Jаmes Randall SMITH, David A. Jones, David Mitcham, and Charles Freeman, Relators, v. J.F. FLACK, County Auditor, Jon Lindsay, County Judge, El Franco Lee, Jim Fonteno, Bob Eckels, and E.A. Lyons, Commissioners, Respondents.
No. 69676
Court of Criminal Appeals of Texas, En Banc.
April 22, 1987.
This “investigative procedure” was patently illegal. The only information the police had at that time was that appellant lived in deceased‘s neighborhood and that his jacket, which he claimed had been stolen from him, had been found outside a window at the scene of the murder. These facts may have given rise to a strong suspicion that appellant was involved in the offense or knew something about it, but they fell well short of probable cause to arrest. Ussery v. State, 651 S.W.2d 767, 770-71 (Tex.Cr.App.1983). Appellant was therefore illegally detained when the hair sample and tennis shoe were surrendered, and any consent to their taking was vitiated. Daniels v. State, 718 S.W.2d 702, 707 (Tex.Cr.App.1986). These items should have been suppressed.
Turning to the Franks v. Delaware3 issue, the majority faults appellant for failing to pass through all the procedural hoops necessary for an appellate determination of the merits of his claim. In this context I note only that at no point did the State complain of this defect, and that in fact in its brief to the court of appeals the State conceded that the motion to suppress hearing was conducted, in part, “to determine whether allegedly false statements, knowingly and intentionally or in reckless disregard for the truth, were included in the affidavit, and if so, whether the false statements were necessary to the finding of probable cause.” The court of appeals found that several subparagraphs of the affidavit were indeed “falsе,” but, without passing on whether they were deliberately or recklessly so, held that even in their absence, the affidavit supplied probable cause. Appellant now maintains that without the allegedly infected subparagraphs, the affidavit is deficient. In reply, the State disputes this contention and nothing more. That is the posture in which the case comes before us. That is the posture in which we should decide it.
For the foregoing reasons, I respectfully dissent.
TEAGUE and DUNCAN, JJ., join.
Mike Driscoll, Co. Atty., David R. Hurley, Lupe Salinas and Joan M. Denton, Asst. Co. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
CAMPBELL, Judge.
This is an original mandamus proceeding brought by four court-appointed criminal defense attorneys (relators) who seek to compel the Harris County Auditor and Commissioners Court (respondents) to act pursuant to their statutory authority by paying attorney fees in accordance with
On June 4, 1986,2 a majority of the “Board of District Judges Trying Criminal Cases [in Harris County],” hereinafter referred to as the “Board of Judges,” agreed upon a schedule for setting fees for court-appointed attorneys in criminal cases.3 In connection with the adoption of the fee schedule, Honorable Jon N. Hughes, acting as “Administrative Judge of District Judges Trying Criminal Cases,” issued the following orders, which took effect June 5:
IT IS THEREFORE ORDERED that the Auditor of Harris County is not to approve payments stated on the claim for any fee for court appointed attorneys in excess of the maximum fees stated above.
IT IS FURTHER ORDERED that in the event that a claim is received in excess of the maximum as stated above, the claim is to be returned to the Administrative Offices of the District Courts for a judicial review.
On August 13, the Board of Judges amended their local rules to conform with this order by adding the following: “the Board of District Judges Trying Criminal Cases shall establish a fee schedule for court appointed attorneys stating a minimum and maximum for the categories as provided in
Meanwhile, on July 15, the County Auditor requested by letter an Attorney General‘s opinion “regarding the constitutionality and enforcement of the Order setting out the maximum amount of payment to court-appointed attorneys in Harris County....” (Relators’ Application for Writ of Mandamus, Exhibit 2). In that letter, the County Auditor took the position that the fee schedule was a valid order, promulgated pursuant to the Court Administration Act,
On July 22, the Attorney General responded by informing the County Auditor that his request for an opinion should be directed to the local county or district attorney. See
The commissioners court of a county is under a duty to budget and order paid the amount of any reasonable attorney‘s fee properly set by a criminal court judge pursuant to
article 26.05, Tex.Code Crim. Proc. , for the representation of indigent defendants. The trial judge‘s order can be overturned only on a showing that it was so arbitrary, unreasonable and capricious as to amount to an abuse of discretion.
Id. at 4.4
Subsequently, the County Auditor recommended to the Commissioners Court that it adopt Judge Hughes’ order. On July 29, the Commissioners Court adopted Judge Hughes’ order.
On July 28, Honorable Woody Densen, Judge of the 248th District Court of Harris County, entered an order awarding payment of attorney fees to Relator James R. Smith in the amount of $2,500 for prosecution of an appeal. See
Smith‘s claim was then reviewed by a “Judges’ Committee,” which consisted of three district judges selected from the Board of Judges. On August 14, the committee ordered that Smith‘s claim be denied and that a payment of $1,700 be made instead. On August 19, the County Auditor forwarded Smith‘s claim to the Commissioners Court, recommending approval of the reduced amount. On August 26, the Commissioners Court approved the reduced fee for payment.
An identical sequence of events occurred for Relators David A. Jones, David Mitcham and Charles Freeman. In each case, the County Auditor automatically transferred the relator‘s claim to the Board of Judges for a judicial review upon observing that the claim exceeded the maximum fee for that particular service as set by the fee schedule established by the Board of Judges and adopted by the Commissioners Court. The claims were then denied and a reduced amount was approved by a Judges’ Committee. On August 5, the Commissioners Court, following the recommendation of the County Auditor, approved each of the reduced fees for payment. Jones presented a claim for $250 and was paid $150. Mitcham presented a claim of $250 and was paid $150. Freeman presented a claim of $500 and was paid $425.
Before addressing the merits of relators’ application for a writ of mandamus, we must first determine whether this Court has jurisdiction over the instant cause.
II.
This Court has the power to issue writs of mandamus in all “criminal law matters.”
Relators argue that the instant case involves a criminal law matter because they seek relief pursuant to
In Weiner, an attorney sought to force a trial judge to award him fees under
In the instant case, four court-appointed attorneys are challenging the manner in which the County Auditor and Commissioners Court have paid claims for attorney fees.6 The fees were originally set by a trial judge under the authority of
While it is true that the instant suit does not seek to compel a trial judge to award fees as in Weiner, supra, relators are attempting to enforce a trial judge‘s orders for attorney fees that arose from criminal cases and were issued pursuant to a provision of the Code of Criminal Procedure. Undoubtedly, the enforcement of an order issued pursuant to a criminal statute is a
III.
This Court has adopted the traditional two-part test for determining whether writ of mandamus should issue. State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). To obtain relief through a writ of mandamus, a relator must establish that 1) the act he seeks to compel is ministerial, rather than discretionary, in nature and 2) no other adequate remedy at law is available. Id.; see also Ordunez v. Bean, 579 S.W.2d 911, 913 (Tex.Cr.App.1979).
A.
“An act is ‘ministerial’ if it constitutes a duty clearly fixed and required by law.” Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Cr.App.1987) (opinion on rehearing) (citing Wade v. Mays, supra). It must be “accomplished without the exercise of discretion or judgment.” Id.
In the instant case, relators argue that the County Auditor and Commissioners Court have a ministerial duty to pay attorney fees awarded by the trial court pursuant to
The provisions of
Through
Respondents argue that their mandatory duty to pay court-appointed attorney fees under
The Legislature has required that “[a]ll claims, bills and accounts against the county be filed in ample time for the auditor to examine and approve same before the meetings of the commissioners court. No claim, bill or account shall be allowed or paid until it has been examined and approved by the county auditor thereon.”
In the instant case, the County Auditor has not examined the claims for attorney fees awarded to relators pursuant to
The Texas Constitution provides that a commissioners court “shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.”
In the instant case, the Commissioners Court relinquished its financial responsibilities to the Board of Judges by relying upon the Board of Judges for judicial review and ultimate adjustment of relators’ claims. However, the Legislature has not provided the Commissioners Court with the authority to surrender such duties to the Board of Judges.10 The Commissioners Court has “a duty clearly fixed and required by law” to perform those financial duties itself. See Curry, supra. Given these circumstances, we find that relators correctly seek to compel the Commissioners Court to perform a ministerial act; relators cаn require the Commissioners Court to refrain from abdicating its duties to the Board of Judges and to “[a]udit and settle” their claims for attorney fees and to “direct their payment.”
Respondents, and the Board of Judges in its amicus curiae brief, argue that the respondents’ payment of lesser fees was proper because of the fee-setting limitations placed on trial judges by Rule VI(E), which was promulgated pursuant to the Court Administration Act (hereinafter “Act“),
The Act provides courts with a direct statement of legislative intent. Acts 1985, 69th Leg., ch. 732, § 1. In part, the Legislature intended for the Texas Judicial Council and the Supreme Court to prepare a plan for reapportionment of the supreme judicial districts. Id. However, it had another reason for passing the Act:
It is the further intent of the legislature that the administration of trial courts in this state be improved in order to provide all citizens of this state a prompt, efficient, and just hearing and disposition of all disputes before the various courts, and that all district and statutory county courts adopt rules of administration as provided by this Act.
Id.
Consistent with that intent, the Legislature provided that “[t]he district and statutory county court judges in each county shall, by mаjority vote, adopt local rules of administration.”
The Board of Judges relies upon this last provision for its authority to promulgate Rule VI(E), which binds all district judges trying criminal cases to a schedule for setting court-appointed attorney fees. However, such a construction of this provision will not support such a claim.
We find that it was not the intent of the Legislature to authorize a group of district courts to control a single trial court‘s independent discretion in setting court-appointed attorney fees under the guise of establishing “administrative rules.” A trial court‘s decision to award a particular fee to a court-appointed attorney does not involve an administrative function. It is a “criminal law matter” controlled by
Having so found, we conclude that the respondents’ reduction of relators’ claims for court-appointed attorney fees could not
Having found that relators properly seek to compel respondents to perform a ministerial act, we must now determine whether they have any other adequate remedy at law.
B.
Relators acknowledge that a remedy at law, e.g., filing a suit in civil district court, may exist in the instant case. However, they argue that the mere existence of some remedy at law does not necessarily prevent mandamus from issuing. We agree.
A writ of mandamus is an extraordinary remedy that compels a respondent to perform some ministerial act. Often involved are sensitive questions concerning an elected official‘s authority to perform a particular duty. To assure that a relator will not prematurely apply for extraordinary relief via writ of mandamus, this Court, consistent with the Supreme Court, requires that a relator show that he has no other adequate remedy at law before mandamus will issue.
In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate. See, e.g., Houston & T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 656 (1905) (“there is not a plain, adequate, certain, and speedy remedy“); City of Highland Park v. Dallas Ry. Co., 243 S.W. 674, 681 (Tex.Civ.App.-Dallas 1922, writ ref‘d) (remedy must be “equally convenient, beneficial, and effective as the proceeding by mandamus“).
Given the subjective nature of such terms as “plain” and “uncertain,” “convenient” and “inconvenient,” “effective” and “ineffective,” this Court must examine the specific circumstances of each case and carefully exercise its discretion before deciding whether a particular remedy at law is adequate. See, e.g., Dickens, at 551-552 (discussing the adequacy of reviewing pretrial discovery orders through appeal). In addition, equitable principles arе necessarily involved when we consider whether mandamus should issue. See Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941).
Whether the construction of a criminal statute such as
Of these cases, one court provided a persuasive discussion of its reasons for finding the remedy at law inadequate.12 See Chrestman v. Tompkins, supra. In Chrestman, a Dallas attorney applied for a
As heretofore shown, there was no controversy over any matter except as to the legal authority of the board of education to incur the indebtedness and pay for same out of the general school fund of the city. Relator‘s fee had been earned, it wаs then due, the board of education was willing to pay, and for that purpose had authorized the issuance of the warrant. Relator was entitled to have his fee paid at once without being forced to pursue the circuitous route of a suit in court to establish the claim, with the expense and delay necessarily incident to such a course.
If the auditor, for the reason stated, is permitted to refuse approval of this claim, clothed as it is with indisputable evidence of validity and correctness, and thus compel institution of a suit for its establishment by judgment before meriting his approval, he could, if in an arbitrary mood, likewise withhold approval from every warrant issued by authority of the board of education for the payment of salaries of officers, teachers, and employees, to the utter demoralization of the school system of the city.
The only adequate, specific, appropriate remedy for the situation presented was the writ of mandamus compelling the auditor to do the only thing necessary to be done; that is, to approve the warrant for payment, no other [rеmedy] could afford relief as adequate.
In International Water Co. v. City of El Paso, 51 Tex.Civ.App. 321, 112 S.W. 816, 819 (1908), responding to the contention that mandamus could not be resorted to because plaintiff had an adequate remedy at law, the court, quoting from High on Extraordinary Remedies, said:
“It is to be borne in mind, in the application of the principle under discussion, that the existing legal remedy relied upon as a bar to interference by mandamus must not only be an adequate remedy in the general sense of the term, but it must be specific and appropriate to the particular circumstances of the case; that is, it must be such a remedy as affords relief upon the very subject matter of the controversy, and if it is not adequate to afford the part aggrieved the particular right which the law accords him, mandamus will lie, notwithstanding the existence of such other remedy.”
Similar to the situation in Chrestman, only a single legal issue remains. The only issue that remains in the instant case is whether the County Auditor and Commissioners Court could lawfully delegate their authority to examine and approve the county‘s accounts to the Board of Judges. This is true because it is uncontroverted that Judge Denson ordered reasonable fees paid to relators under
Nonetheless, respondents have denied, and apparently intend to continue to deny, all claims from court-appointed attorneys for their fees solely on the basis of an unauthorized fee schedule originally established by the Board of Judges. That policy plainly contradicts the method of fee-setting established by the Legislature in
We conditionally grant relators’ application for writ of mandamus. Unless respondents reconsider relators’ claims for court-appointed attorney fees consistent with this opinion, writ will issue.
WHITE, J., concurs in result.
CLINTON, Judge, concurring.
Regarding the power of this Court to issue writs of mandamus in “criminal law matters,” from but one of several definitions of “matter” found in a general law dictionary the opinion of the Court translates the term to mean “when a criminal law is the subject of the litigation.” Majority opinion, p. 788.1 I cannot subscribe to that understanding of “matters” in the constitutional and statutory term “in criminal law matters.”
Like all other similar remedies, the writ of mandamus is an extraordinary writ. 38 Tex.Jur.3d 40-41, § 7; former Tex.Cr.App. Rule 313;
Accordingly, stoutly disagreeing with its interpretation, for reasons stated I conclude that in this criminal law matter this Court has plenary original jurisdiction, power and authority to determine whether to grant the extraordinary writ for which relators pray.
Furthermore, even the erroneous formulation out of a dictionary definition is flawed by vagueness and overbreadth. The interpretation is easily formulated in the instant proceeding because
The same dictionary cited in the majority opinion presently defines “litigation” as “a lawsuit” and “a suit at law:” “A contest in a court of law for the purpose of enforcing a right or seeking a remedy.” Black‘s Law Dictionary (Fifth Edition) 841. The earlier edition specified, e.g., “civil actions.” Black‘s Law Dictionary (Fourth Edition) 1082. Then as now, however, Black‘s tell us that “suit” is a generic term “seldom applied to a criminal prosecution.” Id., Fifth Edition, at 1286; Fourth Edition, at 1603.
Most such definitions are drawn from civil cases in other jurisdictions and, in some instances, Federal Rules of Civil Procedure. They are not all that helpful in determining what is “a criminal law matter” under our own Constitution and statutes; the interpretation of the majority here is fraught with much difficulty, and is surely to cause a great deal of confusion—more than once found in our appellate judicial system. See, e.g., Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974) (Concurring opinion by Roberts, J.)
With little imagination one may conjure up civil actions in which “a criminal law” is “the subject of the litigation,” or “directly involve[d]” in it. Majority opinion, at p. 788. Take, for an example, the fertile field of civil actions for wrongful bodily injury or death in which the defense is justification under
There is another problem in all this. In Texas a criminal prosecution is a criminal case—“a criminal action,” as defined in
“A criminal action is prosecuted in the name of the State of Texas against the
However, with the change of language to “in criminal law matters,” the “matter” alluded to is an original proceeding in this Court and its nature in relation to criminal law.
See also, e.g. Black‘s (Fifth Edition) 27 and 336; Fourth Edition) 49 and 447, under Action and Criminal, respectively. Since the majority believes that “a criminal law [must be] the subject of the litigation,” its formulation does not readily include an ancillary proceeding in “a criminal action” where “a criminal law” is not “directly involved.”5 Again, the problem lies in failure to accept the intended meaning of the term “in criminal law matters.”
Finally, the majority addresses a contention of respondents and amicus curiae that the Court Administration Act authorizes their scheme for setting fees at issue here, and for reasons given finds that the Legislature did not intend to authorize the manner in which that apparatus was setup. With that I do not disagree, but based on my understanding that the claimed authority for what was done here lies in an order issued by Honorable Jon N. Hughes, in a capacity as “Administrative Judge of the District Judges Trying Criminal Cases,” I turn briefly to examine that notion.
Chapter 5 of the Act deals with administration by county. At the outset it declares, “There is a local administrative judge in each county,” and provides that in a county with two or more district or statutory county courts (as Harris County certainly is) “the judges of those courts shall elect a district judge as local administrative judge....” Section 5.001(a) and (b). Plainly that section authorizes but one local administrative judge in Harris County to perform the duties and functions listed in § 5.002.
When he signed and entered the order of June 4, 1986, as “Administrative Judge, District Judges Trying Criminal Cases,” Judge Hughes did not purрort to act as the local administrative judge in Harris County, and we judicially know that on June 4, 1986, he did not and another district judge did hold that office. Nowhere in the Act is there a provision expressly or implicitly authorizing the position held by Judge Hughes or his issuing such an order to the County Auditor. That it was adopted by “Board of District Judges Trying Criminal Cases” in meeting assembled will not provide that authority; the Act does not create any such “board” and even if § 5.003(c) may be interpreted broadly enough to admit creating it in a “rule of administration,” no one contends and this record does not show any rule to that effect has been adopted by a majority vote of all “district and statutory county court judges [in Harris County],” as required by § 5.003(a).6
Except as indicated, then, I agree with much of what the majority has to say and to find and to conclude. However, because I find its interpretation of
ONION, Presiding Judge, dissenting.
“While unconstitutional exercise of power by the executive and legislative
The authority of the Court of Criminal Appeals to issue a writ of mandamus is limited. It may issue such writ only “in criminal law matters.”
It is true the fees were ordered paid under
“Laws are made for men of ordinary understanding and should therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought in metaphysical subtleties, which may make anything mean everything or nothing at pleasure.” Thomas Jefferson, Letter to William Johnson, June 12, 1823.
From the effective date of the 1891 amendment to
During such times the Court of Criminal Appeals did not even have the authority to issue a writ of mandamus to compel a speedy trial in a criminal case. Its appellate jurisdiction was not involved. Only the Supreme Court of Texas under its general mandamus authority could issue such a writ. Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969), cert. den. 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970).
When Senate Joint Resolution 18 was pending in the 65th Legislature (1977), this writer and other members of the Court of Criminal Appeals appeared before legislative committees of the House and Senate to explain its provisions, and to рoint out that under existing constitutional provisions this Court, a court of last resort for criminal law matters, did not even have the authority to issue writs of mandamus to compel speedy trials in criminal cases, that such business had become big business in the Supreme Court, and changes were needed. See Thomas v. Stevenson, 561 S.W.2d 845, 847 (Tex.Cr.App.1978) (Concurring Opinion, Onion, P.J.); Tape Recordings of Hearings, House Committee on Constitutional Amendments, April 6, 1977, on file with the Texas House of Representatives; Dix, Appellate Review by Mandamus and Prohibition in Texas Criminal Litigation, 17
S.J.R. 18 proposed an amendment to
(Emphasis supplied.)“Subject to such regulations as may be prescribed by law, regarding criminal law matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, certiorari, and such other writs as may be necessary to protect its jurisdiction or enforce its judgments....”
As pointed out in the concurring opinion in Thomas v. Stevenson, supra, at p. 848, there were limitations imposed on the newly granted authority.
(Emphasis supplied.)“One important limitation, however, is that the court‘s authority to issue such above described writs is limited to ‘criminal matters.’ The limitation was the subject of a committee substitute to said Senate Joint Resolution by Senator Bill Meier of Euless, sponsor of the joint resolution, early in the legislative process, to counter claims that without such limitation the Court of Criminal Appeals might use its newly granted writ powers in civil law matters.”
With today‘s opinion it can be said that the fears expressed in 1977 were well founded, and the drafters had a real basis for inserting a limitation into the authority being newly granted to the Court of Criminal Appeals.
Despite slight changes in the language,2 the limitation was retained and brought forward in the 1980 amendment to said
“Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus and, in criminal law matters, the writs of mandamus, procedendo, prohibition and certiorari....”
As earlier noted, relators now seek the issuance of a writ of mandamus from this Court of last resort in criminal matters to compel payment of the balance of the fees awarded them as court-appointed counsel by a district judge under
Even a first-year law student would have no difficulty in identifying this monetary dispute a civil law matter. And he would have no difficulty in understanding that in the trial of a criminal case the application and interpretation of civil statutes are often involved and vice versa.
In my opinion the instant proceeding is not a “criminal law matter” as contemplated by
Only recently in Dickens v. Court of Appeals for Second Supreme Judicial District, 727 S.W.2d 542 (Tex.Cr.App.1987), this Court noted the mandamus jurisdiction of the Courts of Appeals.
Further and most importantly,
The general mandamus authority of the district court covers both civil and criminal law matters. The district court (248th District) which issued the orders for the payment of the fees is a constitutional district court with jurisdiction over both civil and criminal cases.
Under current and past constitutional provisions the Court of Criminal Appeals has had general and unlimited jurisdiction to issue original writs of habeas corpus.
There is no reason why this policy should not be continued and also applied where the extraordinary writ of mandamus is involved. If mandamus is a proper remedy, then why should not the relators seek that remedy in the very district court whose orders they seek to enforce? Thus even if it could be validly argued that this Court has jurisdiction I would deny the mandamus application since such action would be within this Court‘s sound discretion and because of Court policy, and because of the lack of urgent necessity to involve a court of last resort for 254 counties as a clearing house for all local monetary disputes.
There are, of course, other reasons why the writ of mandamus should not issue in this instant case. “The modern writ of mandamus is an order issued by a court of competent jurisdiction requiring some inferior court, official, corporation, or board to perform a duty compelled by law.” 38 Tex.Jur.3rd, Extraordinary Writs, § 114, p. 238. (Emphasis supplied.) Mandamus is an extraordinary remedy, and its issuance rests largely in the court‘s discretion. It has been described as a summary, harsh and drastic remedy. Fenner v. Brockmoller, 404 S.W.2d 369 (Tex.Civ.App.-El Paso 1966).
Relators have filed sworn pleadings setting forth their contentions with exhibits and a brief. The respondents have answered in response to this Court‘s order. This Court does not take testimony. Ex parte Rodriguez, 169 Tex.Crim.R. 367, 334 S.W.2d 294 (Tex.Cr.App.1960). Thus the decision before this Court is being decided without testimony. “In mandamus actions greater certainty of the pleadings and the facts to be established by mode appropriate in appellate court [is] required....” Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex.Cr.App.1982). There is greater strictness in the pleadings, and when the mandamus application is made to an appellate court which has limited fact-finding abilities, the writ must not depend on the determination of a doubtful question of fact. Kopeski v. Martin, supra, at p. 745.
The record before this Court indicates an ongoing local controversy about the possible excessiveness and unreasonableness of fees ordered paid appointed counsel in criminal cases by some of the district judges in Harris County. This has apparently led to the action taken by the “Board of District Judges Trying Criminal Cases” acting under
The facts available from this record need not be rehashed here. Considering all of the allegations and the duties of the respondents, their remaining right to legally test the reasonableness of the unpaid balances claimed due to the relators, questions of law and fact are provoked which clearly indicate that more than a ministerial duty on the part of the respondents is here involved. See and cf. Lovell v. Bynum, 315 S.W.2d 20, 24 (Tex.Civ.App.-Austin
The majority admits there are other remedies available to the relators but they are not “equally as convenient, beneficial and effective as mandamus” providing “the same swift, exact and sure relief.” No other remedy need apply. Nothing is as swift, convenient and effective as a writ of mandamus from the Court of Criminal Appeals to collect money.
In arriving at its conclusion the majority fears the construction of
Exceeding the mandamus jurisdiction of this Court, the majority has set itself up as a Super Board of Judges to pass on all local monetary disputes over fees paid court-appointed counsel and all other civil matters involving a criminal law.
“I know of only one authority which might justify the suggested method of construction:
“‘When I used a word’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is’ said Humpty Dumpty, ‘which is to be master—that‘s all.‘” Lord Atkin, Liversidge v. Anderson [1942] A C 206, 245 Quoting Lewis Carroll, Through the Looking Glass, Chapter 6.
The majority should keep in mind the words of Justice Jackson in Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469, 533 (1953):
“We are not final because we are infallible, but we are infallible only because we are final.”
I dissent to the action of the majority with the greatest concern over the lack of judicial discipline and restraint.5
Notes
Sec. 1. A counsel appointed to defend a person accused of a felony оr a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing, shall be paid from the general fund of the county in which the prosecution was instituted or habeas corpus hearing held, according to the following schedule:
(a) For each day or a fractional part thereof in court representing the accused, a reasonable fee to be set by the court but in no event to be less than $50;
...
(e) For the prosecution to a final conclusion of a bona fide appeal to a court of appeals or the Court of Criminal Appeals, a reasonable fee to be set by the court but in no event to be less than $350[.]
(emphasis added).Relators also argue that the county‘s failure to pay court-appointed attorney fees interferes with a defendant‘s right to counsel under the federal constitution.
(All emphasis is mine throughout unless otherwise noted.) The language contained in“Subject of litigation; matter on which action is brought and issue is joined and in relation to which, if issue be one of fact, testimony is taken. Rights which plaintiffs assert and seek to have protected and enforced.”
(Emphasis supplied.)“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its jurisdiction....”
“An act is said to be [subject to extraordinary relief] where the law clearly spells out the duty to be performed by an official and does so with such certainty that nothing is left to the exercise of discretion or judgment. Forbes v. City of Houston, 356 S.W.2d 709 (Tex.Cr.App.1962).”
One may anticipate that our decision in this extraordinary matter is not likely to settle for all time the underlying controversy.