Ex parte Gray

• Decision Date: 11 May 1983
• Docket Number: No. 69098,69098
• Citation: 649 S.W.2d 640
• Parties: Ex parte Will GRAY, Appellant.
• Court: Texas Court of Criminal Appeals

Page 640

649 S.W.2d 640

Ex parte Will GRAY, Appellant.

No. 69098.

Court of Criminal Appeals of Texas,

En Banc.

May 11, 1983.

Terrence Gaiser and Ken J. McLean, Houston, for Gray.

Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

McCORMICK, Judge.

This is an application for a writ of prohibition or habeas corpus. Applicant Will Gray is an attorney seeking to overturn and prevent enforcement of an order of the Thirteenth Court of Appeals barring him from accepting court appointments to represent indigent defendants in trial or appellate courts within the Second Administrative Judicial District of Texas for a period of six months. Gray also seeks to overturn a judgment of contempt entered against him by the 177th Judicial District Court of Harris County based on his refusal to accept an appointment to represent an indigent defendant in a criminal matter. ¹

The events leading to the Court of Appeals' order show the following:

On March 15, 1982, Armando Marroquin was convicted in the 24th Judicial District Court of Jackson County of aggravated assault and sentenced to seven years' confinement and a $3000.00 fine. Marroquin was represented at trial by Hector Azios, retained counsel. Subsequently, fifty-two days after sentencing, Azios sought to have Marroquin declared an indigent for purposes of appeal. The trial court denied Marroquin indigent status and an appeal was taken therefrom by Azios. After a motion for an extension of time to file the statement of facts from the indigency hearing was granted, the same was timely filed in the Court of Appeals, completing the record on appeal to that court. ²

On September 9, 1982, the Court of Appeals ordered Azios, who was served with a copy of the order by certified mail, to file a brief in that court.

On October 4, 1982, applicant Gray first became involved in the matter when he filed for Azios a motion for an extension of time in which to file a brief in which Gray stated: "Will Gray has agreed to file the brief for Mr. Azios and will do so as soon as he can obtain a copy of the transcript and determine whether or not notice of appeal was timely given, and, if it was not, to move this Court for leave to give out-of-time notice of appeal." The motion was granted by the Court of Appeals and the time extended until October 9, 1982. The Court of Appeals, sua sponte, granted a further extension of time in which to file the brief. The brief was to be filed by October 29, 1982. Notice of this extension was given to Gray. No brief was filed.

On December 30, 1982, the Court of Appeals in a per curiam opinion affirmed the trial court's determination of non-indigency, ordered Gray and Azios either jointly or individually to file a motion for rehearing, a brief in support thereof, and ordered Gray to appear before the Court of Appeals to explain his conduct and receive sanctions for it.

The motion for rehearing and its supporting brief were filed by Gray as ordered, and on January 26, 1983, he appeared before the Court of Appeals pursuant to its order of December 30, 1982. A hearing was held, and thereafter the sanctions complained of herein were entered against Gray. ³

A writ of mandamus, or prohibition, may be the proper relief to set aside an improper order. State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980); State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1979). Prohibition is proper to restrain enforcement of a future act and not to undo an act already performed. LeBlanc v. Gist, 603 S.W.2d 841 (Tex.Cr.App.1980). The line between mandamus and prohibition is a thin one ⁴ and, therefore, this Court looks not to the nomenclature or form of the relief sought, but to its substance. Since the order of the Court of Appeals has already been entered, the relief sought is in the nature of mandamus. State ex rel. Wilson v. Harris, 555 S.W.2d 470 (Tex.Cr.App.1977).

The order for Gray to appear before the Court of Appeals on January 26, 1983, is contained within the Court's opinion in the Marroquin case. ⁵ If the Court of Appeals' actions are construed as a contempt proceeding, a show cause order was required. Ex parte Conway, 419 S.W.2d 827 (Tex.1967). The only person ordered to file a brief in the original appeal of the aggravated assault conviction was Azios. The Court of Appeals never ordered Gray to do anything in that regard and when he was ordered to file a brief and a motion for rehearing he complied.

A court cannot punish someone for contempt of an order which did not order him to do or not to do some specific act. Ex parte Padron, 565 S.W.2d 921 (Tex.1978).

In sanctioning Gray, the Court of Appeals apparently relied upon this Court's decision in Guillory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977). In Guillory, this Court held that where a trial court was informed that no brief had been filed in an indigent appellant's behalf by court-appointed counsel, the trial court could command court-appointed counsel to file a brief within a specified period of time, and if counsel failed, the court could (1) issue a show cause order requiring counsel to show why he should not be held in contempt; (2) report counsel to an appropriate grievance committee for disciplinary action; (3) relieve appointed counsel and appoint some other counsel in the matter, and (4) order the recalcitrant attorney not to receive any appointments to represent indigents in its court. The record reflects that Gray was never retained nor appointed by the trial court in Marroquin's appeal.

Viewing the Court of Appeals' order as one of punishment for contempt, it is void and improper. As an order of contempt, it is not appealable and thus applicant has no other adequate remedy at law but to...