Curry v. Wilson

• Decision Date: 07 April 1993
• Docket Number: No. 1,T,No. 71393,1,71393
• Citation: 853 S.W.2d 40
• Parties: Dusty Duane CURRY, Applicant, v. Hon. Sharen WILSON, Judge, Criminal District Courtarrant County, Respondent.
• Court: Texas Court of Criminal Appeals

Page 40

853 S.W.2d 40

Dusty Duane CURRY, Applicant, v.Hon. Sharen WILSON, Judge, Criminal District Court No. 1 Tarrant County, Respondent.

No. 71393.

Court of Criminal Appeals of Texas En Banc.

April 7, 1993.

Rehearing Denied May 19, 1993.

Jeff Kearney, Ward Casey, Fort Worth, for applicant.

Allan K. Butcher, Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

WHITE, Judge.

In an original application for writ of prohibition, applicant has requested that this Court order respondent, The Honorable Sharen Wilson, to refrain from activity that would allow the enforcement of Capias Pro FinumNo. C-3328 and to cease all of her efforts to collect $16,055.00 in legal fees.Tarrant County incurred the legal fees as a result of its provision of appointed counsel to applicant throughout his criminal trial.After reviewing the facts and law, and after determining the merits of the case presented, we will not issue the requested writ.

In order to place the matter in its proper perspective, we will first briefly review the facts leading up to the instant application.On February 5, 1990, applicant was charged with involuntary manslaughter in Tarrant County.His trial began on November 12, 1990 in Criminal District Court Number One, where respondent sits as a district judge.The trial ended on November 20, 1990.The jury returned a verdict of "not guilty."

After respondent dismissed the jury, she immediately notified applicant that she had become aware that he had the resources to pay for his legal representation.Additionally, she notified applicant that pursuant to Tex.Code Crim.Proc.Ann., Art. 26.05(e), he would be required to pay for his attorneys' fees.Article 26.05(e) provides:

"If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay the amount that it finds the defendant is able to pay."(emphasis added).

Respondent then ordered applicant and his attorneys to return to her court later to work out the repayment schedule details.

On December 10, 1990, applicant and his attorneys appeared, as ordered, for a hearing in respondent's court.At that hearing, respondent ordered applicant to repay the legal fees which the county incurred in his defense.Applicant was allowed to participate in the development of the repayment plan; in fact, the plan was modified, at applicant's suggestion, to fit his budget.The following exchange took place:

"THE COURT: I've had a chance to review your PSI and under the law you are not indigent and, therefore, I'm going to order that you pay back the court the attorneys' fees and investigative fees and other fees that were expended on behalf of your defense.You're going to want to do that, I think, because you had very good results.You got a couple of the best lawyers in town.

MR. CURRY: Yes, ma'am.

THE COURT: You're going to be ordered to pay $16,055 into the registry of the court.Those payments will be made on a monthly basis and according to you income, I'm going to order them in an amount of $300 a month.Is there any problem with that?

MR. CURRY: Yeah.

MR. KEARNEY: Just tell her you can do the best you can.

MR. CURRY: That's all I can do.

THE COURT: What amount can you pay, because it's contempt of court for you not to pay them, and that means you go to jail?

MR. CURRY: We're in the off-season where I work.We don't work this time of year.

THE COURT: What months do you work?

MR. CURRY: February through August.

THE COURT: Okay.So, how much can you pay in the off-season?

MR. CURRY: $300 a month, right now there's no way.

THE COURT: What can you pay in the off-season?

MR. CURRY: I have--I don't have any idea.

THE COURT: Are you not working at all the rest of the year?

MR. CURRY: We take off.

THE COURT: You don't work at all?

MR. CURRY: We don't make any--

THE COURT: You just have this one job and that's only six months a year, and the rest of the year you don't work at all on any job?

MR. CURRY: I work for my brother and I still work on cars and everything.

THE COURT: How much do you make when you do that?

MR. CURRY: $300.

THE COURT: A month?

MR. CURRY: A week.

THE COURT: In the off-season; that is, the months other than February through August, he's ordered to pay $100 a month.February through August, he's ordered to pay $300 a month until this is paid in full.Do you understand that?

MR. CURRY: Yes.

THE COURT: Failure of your--I will put you in jail for failure to pay.Do you understand that?

MR. CURRY: Yes."

Applicant did not object to the proceeding or to the order of the court.

Following the hearing, respondent issued a "Certification of Proceedings."The certification documented applicant's duty to follow the order of the court.Applicant completely and utterly failed in his duty to make a single payment to the court.As a result, on September 20, 1991, respondent issued a "capias pro finum."Applicant was never arrested and his liberty was not otherwise restricted.

On February 20, 1992, applicant, through his attorneys, filed a "Motion to Recall, Vacate, and Set Aside Capias Pro Finum for Want of Jurisdiction."The same day, a hearing was held before respondent.At the hearing, the Tarrant County District Attorney's Office indicated that it did not wish to participate.Consequently, respondent announced that she would appoint a special prosecuting attorney to represent the state and that the hearing would reconvene on March 5, 1992.Additionally, respondent recalled the court's warrant for the arrest of applicant.

On Feb. 26, 1992, applicant filed this original application for writ of prohibition.Applicant requested that this Court issue an order to prohibit respondent from enforcing its capias pro finum and from taking further action to collect the legal fees.

The first question which we must address is whether this Court has jurisdiction to hear and determine this matter.Respondent argues that we do not have jurisdiction; that this is not a criminal law matter.

This Court has the power to issue writs of prohibition in criminal law matters.TEX. CONST., Art. V, § 5.Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution, are criminal law matters.As Judge Campbell said previously in Smith v. Flack:

"Undoubtedly, the enforcement of an order issued pursuant to a criminal statute is a criminal law matter as much as the issuance of the order itself, even if it requires this Court to examine civil laws in the process.Were it otherwise, this Court's power to decide criminal law matters would be seriously eroded or eliminated all together by the incidental presence of civil law matters."

Smith v. Flack, 728 S.W.2d 784, at 788-789(Tex.Crim.App.1987)(Involving, similarly, a dispute over Tex.Code.Crim.Proc.Ann., Art. 26.05).

The instant case arose out of a dispute over a district judge's authority to enforce an order which was mandated by Tex.Code Crim.Proc.Ann., Art. 26.05(e).Additionally, the order was issued by a district judge in an effort to recoup the cost of legal services provided to a defendant in a criminal trial.Therefore, this dispute is a criminal law matter and this Court has jurisdiction to hear the case and determine whether a writ of prohibition should issue.¹

We will now address the merits of applicant's claim.In order to show that he is entitled to extraordinary relief, applicant must demonstrate to this Court that: (1)he has no other adequate remedy at law; and that (2)he is clearly entitled to the relief sought.Buntion v. Harmon, 827 S.W.2d 945, at 947(Tex.Crim.App.1992)(see footnote 2);Sutton v. Bage, 822 S.W.2d 55, at 57(Tex.Crim.App.1992);andStearnes v. Clinton, 780 S.W.2d 216(Tex.Crim.App.1989).

After careful consideration, it seems abundantly clear to us that, indeed, applicant has no other adequate remedy at law at this time.However, we believe that he is not clearly entitled to the relief he seeks.

Applicant prays that this Court order respondent to refrain from arrest, detention or seizure of applicant or his property and to refrain from any action to coerce payment of the fees which respondent has ordered him to pay.At the hearing on applicant's "Motion to Re-call, Vacate and Set Aside Capias Pro Finum" which was held on February 20, 1992, respondent withdrew the court's warrant.She stated: "The court's warrant is re-called."We can only construe the court's statement as a withdrawal of the "Capias Pro Finum."Thus, we need not address the question of whether it is within respondent's authority to seize applicant or his property for failure to pay as ordered.To do so would be merely advisory since applicant is no longer under imminent threat of confinement.Additionally, if respondent were to seize applicant or his property, applicant would have an adequate remedy by way of habeas corpus.

Nevertheless, there still exists the matter of the court's authority to seek reimbursement of the legal fees expended on applicant's behalf.Applicant advances the claim that any attempt by the court to seek reimbursement for his legal expenses pursuant to Tex.Code Crim.Proc.Ann., Art 26.05(e) is void.In support he argues that respondent had no jurisdiction to order him to re-pay the legal fees because at the moment respondent entered a judgement of acquittal in his case, the court's jurisdiction was terminated.

It is true, as applicant notes, that in Garcia v. Dial, 596 S.W.2d 524(Tex.Crim.App.1980), we reiterated the well settled principle that:

"when a trial court empowered with jurisdiction over a criminal case sustains a motion to dismiss the indictment or information, the person accused thereunder is, in law, discharged from the accusation against...