IN RE: ERIC DEAN PERKINS

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Court of Criminal Appeals of Texas.

IN RE: ERIC DEAN PERKINS, Relator

NO. WR-85,009-01

Decided: October 12, 2016

JOHNSON, J., joined by RICHARDSON and NEWELL, JJ., filed a concurring opinion.

CONCURRING OPINION

In this case, relator applied to us for relief through a writ of mandamus. I concur in the disposition of his application for relief.

This Court's standard for granting mandamus relief requires that a relator have no adequate remedy at law and that the requested action by respondent is ministerial. In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013). The Texas Supreme Court has a three-part standard: a legal duty to perform a nondiscretionary act; a demand for performance; and a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). Relator has not shown that he has fulfilled the requirements of either standard.

Two thoughts occur to me: one must use the right tools for the job, and if one wishes relief one must ask for the tools by which to obtain it. In this sort of case, the first required tool is written findings by the trial court. Pursuant to Texas Code of Criminal Procedure art. 26.05(c),

[n]o payment shall be made under this article until the form for itemizing the services performed is submitted to the judge presiding over the proceedings ․ and until the judge ․ approves the payment. If the judge ․ disapproves the requested amount of payment, the judge ․ shall make written findings stating the amount of payment that the judge ․ approves and each reason for approving an amount different from the requested amount.

If the judge does not approve the requested amount or fails to act on the request by the 60th day, the attorney

may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region. On the filing of a motion, the presiding judge of the administrative judicial regional shall review the disapproval of payment or failure to act and determine the appropriate amount of payment.

By the plain language of Art. 26.05(c), the determination of an appropriate payment is at the discretion of the judge. But written findings by the judge shall be made in regard to that determination if the requested amount is not fully paid and therefore are ministerial. The written findings must be made.

If they are not made, the attorney lacks the right tool for addressing the diminished payment and therefore must seek to obtain that tool by filing a written request that the required written findings be made. If, after such a request, the written findings still are not made, the judge is subject to a writ of mandamus that orders that written findings be made. Logically, such a writ should be issued by the presiding judge of the administrative judicial region, or by higher authority if the presiding judge fails to act. Once the written findings are made, the usual appeal rules apply.

I note that, while a writ of mandamus may be issued to force creation of written findings, it cannot dictate what those findings will state; the content of findings is left to the discretion of the judge.

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