IN RE: DALLAS COUNTY PUBLIC DEFENDER

Reset A A Font size: Print

Court of Criminal Appeals of Texas.

IN RE: DALLAS COUNTY PUBLIC DEFENDER, Relator

NO. WR-88,055-01

Decided: April 25, 2018

KELLER, P.J., filed a dissenting opinion in which HERVEY, J., joined.

Article 26.04 requires a trial court to give a county public defender priority when appointing counsel to represent a defendant unless (1) the trial court has reason to appoint other counsel or (2) an attorney is appointed under a managed assigned counsel program that also exists in the county.1 Article 26.052 prescribes procedures for appointing attorneys in death-penalty cases. It is silent about public-defender priority but says that its provisions apply, “Notwithstanding any other provision of this chapter.”2 The Dallas County Public Defender's Office contends that the trial court violated Article 26.04 by appointing an attorney who was not assigned to the Public Defender's Office without providing a “reason to appoint other counsel.” At issue here is an important question of law: Does the public-defender priority provision apply to death-penalty cases?

The Fifth Court of Appeals initially granted mandamus relief, holding that the plain language of Article 26.04 required giving the public defender priority and that the trial court had to specify its reasons for appointing other counsel.3 On rehearing, the court denied mandamus relief, holding that the plain language of Article 26.052 meant that Article 26.04 did not apply to death-penalty cases.4

For mandamus purposes, there are three possible conclusions about the interaction between Articles 26.04 and 26.052, only the first of which would permit mandamus relief: (1) Article 26.04's public-defender-priority provision unambiguously controls in all cases, including death-penalty cases, (2) Article 26.052 unambiguously precludes the application of Article 26.04 to death-penalty cases, or (3) the interplay between the statutes is ambiguous.5 Conclusion (1) may seem unlikely at this point but, given the importance of the issue, I would stay the proceedings and request responses from the trial court and the real party in interest before resolving the matter.

Because the Court denies relief without doing so, I respectfully dissent.

FOOTNOTES

1.   TEX. CODE CRIM. PROC. art. 26.04(f).

2.   Id. art. 26.052(a), passim.

3.   In re Dallas Cty. Pub. Defender's Office, Nos. 05-17-01151-CV, 05-17-01152-CV, 05-17-01153-CV, 2017 Tex. App. LEXIS 11089 (Tex. App.—Dallas November 29, 2017) (mem. op.).

4.   In re Dallas Cty. Pub. Defender's Office, Nos. 05-17-01151-CV, 05-17-01152-CV, 05-17-01153-CV, 2018 Tex. App. LEXIS 505 (Tex. App.—Dallas January 18, 2018) (mem. op.).

5.   See In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (mandamus sometimes available for an issue of first impression if the law is otherwise clearly established).

Copied to clipboard