Opinion
No. 08-11-00298-CR
09-05-2013
ALBERT RAMIREZ, Appellant, v. THE STATE OF TEXAS, State.
Appeal from the
171st District Court
of El Paso County, Texas
(TC# 20090D03210)
ORDER
Pending before the Court is a motion filed by Appellant to enter an order requesting that the El Paso Public Defender's Office be permitted to continue representing him on appeal. The motion asserts that the trial court, without a request from Appellant, a motion to withdraw filed by the Public Defender's Office, or a showing of good cause as required by TEX.CODE CRIM.PROC.ANN. Art. 26.04(j), removed the Public Defender's Office as counsel on appeal and appointed another attorney, Matthew DeKoatz, to represent Appellant. Both the Public Defender's Office and Appellant have objected to the trial court's action. The motion is supported by a document signed by Appellant stating that he is satisfied with the Public Defender's Office and the attorney-client bond that has developed, and requesting that the Public Defender's Office continue representing him. Neither the State nor Mr. DeKoatz has filed a response to the motion.
A criminal defendant's right to counsel is guaranteed by both the federal and state constitutions. See U.S. CONST. amend. VI; TEX.CONST. art. I, § 10. Once counsel has been appointed to represent an indigent defendant and the parties enter into an attorney-client relationship, it is no less inviolate than if counsel is retained. Stearnes v. Clinton, 780 S.W.2d 216, 221-22 (Tex.Crim.App. 1989). In such a case, the trial court does not have plenary power to remove court-appointed counsel without good cause. Stearnes v. Clinton, 780 S.W.2d 216, 221-22 (Tex.Crim.App. 1989); see TEX.CODE CRIM.PROC.ANN. Art. 26.04(j)(2)(providing that an attorney appointed under this article shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after finding of good cause is entered on the record). Further, once a valid appointment has been made, the trial court cannot arbitrarily remove an attorney as counsel of record over objection. Id. at 223.
In effect, Appellant is requesting that the Court vacate the trial court's order appointing Mr. DeKoatz as appellate counsel. The Court of Criminal Appeals has indicated that mandamus is the appropriate vehicle to prevent an attorney's removal from a case or to challenge a trial court's arbitrary replacement of counsel. See Buntion v. Harmon, 827 S.W.2d 945, 946 (Tex.Crim.App. 1992) (orig. proceeding); see also Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex.Crim.App. 1995). It has not held that mandamus is the exclusive remedy.
The Court has determined that the trial court should have an opportunity to consider the issue. Further, it is necessary for the trial court to conduct a hearing to determine whether good cause existed to remove the Public Defender's Office as Appellant's counsel. Accordingly, we abate the appeal and direct the trial court to conduct a hearing no later than thirty days from the date of this order. The trial court may hear evidence, if necessary, and it is authorized to issue appropriate orders, including the re-appointment of the Public Defender's Office as counsel on appeal. The trial court is also directed to make written findings of fact and conclusions of law and file same with the trial court clerk. If the court concludes that good cause exists for removing the Public Defender's Office, the findings must specify the basis for the court's conclusion.
The trial court clerk shall prepare and file with this Court a supplemental clerk's record which includes the findings and conclusions. The supplemental clerk's record is due to be filed within ten days after the trial court files the findings and conclusions. Finally, the court reporter is directed to prepare and file with this Court a reporter's record of the hearing. The reporter's record is due to be filed no later than ten days after the hearing is concluded.
IT IS SO ORDERED this 5th day of September, 2013.
PER CURIAM Before McClure, C.J., Rivera and Rodriguez, JJ.