granted. review is A read- court-appointed attorneys adequately is un 1.051(d) ing of together Articles 26.05 and Kemp, constitutional. Arnold v. 306 Ark. provision omits of compensation ap- for an (1991); DeLisio v. pointed attorney preparation for the fil- (Alaska Alaska, 1987); 740 P.2d 437 McNabb ing of a review. It (Iowa Osmundson, 1982); v. 315 N.W.2d 9 appointed attorney entitles an compensa- (Okla.1977); v. Bias 568 P.2d 1269 tion for the brief and other costs Oakley, State ex rel. Partain 159 W.Va. “appeal” only associated with the (1976); People 227 S.E.2d 314 ex rel. after granted. review is Randolph, Conn v. 35 Ill.2d 219 N.E.2d regard, majority reached the Arnold, 813 S.W.2d at However, proper light conclusion. of its Supreme the Arkansas Court held: legislature determination that did not attorneys’ conscripted When services are compensate attorneys, intend to public good, taking such a is akin to meaningfully fails to review relator’s consti- taking clothing food from a mer- tutional claims. taking chant or the of services from professional public good. other Takings Equal III. Clause and certainly attorneys required And when are Protection Claims out-of-pocket to donate funds to subsidize defendant, a defense for an 26.04, A reading of Articles 26.05 and 1.051 attorneys deprived property are in of legislature indicates that the did not intend money. form of attorneys preparation discretionary of appropriation Other states have held that the view, regardless of attorney’s whether the “taking” are of an labor is a under the granted. argues DeLisio, provisions Relator that this in results of the state constitution. an “taking” attorneys’ unconstitutional of 740 P.2d at 444.11 9.Texas Rule of vides, case a decision of a court of State. (d) the “Court of Criminal (a) as brief as shall state the name of the applying (2) (3) (1) The Court of Criminal A following: in relevant upon petition by Index.... Statement of the Case.... Statement n for review. The possible. n Appellate part: Regarding discretionary # It shall be addressed to Appeals appeals n Procedure 202 Appeals may Oral appellant party review shall be n of Texas” and Argument.... in a criminal shall include or n or the parties review pro- 10. Texas Rules of vides, tion 17 of the Texas Constitution "[n]o (a) (c) n ... shall file a brief within Although (7) Appendix.... (5) (4) (6) Briefs shall person’s property If review is in relevant Reasons for Review.... Prayer for Relief.... Grounds for Relief.... n not # specifically comply granted, part: Appellate n shall be with Rule 74. n noted Procedure 203 30 petitioning party taken, days ^[*] by relator, of damaged, granting pro- sec-

377 concluding in that “the in Ross argues indigents in Soto’s involved Relator also equal pro- require not Milligan’s position are denied Amendment does Fourteenth they of provide indigents of the law cannot receive with the services tection state to applying in discretionary benefit of counsel review be- seeking in counsel Ayala, 633 S.W.2d at we Court. 633 yond step appeal.” of the first heavily Moffit, 417 relied on Boss v. U.S. at 527. 2437, 2443-44, L.Ed.2d S.Ct. denying compensa- contends that Relator (1974), Supreme in which the United States preparing appellate tion to counsel held, only if results indi- Court “Unfairness vio- filing petition for gents singled and denied out the State of the Equal Protection Clause lates the system meaningful appellate access to the Amendment, particularly where Fourteenth Applying poverty.” of their because of claims that the court equal protection analysis, the Ross Court fully fairly address his conten- failed to indigent in had held that an North Carolina grounds raised tions. One of the for review “meaningful review with- access” discretionary review Soto’s out the assistance of an Appeals failed to com- was that the Court of review to the North Car- ply Appellate with Texas Rule Supreme olina Court. 90(a) every neglecting to address issue subject was the exist- matter Ross disposition necessary to final raised and ing system, North which is distin- Carolina Thus, in his for discre- appeal. system in several guishable from the Texas argued that the tionary Soto Court regard- ways. statutes The North Carolina of his Appeals “pass failed to on” several pro- ing appointment indigents of counsel for California, required by Douglas v. claims as as of vided taken 353, 356, 83 S.Ct. (1969 right. § N.C.Gen.Stat. 7A-450 (1963). argues that of- L.Ed.2d 811 Texas, Supp.1973). Unlike a defendant had a fering compensation indigent appel- to an right second to the North Carolina opts prepare and file a lant’s who “(1) Supreme criminal case help petition for review will [wjhich directly ques- involves a substantial indigents in equal protection of assure arising tion under the Constitution appellate process. or of this [i]n United States 26.05, 26.04, interpretation An of Articles dissent_” is a which there N.C.Gen.Stat. in two scenarios which con- and 1.051 results Texas, § 7A-31 no second Takings the Fifth Amendment travene exists, right and the Court the Fourteenth Amendment Clause and court, purely ex- first, attor- Equal Clause. In the Protection regarding Tex.RApp.P. cept capital cases. pre- neys pro their bono render services Also, provided North Carolina petition if a paring filing petitions. Even indigents variety in a for wider of situations the, attorney who filed granted and the example, indigent in than Texas. For an counsel, petition appointed he will remains North Carolina was entitled to services of preparing ap- compensation for receive a fine of five counsel ease where brief, pellate petition. for the Since but not likely or more was to be hundred dollars appeal an is not “exhausted” within assessed, hearing petition on a for a writ of a appointed meaning Article 26.04 until corpus, post-conviction proceeding, habeas a of the court counsel either informs the client probation Compare and a revocation. case, 1973) disposition possible appeals’ § (Supp 7A-451 N.C.Gen.Stat. review, grounds for and the ad- meritorious Tex.Code Crim.Proc.Ann. art. 26.04 review, distinctions, vantages disadvantages of such Despite significant these discretionary petition or a for compare existing Texas files Ayala Court did not attorneys for their procedure procedure North failure to with the Carolina Const, public destroyed applied without art. 17. for or use made_" compensation being adequate Tex. in exhausting “taking” Judge work is a concurring opin- Clinton noted in his attorney’s just of an services without com- ion in 633 S.W.2d at “Even now pensation in violation of the Fifth Amend- pity indigent appellant one feels ment of the United States Constitution. appointed whose a counsel achieved reversal appeals proudly the court of retired scenario, indigent the second an defen appellate affray victory, from the with his dant is on appeals his own after the court of leaving his erstwhile client to fend for him- disposed has of his case and counsel has discretionary self when the State seeks advised him of the merits of further review view from this Court.” Jarrett, pursuant 891 S.W.2d 935. He may prepare choose to and file a equal protec- This second scenario raises discretionary pro review se. This Court brief, tion concerns. In its amicus curiae granted approximately percent eleven of the Lawyers Texas Criminal Defense Association petitions disposed argues litigants, poor, that all rich both 1994.12 The chances that a will be meaningful should have access to discretion- granted an reduced when defen ary Compensation dant, procedural require unfamiliar with the who, professional judgment counsel in their law, ments and substantive files clients, consulting and after with their choose without the assistance of counsel. See De to file review will State, (Tex.Crim. grate v. 712 S.W.2d 755 help provide equal protection indigents in App.1986); Pumphrey v. appellate process. Although compensa- (Tex.Crim.App.1985). Ap Texas Rule of appointed tion will not ensure that pellate Procedure 200 lists the “character of every will choose to this Court may reasons” for which grant this Court case, deserving help it will avoid unfair denial requires review.13 grasp Each a firm many of review in cases. legal aspects and factual of the case for sought, knowledge which review of rele providing compensation law, procedural vant and substantive ac counsel, complying holding Texas is with the cess to Appeals current Court of Criminal Ross, at 94 S.Ct. at 2442: appeals and courts of decisions. In the un arbitrarily “[A] State cannot cut off likely grants event that this Court review of rights indigents open leaving while ave- pro petition, only se then would trial persons.” nues of for more affluent court the Under the Texas current Code indigent. Procedure, we courts of have created two last appeals disposed After the court of appeals has resort. The courts of become have case, may his indigents, defendant also the courts of last resort for while pro stop become a se if the State files those with resources need not there. become, Appeals review. As The Court of has Appeals 12. The Court of Criminal Statistics for Where a has decided an Ending August the Year 1994 indicate important question of state or federal law in granted the Court 148 of a total of 1671 applicable conflict with the decision of the disposed during Supreme Court of Criminal year. States; Court of the United (4) Where a court of has declared 200(c) Appellate pro- Rule Texas unconstitutional, appears miscon- to have vides, part: in relevant statute, rule, regulation, strued a or ordi- determining grant deny whether to dis- nance; review, cretionary following the ... indicates (5) appeals justices Where the of the court of the character of reasons that be consid- will disagreed upon question have a material of ered: decision; necessary law to its and (1) appeals Where a court of rendered a has (6) appeals Where a court of far de- has so decision in conflict with the decision of an- parted accepted from the matter; an usual course of other court of on the same judicial proceedings, or so far sanctioned Where a court of decided an has court, departure by such a a lower as to call important question of state or federal law been, the Criminal which be for an exercise of Court of has not but should settled Appeals; Appeals' power supervision. the Court of Criminal of filing pre- compensated for only for he would be facto, court of last resort de discretionary review paring petitions for counsel to employ those with the resources disposition in the of regardless of their Court As the this Court. United States Appeals.15 in Supreme Court held earlier Criminal Griffin 585, 591, Illinois, S.Ct. Further, provides for a the schedule also (1956), can be no “[T]here 100 L.Ed. 891 “Appeal to the Court of of fee $500.00 justice equal where the kind of reasonably inter- Appeals.” This is money enjoys depends man on the amount petition for dis- preted to mean that once a he has.” granted, the district cretionary review is 26.04, 26.05, and Accordingly, Articles will authorize fee $500.00 court Takings expenses 1.051 violate the Fifth Amendment involved and other brief Equal and the Protection Clause Clause and the granting of the between respect Amendment the Fourteenth with by This cannot disposition final Court. provide compensation for at- their failure to the fee authorized for the direct “exhausting” ap- torneys for their work in capital case as would not of a $500.00 peals. covering represen- the costs of come close capital tation of a defendant.16 of Fees IV. District Court’s Schedule 266th District Court’s Pursuant to the Although the Code Criminal Fees, respondent has violated his Schedule of currently require trial as it reads does not pay- duty by refusing to authorize ministerial judge counsel for the preparation filing- of for relator’s ment on review which he filed review. Ac- two clients, nothing of his in the Code behalf cordingly, because the denies rela- prohibits authorizing payment. a court from from this Court tor a writ of mandamus Fees, The 266th District Court’s Schedule of payment, I ordering respondent to authorize adopted by Judge of the the Administrative majority’s I dissent. further dissent January in 266th District Court on failure to address relator’s opinion for its 26.05(b) Texas accordance with Article of the schedule, the District dis- claim under Procedure,14 compels Code n parte interpretation cuss Ex Jarrett payment. spondent to authorize The sched- meaningfully in consider re- rule “Rep- ule a fixed rate of $200.00 claims. lator’s constitutional Discretionary in Petition Re- resentation nothing that view.” There the schedule OVERSTREET, JJ., join. BAIRD and judge may indicates that authorize the only granted, if fee nor does it prior approval is

indicate that neces- Thus, sary. reasonably relator believed 26.05(b) court-appointed attorneys provides: in the 266th 14. Article different of Fees took District Court after Schedule payments All made under this article shall be addition, February effect in 1988. paid in accordance with a schedule of fees unable to find Erath states that he has been adopted county formal action of the involving court-appointed attorney County case judges district criminal court within each Appeals granted the Court of Criminal which county, except county only that in a one February between jurisdiction judge with criminal the schedule and June adopted by judge will be administrative judicial district. study representation comprehensive 16.In it added). (emphasis Texas, Spangenberg Group capital cases in capital surveyed attorneys judges Respondent involved contends that he has never autho- amount applica- and found that the lowest payment of an cases in Texas rized of fees for $2,000 capital paid case was for a direct but has ordered tion $38,970. Spangen- highest "representation proceeding amount payment and the Capital Study Representation Appeals grants applica- berg Group, A the Court of Criminal (prepared for the State Bar of points autho- Cases in Texas 76 out that tion." Texas, Representation Legal Committee on at least three rized Row) (1993). three Those on Death review that were denied for

Case Details

Case Name: Peterson v. Jones

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 8, 1995

Citation: 894 S.W.2d 370

Docket Number: 71896

Court Abbreviation: Tex. Crim. App.