Weiner v. Dial, 69090

• Decision Date: 29 June 1983
• Docket Number: No. 69090,69090
• Citation: 653 S.W.2d 786
• Parties: David R. WEINER, Petitioner, v. Preston DIAL, Jr., Judge, Respondent.
• Court: Texas Court of Criminal Appeals

Page 786

653 S.W.2d 786

David R. WEINER, Petitioner, v. Preston DIAL, Jr., Judge, Respondent.

No. 69090.

Court of Criminal Appeals of Texas En Banc.

June 29, 1983.

Mark Stevens, David K. Chapman, San Antonio, for petitioner.

Sam D. Millsap, Jr., Dist. Atty., and Carroll Schubert, George B. Hernandez, Jr. and Michael L. Davis, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is an original application for writ of mandamus. Art. 5, Sec. 5, Texas Constitution. Petitioner has filed this cause "to compel Respondent to authorize payment to Petitioner for services rendered by Petitioner as court-appointed appellate counsel."

Petitioner, an attorney, was appointed by respondent, a district judge, to represent Robert Williams on the appeal of his conviction in cause 81-CR-2029 in the 175th Judicial District Court. Petitioner was compensated for his representation of Williams in the appeal of that conviction. Petitioner also represented Williams in the appeal of a denial of reduction of bail pending appeal of the conviction. He seeks compensation for representing Williams in that habeas corpus appeal.

Respondent by brief before this Court first contends the matter is not within our mandamus jurisdiction. Article 5, Sec. 5, Texas Constitution, restricts the mandamus jurisdiction of this Court to "criminal law matters." Respondent argues this case "is essentially civil in nature, because it is a claim for compensation for services." Petitioner, however, asserts entitlement to compensation as a matter of right under Article 26.05 of the Code of Criminal Procedure, which provides for compensation of "counsel appointed to defend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing," and provides a schedule of minimum amounts of compensation. The provision for appointment and compensation of attorneys to represent indigents in criminal law matters is certainly itself a criminal law matter. ¹ The State's first argument is without merit.

On the merits, petitioner contends he is entitled to separate fees for the appeal of the conviction and the bail habeas corpus appeal. Respondent points out that Williams' motion for appointment of counsel to represent him in the bail habeas corpus appeal was expressly denied by respondent. We also notice that the motion for that appointment was signed by Williams and by petitioner in the stated capacity of "court-appointed on direct appeal of conviction only." (Emphasis added.)

It appears that petitioner, before seeking mandamus, and respondent have considered the criminal prosecution and the bail habeas corpus proceeding as separate causes requiring separate orders appointing counsel. Instead of challenging the denial of the motion for appointment of counsel in the habeas corpus matter, petitioner undertook to represent Williams, and now contends his appointment to appeal the conviction also required representation in the bail habeas corpus appeal.

Art. 26.04, V.A.C.C.P., requires appointment of counsel to represent an indigent "charged with a felony or a misdemeanor punishable by imprisonment." The article dictates that in such circumstances "the court shall appoint one or more practicing attorneys to defend him." (Emphasis added.) Similarly, the provision for compensating appointed counsel, Art. 26.05, Sec. 1, supra, speaks in terms of counsel appointed to defend, and counsel appointed to represent an indigent in a habeas corpus hearing. The statute does not appear to require that an appointment of counsel to represent an indigent in a criminal case necessarily be an appointment to represent that person in all ancillary matters, although an order may encompass more than a single matter.

The order in this case, appointing petitioner to represent Williams, does not specify that petitioner was also appointed to represent him in the bail habeas corpus appeal, and from the fact that petitioner filed a motion requesting such additional appointment it appears that petitioner did not consider the original appointment to include the bail habeas corpus.

We conclude that under the facts of this case the order appointing petitioner did not constitute an appointment to represent Williams in the bail habeas corpus appeal, and accordingly the writ of mandamus is denied.

It is so ordered.

ONION, Presiding Judge, concurring. ¹

The question presented by this proceeding is whether counsel, appointed for the purpose of an appeal of a felony conviction and who has been compensated for such appeal, is entitled to additional compensation for the purported appeal of an order refusing to issue a writ of habeas corpus to reduce bail (pending appeal of felony conviction). Petitioner contends there are two separate appeals for which he is entitled to separate fees.

I agree that the application for writ of mandamus should be denied, but I cannot agree that this court should do so on the basis that the order of appointment of appellate counsel was not broad enough to encompass the other proceeding. ² The appointment of appellate counsel squarely places upon counsel the awesome responsibility of taking all actions necessary on appeal to assure the indigent appellant his rights and to protect his interests. Counsel cannot be delimited by what is contained or not contained in the order of appointment. There are other reasons, however, to deny the mandamus application.

Robert David Williams was convicted of aggravated assault on a peace officer and assessed punishment of five years' imprisonment. Notice of appeal was given. Apparently Williams was held without bail following conviction. Williams filed an application for writ of habeas corpus and as a result bail on appeal was set at $25,000.00. On January 21, Williams filed a second "application for writ of habeas corpus" alleging that the bail on appeal of $25,000.00 was excessive. The application was "Denied without hearing" on January 21, 1982, by the respondent. On January 27, 1982, Oliver C. Sutton, Jr., attorney of record for Williams, filed a motion to withdraw as counsel and suggested that the petitioner Weiner had consented to handle the appeal. On January 28, 1982, the respondent permitted Sutton to withdraw as counsel and petitioner Weiner was appointed to represent Williams on appeal. On February 2, 1982, Williams filed a written "Notice of Appeal (Habeas Corpus)" in which he gave notice of appeal to the Court of Appeals "on his application for writ of habeas corpus, which was filed January 21, 1982 and which was denied without a hearing ...." On the same date Williams and petitioner Weiner filed a motion for the appointment of counsel on appeal from the order denying the habeas corpus application without a hearing. Attorney Weiner volunteered to accept the appointment. On February 3, 1982, the respondent denied the motion requesting appointment of counsel.

It appears that petitioner Weiner was notified by the San Antonio Court of Appeals of oral argument and submission of the appeal relating to the habeas corpus application in Cause No. 04-82-00056-CR. He appeared and made oral argument. The Court of Appeals vacated the order entered by respondent and remanded the cause for a hearing on February 22, 1982. See Ex parte Williams, 630 S.W.2d 803 (Tex.App.-San Antonio 1982). Petition for Discretionary Review was refused on May 5, 1982.

The record is silent as to what then transpired as to the matter of bail pending appeal. It does appear that the appeal of the conviction for aggravated assault upon a peace officer is still pending in the San Antonio Court of Appeals. Petitioner has already been compensated $350.00 by Bexar County for his services in connection with this pending appeal upon approval of the respondent.

Subsequently, petitioner Weiner sought additional payment for handling the appeal on the habeas corpus matter concerning bail. Being unsuccessful with the respondent, petitioner sought a writ of mandamus from the San Antonio Court of Appeals. Relief was denied in an unpublished per curiam panel opinion on December 8, 1982, on the ground that the court had only limited jurisdiction to issue a writ of mandamus to enforce its own jurisdiction. Petitioner has now filed an original application for a writ of mandamus in this court requesting that the respondent be ordered to pay him a fee of not less than $350.00 for the appeal of the habeas corpus proceeding seeking bail on appeal.

As is conceded throughout the record, the respondent refused the second application for writ of habeas corpus without a hearing. It is obvious that the respondent refused to issue or grant the writ of habeas corpus. ³

There is no appeal from a refusal to issue or grant a writ of habeas corpus even after a hearing (to determine whether to grant the writ). Ex parte Clifford Noe, 646 S.W.2d 230 (Tex.Cr.App.1983); Ex parte Moorehouse, 614 S.W.2d 450 (Tex.Cr.App.1981); Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App.1976); Ex parte Nichlos, 245 S.W.2d 704 (Tex.Cr.App.1952). See also Ex parte Hughes, 20 S.W.2d 1070 (Tex.Cr.App.1929) ; Ex parte Smith, 85 Tex.Cr.R. 649, 215 S.W. 299 (Tex.Cr.App.1919); Ex parte Blankenship, 57 S.W. 646 (Tex.Cr.App.1900); Article 44.34, V.A.C.C.P., Note 5. The appellate courts do not have jurisdiction in such cases. Ex parte Nichlos, supra. See also Ex parte Wade, 147 Tex.Cr.R. 94, 178 S.W.2d 690 (Tex.Cr.App.1944); Ex parte Mayes, supra.

The pleadings were designated "application for writ of habeas corpus." The application was denied "without a hearing." "Notice of Appeal (Habeas Corpus)" was given from the denial of the "application for habeas corpus." ⁴ In Ex parte Williams, 630 S.W.2d 803 (Tex.App.-San Antonio 1982), the Court of Appeals stated: "Applicant appeals from the denial of habeas corpus relief from allegedly...