Opinion
WR-95,072-01
10-11-2023
IN RE STATE OF TEXAS EX REL. JAMES STAINTON, Relator
Do Not Publish
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS AND PETITION FOR WRIT OF MANDAMUS IN CAUSE NOS. CR24558 & CR24559 IN THE 271ST CRIMINAL DISTRICT COURT WISE COUNTY
ORDER
PER CURIAM
We have before us a Motion for Leave to File a Petition for Writ of Mandamus and the accompanying Petition.
Real-Party-in-Interest Tanner Lynn Horner is charged with capital murder and aggravated kidnapping. Relator, the district attorney for the 271st Judicial District, has announced his intent to seek the death penalty in the capital murder case. In this mandamus action, Relator asks us to order Respondent, Judge Brock Smith of the 271st District Court, to rescind his July 13, 2023 ruling removing Real-Party-in-Interest's previously appointed trial lawyers and replacing them with lawyers from the Regional Public Defender's Office (RPDO).
On December 5, 2022, Respondent appointed attorney William Ray to represent Real-Party-in-Interest in the capital murder and aggravated kidnapping cases; just over a week later, Respondent appointed attorney Steven Gordon to serve as second chair. Ray and Gordon worked on Real-Party-in-Interest's cases from December 2022 through July 2023. Then, at a status hearing on July 13, 2023, Respondent removed Ray and Gordon as Real-Party-in-Interest's trial lawyers.
Respondent explained that, when he originally appointed Ray and Gordon to Horner's cases, he was unaware "that Wise County is part of the Regional Public Defender['s] Office Local Government . . . service agreement." Further, Respondent continued, Wise and Jack counties have a standing "Court Plan" (Plan) for handling various administrative matters: magistration, attorney qualifications, fees and expenses, and so forth. As relevant here, under "Attorney Selection Process[es]," the Plan states that "[t]he Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless the court makes a finding of good cause on the record to appoint private counsel."
Respondent emphasized that he was "in no way . . . dissatisfied with the representation that [Ray and Gordon] . . . provided for Mr. Horner." But, referencing the Plan's attorney selection process, Respondent continued: "[H]ad I been required to make a finding on the date I appointed you that good cause existed [for appointing Ray and Gordon to Horner's cases instead of the RPDO], I would not have been able to do that." Respondent also expressed a concern that allowing Ray and Gordon to remain on Horner's cases would be more expensive for the county than having RPDO represent Horner. Describing his initial decision to appoint Ray and Gordon as a "mistake," Respondent concluded that the only way to fix his "mistake" was to remove Ray and Gordon as Horner's trial counsel and appoint the RPDO to serve in their stead.
Ray promptly opposed his and Gordon's removal. Invoking his client's "Sixth Amendment [right] to counsel as applied to the states in the Fourteenth Amendment," Ray represented that Real-Party-in-Interest "wanted to keep" Ray and Gordon as his trial lawyers. Ray described on the record some of the work he and Gordon had done on Real-Party-in-Interest's cases, which included "14 or 15" jail visits.
Respondent acknowledged that Real-Party-in-Interest "would like to keep [Ray and Gordon] as [his] attorneys." Even so, Respondent concluded that the "existence of the interlocal agreement," as well as his own responsibility as an "officeholder . . . to manage the public funds . . . efficiently," "outweigh[ed]" Real-Party-in-Interest's preference of attorneys. Respondent therefore "reliev[ed]" Ray and Gordon from Real-Party-in-Interest's cases and appointed a lawyer from the RPDO as Horner's trial counsel.
In response to Respondent's July 13, 2023 ruling, Relator brought the instant mandamus action. Relator argues that Respondent's July 13, 2023 ruling "jeopardiz[es]" both Real-Party-in-Interest's and Relator's "ability to have a fair trial." Relator cites caselaw from this Court stating that, once an attorney-client relationship has been established, "[t]here must be some principled reason, apparent from the record, to justify a trial judge's sua sponte replacement of appointed counsel." See Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex. Crim. App. 1992). Relator worries that Respondent has not articulated a "principled reason" for his July 13, 2023 ruling and has thereby "provide[d] grounds for reversible error." To avoid this, Relator urges this Court to order Respondent to rescind his July 13, 2023 ruling, which would effectively reinstate Ray and Gordon as Real-Party-in-Interest's trial lawyers.
Upon receipt of Relator's Motion and Petition, we preliminarily concluded that it would be prudent to stay the trial court proceedings. We therefore stayed those proceedings "pending further order of this Court." In re State ex rel. Stainton, No. WR-95,072-01 (Tex. Crim. App. Aug. 30, 2023) (not designated for publication).
We also determined that we needed more information before we ruled on the merits of Relator's mandamus action. Accordingly, we invited Respondent to "further explain his rationale for removing Ray and Gordon from Real-Party-in-Interest's cases" and ordered Ray and the RPDO to "inform this Court whether they think Respondent's ruling calls for mandamus relief-and why (or why not)." See id.
Respondent accepted this Court's invitation by entering "Supplemental Findings of Fact and Conclusions of Law." Further, Ray and the RPDO dutifully complied with this Court's order. Respondent's supplemental findings and conclusions and Ray's response comport with their respective positions at the July 13, 2023 hearing. However, the RPDO's response suggests that there has been a change in circumstances that may affect whether mandamus relief is appropriate in this case. Specifically, the RPDO claims that, "[s]ubseqent to the State filing this Writ of Mandamus," Real-Party-in-Interest "executed an unsworn declaration stating he wishes for the RPDO to remain on his [capital murder] case as his attorneys of record."
The RPDO also states that, on July 20, 2023, Respondent "filed an Amended Order Appointing Counsel which appointed RPDO to just cause number 24559, the Capital Murder charge, and removed them from the non-capital case[]." The record does not reveal who is currently representing Horner in cause number 24558, the aggravated kidnapping case.
Respondent shall clarify the record. Specifically, within one week of the date of this order, Respondent shall communicate directly with Real-Party-in-Interest and ask him whether he wants the RPDO to continue representing him in cause number 24559, the capital murder case. Further, if Respondent appointed lawyers other than Ray and Gordon in cause number 24558 (the aggravated kidnapping case), Respondent shall ask Real-Party-in-Interest whether he would rather have Ray and Gordon represent him. If Respondent has not yet appointed new counsel in cause number 24558, Respondent shall inform this Court of that fact.
Respondent shall make a record of these matters, and the trial court clerk shall forward that record to this Court. The trial court clerk shall also forward to this Court Respondent's July 20, 2023 "Amended Order Appointing Counsel." If that order does not exist, Respondent shall inform this Court of that fact. Respondent may also direct the trial court clerk to forward to this Court any other items that Respondent deems relevant to the mandamus filings currently before us. Respondent and the trial court clerk shall comply with these instructions within one week of the date of this order. In the meantime, this Court's August 30, 2023 stay of the trial court proceedings remains in place.
IT IS SO ORDERED.