White v. Reiter

• Decision Date: 21 July 1982
• Docket Number: No. 68977,68977
• Citation: 640 S.W.2d 586
• Parties: William Louis WHITE v. Putnam Kaye REITER, Judge, 87th Judicial District Court of Freestone County.
• Court: Texas Court of Criminal Appeals

Page 586

640 S.W.2d 586

William Louis WHITE v. Putnam Kaye REITER, Judge, 87th Judicial District Court of Freestone County.

No. 68977.

Court of Criminal Appeals of Texas En Banc.

July 21, 1982.

Opinion Filed Oct. 20, 1982.

Charles McDonald and Merrilee L. Harmon, Waco, for White.

Robert W. Gage, County Atty., Fairfield, for Sessions.

Putnam Kaye Reiter, Mexia, pro se.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This cause seeks to invoke the original subject matter jurisdiction of the Court provided by Tex.Const. Article V, Sec. 5, ¹ and is denominated an original application for both writ of habeas corpus and writ of prohibition by the Petitioner. A detailed chronology of events to which we may refer throughout, is essential to an understanding of the issues presented.

On or about December 12, 1981, two Texas Department of Corrections (T.D.C.) inmates escaped from the Coffield Unit located in Anderson County and crossed the Trinity River into Freestone County. They allegedly entered several weekend homes along the river, taking food and clothing, then appropriated a dump truck for transportation. These inmates, one of whom was Richard P. Stone, were apprehended a short time later at a roadblock set up by T.D.C. employees, and returned to the Coffield Unit. Richard Stone was thereafter indicted by a Freestone County grand jury for the offenses of burglary of a habitation and unauthorized use of a vehicle.

The record indicates that after these indictments were returned, T.D.C. authorities were reluctant to release Stone to Freestone County, preferring instead to keep him in custody at the Coffield Unit and have T.D.C. security personnel escort him to and from Freestone County for court appearances. ²

It was apparently on February 1, 1982, that the Honorable P. K. Reiter, Judge of the 87th Judicial District Court of Freestone County (Respondent), contacted W. J. Estelle, Director of the Texas Department of Corrections, by telephone, and informed him of the necessity to appoint counsel for Stone and his coindictee who were indigents incarcerated in T.D.C. Respondent advised Estelle that in view of the custodial circumstances On the same day, February 1, 1982, Respondent entered an order appointing Petitioner to represent Stone in both causes.

                of the accused, he was considering appointing Staff Counsel for Inmates (staff counsel). 3  Estelle advised Respondent that "whoever the court appointed was fine with [him];"  he confirmed that the staff counsel do not represent T.D.C. or T.D.C. employees and agreed that he could see no conflict of interest in staff counsel attorneys accepting such an appointment;  he further confirmed that he would anticipate no hardship "since these lawyers frequently travel to the various [T.D.C.] units in performance of their duties."   Estelle agreed to have the Director of the Staff Counsel, William Louis White (Petitioner), contact Respondent by telephone. 4
                

Thereafter, on February 5, Petitioner did contact Respondent and advised him that pursuant to Estelle's instruction, he was providing the court with names of two staff counsel attorneys, including his own. Though the evidence conflicts somewhat, it appears that Petitioner informed Judge Reiter that he was simply following instructions by furnishing the names, and that if the court did appoint him, he later might "disagree or express [his] opposition to the appointment." ⁵ Thereafter, Petitioner received by mail the written order appointing him to represent inmate Stone which Respondent had already entered on February 1.

It somehow came to the attention of Respondent in early March that Petitioner objected to his appointment. Respondent suggested that a motion to withdraw be filed by Petitioner, and requested the Honorable Tate McCain, also a Judge of the 87th Judicial District, to hear the motion. Petitioner did file a motion to withdraw which essentially alleged the following: (1) that due to the circumstances of Stone's arrest after his escape, other T.D.C. employees would be called to testify to establish the validity of that arrest, placing Petitioner in conflict with interests of either his fellow employees (and perforce, his employer), or his client, Richard Stone; (2) that the investigation and trial of the case would work a hardship on Petitioner because the situs of the trial is approximately 86 miles from Huntsville, his residence, and the Coffield Unit is approximately 100 miles from Huntsville; (3) that representation of Stone would take Petitioner away from his full time duties as Director of the Staff Counsel and the staff was at that time "short of attorneys;" and (4) that Petitioner would be required to take earned vacation time from his State employment for all time spent representing Stone because T.D.C. funds would not be available for such activity.

On March 8, 1982, a hearing was convened upon this motion before Judge McCain. Petitioner stated into the record, "it's my firm belief that any conviction [of Richard Stone], if I am forced to proceed, would be reversed by the Court of Criminal Appeals because of [the] conflict [of interest]." The county attorney elicited from Petitioner that the latter engaged in a limited private practice in addition to his full time State employment; that Petitioner does not represent T.D.C. employees; that Petitioner understood that Stone was not "[PETITIONER]: Your Honor, respectfully I decline the appointment and feel that it is contrary to the law of the State that I ... continue with the appointment and would refuse to accept it.

                charged with any "offense against the Texas Department of Corrections" and, finally, "that the Court has appointed you in your individual capacity 6 and not as a staff counsel ... for inmates with the Texas Department of Corrections."   Judge McCain overruled Petitioner's motion to withdraw and set an April 5, 1982 trial date for Stone;  then the following transpired
                

THE COURT: Well, it is with equal amount of respect, sir, that I regret that you have refused to follow the dictates of this Court and I consider your refusal to do so as an act of contempt and in punishment therefor [assess 30 days confinement in the Freestone County jail]."

Petitioner was ordered jailed but then released on his personal bond pending a second hearing. ⁷ Judge McCain's order and commitment were reduced to writing on the same day. On March 16, Judge McCain entered another order, setting a contempt hearing before another appointed district judge, for April 1, 1982.

On April 1, the Honorable David Walker of the 159th Judicial District, pursuant to appointment, convened a second hearing. At this hearing Petitioner elaborated upon his view of the conflict of interest he anticipated in the event he were to represent Stone. Due to the nature of the offenses charged, Petitioner was of the opinion that it would be incumbent on the State to prove "the whole criminal transaction, ... circumstances of [Stone's] escape [from T.D.C.] would have to be proved up." Also, it was Petitioner's understanding "that [Stone's] arrest involved employees of the Texas Department of Corrections. * * * That there was a roadblock set up by the Texas Department of Corrections and ... [Stone was] arrested at that time as a result of the roadblock." Petitioner opined that the validity of that roadblock would be litigated in Stone's defense because it was his understanding that T.D.C. "has no authority under state law" to stop a vehicle on a public road. Therefore, Petitioner would be placed in the position of either having to attempt to show that fellow T.D.C. employees were acting illegally and possibly not testifying truthfully, or failing to provide Stone with the vigorous representation to which he was entitled.

Petitioner testified that he was not necessarily concerned that he might lose his State job, but explained that, due to the nature of the staff counsel's objectives, the relationship between the inmate attorneys and other T.D.C. employees was at times a tenuous one to which the staff was always attentive since the success of many pursuits on behalf of inmates was dependent on the cooperation of these fellow employees, the "keepers" of his clients. It was Petitioner's "fear that [his] zealous defense of [his] client might conflict with the longer range purposes that [he had] as director of staff counsel."

Petitioner stated that he did not think a lawyer placed in his position could feel assured in his own mind that he could represent Stone without an attitude of divided loyalty; therefore, it was his professional opinion that postconviction relief would be There was also testimony regarding the unavailability of staff counsel funds for Stone's representation under the circumstances and the collateral hardship such representation would cause Petitioner. ⁸ The county attorney adduced evidence that Petitioner had made appearances in the 87th Judicial District Court on an unrelated matter in his capacity as a staff counsel attorney in February of 1982.

granted Stone either in State or Federal court in the event a conviction were obtained and upheld on appeal, even if Stone entered a plea of guilty. Petitioner testified he had never before refused an appointment in his 22 year legal career.

The county attorney, Robert Gage, testified it was his understanding from conversations with him, that Judge Reiter had appointed petitioner to represent Stone because Petitioner "would have ready access" to Stone at the Coffield Unit. Gage also testified there were about four attorneys in Freestone County who were competent to handle criminal cases, and there existed no "unusual situation or crisis" in the county preventing those attorneys from being appointed.

At the conclusion of the hearing Judge Walker orally announced there was no showing Judge McCain's prior order of contempt was in error, and reduced Petition...