Smith v. Flack, 69676

• Decision Date: 22 April 1987
• Docket Number: No. 69676,69676
• Parties: James 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.
• Court: Texas Court of Criminal Appeals

Page 784

728 S.W.2d 784

James 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.

James Randall Smith, David A. Jones, David Mitcham, Charles Freeman, Houston, for relators.

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.

Before the court en banc.

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 Article 26.05, § 1(a) & (e), V.A.C.C.P. (Supp.1987). ¹ We will conditionally grant relief.

I.

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 Art. 26.05 of the Texas Code of Criminal Procedure." Rules of the Judicial District Courts of Harris County, District Courts Trying Criminal Cases, R. VI(E).

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, V.A.C.S., Article 200a-1 (Supp.1987).

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 V.T.C.A., Government Code § 41.007 (Pamphlet 1987). However, the Attorney General also referred the County Auditor to Article 26.05, supra, and Attorney General Opinion H-499 (1975), which states:

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 Article 26.05, § 1(e), supra. Smith then presented his claim to the Respondent County Auditor for payment. Because the claim exceeded the maximum amount established in the Board of Judges' fee schedule, the County Auditor immediately forwarded the claim to the Board of Judges for judicial review. ⁵

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." Tex. Const. art. V, § 5; State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex.Cr.App.1985). The term "matter," when used in the context of a legal dispute, generally refers to the "subject of [the] litigation." Black's Law Dictionary 882 (5th ed. 1979). The subject of the mandamus litigation ("matter") is modified in Article V, § 5, supra, by the terms "criminal law." Therefore, when read as a whole, Article V, § 5, supra, grants this Court the power to issue writs of mandamus when a criminal law is the subject of the litigation. See Dickens v. Second Court of Appeals, 727 S.W.2d 542, 545 (Tex.Cr.App.1987) (criminal discovery law was subject of litigation).

Relators argue that the instant case involves a criminal law matter because they seek relief pursuant to Article 26.05 of the Code of Criminal Procedure. See Weiner v. Dial, 653 S.W.2d 786 (Tex.Cr.App.1983). We agree.

In Weiner, an attorney sought to force a trial judge to award him fees under Article 26.05, supra, for work not authorized by the trial court. This Court held that "the provision for appointment and compensation of attorneys to represent indigents in criminal [cases, see Article 26.05, supra,] is certainly itself a criminal law matter." Weiner, 653 S.W.2d at 787.

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 Article 26.05, supra.

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 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 altogether by the incidental presence of civil law matters. Cf. Commissioners' Court v. Beall, 98 Tex. 104, 81 S.W. 526 (1904) (discussing respective duties of Supreme Court and Court of Criminal Appeals to decide civil and criminal law). We hold that the subject of the instant lawsuit directly involves a criminal law matter and is, therefore, within this Court's mandamus jurisdiction. We now address the merits of relators' claims for payment of attorney fees, focusing particularly on whether the equitable remedy of mandamus is available to the relators.

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 Article 26.05, supra, or establish, through a lawsuit, that the fees are unreasonable. See Commissioners Court v. Martin, 471 S.W.2d 100, 104 (Tex.Civ.App.--Amarillo 1971, writ ref'd n.r.e.). But cf. Smith v. McCoy, 533 S.W.2d 457, 459 (Tex.Civ.App.--Dallas 1976, writ dismissed).

The provisions of Article 26.05, supra, should be liberally construed to attain the objectives intended by the Legislature. In construing Article 26.05, supra, this Court is guided by the Code Construction Act. See V.T.C.A., Government Code § 311.002(2) (Pamphlet 1987); see also Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App....