Wice v. Fifth Judicial Dist. Court of Appeals (In re State)

Full title: In re STATE of Texas EX REL. Brian W. WICE, Relator v. The FIFTH JUDICIAL…

Court: Court of Criminal Appeals of Texas.

Date published: Nov 21, 2018

581 S.W.3d 189 (Tex. Crim. App. 2018)

Opinion

NO. WR-86,920-02

11-21-2018

In re STATE of Texas EX REL. Brian W. WICE, Relator v. The FIFTH JUDICIAL DISTRICT COURT OF APPEALS, Respondent

Brian W. Wice, Bar No. 21417800, 440 Louisiana Suite 900, Houston, Texas 77002, Kent A. Schaffer, Bar No. 17724300, Nicole DeBorde, Bar No. 00787344, 712 Main Suite 2400, Houston, Texas 77002, for Appellant. Clyde M. Siebman, Texas Bar No. 18341600, Siebman, Burg, Phillips & Smith, LLP, 300 North Travis, Sherman, Texas 75090, Bryan H. Burg, Texas Bar No. 03374500, Siebman, Burg, Phillips & Smith, LLP, 4949 Hedgcoxe Road, Suite 230, Piano, Texas 75024, Stacey Soule, State’s Attorney, Austin, for State.

Newell, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Hervey and Richardson, JJ., joined.

Brian W. Wice, Bar No. 21417800, 440 Louisiana Suite 900, Houston, Texas 77002, Kent A. Schaffer, Bar No. 17724300, Nicole DeBorde, Bar No. 00787344, 712 Main Suite 2400, Houston, Texas 77002, for Appellant.

Clyde M. Siebman, Texas Bar No. 18341600, Siebman, Burg, Phillips & Smith, LLP, 300 North Travis, Sherman, Texas 75090, Bryan H. Burg, Texas Bar No. 03374500, Siebman, Burg, Phillips & Smith, LLP, 4949 Hedgcoxe Road, Suite 230, Piano, Texas 75024, Stacey Soule, State’s Attorney, Austin, for State.

Newell, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Hervey and Richardson, JJ., joined.

This case is about whether a trial court can pay an appointed prosecutor at an hourly rate even though the fee schedule approved by the judges of the county only allows for payment of a fixed fee. Relators (the attorneys appointed to prosecute the defendant) argue that upholding the trial court's order for payment is appropriate because the trial court's determination of a reasonable fee for their services is a discretionary call, not a ministerial one. The primary Real Party in Interest (the Collin County Commissioners Court) responds that vacating the trial court's order for payment is appropriate because the trial court lacked authority to set a fee outside of the fixed rate in the fee schedule approved by the local judges. According to the Commissioners Court, the local rule authorizing the trial court to "opt out" of its own fee schedule conflicts with a statute that requires payment according to that fee schedule.

The Commissioners Court is correct that we are not called upon to determine whether the payment ordered in this case is reasonable. We are only asked to determine whether the applicable statute limits the trial court's ability to approve an hourly rate when the fee schedule approved by the local judges prescribes a fixed rate. This is the business we've chosen. We agree with the Commissioners Court that the statute in question limits the trial court's authority, and we agree with the court of appeals that the second order for payment should be vacated.

I. Facts

In 2015, the Public Integrity Unit of the Texas Rangers forwarded a formal complaint against Kenneth Paxton to the Collin County District Attorney's Office based upon alleged conduct that occurred before he took office as Attorney General. The Collin County Criminal District Attorney recused his office from all matters involving the cases, which were assigned to the 416th Judicial District Court.¹ The Local Administrative Judge of Collin County appointed three experienced criminal defense attorneys, Kent A. Schaffer, Brian W. Wice, and Nichole DeBorde, to serve as attorneys pro tem in those cases.² The judge agreed to pay each attorney a fee of $300 per hour for his or her professional services.³

1 In re Collin Cty ., 528 S.W.3d 807, 809 (Tex. App.—Dallas 2017).

2 Id.

3 Id. at 810.

The trial court has twice ordered interim payment for the pre-trial legal services provided by the appointed prosecutors. On January 11, 2016, the Collin County Commissioners Court considered a trial court's order for interim payment of fees and expenses to the appointed prosecutors. The Commissioners Court was made aware, at the time, that the bill was significantly greater than the fee schedule allowed.⁴ Nevertheless, the Commissioners Court voted to pay Relators $242,025 in attorneys fees for the pre-trial services already performed based upon the $300 per hour rate.⁵ This payment is not at issue in this case.

4 At the time, the fee schedule set a fixed fee of $1,000 for pre-trial preparation with judicial discretion to adjust the fee upwards in an amount not to exceed an additional $1,000. Id.

5 Id.

Later, the other Real Party in Interest, Kenneth Paxton, filed a pre-trial motion challenging the interim fees for the appointed prosecutors. On January 4, 2017, the trial judge overruled the defendant's motion and issued a second order for payment of attorneys fees in the amount of $199,575.⁶ This time, however, the Commissioners Court rejected the request for compensation, choosing instead to file a petition for writ of mandamus to compel the trial court to vacate the second payment order.⁷ The Fifth Court of Appeals in Dallas agreed with the Commissioners Court, granting mandamus relief and holding that the trial court lacked the authority to order the payment.⁸ The appointed prosecutors have petitioned us to determine who got it right: the trial court or the court of appeals.

6 Id. at 811.

7 Id.

8 Id. at 815.

II. Operative Statutes and Rules

Article 2.07 of the Texas Code of Criminal Procedure sets out how attorneys pro tem are to be appointed and compensated. The statute provides for the appointment of either private attorneys or prosecutors from other jurisdictions within the state to take over for the recused or disqualified District or County Attorney.⁹ If the trial court appoints a prosecutor from another jurisdiction, that prosecutor gets paid for his or her regular prosecutorial job without any additional compensation.¹⁰ But, if the trial court appoints a private attorney, that person (or team as in this case) is paid "in the same amount and manner" as an attorney representing an indigent defendant.¹¹

9 Tex. Code Crim. Proc ., art. 2.07(d) ("In this article, ‘attorney for the state’ means a county attorney, a district attorney, or a criminal district attorney.").

10 Tex. Code Crim. Proc ., art. 2.07(b).

11 Tex. Code Crim. Proc ., art. 2.07(c).

Compensation for an attorney representing an indigent defendant is governed by Article 26.05 of the Code of Criminal Procedure. This statute provides in relevant part:

(a) A counsel, other than an attorney with a public defender's office or an attorney employed by the office of capital and forensic writs, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel: ... [under subsection (a) the statute lists four subsections that detail the types of work that qualify for compensation under the statute].

(b) All payments made under this article shall be paid in accordance with a schedule of fees adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county. On adoption of a schedule of fees as provided by this subsection, a copy of the schedule shall be sent to the commissioners court of the county.

(c) Each fee schedule adopted shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates ....¹²

12 Tex. Code Crim. Proc ., art. 26.05.

This statute states that the trial court "shall" authorize payment for appointed counsel (assuming that the trial court has not appointed a member of a public defender's office) according to a fee schedule adopted by formal action of the judges in a particular county.¹³ While the statute allows for an appeal process when the trial court either fails to approve or affirmatively disapproves a payment, the statute commands that a commissioners court pay fees that are "in accordance with the fee schedule for that county."¹⁴

13 Tex. Code Crim. Proc ., art. 26.05(b).

14 Tex. Code Crim. Proc ., art. 26.05(c).

This statutory framework created by Article 2.07 and 26.05 can be summarized fairly succinctly.

1. Appointed prosecutors are entitled to compensation in the same amount and manner as appointed defense attorneys if the appointed prosecutors are not already prosecutors serving in another office.

2. Appointed defense attorneys are entitled to compensation according to a schedule of fees adopted by formal action of the district courts trying criminal cases within a particular county.

3. The fee schedule adopted by the district courts trying criminal cases within a particular county must state reasonable fixed rates or minimum and maximum hourly rates.

At the time the appointed prosecutors sought payment in this case, the judges of the district courts trying criminal cases in Collin County had adopted local rules relating to the appointment and compensation of appointed counsel in felony cases.¹⁵ Rule 4.01 of the local rules stated in relevant part:

15 In re Collin Cty. , 528 S.W.3d at 810.

A. The District Judges adopt, pursuant to Article 26.05 Tex. Code of Crim. Proc., a fee schedule for appointed attorneys, attached hereto as "Fee Schedule for Appointed Attorneys."

B. The judge presiding over a case may authorize payment to appointed counsel that varies from the fee schedule in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.¹⁶

16 Id.

The local rules included a fee schedule in Rule 4.01(A) setting out, relevant to this case, a fixed fee of $1,000 for pre-trial preparation in a non-capital felony case along with discretionary adjustment categories that allow additional fees not to exceed $1,000.¹⁷ After the Commissioners Court approved the first order for interim payment and before the trial court entered the second, the local district judges amended the fee schedule to include the directive, "In all felony cases, except as hereafter provided, counsel shall be paid according to the following fee schedule, without exception, except as provided for in Section 4.01(B)."¹⁸

17 Id.

18 In 2017, the district judges of Collin County hearing criminal cases amended the local rules again. They adopted by formal order a fee schedule that eliminates the "opt out" provision entirely. Now the schedule for all felony cases, except death penalty cases, sets a minimum hourly rate of $50.00 per hour and a maximum hourly rate of $100.00 per hour with no fixed rates.

The heart of the dispute in this case is whether the local provision in Rule 4.01(B), which allows an individual judge to "opt out" of the fee schedule and is expressly incorporated into the fee schedule itself, exceeds the trial court's authority to set fees for appointed counsel, and by extension, appointed prosecutors. It does.

III. Standard of Review

Mandamus is intended to be an extraordinary remedy, available only in limited circumstances.¹⁹ Even though this mandamus action is brought by the appointed prosecutors to overturn the court of appeals opinion granting mandamus relief to the Commissioners Court, we do not undertake an appellate review of the court of appeals' opinion.²⁰ Rather, we review the propriety of the trial court's conduct itself by undertaking a de novo application of the two pronged test for mandamus relief.²¹ In this case, that means we determine if the trial court's order should be vacated.

19 Smith v. Flack , 728 S.W.2d 784, 792 (Tex. Crim. App. 1987).

20 State ex rel. Young v. Sixth Judicial Dist. Court of Appeals , 236 S.W.3d 207, 210-11 (Tex. Crim. App. 2007) ("Thus, we determine whether the court of appeals abused its discretion essentially by undertaking a ‘de novo’ application of the two pronged test applied below by the court of appeals.").

21 Bowen v. Carnes , 343 S.W.3d 805, 810 n.6 (Tex. Crim. App. 2011).

For the Commissioners Court to be entitled to mandamus relief in this case, it must establish two things.²² First, the Commissioners Court must show that it has no adequate remedy at law to redress the alleged harm.²³ Regarding this requirement, we have held that even if a relator has a remedy at law, that relator can show that no adequate legal remedy exists at law if the remedy is "so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate."²⁴

22 In re Allen , 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) ; see also Smith , 728 S.W.2d at 789.

23 In re Allen , 462 S.W.3d at 49.

24 In re McCann , 422 S.W.3d 701, 704 (Tex. Crim. App. 2013).

The court of appeals held that the Commissioners Court did not need to show that it had "no adequate remedy at law" because the order at issue was void.²⁵ We have previously held that an appeal from a void proceeding does not constitute an adequate remedy at law for purposes of a mandamus proceeding.²⁶ Yet we need not go that far here because we agree with the parties that neither have an adequate remedy at law in this case. The first prong of the standard has been met.

25 In re Collin Cty. , 528 S.W.3d at 814 (citing In re Sw. Bell Tel. Co. , 35 S.W.3d 602, 605 (Tex. 2000) ).

26 See Garcia v. Dial , 596 S.W.2d 524, 530 (Tex. Crim. App. [Panel Op.] 1980) ("Accordingly we hold that a direct appeal from a void proceeding does not constitute an adequate remedy at law which would appropriately supercede the remedy of mandamus sought by petitioner here at this time.").

Second, and more importantly, mandamus will only lie if the trial court exceeded its authority by signing the applicable order awarding attorneys fees.²⁷ The Commissioners Court must show that it has a clear right to the relief sought.²⁸ A clear right to relief is shown when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.²⁹

27 In re Allen , 462 S.W.3d at 49 ; see also Smith , 728 S.W.2d at 792.

28 In re Allen , 462 S.W.3d at 49.

29 Id. (citing In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) ).

Mandamus relief is inappropriate if the law surrounding the court's action is unclear.³⁰ But even an issue of first impression can qualify for mandamus relief when the principle of law is so plainly prescribed as to be free from doubt.³¹ And while this Court generally does not undertake issues of statutory construction on mandamus review, if the terms of a statute are clear, the Court can address its application. When the statutory terms at issue are ambiguous, mandamus relief is inappropriate.³² Indeed, as the court of appeals noted in this case, we have previously concluded that granting mandamus relief was appropriate in a different context because the terms of Article 26.05–the statute at issue in this case–are clear.³³ Though Article 26.05 has been amended since that case, those amendments did not render the relevant statutory provisions ambiguous.

30 In re Medina , 475 S.W.3d 291, 298 (Tex. Crim. App. 2015).

31 In re State ex rel. Weeks , 391 S.W.3d at 122.

32 In re Daniel , 396 S.W.3d 545, 549 n.19 (Tex. Crim. App. 2013).

33 Smith , 728 S.W.2d at 789.

IV. Article 26.05 Clearly Limits a Trial Court's Authority

As discussed above, the relevant statutes at issue envision that a trial court has the authority to appoint counsel for the defense and, in the case of a recused or disqualified prosecutor's office, attorneys pro tem for the state.³⁴ If the trial court is called upon to appoint an attorney pro tem for the state and the trial court does not appoint a neighboring district or county attorney, the trial court has a ministerial duty to compensate that attorney in the same way that an attorney representing a criminal defendant is compensated.³⁵ A trial court still has discretion to set a fee in each case, but compensation must fall within a fee schedule adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county.³⁶ That fee schedule must have either a reasonable fixed rate or minimum and maximum hourly rates that take into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates.³⁷ The "opt-out" provision in this case runs afoul of the statutory limitation that the fee be either fixed or cabined by minimum and maximum rates. As the court of appeals noted, "By requiring the judges to set both minimum and maximum hourly rates, it is clear the legislature was concerned not only with attorneys receiving a fair rate of payment, but also with counties not being forced to pay excessive fees."³⁸

34 Tex. Code Crim. Proc ., art. 26.05(a) ; Tex. Code Crim. Proc ., art. 2.07(a) ; Tex. Code Crim. Proc ., art. 2.07(b-1).

35 Tex. Code Crim. Proc ., art. 2.07(c).

36 Tex. Code Crim. Proc ., art. 26.05(b).

37 Tex. Code Crim. Proc ., art. 26.05(b), (c).

38 In re Collin Cty. , 528 S.W.3d at 812.

Specifically, with regard to the reasonableness of the fees, the statute allows for two different reasonableness determinations. First, the judges trying criminal cases in the county courts, statutory county courts, and district courts decide collectively on reasonable fixed rates or minimum and maximum hourly rates as part of a fee schedule that they adopt through formal action.³⁹ Second, the individual judge in a particular case decides on a reasonable fee in accordance with the schedule of fees that the judges trying criminal cases in the county adopted.⁴⁰ Though the individual judge has discretion to award fees within the adopted schedule, the statute does not allow the judge to award fees outside of that schedule. Otherwise, the statutory requirement that adopted fees or rates be either fixed or subject to minimums and maximums becomes meaningless. Despite arguments to the contrary, we are not holding that the fixed pre-trial preparation fee at issue in this case was "reasonable." Rather, we are deciding whether mandamus relief is appropriate based upon a statute that sets out how the reasonableness of the particular fee at issue must be determined.

39 Tex. Code Crim. Proc ., art 26.05(b), (c).

40 Tex. Code Crim. Proc ., art. 26.05(a), (b).

This understanding is also borne out by our Legislature's response to our decision in Smith v. Flack . In Smith , several defense attorneys sought payment for their services, but the Commissioners Court of Harris County only awarded payment of a reduced amount.⁴¹ The Commissioners Court relied upon a fee schedule that had been set by the local judges to cap the requested fees based upon the maximum amount set out in that schedule.⁴² We held that Article 26.05 did not authorize the limitation set out by the adopted fee schedule because, at the time of the case, the statute only limited the trial court's authority to set a minimum fee.⁴³ As we noted of the statute in effect at the time, "the Legislature has expressly avoided setting specific maximum limits on the size of the court-appointed attorney fees."⁴⁴ Consequently, we determined that the statute at issue granted the trial court sole authority to set a "reasonable fee."⁴⁵

41 Smith , 728 S.W.2d at 788.

42 Id.

43 Id. at 789.

44 Id.

45 Id.

Smith was decided in April of 1987, which happened to be a legislative-session year. During that legislative session, our Legislature amended Article 26.05 to include the requirement that fee schedules include both a minimum and a maximum limit on court-appointed attorney fees.⁴⁶ In response to our decision in Smith , our Legislature made a maximum limit on appointed attorney fees a requirement.⁴⁷ Commissioners courts lost the battle in court to rely upon limits to a trial court's authority to set fees, but they won the war in the Legislature.⁴⁸

46 Senate Bill 1108, 70th Leg., R.S. (1987).

47 See, e.g. , Moore v. State , 868 S.W.2d 787, 790 (Tex. Crim. App. 1993) (noting that courts must assume that the legislature is aware of relevant case law interpreting a statute when it amends that statute); see also Henry v. Cox , 520 S.W.3d 28, 37 (Tex. 2017) (noting that under the Texas Constitution a district court's supervisory power remains subject to exceptions and regulations as may be prescribed by law).

48 The lawsuit at issue in Smith was filed by defense attorneys against the Harris County Auditor and the Harris County Commissioners Court, not the local board of judges. Smith , 728 S.W.2d at 786. The Commissioners Court in that case sought to rely upon the maximum limits placed upon attorneys fees by the local board of judges. Id. at 787-88. We held that the trial court was not bound by those limits because the statute at issue did not place any limits on the trial court's discretion. Id. at 793. In light of the posture of the case, our Legislature's requirement that the fee schedule approved by the local judges contain a maximum limit in response to Smith cannot be read as an endorsement of the authority of local judges to set fee schedules with no maximum limit. The amendments placed a duty on trial courts to adhere to set limits, a duty that had not been present in Smith .

The appointed prosecutors in this case argue that the statutory limits on payments in accordance with a fee schedule conflict with the statutory provision that allows an individual trial court to set a reasonable fee.⁴⁹ But this contention is also belied by the text of the statute itself. Article 26.05(c) sets out an appeal process whereby appointed attorneys can appeal a trial court's refusal to pay their requested fees.⁵⁰ Under the text of that provision, even if the attorney is victorious in his or her appeal, the presiding judge may still only award a payment "in accordance with the fee schedule for that county."⁵¹ A trial court may still set a reasonable fee, but that authority is limited to the fee schedule set by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county.⁵²

49 The dissents also argue this point. Yet they offer no alternative reading to the statute that harmonizes subsections (a), (b), and (c). See Antonin Scalia & Bryan A. Garner, Reading Law 180 ("[I]t is invariably true that intelligent drafters do not contradict themselves (in the absence of duress). Hence there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.").

50 Tex. Code Crim. Proc ., art. 26.05(c).

51 Id.

52 Id. In this way, Article 26.05(c) operates in a fashion that is analogous to how Section 75.401 of the Texas Government Code handles salary-setting roles of court administrators. As our sister court has noted when considering the court administrator statute, "Under section 75.401, the district judges (‘the judges served’) determine if compensation is ‘reasonable,’ but the range is ‘set by the commissioners court.’ " Henry , 520 S.W.3d at 37. Though Article 26.05(c) authorizes the trial courts to decide upon "the range," commissioners courts are entitled to rely upon that range as a limit upon what the trial courts ultimately assess as a "reasonable" fee.

Further, incorporating the open-ended "opt out" provision of Rule 4.01(B) into the fee schedule itself did not bring the local rules into compliance with the statute. Subsection (a) of Article 26.05 recognizes a trial court's authority to set a reasonable fee for attorney services. But subsection (b) of Article 26.05 limits that authority by requiring any reasonable fee to be paid in accordance with an adopted fee schedule. And subsection (c) of Article 26.05 sets out the requirements for that fee schedule, including the limitation that the fee schedule set out either a reasonable fixed rate or minimum and maximum hourly rates.⁵³

53 Reading the statute to say that the "opt out" provision only conflicts with subsection (c) of Article 26.05 fails to read the statute as a whole. Subsection (b) requires payment in accordance with a fee schedule described in subsection (c). The "opt out" provision is not part of a fee schedule described in subsection (c). Payment under it necessarily conflicts with subsection (b).

When reading statutes, courts are not prohibited from using logic and common sense. We presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.⁵⁴ We read the statute as a whole.⁵⁵ Allowing the incorporation of an "opt out" provision without fixed rates or set limits into the adopted fee schedule fails to give effect to the entire statute. It renders meaningless the statutory requirements that payment be made in accordance with an approved fee schedule and that the approved fee schedule contain either "reasonable fixed rates or minimum and maximum hourly rates." Giving effect to the entire statute, it plainly requires placement of limitations on fees for appointed attorneys and it prohibits payment outside of those limitations. The statute is not reasonably susceptible to any other interpretation.⁵⁶ Here, the local judges set out a fee schedule with fixed rates and minimum and maximum limits that they determined to be reasonable. But they also adopted an open-ended "opt-out" provision in Rule 4.01B. This provision ran afoul of the plain language of Article 26.05, which limits a trial court's authority to order payment within a fixed fee schedule. We agree with the court of appeals that Article 26.05 does not permit judges to expand that authority by individually setting a fee outside the range of what has been collectively agreed upon as reasonable.⁵⁷

54 State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).

55 See Antonin Scalia & Bryan A. Garner, Reading Law 167 ("Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.").

56 A statute is ambiguous when it is reasonably susceptible to more than one interpretation. Arteaga v. State , 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). Even if we were to assume that Article 26.05 is ambiguous, the terms of the statute place a duty upon trial courts to authorize compensation at either a fixed rate or within a minimum or maximum hourly rate. See Tex. Gov't Code § 311.016(2) (setting out that the Legislature's use of the word "shall" imposes a duty unless the context in which the word or phrase appears necessarily requires a different construction). For the statutory terms at issue to be read permissively, the statute would have to contain an explicit exception to the requirement that the fee schedule include "fixed rates or minimum and maximum hourly rates." It does not, and we cannot construe from the absence of such an explicit exception that trial courts are nevertheless permitted to act contrary to a statutory duty.

57 In re Collin Cty. , 528 S.W.3d at 812-13.

V. Arguments of Amici Curiae

The appointed prosecutors in this case argue, along with the National Association of Criminal Defense Lawyers as amicus curiae supporting their position, that vacating the trial court's order of payment in this case will have a negative impact on adequate compensation for attorneys representing indigent defendants in complex criminal cases. But even though the compensation for appointed prosecutors is calibrated to the compensation for attorneys representing indigent criminal defendants, that is not the application of the statute we are faced with here. The statutory terms at issue are clear; but applying the statutory limitations to compensation for indigent defense without exception may conflict with constitutional guarantees.

We acknowledge that the lack of adequate compensation for appointed counsel can pose a serious threat to a fundamentally fair trial.⁵⁸ The outcome of a criminal case should not depend upon how much money a defendant has. But that is not the application of the statute we are dealing with here; any possible constitutional concerns present in an indigent defense case are not present in this case.⁵⁹ Here, we are only faced with an application of an unambiguous statute.

58 See, e.g., Martinez-Macias v. Collins , 979 F.2d 1067, 1067 (5th Cir. 1992) (holding that the defendant was denied his constitutional right to counsel due to inadequate funding).

59 Acknowledging that there is a Sixth Amendment right to counsel and that, in an unusual or unforeseen circumstance, statutory limitations upon a trial court's ability to set payment for counsel might interfere with that right does not render the statute "a dead letter." It merely recognizes the possibility that even though the statute may operate constitutionally in the normal course of business, it may be subject to an as-applied constitutional challenge in unusual or unforeseen circumstances. See State ex rel. Lykos v. Fine , 330 S.W.3d 904, 910 (Tex. Crim. App. 2011) (noting that an as-applied constitutional challenge to a statute allows that a statute may be valid as applied to one set of facts and invalid as applied to a different set of facts). A determination that a statute is unconstitutional in a particular application only prohibits that particular application of a statute without invalidating the entire statute. See Ayotte v. Planned Parenthood of Northern New England , 546 U.S. 320, 328-29, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ("Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force[.]").

A group of elected district attorneys and the former State Prosecuting Attorney also argue on behalf of the appointed prosecutors in this case. In their amicus curiae brief, they contend that, as a matter of policy, interpreting Article 26.05 as limiting a trial court's ability to set fees will result in fewer competent attorneys agreeing to sign on for high profile cases such as this one. But our Legislature appears to have already weighed this concern and set course in a different direction. Article 2.07 already allows for counties to avoid this issue altogether by appointing district or county attorneys to step in where a local prosecutor is either disqualified or recused. If the county chooses this path, additional compensation is not required at all.

Relatedly, we are not called upon, in this case, to address limitations upon the discretion of commissioners courts.⁶⁰ Article 5, Section 18 of the Texas Constitution provides that a commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State ...."⁶¹ It is well-settled that a commissioners court has the power to hire outside counsel to assist other elected officials in carrying out their responsibilities as long as it does not infringe on the statutory duties of other officials.⁶² Nothing in this Court's opinion should be read to interfere with a commissioners court's authority to approve funding necessary to assist a trial court in carrying out its responsibilities independent of the statutory limitations placed upon the trial court's authority by Articles 2.07 and 26.05.⁶³

60 See, e.g., Guynes v. Galveston Cty. , 861 S.W.2d 861, 863 (Tex. 1993) (noting the authority of commissioner's court to hire counsel to assist it or other officials in carrying out their responsibilities so long as the statutory duties of other county officials are not thereby usurped); see also Galveston Cty. v. Gresham , 220 S.W. 560, 563 (Tex. Civ. App.—Galveston 1920, writ. ref'd) (noting that the acceptance by commissioners court of the services of an attorney ratifies an agreement previously made by an unauthorized party).

61 Tex. Const . art. 5, § 18 (b).

62 Guynes , 861 S.W.2d at 863.

63 The Commissioners Court appears to have already done that when it voted to approve the first payment to the appointed prosecutors after rejecting the same statutory arguments presented to this Court in this case. See, e.g., Rodgers v. Taylor Cty. , 368 S.W.2d 794, 797 (Tex. Civ. App.—Eastland 1963, writ ref'd n.r.e.) (noting that the commissioners court could ratify contract with court reporter because it had authority to authorize payment for services rendered by the court reporter independent of reporter's contract with District Attorney for those services).

Ultimately, what amounts to good or bad policy is not up to this Court to decide.⁶⁴ As we noted in In re Allen , "Public-policy arguments quickly pile up on both sides of the debate .... But they find utility only in the Legislature and should be directed there."⁶⁵ Mandamus is an inappropriate vehicle for weighing competing policy arguments. If the application of the statute at issue seems too harsh in this case, it is up to our Legislature to decide if and how to address it.

64 See Antonin Scalia & Bryan A. Garner, Reading Law 348 ("The problem is that although properly informed human minds may agree on what a text means, human hearts often disagree on what is right. That is why we vote (directly or through our representatives) on what the law ought to be ....").

65 In re Allen , 462 S.W.3d at 53.

VI. Conclusion

In its amicus curiae brief in support of the Commissioners Court, the County Judges and Commissioners Association of Texas observed:

The fee schedule established by Local Rule 4.01(a) is valid, even if it may [be]

inadequate to address the particular issues that arose in this case. If the schedule is inadequate, it may be amended to provide for extraordinary cases without vesting an unfettered discretion in each individual trial judge in violation of the parameters of the statute.

By finding that 4.01(b) is invalid, the Court of Appeals left in place 4.01(a) and the specific fee schedule that provides for attorney's fees. Should the Collin County judges determine that the fee schedule under 4.01(a) is inadequate, they may create a new fee schedule that is both specific and contains a broader range of attorney's fees. What the judges may not do is create a limitless range of fees, as was done in 4.01(b).⁶⁶

66 Brief for County Judges and Commissioners Association of Texas as Amici Curiae Supporting Commissioners Court, No. WR-86,920-02 (Tex. Crim. App. Oct. 26, 2017).

We agree. Here, the trial court exceeded its authority by issuing an order for payment of fees that is not in accordance with an approved fee schedule containing reasonable fixed rates or minimum and maximum hourly rates.⁶⁷ We, therefore, agree with the court of appeals that the Commissioners Court of Collin County is entitled to mandamus relief. We vacate the trial court's second order for interim payment and order the trial court to issue a new order for payment of fees in accordance with a fee schedule that complies with Article 26.05(c) of the Texas Code of Criminal Procedure.

67 Nothing in this Court's opinion should be read as announcing a "one size fits all" scheme for payment of fees. Trial judges in Texas can develop a wide array of payment structures to account for unforeseen circumstances. They simply must be based upon reasonable fixed rates or minimum and maximum hourly rates.

Richardson, J., filed a concurring opinion.

Yeary, J., filed a concurring and dissenting opinion.

Alcala, J., filed a dissenting opinion.

Keel, J., filed a dissenting opinion.

Walker, J., filed a dissenting opinion.

CONCURRING OPINION

Richardson, J., filed a concurring opinion.

This case is not about the merits of the underlying indictments against Ken Paxton, and it is not about the reasonableness or deservedness of attorneys fees. This mandamus proceeding is about vacating a trial court's void order because it failed to comply with the plain and unambiguous terms of Article 26.05. Article 26.05(a) plainly and unambiguously states that an appointed counsel "shall be paid a reasonable attorney's fee" based on "the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel."^{1 1 1 1} Article 26.05(b) plainly and unambiguously directs that all such compensation to an appointed counsel "shall be paid in accordance with a schedule of fees adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county."^{2 2 2} Article 26.05(c) further instructs that "[e]ach fee schedule adopted shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates..."^{3 3} In accordance with Article 26.05(b), the judges of the district courts trying criminal cases in Collin County ("the judges") adopted Local Rule 4.01A, which created a "Fee Schedule for Appointed Attorneys." The Fee Schedule created by the judges, on its face, complied with Article 26.05(c), in that it stated "reasonable" fixed rates. Some of these fixed rates were per type of case, and some of the fixed rates were per hour. Although the judges had the option under Article 26.05(c) to also set "minimum and maximum hourly rates,"^{4 4} the Fee Schedule they adopted did not do so. And, as the majority explains, therein lies the problem. Instead, the judges adopted Local Rule 4.01B, which provided that the judge presiding over a case may authorize payment to appointed counsel that can vary from the Fee Schedule "in unusual circumstances."^{5 5} This local rule had the effect of giving a single trial court judge unlimited flexibility in setting a fee in order to account for difficult and/or high profile cases requiring uniquely qualified and experienced attorneys.

1 Tex. Code Crim. Proc. art. 26.05(a).

1 See Jacolos v. State , 692 S.W.2d 724, 726 (Tex. Crim. App. 1985) (holding that the Court of Criminal Appeals may not review—at least not on discretionary review—rulings of the intermediate courts of appeals that are rendered in the exercise of their own original jurisdiction to grant or deny extraordinary writs). This Court has always reviewed the judgments of the courts of appeals in the exercise of their mandamus jurisdiction by entertaining original mandamus proceedings ourselves. And when we review a court of appeals' mandamus judgment in an original mandamus proceeding before this Court, by definition we are reviewing nothing more than the court of appeals' judgment.

1 The complained of order in this case is the trial court's second order for payment of attorney's fees to relators. Commissioners Court paid the trial court's first order for payment of attorney's fees to relators without complaint. Unless specified otherwise, all references to the trial court's order are to the second order. Furthermore, Brian Wice is the named relator, but he is assisted by other special prosecutors who are also affected by the trial court's second order of payment.

1 Texas courts have long declined to follow an "all-or-nothing" approach to the relief requested in applications for writs of mandamus. Instead, a relator may be awarded less relief than demanded if he has shown what portion of the whole he is entitled to. Vanliner Ins. Co. v. Tex. Workers' Comp. Comm'n , 999 S.W.2d 575, 579 (Tex. App.—Austin 1999, no pet.) ; City of Austin v. Cahill , 99 Tex. 172, 88 S.W. 542, 550 (1905).
--------

2 Id. at 26.05(b).

2 See Smith v. Flack , 728 S.W.2d 784, 797 (Tex. Crim. App. 1987) (Onion, P.J., dissenting) ("The color of money is the name of the game, the subject of the litigation. It is a civil law matter. The majority today acts beyond this Court's jurisdiction.").

2 See former Local Rule 4.01(B).

3 Id. at 26.05(c).

3 See In re Allen, 462 S.W.3d 47, 53 (Tex. Crim. App. 2015) (observing that a mandamus case "must be decided on the existing law alone" and is not an appropriate vehicle to "interpret statutory language, clarify this Court's precedent, or create law where there is none").

4 Although not relevant to the issue before the Court, the Fee Schedule has since been changed, effective February 3, 2017, to provide for minimum and maximum hourly rates in certain types of cases.

4 In June 2017, the assigned Tarrant County judge signed an order transferring these cases to Harris County. A Harris County judge is now presiding over these criminal proceedings. The proceedings have been stayed pending the resolution of the instant petition for mandamus. See In re State ex rel. Wice, No. WR-86,920-02, 2017 WL 4276108 (Tex. Crim. App. Sept. 25, 2017) (per curiam).

5 Effective January 22, 2016, Local Rule 4.01B was amended to specify that "[t]he judge presiding over a case may authorize payment to appointed counsel that varies from the fee schedule in unusual circumstances..." The local rule setting the Fee Schedule was also amended at the same time, adding a reference to this exception in Local Rule 4.01B—"counsel shall be paid according to the following fee schedule, without exception, except as provided for in Section 4.01B." Effective February 3, 2017, Local Rule 4.01B was completely removed and a new Local Rule 4.4 was promulgated which allows for "reasonable and necessary attorney's fees" for non-plea cases. Local Rule 4.4 specifies no fixed, minimum, or maximum amount of fees.

5 At the time of the challenged order of payment, the Collin County district judges had enacted Rule 4.01 for the payment of appointed attorneys, which stated,

SECTION FOUR

PROCEDURES FOR ATTORNEY COMPENSATION

4.01. Attorney Fee Schedule

A. The District Judges adopt, pursuant to Article 26.05 Tex. Code of Crim. Proc., a fee schedule for appointed attorneys, attached hereto as "Fee Schedule for Appointed Attorneys."

B. The judge presiding over a case may authorize payment to appointed counsel that varies from the fee schedule in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.

In this case, Relator and two other attorneys were appointed to serve as attorneys pro tem in the matters of State of Texas v. Warren Kenneth Paxton , Jr. , Case Nos. 416-81913-2015, 416-82148-2015, and 416-82149-2015, in the 416th Judicial District Court of Collin County ("the Paxton cases"). In April of 2015, under the authority of Local Rule 4.01B, the Collin County Local Administrative Judge entered into an agreement to pay the attorneys pro tem $300 per hour for their work as special prosecutors in the Paxton cases. A Collin County District Judge presided over the grand jury proceedings, but at the end of July 2015, the presiding judge of the first administrative judicial region assigned a Tarrant County district court judge to preside over the Paxton cases, after the first judge recused himself.

After having worked on the cases for approximately eight months, in December of 2015, the attorneys pro tem submitted their first request for compensation. Under the authority of Local Rule 4.01B, and in accordance with what he understandably assumed was a valid agreement entered into between the Local Administrative Judge and the attorneys pro tem, the assigned judge issued an order for the Commissioners Court to pay to the attorneys pro tem their submitted invoice at the agreed-upon rate of $300 per hour.^{6 6} In January of 2016, the Commissioners Court voted and approved payment by the county of the amount requested by the attorneys pro tem. As the majority points out, the Commissioners Court knowingly paid this first request for compensation at the $300 per hour rate, and this payment is not at issue at this time.

6 It is not at all unusual nor surprising that the assigned judge would not have questioned the authority of the Local Administrative Judge (the judge who assigned him) to set the hourly rate of pay to the attorneys pro tem at $300 per hour. That was no doubt perceived as an administrative detail that had been worked out long before he was assigned to the cases.

6 As of the time of the challenged order of payment in this case, the fee schedule that set forth the amounts of the fixed fees stated as follows:

FEE SCHEDULE FOR INDIGENT DEFENSE COURT APPOINTED ATTORNEYS

In all felony cases, except as hereafter provided, counsel shall be paid according to the following fee schedule, without exception, except as provided for in Section 4.01(B):

PLEAS:

Death Penalty: $150.00 per hour

Capital, non-death penalty: $100.00 per hour

First Degree Felony: $1,000.00

Second Degree Felony: $750.00

Third Degree and State Jail Felonies: $500.00

Additional cases: $250.00 (per case at discretion of the judge)

TRIALS:

Pre-Trial preparation: $1,000.00

Trial, per ½ day: $500.00

DISCRETIONARY ADJUSTMENT

Per case adjustment, not to exceed $1,000.00

Child Advocacy Center cases and all cases with a minimum 15 year sentence:

Per case adjustment, not to exceed: $3,000.00

[mental health cases]:

Per case adjustment, not to exceed: $1,750.00

A second request for compensation was authorized by the assigned judge, again in accordance with the original compensation agreement and under the authority of Local Rule 4.01B. However, the second request for payment was rejected by the Commissioners Court, and these proceedings ensued.

I agree with the majority and with the Fifth Court of Appeals that the judges who created the Fee Schedule and the local rules never had the statutory authority to promulgate Local Rule 4.01B.^{7 7} The plain language of Article 26.05(c) requires the schedule of fees that the judges adopt to "state reasonable fixed rates" or "minimum and maximum hourly rates." This clearly and unambiguously means that the Fee Schedule must state specific dollar amounts. The statute even acknowledges that the Fee Schedule must "tak[e] into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates." There is nothing in Article 26.05 that allows the local administrative judge or a district court judge presiding over a case to approve the payment of an attorney pro tem's hourly rate that does not fall within a specific dollar-amount-range provided for in the county's formally adopted Fee Schedule. In fact, Article 26.05(c) provides that if an attorney's request for payment is disapproved, he may appeal such disapproval to the presiding judge of the administrative judicial region. However, the presiding judge only has the authority to approve of such payment if it "is in accordance with the fee schedule for that county."^{8 8} Thus, although Article 26.05(a) does mandate that the attorney pro tem be paid a "reasonable" fee, what constitutes "reasonable" has already been decided by the criminal court judges of the county and provided for in the county's published Fee Schedule. Any attorney accepting an appointment as an attorney pro tem is on notice that his or her compensation must be in accordance with the county's Fee Schedule. In this case, understandably misled by Local Rule 4.01B and by the Commissioners Court's prior approval of the first payment of fees, the attorneys pro tem continued to work on the Paxton cases, assuming that they would continue to be paid $300 per hour. However, unfortunately, they did so at their own peril.^{9 9} The judges of Collin County did not have the authority to promulgate Local Rule 4.01B, which makes it a void rule. Because Local Rule 4.01B is void, the agreement to pay the attorneys pro tem $300 per hour in accordance with that rule is unenforceable, and the trial court's order to compensate the attorneys pro tem $300 per hour is therefore void. That does not mean that counties are without the ability to find and pay skilled attorneys to serve as special prosecutors in complex or unusual cases. The terms of Article 26.05 allow for a Fee Schedule that could cover the need to pay "reasonable" fees based on the attorney's experience and the complexity of the case. Local Rule 4.01B went outside the clear parameters set in Article 26.05. Local Rule 4.01A (i.e., the Fee Schedule) could have been written so as to account for the need to pay "reasonable" fees within those parameters. While it is clear that the Local Administrative Judge and the assigned judge believed that they were acting under valid authority—Local Rule 4.01B—in authorizing and ordering the payment of $300-per-hour fees to the attorneys pro tem, they were not.

7 In re Collin Cnty. , 528 S.W.3d 807, 813-14, 815 (Tex. App.—Dallas 2017).

7 See also In re Perkins , 512 S.W.3d 424, 432 (Tex. App.—Corpus Christi 2016) (observing that the term "reasonable" in Article 26.05(a) "connotes a discretionary act rather than a mandatory one" and that "article 26.05 as a whole recognizes the application of judicial discretion to an award of attorney's fees").

8 Tex. Code Crim. Proc. art. 26.05(c).

8 This Court's majority opinion asserts that we have already held in a prior decision that the language in Article 26.05 is clear and unambiguous, such that the statute properly affords Commissioners Court a basis for mandamus relief here. That assertion is misleading because the case cited by the majority opinion, Smith v. Flack , was decided more than thirty years ago when Article 26.05 was worded completely differently from the current version. See 728 S.W.2d 784 (Tex. Crim. App. 1987). Following this Court's decision in Smith that had interpreted the former version of Article 26.05, the Legislature rewrote the statute to include the language in subsection (c) that is now at issue in this case. See Act of June 19, 1987, S.B. 1108, 70^th Leg., R.S. Because the challenged language in subsection (c) was not included in the former version of Article 26.05, this Court's holding in Smith analyzing the former statute is irrelevant for purposes of resolving whether the current statutory language is plain or ambiguous.

9 Judge Keel's Dissent states that mandamus is precluded here because the Fee Schedule was defective for not providing for the payment of a "reasonable" fee, and it therefore did not comply with Article 26.05(a), which thus created a dilemma for the trial court because its duty was not a "clear duty." However, the trial court did have a clear duty—to pay the attorneys pro tem in accordance with the Fee Schedule. So long as a trial court complies with the Fee Schedule, it has discretion in determining what constitutes a "reasonable fee" for an appointed attorney within the parameters of that Fee Schedule. See Tex. Gen. Op. JM-537, 1986 WL 219383 (August 22, 1986) (citing Tex. Gen. Op. H-909 (1976) ). The trial court judge has a ministerial duty to pay appointed counsel in accordance with the Fee Schedule.

9 Even if this Court's majority opinion is correct that providing for a range of fees in a fee schedule is the appropriate way to incorporate Article 26.05(a)'s requirement that fees be reasonable based on "the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel," then that assessment does not assist in the resolution of the instant proceeding. This fee schedule, according to this Court's majority opinion, permitted only a fixed fee amount. Whether a range of fees would satisfy subsection (a) is not before this Court at this juncture.

"[A]n agreement which violates a valid statute is illegal and void, and cannot be enforced."^{10 10} And, because the assigned judge lacked the authority to authorize the payment of statutorily unauthorized fees, he had a ministerial duty to refrain from taking that action. Although unintentionally set in motion, since the trial court took the action of ordering an unauthorized payment, it now has the ministerial duty to vacate that order.^{11 11} I therefore agree with the majority that the holding of the Fifth Court of Appeals should be affirmed.

10 Woolsey v. Panhandle Ref. Co ., 131 Tex. 449, 116 S.W.2d 675, 678 (1938) (holding that employee's contract for settlement with employer was void and unenforceable because it was executed in violation of the Workmen's Compensation Law) ("[T]his court has repeatedly refused to enforce contracts which are either expressly or impliedly prohibited by statutes or by public policy.").

10 This Court's majority opinion suggests that our 1987 opinion in Smith v. Flack, and the legislative response to that decision, support the position that Article 26.05 clearly prohibits the type of opt-out rule provided for in Rule 4.01(B). See Smith, 728 S.W.2d at 789-92. I disagree with this interpretation of the legislative response to Smith. In Smith , the underlying facts were distinguishable because, there, the trial judge's order for payment of fees exceeded the maximum rates permitted by the local rules, as compared to the instant case in which the judge has strictly abided by the local rules. Id. at 787. In Smith , this Court upheld the trial judge's order by determining that the Board of Judges lacked authority to set forth maximum rates of payment for attorney's fees, noting that Article 26.05 at that time did not expressly authorize the setting of maximum rates. Id. at 792. In response to this Court's holding in Smith , the Legislature amended Article 26.05 to essentially overturn this Court's decision and permit the local Board of Judges to do the very thing it had attempted to do previously—enact maximum rates. Given the context of the underlying litigation that preceded the legislative amendments to Article 26.05, it appears to me that the amendments were intended to ensure that individual trial judges adhere to the rules enacted by the local boards of judges and that the local boards should be permitted wide discretion, as here, to establish fee schedules that they view as appropriate and reasonable for the courts in their jurisdiction. In short, the Legislature's post-Smith amendment of Article 26.05 was to permit local boards to have the authority to set maximum rates for the payment of appointed attorneys, but that grant of authority to set maximum rates cannot be read as a clear mandate that trial judges must strictly adhere to maximum rates in all cases, even when a local board has opted to permit exceptions to the maximum rate to ensure the interests of justice.

11 State ex rel. Thomas v. Banner , 724 S.W.2d 81, 83 (Tex. Crim. App. 1987) ("If he did not have the authority it was his ministerial duty to vacate the orders."). In re Medina , 475 S.W.3d 291, 298 (Tex. Crim. App. 2015).

11 For example, Harris County's fee schedule provides that "[a] request to exceed the presumptive maximum [daily or weekly term] will not be considered except upon written request providing adequate justification." Travis County's fee schedule provides, "In an unusual case, taking into account the considerations set forth in Texas Rules of Professional Conduct Rule 1.04(b) the Program Administrator may authorize a fee that is less than or more than the one established by these guidelines." Hidalgo County's fee schedule provides, "For good cause or exceptional circumstances, an appointed attorney may request payment at an hourly rate above the rates specified in subsections (a) and (b) of this Rule, subject to review and approval by the judge presiding over the case as specified in Rule 8.02." El Paso County's fee schedule provides, "Payment of a fee in excess of the case maximums will only be made if the case was complex or extended." Denton County's fee schedule provides, "Upon good cause shown, the Court may approve an amount for attorney fees which exceeds the amounts stated above. In making its determination, the Court may consider the time and labor required, the complexity of the case, and the experience and ability of appointed counsel." See Tex. Indigent Def. Comm'n , Current Attorney Fee Schedules , (http://tidc.tamu.edu/public.net/Reports/FeeDocuments.aspx#D) (last visited Nov. 15, 2018).

It is unfortunate that the attorneys pro tem have not been paid for their work in such cases in over two years. During that period, they have had to spend a considerable amount of time, energy, and money engaged in more than one battle over the payment of their fees they have incurred serving as attorneys pro tem in the Paxton cases. Since January of 2016, the attorneys pro tem have had to respond to four previous proceedings involving taxpayer-related claims brought by a private citizen in Collin County attempting to prevent payment to the special prosecutors.^{12 12} Those attempts were unsuccessful. According to the briefs before the Court, the Commissioners Court has authorized payment of up to $375 an hour to private attorneys the Commissioners Court has engaged to fight paying the attorneys pro tem $300 an hour.¹³

12 See In re Jeffory Blackard, Relator , No. 05-16-00478-CV, No. 095-16-00479-CV, No. 05- 16-00480-CV, 2016 WL 1756786 (Tex. App.—Dallas, April 29, 2016) ; In re Jeffory Blackard, Relator , No. 05-16-00470-CV, 2016 WL 1756786 (Tex. App.—Dallas, April 29, 2016) ; Blackard v. Schaffer , No. 05-16-00408-CV, 2017 WL 343597 (Tex. App.—Dallas, January 18, 2017) (This appeal not only required the involvement of the attorneys pro tem in their official capacities, the Collin County Judge in his official capacity, the individual commissioners in their official capacities, and the county auditor in his official capacity, this appeal also involved several additional attorneys representing the various parties.); Blackard v. Schaffer , No. 05-17-00094-CV, 2017 WL 2493279 (Tex. App.—Dallas, June 9, 2017).

12 I note here that the legislative history from the 2001 amendments to Article 26.05 supports this view. With respect to subsection (c), the amendment added the key language requiring that a fee schedule "shall state reasonable" fees, replacing the former language that had required a fee schedule to simply "include" a fixed rate or minimum and maximum hourly rates, with no reasonableness requirement. See Act of June 14, 2001, S.B. 7, 77^th Leg., R.S.; Tex. Code Crim. Proc . art. 26.05(c). The amendment also added the language requiring consideration of "reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates" in setting a fee schedule. Id. Both of these amendments to the statute clearly emphasized the reasonableness of fees. Moreover, the legislative bill analysis supporting these amendments reflects that the Legislature is aware of the type of opt-out provisions at issue here, but it has taken no steps to prevent or eliminate them through statutory amendments. The bill analysis states,

Appointed attorneys must be paid a "reasonable attorney's fee" for certain services listed in CCP, art. 26.05. All payments must be made according to a schedule of fees adopted by the county and district criminal court judges in each county and must be paid from the general fund of the county in which the prosecution takes place. In most cases, the state provides no funds to pay for appointed attorneys. However, the state does contribute up to $25,000 per case for attorneys and expenses for habeas corpus appeals of death sentences, a type of appeal that challenges the constitutionality of a conviction.

Most courts that appoint attorneys for indigent defendants reimburse the lawyers with a combination of fixed fees for handling certain duties, such as a jail visit or a day in court, and an hourly rate for other work. Individual judges decide what rates they will pay. In most situations, even when counties or judges have a published fee schedule, judges have the discretion to alter the rates paid to court-appointed attorneys.

13 See Relator's Petition for Writ of Mandamus at 7 n.11.

Moreover, based on the briefs submitted, it appears that the Commissioners Court may seek to recoup what it already paid to the attorneys pro tem for their work on the Paxton cases,¹⁴ despite voting to approve the first request for payment submitted by the attorneys pro tem. However, the Commissioners Court should not be entitled to recover what it has already paid to the attorneys pro tem. Under the Fee Schedule existing at the time, the judge may not have had statutory authority to order the Commissioners Court to pay the attorneys pro tem $300 per hour; however, the Commissioners Court certainly had the constitutional and statutory authority to pay it.¹⁵ Counties need not be concerned that the Court's decision today precludes the commissioners's ability to pay an attorney pro tem any fee they deem reasonable. The Commissioners Court has the spending authority to pay an amount in excess of what is set out in the county's Fee Schedule, but it is not required to do so, which is what happened here. But, since the Commissioners Court may ratify that which it could have authorized originally,¹⁶ the commissioners's first payment to the attorneys pro tem was a valid payment of county funds. While the first payment by the Commissioners Court to the attorneys pro tem may not have prospectively bound the Commissioners Court to continue paying at the rate originally promised, the first payment by the Commissioners Court was a clear ratification of the agreement to pay that first amount requested for work already incurred. Therefore, the Commissioners Court should not be entitled to recoup the fees already paid.

14 See Relator's Petition for Writ of Mandamus at 7 n.12, In Re The State of Texas Ex Rel. Brian W. Wice, Relator , Nos. 416-81913-2015; 416-82148-2015; 416-82149-2015 (Sept. 9, 2017) (citing Lauren McGaughy, Collin County Wants Back the Money it Spent on AG Ken Paxton Prosecution , Dallas Morning News , Aug. 2017).

15 See Tex. Const. art. V § 18 (b) (Commissioners Court may exercise powers and jurisdiction over all county business); Tex. Loc. Gov't Code Ann. § 111.010(b) (Commissioners Court may spend county funds if within the budget); Guynes v. Galveston Cnty. , 861 S.W.2d 861, 863 (Tex. 1993) ("As the administrative head of county government, a commissioners court also possesses broad implied powers to accomplish its legitimate directives.... These powers include the authority to contract with experts when necessary, including attorneys.").

16 State v. Carnes , 106 S.W.2d 397, 399 (Tex. App.—San Antonio 1937, no writ) (citing Cameron Cnty. v. Fox , 61 S.W.2d 483 (Tex. Comm'n. App. 1933) ). See also Rodgers v. Cnty. of Taylor , 368 S.W.2d 794, 797 (Tex. App.—Eastland 1963, writ ref'd n.r.e.) (The district attorney, county judge, one commissioner, and the grand jury foreman hired a court reporter to transcribe some testimony, and later the Commissioners Court ratified this expense. The county was liable because the Commissioners Court ratified the expense, holding that, "[w]hat the Commissioners Court could have authorized in the beginning, that court could subsequently ratify."); Morrison v. Kohler , 207 S.W.2d 951, 959 (Tex. App.—Beaumont 1947, writ ref'd n.r.e.) (Commissioners Court was "fully authorized to ratify and validate the contract and agreement... When the fact of the contract came to the knowledge of the commissioners' court, and they elected to hold the bonds or take any other benefit under them, or to carry out its provisions, they ratified it, and the county was estopped to deny its validity.... Under this authority it might be said that the payment to relators on August 8, 1946, of the advances for services rendered under the verbal agreement also constituted a ratification thereof.").

Moreover, as discussed herein and as pointed out by the court of appeals, rather than provide for such untethered flexibility and unlimited discretion by any one trial court judge, the judges have the ability to comply with Article 26.05 by providing in their Local Rule 4.01A Fee Schedule specific amounts for minimum and maximum rates of pay that would account for extraordinary and unusually complex cases.¹⁷ Such rates can include a maximum rate of $300 per hour or more.¹⁸ Article 26.05 does not mandate that all appointed attorneys work for the same compensation. Rather, requiring a stated "minimum and maximum hourly rate" allows the judges of each county to anticipate unusual and complex cases and collectively, by formal action, authorize adequate compensation for competent counsel by setting a specific range of pay for appointed attorneys.¹⁹ There is nothing stopping the judges of each county from amending that county's Fee Schedule to account for the appointment of qualified lawyers for difficult cases.²⁰ The Fee Schedule at issue in this case did not allow for a $300 per hour rate; but that Fee Schedule is not written in stone. If the judges wish to amend the Fee Schedule, they can follow Article 26.05(c) and provide for "minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates."²¹ As the court of appeals observed, "limiting the scope of the fees that may be paid to an appointed attorney does not eliminate the discretion of the individual trial judge."²² Article 26.05 allows the judges to adopt a range of hourly fees, but each individual judge has discretion to set a fee within that range that takes into account the complexity of the case and the need for a qualified special prosecutor. Article 26.05, as plainly and unambiguously written, makes perfect sense. The creation of Local Rule 4.01B, unfortunately, was not permitted by the statute, which means the trial court's order of payment under the authority of Local Rule 4.01B is a void order. Therefore, I agree that mandamus is the proper vehicle to undo that void order.

17 I agree with the majority's discussion of the legislature's response to this Court's 1987 decision in Smith v. Flack , 728 S.W.2d 784 (Tex. Crim. App. 1987). When Smith v. Flack was decided, Article 26.05 provided for only a minimum rate of pay for appointed attorneys. Without a maximum cap in the Fee Schedule, district court judges had the authority to order fees in any amount excess of the minimum. Article 26.05 was amended after that case to provide for a minimum and a maximum rate allowed. Presumably, this was to prevent a single judge from abusing his or her discretion by paying special prosecutors exorbitant fees. That was clearly not the case here. In fact, as noted herein, it appears that the Commissioners Court may be paying more to fight the payment of Relator's fees than the actual fees themselves.

18 The court of appeals aptly makes this point. In re Collin Cnty. , 528 S.W.3d at 813 ("limiting the scope of the fees that may be paid to an appointed attorney does not eliminate the discretion of the individual trial judge, regardless of the simplicity or complexity of the case.... [E]ach judge has discretion within that range to set the fee in an individual case.").

19 There are amicus briefs filed in support of granting relief to Relator, arguing that counties should have a right to pay the attorneys pro tem $300 per hour. I agree, as long as the county judges set up a Fee Schedule that allows appointed attorneys to be paid such a rate that is within a range of minimum and maximum fees, consistent with Article 26.05.

20 The court of appeals correctly noted that Article 26.05 "does not prevent the judges from taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable fees allowed. But the legislature intended each county to have an agreed framework that sets out the specific range of reasonable fees that could be paid." In re Collin Cnty. , 528 S.W.3d at 812 (emphasis in original).

21 Tex. Code Crim. Proc. art. 26.05(c). If the judges decide not to amend the current Fee Schedule, and if other judges in other counties do not heed this majority decision, I can see such counties having an extremely difficult time finding qualified attorneys to serve as special prosecutors in similarly high profile and unusually complicated cases. As noted by the majority, an elected district attorney from another county could serve as a special prosecutor without collecting any additional compensation. However, in a high profile, politically-charged case, the presiding judge would likely have a problem finding another district attorney from the same political party as the defendant who would take on the job of special prosecutor—I cannot fathom what incentive he or she would have to take on such a case. On the flip side of that, the judge appointing the special prosecutor would likely be publicly criticized if he or she appoints a district attorney from the opposing political party as the defendant.

22 In re Collin Cnty. , 528 S.W.3d at 813.

Nevertheless, the attorneys pro tem are entitled to be paid for the work they have done on the Paxton cases. They have put in a significant amount of time and effort—without compensation—working the cases they were appointed to prosecute, and they have submitted a request for payment. The amount that they should be paid simply must be in compliance with a statutorily authorized Fee Schedule. Therefore, I agree that the trial court must issue a new order for payment of fees in accordance with a Fee Schedule that complies with Article 26.05(c).

With these comments, I concur and join the majority.

CONCURRING AND DISSENTING OPINION

Yeary, J., filed a concurring and dissenting opinion.

I agree with essentially everything the Court says in its opinion today right up until the last sentence in which it announces its disposition. There the Court purports to "vacate the trial court's second order for interim payment and order the trial court to issue a new order for payment of fees in accordance with a fee schedule that complies with Article 26.05(c) of the Texas Code of Criminal Procedure." Majority Opinion at 200. I cannot join in this purported disposition for two reasons.

First, we are not called upon in this matter to order the trial court to do anything. In this mandamus proceeding, we are asked to compel the Fifth District Court of Appeals to, in essence, un- mandamus the trial court judge.¹ For the reasons developed in the body of the Court's opinion today, I agree we should not. Our disposition should simply announce that the mandamus relief Relator seeks is denied—period. That disposition on our part operates to preserve the ruling of the court of appeals. And that is the end of the matter insofar as we are concerned. The court of appeals' judgment (in which that court mandamused the trial court judge) will stand. We have no jurisdiction or authority in this original mandamus proceeding to directly compel the trial court to do anything .

Second, even if we had the authority in this proceeding to compel the trial court to do something, we have no occasion in these proceedings to compel it to issue a new order for payment of fees. Certainly Relator has not sought that disposition. Whether a new order for payment of fees should issue is a question not remotely before us, the issue has not been briefed, and any purported disposition in that regard is unauthorized, inappropriate, and purely advisory at best.

It is far from clear to me that the trial court has a ministerial duty to issue a new order of any kind. It is not even entirely clear to me that the question of whether a new payment order should issue constitutes a "criminal law matter" so as to invoke this Court's mandamus jurisdiction under Article V, Section 5(c) of the Texas Constitution.² See TEX. CONST . art. V, § 5 (c) ("[T]he Court of Criminal Appeals ... shall have the power to issue ... in criminal law matters, the writ[ ] of mandamus[.]"). How does the Court reach the conclusion that a new order of payment is required? Could not some other court presiding over a civil suit addressing these circumstances conclude that the first payment to pro tem counsel—in an amount exceeding $200,000—was more than sufficient compensation for all the work done so far? It also occurs to me that the Court's disposition will likely leave the parties and the lower courts scratching their heads about which fee schedule to base any new payment upon. And all of that counsels me to conclude that we should just prefer silence on the matter rather than an edict.

I would simply deny Relator's requested mandamus relief. We need say nothing else in the way of disposition, and we certainly should not announce the disposition that the Court does today. To the extent that its purported disposition has the effect of upholding the court of appeals' ruling, I agree with that implicit disposition. But I disassociate myself from any further purported disposition.

DISSENTING OPINION

Alcala, J., filed a dissenting opinion.

The Court's decision today will likely affect an overwhelming number of criminal cases in Texas and will possibly result in even more claims of ineffective assistance of counsel for indigent defendants. Today, this Court holds that a trial judge may not pay an appointed attorney a reasonable fee under circumstances in which that fee conforms with the fee schedule adopted by the local district judges. More specifically, this Court holds that courts must pay a fixed fee to all appointed attorneys when that is the only type of fee listed in a fee schedule, even when the payment of that amount is manifestly unjust in light of the circumstances of the case. On that basis, this Court upholds the court of appeals's decision compelling the trial court to vacate its order of payment for the appointed counsel, special prosecutor Brian Wice, relator.¹ For three independent and alternative reasons, I respectfully disagree with this Court's analysis and holding. First, the trial judge's order conformed to the applicable rules for Collin County: the judge's order met the terms of the regulatory scheme for the payment of appointed counsel as set forth in Collin County's Local Rule 4.01(B). That rule allowed for payments that varied from the fixed amounts listed in the fee schedule in "unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel."² The trial judge, acting in accordance with the applicable local rules, did not violate any ministerial duty or act in contravention of any clearly established legal principles, and the court of appeals, therefore, erred by ordering him to rescind his order. Second, to the extent that it can be argued that the trial judge's order, though in compliance with Local Rule 4.01(B), was nevertheless unauthorized because it violated Texas's statutory scheme for the payment of appointed attorneys set forth in Code of Criminal Procedure Article 26.05, that issue is one of first impression, the answer is unclear, and therefore, it is not a proper basis for a petition for writ of mandamus.³ Due to the ambiguity as to whether the local regulation conformed to the state statutory scheme, the court of appeals erred by declaring the local regulation invalid through a petition for a writ of mandamus and by ordering the trial judge to rescind his order on that basis. Third, because the statutory language in Article 26.05, when viewed as a whole, is ambiguous, I consider the policy implications of this Court's interpretation of the statute. This analysis suggests that this Court's interpretation of Article 26.05 will ultimately lead to less effective representation for indigent defendants, more expensive costs for local counties for appointed attorneys, and more broadly, the undermining of the Legislature's and Collin County's directives for the reasonable payment of appointed attorneys. This Court's majority opinion's decision to deny paying a reasonable fee to the special prosecutors in this case is effectively a decision to deny paying a reasonable fee to defense attorneys appointed to represent indigent defendants, and that will likely result in more cases of ineffective assistance of counsel. Also, because this Court's majority opinion prohibits trial judges from ever deviating from the listed rates in a fee schedule and requires fee schedules to have only fixed rates and/or set-forth ranges of rates, those rates, to ensure that they are reasonable in all possible cases, will necessarily have to include a wider range of available options with a higher outer limit. I conclude that that system will eventually cost counties more than the instant fee schedule that generally provided for fixed fees but also included an opt-out provision available only for exceptional cases. Furthermore, more broadly, this Court's majority opinion improperly legislates from the bench by construing Article 26.05 in a manner that disregards the Legislature's mandate and the Collin County district judges' fee schedule provisions that each require the payment of reasonable fees to all appointed attorneys. To suggest that the undesirable consequences of this Court's majority opinion's judicially created policy are the fault of the Legislature or the Collin County district judges is an unfair attack on those entities that expressly provided for measures to ensure reasonable fees for appointed attorneys. It is improper for a decision granting mandamus relief to create new law, but it is an even more dire situation when the new law, as here, results in manifest injustice due to its newly created policy. For all of these reasons, I respectfully disagree with the court of appeals's decision to compel the trial court to vacate its payment order, and with this Court's majority opinion's decision to leave the court of appeals's order intact.

I. Background

After the district judges of Collin County recused themselves from all matters involving the underlying criminal prosecution in this case, a judge from Tarrant County was appointed to hear the case.⁴ And after the Collin County District Attorney's office recused itself from these proceedings, the Local Administrative Judge of Collin County appointed Brian Wice and other attorneys to represent the State as special prosecutors in the case.

The administrative judge agreed to pay the special prosecutors under a fee schedule created by the district judges of Collin County that was described in the Local Rule 4.01, which governs the payment of attorneys appointed to criminal cases.⁵ That local rule provided for two options for trial judges: (1) payment of fixed fees for pretrial preparation and days spent in trial, with different set fixed fees for specifically described types of cases,⁶ or (2) payment of fees that varied from the fixed fee amounts when those amounts would be either inadequate due to unusual circumstances or manifestly inappropriate because of circumstances beyond the control of the appointed attorney. After their appointment to the underlying case, the special prosecutors performed work and they submitted two vouchers for payment, the first of which was paid without complaint, but the second of which resulted in the instant litigation.

In determining appropriate attorney's fees for the appointed special prosecutors in this case, the administrative judge departed from the fixed amounts provided for in Rule 4.01(A), which would have permitted the special prosecutors to be paid fixed fees of $1,000 for pretrial preparation and $1,000 per day for trial work, with a discretionary adjustment of up to $1,000 per case. The administrative judge determined that such fees would be inappropriate in light of the particular circumstances of this case, and relying on the provisions in Rule 4.01(B), he instead ordered fees in the amount of $300 per hour. During their first year of work on the case, the attorneys submitted a voucher for $254,908, of which $242,025 was for attorney's fees for work that was performed and paid at the agreed upon rate of $300 per hour. In January 2016, the trial judge approved the first voucher, and it was paid by the auditor with the approval of the Collin County Commissioners Court. The judge's order referenced Local Rule 4.01(B) and provided that "payment of attorneys [sic] fees to Attorneys Pro Tem in these causes shall deviate from the fee schedule and each attorney shall be paid the amount in the hourly rate ordered to be paid in the Appointed Counsel Request for Compensation as submitted by the respective Attorney Pro Tem and as approved by the Court." The judge's order indicated that it was enforceable by all sanctions available to the court. This first order of payment is not at issue in the instant litigation.

In January 2017, during their second year of work, the attorneys submitted another voucher that included a request for $199,575 for fees billed at the same rate of $300 per hour. The trial judge approved the voucher with language in the second order that was essentially identical to that in the first order. This time, however, the auditor refused to pay the voucher due to instructions it received from the Commissioners Court. Subsequently, the Commissioners Court sought a writ of mandamus against the trial judge in the Fifth Court of Appeals, arguing that the second order of payment was void and asking that court to compel the trial judge to vacate his order.

In their petition for mandamus relief before the court of appeals, the Commissioners Court asserted that the underlying provision in Local Rule 4.01(B) that permitted the trial judge to pay a fee outside of the fixed fees in the fee schedule violated Article 26.05 of the Code of Criminal Procedure, which governs the payment of appointed counsel under these circumstances. The Commissioners Court contended that, because Local Rule 4.01(B) did not comply with Article 26.05, the trial judge lacked authority to order the higher payment amount by relying on that local rule and thus his order was void.

The court of appeals agreed with the Commissioners Court that the trial judge lacked authority to order payment that exceeded the fixed amount provided for in the fee schedule. See In re Collin County , 528 S.W.3d 807, 812 (Tex. App.—Dallas 2017). The court of appeals determined, "After examining the language of article 26.05 and considering the clear objectives of that statute, we conclude the criminal district court judges exceeded the authority delegated to them under 26.05 by adopting local rule 4.01B. Article 26.05 mandates that attorney's fees be paid according to a schedule. Both rule 4.01B and Judge Gallagher's second order of payment contradict this mandate." Id. at 813. Thus, the court of appeals reasoned that it was essentially immaterial that the trial judge's order complied with Local Rule 4.01(B) because that rule was impermissible in light of the requirements of Article 26.05. Having determined that the second order of payment was void, the court of appeals conditionally granted mandamus relief to the Commissioners Court. Id. at 815. Relator then filed the instant petition for mandamus relief in this Court challenging the Fifth Court of Appeals's decision.

II. Analysis

I conclude that this Court's majority opinion errs by failing to compel the Fifth Court of Appeals to rescind its order that requires the trial judge to vacate his payment order in favor of relators. I support my conclusion with three reasons that I summarize here and explain more fully below. The Fifth Court of Appeals erred by voiding the trial court's order because the order fully complied with the applicable local rules for the payment of appointed attorneys in Collin County that had been properly enacted by the district judges of that county. Also, the court of appeals's decision is erroneous because it fails to comport with the mandamus standard of review in its creation of new law on a matter of first impression. Furthermore, the court of appeals's decision misinterprets the statutory language in a way that results in legislating from the bench to create a new policy resulting in manifest injustice.

A. The Trial Judge's Order Should Not Be Vacated Because it Conformed with the Applicable Local Rules for the Payment of Appointed Counsel

Here, the trial judge followed the applicable local rules for the payment of appointed counsel and his decision to pay counsel at a non-fixed rate was a discretionary decision within the scope of those rules. Absent some clearly controlling law that would have undermined the judge's discretionary authority pursuant to the local rules, the court of appeals should not have compelled the trial judge to vacate his order.

To be entitled to mandamus relief, the relator must show two things: (1) he has no adequate remedy at law, and (2) he seeks to compel a ministerial act, not one involving a discretionary or judicial decision. In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). If the relator fails to satisfy either aspect of this two-part test, then relief should be denied. Bowen v. Carnes , 343 S.W.3d 805, 810 (Tex. Crim. App. 2011). Because I conclude that the Commissioners Court has failed to meet the ministerial-act prong, I will address only that aspect of the mandamus standard and will not address the adequate-remedy prong.

To satisfy the ministerial-act requirement, it must be shown that the party seeking relief has a clear right to the relief sought, in the sense that the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles. Weeks , 391 S.W.3d at 122 ; see also Powell v. Hocker, 516 S.W.3d 488, 495 (Tex. Crim. App. 2017) (to satisfy ministerial-act requirement, party must show that the "governing law is of such absolute clarity and certainty that nothing is left to the court's discretion") (citing State ex rel. Young v. Sixth Judicial District Court of Appeals , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) ). A ministerial act, by its nature, does not involve the use of judicial discretion; it must be positively commanded and so plainly prescribed under the law as to be free from doubt. In re Allen , 462 S.W.3d 47, 49-50 (Tex. Crim. App. 2015) (citing State ex rel. Hill v. Court of Appeals for Fifth Dist. , 34 S.W.3d 924, 928 (Tex. Crim. App. 2001) ). It is proper to order a court to rule in a particular way only when the law invoked is " ‘definite, unambiguous, and unquestionably applies to the indisputable facts of the case.’ " Allen , 462 S.W.3d at 50 (quoting Young , 236 S.W.3d at 210 ).

Here, the trial judge's order of payment was in accordance with the applicable provisions in the schedule of fees pursuant to Local Rule 4.01(B), which expressly permitted payment "that varies from the fee schedule in unusual circumstances or where the fee would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel." No one appears to dispute that the trial judge's order strictly conformed with the requirements in Rule 4.01(B). Mandamus relief is inappropriate against the trial judge for the simple reason that the judge expressly complied with the local rules for the payment of appointed attorneys. The trial court had the discretionary authority under Local Rule 4.01(B) to determine that this case involves unusual circumstances that called for the higher fees due to a manifest necessity. This type of discretionary authority in conformance with the applicable local regulation is not a proper subject of mandamus relief.

B. The Trial Judge's Order for the Payment of Relators Should Not Be Vacated Because It is Inappropriate to Create a New Principle of Law For the Purpose of Granting Mandamus Relief

This Court reaches its flawed determination upholding the court of appeals's order only by creating an entirely new principle of law that is an inappropriate basis for mandamus relief. Although no one appears to dispute that the trial judge's order fully comported with the provisions in Local Rule 4.01(B), this Court's majority opinion holds that the order must nonetheless be vacated under the theory that Rule 4.01(B) fails to comport with the applicable statutory scheme in the Code of Criminal Procedure. But this Court's majority opinion's evaluation of that legal issue involves a matter of first impression, it requires creation of new principles of law, and it results in an interpretation of the ambiguous statutory scheme in a manner that disregards important parts of the statute.

As we have recently explained, "If the law surrounding a court's action is unclear, mandamus relief may not issue despite how unwise we think the action may have been .... [A] mandamus proceeding is not the appropriate place to interpret statutory language, clarify this Court's precedent, or create law where there is none." In re Allen , 462 S.W.3d at 52-53. Although an issue of first impression may sometimes qualify for mandamus relief, the principle of law underlying that issue must be one that has been "clearly established." See Weeks, 391 S.W.3d at 122. As I will show below, the foregoing requirements for mandamus relief are not met here, given that there are no clearly controlling, well-settled, unequivocal legal principles prohibiting the trial court's payment order that was made pursuant to Local Rule 4.01(B).

Two articles in the Code of Criminal Procedure govern the compensation of the appointed special prosecutors in this case. Code of Criminal Procedure Article 2.07 provides that, in the event that an attorney for the State is disqualified or otherwise unable to perform the duties of his office, the trial court may appoint a special prosecutor, and the court must compensate that attorney in the same manner as he would compensate an attorney representing an indigent defendant. See TEX. CODE CRIM. PROC. art. 2.07(a), (c). Article 2.07 states that, when he is not otherwise employed as an attorney for the State, an attorney pro tem "shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person." Id. art. 2.07(c). This provision thus compels the payment of a special prosecutor in accordance with the requirements governing the payment of attorneys appointed to represent indigent defendants. Because the judge's order of payment had to comply with the provisions applicable to attorneys appointed to represent indigent people, I turn next to those applicable provisions in Code of Criminal Procedure Article 26.05.

At the center of the dispute in this case is the meaning of the language in Article 26.05, entitled, "Compensation of Counsel Appointed to Defend." The statute states, in relevant part,

(a) A counsel ... shall be paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel: ... [the statute goes on to list four subsections detailing the types of work that qualify for compensation under the statute].

(b) All payments made under this article shall be paid in accordance with a schedule of fees adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county. On adoption of a schedule of fees as provided by this subsection, a copy of the schedule shall be sent to the commissioners court of the county.

(c) Each fee schedule adopted shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates ....

Id. art. 26.05.

Here, the judge's order of payment easily complied with the first two of the three subsections in Article 26.05. As required under Article 26.05(a), the judge's order compensated counsel at what he believed to be the reasonable rate of $300 per hour due to the complexity of the case and the experience and abilities of counsel. Additionally, as required under Article 26.05(b), the trial judge's payment order was made in accordance with the schedule of fees set forth in Local Rule 4.01. Although he could have opted to pay the special prosecutors under the portion of the fee schedule in Rule 4.01(A) describing fixed fees, the trial judge used his discretion to pay them under the portion of the fee schedule describing variable fees under Rule 4.01(B) due to the unusual circumstances of this case. Given that the judge's payment of attorney's fees complied with subsections (a) and (b) of Article 26.05, the dispute in this case centers on the meaning and applicability of subsection (c) and whether that subsection clearly disallows payments under Rule 4.01(B).

To ascertain the meaning of Article 26.05(c), we must apply the rules of statutory construction. We are required, in construing statutes, to view the language in context and give effect to the statutory scheme as a whole. See Yazdchi v. State , 428 S.W.3d 831, 837 (Tex. Crim. App. 2014) (in construing statutes, we must presume that the Legislature intended for the entire statutory scheme to be effective, and we must "read words and phrases in context"). We should "presume that every word in a statute has been used for a purpose and that each word, clause, and sentence should be given effect if reasonably possible." Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016).

Properly viewing subsection (c) of Article 26.05 in the context of the entire statutory scheme, the relevant language is ambiguous with respect to the propriety of local rule 4.01(B). Subsection (c) describes what a fee schedule "shall state," but it does not expressly disallow a fee schedule from including other provisions governing fees in addition to listing fixed fees and ranges of fees. See TEX. CODE CRIM. PROC . art. 26.05(c). Subsection (c) simply describes what constitutes a proper fee schedule by stating, "Each fee schedule adopted shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates[.]" Id. art. 26.05(c). The instant fee schedule sets forth fixed rates but not ranges of fees that would provide for minimum and maximum rates. To account for those situations where the fixed fee would be inappropriate, as here, the Collin County schedule of fees permitted the trial judge to pay a reasonable fee for unusual circumstances or for times when a fixed fee would be manifestly inappropriate. Although nothing about the language in subsection (c) expressly forbids the type of opt-out provision contained in Local Rule 4.01(B), this Court's majority opinion concludes that the statute is plain in that respect.

Even if the majority opinion has correctly assessed the language in subsection (c) as limiting counties to paying appointed attorneys with either fixed fees or ranges of fees, that subsection is not dispositive here because it must be read in the context of the entire statute that suggests that variable fees are permitted in some circumstances. In contrast to the language in subsection (c) that merely describes the requirements of a fee schedule, the other statutory provisions in subsections (a) and (b) of Article 26.05 more directly refer to the trial court's authority to order payment under the statute. Subsection (a) requires that payments to appointed counsel shall be "reasonable" in light of the particular circumstances of the case (the "time and labor required, the complexity of the case, and the experience and ability of the appointed counsel"), whereas subsection (b) provides that payments shall be "paid in accordance with" the fee schedule that was adopted by formal action of the local judges. See id. art. 26.05(a), (b). These provisions together suggest that a trial judge has discretion to order any payment that he deems reasonable under the circumstances of the case, so long as it is based on the terms of the formally adopted fee schedule. See id .⁷ More specifically as it applies to this case, the trial judge's payment comported with Article 26.05(a) by considering the payment amount that was appropriate based on the complexity of the case and the experience of appointed counsel. See id . Also as it applies to this case, the trial judge's payment comported with Article 26.05(b) because his order complies with the provisions in Local Rule 4.01 that permitted these amounts. I disagree with this Court's majority opinion that the language in Article 26.05 subsection (c) merely indicating that a fee schedule "shall state reasonable fixed rates or minimum and maximum hourly rates" plainly and undeniably limits the apparent discretion afforded by subsections (a) and (b). I also disagree with this Court's majority opinion's holding that treats subsection (c) as overriding the provisions in subsections (a) and (b), so as to require that these special prosecutors be paid a fixed fee that is manifestly unjust. Rather, if this Court's majority opinion is correct that the three subsections cannot be reconciled, then the proper remedy should be to invalidate subsection (c) because, as applied in this particular case in which there is only a fixed fee rather than ranges of fees that would permit accommodations for discrepancies in time and labor required, the complexity of the case, and the experience and ability of counsel, subsection (c) is in complete conflict with the other two subsections. If any subsection must be invalidated here, then it is subsection (c) only. In any event, because the interplay between the three subsections is not absolutely clear with respect to the propriety of Local Rule 4.01(B), Article 26.05 is not a proper basis for granting mandamus relief to the Commissioners Court. See Powell , 516 S.W.3d at 495 (to justify mandamus relief, the governing law must be of such "absolute clarity and certainty that nothing is left to the court's discretion").⁸

Furthermore, given that this Court's majority opinion's holding means that Collin County's fee schedule permits only fixed fees, this Court's interpretation ultimately requires payment of a fee that is unreasonable, in contravention of the statutory language in Article 26.05 subsection (a) that requires the payment of a reasonable fee. See TEX. CODE CRIM. PROC . art. 26.05(a). Here, as noted above, the fee schedule listed only fixed amounts for services (for example, an amount of $1,000 for pretrial work that is at issue here), and did not list any hourly rates or a range of rates for various types of work. A fixed fee that applies to all cases that fall within broad general categories does not satisfy the requirement in Article 26.05(a) that fees "shall be ... reasonable ... based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel[.]" Id. § 26.05(a). By striking down Local Rule 4.01(B) and requiring strict adherence to the fixed amounts listed in the fee schedule, the majority opinion's interpretation of Article 26.05, as applied here, eviscerates the reasonableness requirement in subsection (a) because the same amount of payment is required for every case, regardless of the unique circumstances listed in subsection (a) that might render the fixed amount unreasonable.⁹ It is wholly improper to subject the trial judge to mandamus under these circumstances, given that the majority's interpretation of the statute, as applied here, will require the trial judge to pay the fixed fee amount (here, at most, $2,000, taking into account the $1,000 amount listed for pretrial preparation and the $1,000 discretionary adjustment), which is an amount that no one can seriously contend is reasonable. This Court should not adopt an interpretation of the statute that renders its provisions internally inconsistent, nor should it subject a trial judge to a mandamus order under circumstances in which his payment of a fixed fee, although it would comply with a portion of a statute, would also result in his violation of another express statutory requirement, here, the requirement under Article 26.05(a) that payment of attorney's fees must be reasonable.

This Court's majority opinion interprets the statutory language in Article 26.05(c) as a requirement that the Collin County local rules be read as permitting only a fixed fee in all cases, regardless of the reasonableness of that fixed fee in any given case, regardless of the reasonableness requirement in Article 26.05(a), and regardless of the fact that the Collin County district judges provided for this type of payment in their local rules and those rules conformed with Article 26.05(b). At the very least, in this case, there are ambiguities inherent in the statutory scheme as a whole and the particular circumstances of this case involving a fixed-fee regime. I, therefore, cannot agree that the trial court was clearly without any discretion to order the challenged payment by relying on Local Rule 4.01(B). See In re Allen , 462 S.W.3d at 49-50 ("A ministerial act, by its nature, does not involve the use of judicial discretion; it must be positively commanded and so plainly prescribed under the law as to be free from doubt.").¹⁰

C. Policy Considerations

Because I conclude that the language in this statute is ambiguous with respect to whether it permits only the two options of fixed fees and ranges of fees or whether it additionally would permit an opt-out variable fee for highly unusual circumstances or manifest need, it is proper for courts to examine extra-textual factors to determine what the Legislature intended by the statutory language. I conclude that, considering the policy implications for this Court's majority opinion's proposed interpretation of the statutory language, the representation of indigent defendants will be negatively impacted and the costs to the counties may ultimately be increased. Such a result fails to comport with the statute's apparent legislative purpose to ensure fair and reasonable payments for appointed counsel. Furthermore, I disagree with the suggestion that this is the Legislature's bad policy so the blame should go to them. Rather, it is this Court's refusal to abide by the Legislature's intent that is causing the unfair outcome in this case. 1. Representation of Indigent Defendants May Be Negatively Impacted

Because the applicable statutes require that attorneys representing indigent defendants be paid according to the same fee schedules as the ones applicable to special prosecutors, this Court's majority opinion effectively decides how this State will compensate attorneys for indigent representation, and thus the policy implications of this case are widespread. As the amicus briefs observe, the payment of attorneys appointed to represent all indigent accused people in Texas likely will be affected by this Court's holding that, when a county has provided for only a fixed fee, then a trial judge has no authority to pay anything other than the fixed fee and he may not consider whether that fixed fee is reasonable under the circumstances or whether there is a manifest necessity for a higher fee. According to relator's pleadings, more than 160 counties across Texas currently employ local rules similar to Rule 4.01(B) that permit payments outside of the fee schedule when a trial judge determines that fees outside of the fixed fees or ranges of fees would be appropriate. But, as a result of the majority opinion's holding today, these provisions are automatically nullified, and local boards of judges will be required to adhere to the listed payment amounts in all cases, regardless of the reasonableness of the fee for the particular circumstances.¹¹

This Court's majority opinion appears to suggest that it can limit the unjustness of this fixed fee problem to only cases involving special prosecutors because they, unlike indigent defendants, do not have the right to effective assistance of counsel under the federal Constitution and therefore they are not entitled to reasonable fees to ensure that constitutional right. Though there are more responses to that suggestion than available ink and paper, I will focus on two.

First, the issue here is whether the extra-textual consideration of policy implications can give guidance about the legislative intent in interpreting the pertinent statutory language. Does it make any sense at all that the Legislature would say that special prosecutors and appointed defense attorneys should be paid in the same manner, but then in total contradiction, endorse this Court's majority opinion's view that unfair fixed fees really apply only to special prosecutors because defendants have constitutional rights to reasonable funds for effective counsel? If that were the case, then the Legislature would never have stated in Article 2.07 that special prosecutors must be compensated in the same manner as other attorneys representing indigent defendants. See TEX. CODE CRIM. PROC . art. 2.07(a), (c). Because this Court is required to examine the policy implications stemming from various interpretations of the ambiguous statutory language, I conclude that any ambiguity in the language of Article 26.05 must be resolved in favor of paying both appointed defense counsel and appointed special prosecutors a reasonable fee. Any suggestion that special prosecutors may be treated unfairly in their fee payments while appointed counsel for indigent defendants may not fails to comport with the reasonableness-of-the-fee requirement in Article 26.05(a) and the like-treatment requirement in Article 2.07, both of which reflect the Legislature's clear intent to adequately and fairly compensate all appointed counsel.

Second, assuming this Court's majority opinion is correct that appointed attorneys representing indigent defendants can obtain reasonable fees outside of the fixed fee schedule because the federal Constitution requires effective assistance of counsel, I question how exactly that guarantee would be effectuated. Can you imagine the litigation that would ensue for each appointed attorney who requires a reasonable fee outside of a fixed fee schedule to challenge the lack of a reasonable fee so that the attorney can effectively represent a defendant? Should the appointed attorney do all of the required work up front in defense of a client and then submit a voucher for payment, only to be later denied the payment by the Commissioners Court, as here? Or should a defense attorney challenge the statutory scheme by petition for mandamus before doing the work, only to be told that he has failed to make a record of how the fixed fee is unreasonable in a particular case? It is fanciful to believe that appointed defense attorneys will be able to challenge the reasonableness of a fixed fee in a way that is different or more successful than the petition for mandamus filed by relators in this case. Again, the whole point of this statutory scheme is to avoid this precise problem. The whole point is to guarantee that appointed counsel will be paid a reasonable fee in a manner that is consistent with others who are performing essentially the same function. It is clear from the statutory scheme as a whole that the Legislature intended for counties to have the judges collectively agree about fixed fees or ranges of fees for ordinary cases or events, but in any event for them to pay reasonable fees to appointed attorneys.¹² That is precisely what occurred here. The judges collectively agreed to fixed fees for ordinary cases or events and provided for a trial judge to exercise his discretion to order a reasonable fee for highly unusual events. This approach fits within the policy goals of the Legislature's whole statutory scheme.

The overall goal of the statute is to provide for the payment of all appointed counsel at reasonable rates. I cannot agree that the Legislature's intent was to treat special prosecutors differently from appointed defense attorneys, or to require defense attorneys to go to court to litigate either pre- or post-conviction to be paid a reasonable fee when the fixed fee is inadequate. This Court's interpretation necessarily leads to those conclusions that are wholly inconsistent with the legislative purpose underlying the entire statutory scheme.

2. Costs to the County May Increase Rather than Be Controlled

The focus of this Court's majority opinion is the view that this must be done this way because the Legislature was attempting to control costs incurred by counties and without this regulation counties may go bankrupt trying to pay for indigent defense costs. At first, this seems like a plausible argument, but deeper thinkers quickly realize it is a false hypothesis because, even under the majority's interpretation, none of this scheme limits indigent defense costs in any way.

Here, Collin County provided for only fixed fees in its schedule. Its schedule did not include set-forth ranges of fees. Assuming this Court's majority opinion is correct that the opt-out provision used by Collin County was impermissible, its fixed fees would have to be considered reasonable in every single case included within its broad categories. No one appears to be arguing that the fixed fee was reasonable here or that it would be reasonable in all cases within the broad categories. Thus, Collin County needed the opt-out provision that is disputed in this case to ensure payment of reasonable fees. Alternatively, Collin County needed a fee schedule with ranges of fees for certain categories or events. As I explain below, I conclude that the current opt-out provision is more fiscally conservative than a fee schedule with ranges of fees.

Assuming a hypothetical fee schedule with set-forth ranges of fees that I discuss next, for those ranges to be reasonable in every possible case, the ranges would be so wide as to be meaningless. For example, a county could set the range for a murder case at a minimum of $1,000 to a maximum of one million dollars in order to account for the highly unusual case where that fee would be manifestly necessary. Having a one-million dollar fee at the outside high range would permit a trial judge to provide a higher fee in an unusual case, but it would also be there and available for all cases as part of the set-forth range of fees. That would likely result in increased costs for counties due to the recognition that the higher end was available for judges for the payment of attorneys that fit within that category of circumstances.

In contrast, under the current schedule that has only fixed fees with the opt-out provision, trial judges are aware that the fixed fee should be utilized in the ordinary course of events unless there is an unusual need where the fee would result in a manifest injustice, in which case the trial judge should use discretion to assess the appropriate amount of the fee. I conclude that the opt-out provision as described in the instant fee schedule is a more fiscally sensible approach than the hypothetical fee schedule with set-forth ranges of fees because the instant fee schedule limits judges to the fixed fee almost all of the time and permits an exception outside that fixed fee only in narrowly limited circumstances. To permit only set-forth ranges of fees as the sole alternative to fixed fees, I conclude, is more likely to increase costs to the counties rather than to decrease costs.

3. This Court's Mistaken New Policy Thwarts Legislature's Good Policy

I disagree that the Legislature is to blame for enacting bad policy because it is instead this Court's refusal to abide by the Legislature's statutory intent that is causing the unfair outcome in this case. The Legislature has already clearly indicated its intent that payments to appointed attorneys must be reasonable in light of "the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel." TEX. CODE CRIM. PROC . art. 26.05(a). Those factors should be considered by this Court in its analysis of this issue, but instead this Court ignores that requirement by permitting fixed fees that do not take these considerations into account in contravention of the express requirements of Article 26.05. Furthermore, here, the local courts have already spoken clearly in Rule 4.01(B) by permitting a variance from the fixed fee for situations where adhering to those fixed rates would be "manifestly inappropriate." The local fee schedule, as written, acknowledges the necessity of providing reasonable payment in light of the particular circumstances of the case. It is this Court that ignores these clear directives by substituting its own policy ideas in contravention of the relevant statutes and rules. Thus, a suggestion that this Court is merely following the Legislature's directive so any bad policy results are the fault of the Legislature is an unfair attack on the Legislature.

In light of all of these considerations, I conclude that the Commissioners Court failed to establish a clear right to relief under unequivocal, well-settled, and clearly controlling legal principles. Weeks , 391 S.W.3d at 122. The conditional order of mandamus relief by the Fifth Court of Appeals against the trial judge was inappropriate, and this Court errs by upholding that order.

III. Conclusion

The court of appeals erred by holding that the trial judge had a ministerial duty to vacate his order paying the special prosecutors in the underlying case for their second voucher reflecting work they had already performed in accordance with the judge's agreement to pay them at a special rate that the judge had determined was appropriate due to the complexity of the case and the prosecutors' experience and ability. I would sustain relator's complaint that the Fifth Court of Appeals wrongfully ordered the trial court to vacate its payment of the second voucher. Accordingly, I would permit the trial court to enforce its order requiring relator's voucher to be paid so that the special prosecutors can be compensated for the work they have already performed and at the rate that had been agreed upon and reflected in the trial court's order. For this reason, I respectfully disagree with this Court's majority opinion that permits the lower appellate court's order to remain intact. The Court's holding results in manifest injustice under these circumstances in which the government has agreed to pay an attorney at a particular rate, received those services, and then refused to pay for the services. Because mandamus relief against the trial judge by the Fifth Court of Appeals was the improper remedy for this situation, I respectfully dissent from this Court's judgment upholding the court of appeals's judgment.

DISSENTING OPINION

Keel, J., filed a dissenting opinion.

Texas Code of Criminal Procedure Article 26.05 requires (a) payment of a reasonable attorney's fee (b) in accordance with a fee schedule that (c) states reasonable fixed rates or minimum and maximum hourly rates. Article 26.05(a-c). Collin County's fixed fee schedule – as now modified by a majority of this Court – violates both paragraphs "a" and "c" of Article 26.05. Collin County's one-size-fits-some scheme makes it impossible to pay a reasonable attorney's fee based on the variables listed in Article 26.05(a) in time-consuming and complex cases, and its fixed fee schedule fails to state reasonable fixed rates or minimum and maximum hourly rates as required by Article 26.05(c). Because of these defects in the fee schedule, the trial court was bound to violate either paragraph "a" or paragraph "b" of the statute when it paid the attorneys pro tem in this case. That dilemma precludes mandamus because the trial court did not have a clear duty to sacrifice one part of the statute in favor of another. The majority holds otherwise, however, because it makes three mistakes.

First, the majority ignores Article 26.05(a) in its analysis of the statute. Second, it changes the meaning of Article 26.05(c) by replacing the statutory term "reasonable fixed rates" with the phrase "a fixed fee." Finally, the majority renders Texas Code of Criminal Procedure Article 2.07(c) a dead letter by setting up the possibility of paying appointed attorneys pro tem differently than appointed criminal defense attorneys. Since the trial court was not obliged to make the same mistakes, mandamus does not lie against it, and I dissent.

Article 26.05(a) : A reasonable attorney's fee shall be paid

Article 26.05(a) mandates the payment of "a reasonable attorney's fee ... based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel." Although the majority quotes this provision early in its opinion, it overlooks it when paraphrasing or analyzing the statute. Three examples follow.

First, in summarizing the "statutory framework" of Articles 2.07 and 26.05 the majority lists only three points: (1) uniform compensation as between appointed defense attorneys and attorneys pro tem; (2) payments made according to a schedule of fees; and (3) fee schedules that state reasonable fixed rates or minimum and maximum hourly rates. Majority op. at 193. There is no mention of Article 26.05(a)'s mandate that appointed attorneys be paid a reasonable fee. As formulated by the majority, then, the statutory framework is incomplete.

A second example of the majority ignoring Article 26.05(a) is its characterization of the issue before it. The majority says the issue is whether Collin County's Local Rule 4.01(B) "exceeds the trial court's authority to set fees for appointed counsel[.]" Majority op. at 193. Besides using language not found in the statute (i.e., "authority to set fees"), this rendition of the issue ignores the trial court's duty under Article 26.05(a) to pay a reasonable attorney's fee based on certain variables.

A third example of the majority overlooking Article 26.05(a) is its assertion that a trial court "has discretion to set a fee" in accordance with a fee schedule. Majority op. at 195. But the statute does not mention "discretion," use the word "set" or refer to a plain "fee." It instead commands that "a reasonable attorney's fee" based on listed variables "shall be paid." The majority ignores Article 26.05(a)'s mandate to pay a reasonable attorney's fee by recasting it as "discretion to set a fee."

The majority also camouflages Article 26.05(a)'s mandate for payment of a reasonable attorney's fee by re-ordering the statute's paragraphs and compressing them. The majority asserts that the statute "first" requires adoption of a fee schedule and "second" that a judge "decides on a reasonable fee" in accordance with the adopted fee schedule. Majority op. at 195–96. But Article 26.05's first requirement is the payment of a reasonable attorney's fee. Tex. Code Crim. Proc. Art. 26.05(a). Its second requirement is payment in accordance with the adopted fee schedule. Tex. Code Crim. Proc. Art. 26.05(b). Its third requirement is that the fee schedule state reasonable fixed rates or a range of hourly rates. Tex. Code Crim. Proc. Art. 26.05(c).

The majority again masks Article 26.05(a)'s mandate when it claims that the provision "recognizes a trial court's authority to set a reasonable fee[.]" Majority op. at 197. Article 26.05(a) does not "recognize" anything; it commands the payment of a reasonable attorney's fee based on listed variables.

By re-ordering these paragraphs, re-wording them and mixing them together, the majority opinion masks the language, meaning and existence of Article 26.05(a) and disregards its mandate for payment of a reasonable attorney's fee.

Article 26.05(c) : Fee schedule shall state reasonable fixed rates

Article 26.05(c) requires fee schedules to state "reasonable fixed rates or minimum and maximum hourly rates." Instead of sticking to that language, however, the majority substitutes "a fixed fee" for the statute's phrase "reasonable fixed rates." Since "fee" and "rate" are not synonymous, the majority changes the meaning of Article 26.05(c).

"Rate" means the amount of a charge or payment with reference to some basis of calculation; a certain quantity or amount of one thing considered in relation to a unit of another thing and used as a standard or measure; the fixed charge per unit of quantity. See Dictionary.com, https://www.dictionary.com (last visited Oct. 1, 2018). "Fee" means a charge or payment for professional services; a sum paid or charged for a privilege; a charge allowed by law for the service of a public officer." See Dictionary.com, https://www.dictionary.com (last visited Oct. 25, 2018). So "fixed rates" are set amounts paid in relation to a unit , and "a fixed fee" is a set charge, payment or sum . Under Article 26.05(c), then, fee schedules can state reasonable fixed rates but not a fixed fee, and the majority opinion's unexamined assertion to the contrary contravenes the statute.

Judge Richardson's concurring opinion suggests that Collin County's fixed fee schedule meets Article 26.05(c)'s rates requirement because the fixed fee is a per-case rate. But like the majority, he discounts Article 26.05(a)'s mandate that appointed attorneys be paid a reasonable fee based on a list of variables, claiming instead that the statute "allows" the payment of reasonable fees and gives the trial court "discretion" to pay a reasonable fee as limited by the adopted fee schedule. In fact Article 26.05(a) is mandatory and leaves no room for discretion or allowance; it says that a reasonable attorney's fee that takes into consideration time, labor, case complexity, etc., shall be paid. That mandate cannot be met if every case is paid the same flat fee regardless of the time and labor required, the complexity of the case or the attorney's experience and ability. In order to give meaning to both Article 26.05(a) and (c), "reasonable fixed rates" cannot mean a flat rate per case but must mean what it says, "reasonable fixed rates or minimum and maximum hourly rates" that accommodate the mandatory payment of a reasonable attorney's fee based on the listed variables.

As amended by the majority opinion, the Collin County fee schedule would pose a dilemma for the trial court – either pay a reasonable fee as demanded by paragraph "a" or pay the flat fee as demanded by paragraph "b." The trial court could not do both, and it did not have a clear ministerial duty to choose one option over the other. Given the irreconcilability of the statute's requirements in the face of the fee schedule's flaws, it is absurd to subject the trial court to mandamus for violating paragraph "b" of the statute when complying with it would cause a violation of paragraph "a." The majority claims it is harmonizing the subsections when in reality it arbitrarily elevates paragraph "b" over paragraph "a," thus leading to its next mistake which is to lay the ground work for the nullification of Article 2.07(c).

Article 2.07(c) : Uniform compensation of attorneys pro tem and defense attorneys

Article 2.07(c) requires that an attorney pro tem "shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person." The statute offers no exceptions to its rule; if a defense attorney cannot be paid a certain amount or in a certain manner, then neither can an attorney pro tem. The majority, however, creates its own exception when it acknowledges the potential for an unconstitutional application of Article 26.05 in the context of indigent defense. If this fee schedule, as modified by the majority, would be unconstitutional as applied to an appointed defense attorney, then Article 2.07(c) would forbid its use in compensating attorneys pro tem. Rather than confront that issue, however, the majority brushes it off. So, in addition to distorting Article 26.05, the majority lays the groundwork to render Article 2.07(c) a dead letter.

The trial court had to pay a reasonable attorney's fee to the attorneys pre tem, and it did so. Mandamus does not lie against it. I dissent.

DISSENTING OPINION

Walker, J., filed a dissenting opinion.

Today, the Court, in not granting mandamus relief to Relator, effectually upholds the decision of the court of appeals to issue a writ of mandamus in favor of the Collin County Commissioners Court. In my opinion, the scope of that writ of mandamus was far broader than what the Commissioners Court was entitled to and should have received. Instead of simply giving the Commissioners Court the full extent of what it asked for—wholesale vacatur of the trial court's order of payment of attorney's fees—the court of appeals's writ of mandamus should have been circumscribed to provide appropriate relief. Providing mandamus relief of a more limited scope than what is asked for is sometimes appropriate. E.g. , State ex rel. Mau v. Third Court of Appeals , No. WR-87,818-01, 560 S.W.3d 640, 642, 2018 WL 5623985 at *1 (Tex. Crim. App. Oct. 31, 2018) (in which this Court granted, with three Judges concurring, mandamus relief, but of a more limited scope than that requested).¹ Furthermore, the prayer in this case not only asked for vacatur of the order, but also asked for whatever other relief was appropriate. Therefore, limiting the scope of mandamus relief was authorized by the prayer itself. The Commissioners Court was entitled to, at most, a writ of mandamus directing the trial court to amend its payment order. The Commissioners Court was not entitled to vacatur of the payment order, and the scope of the court of appeals's writ is not appropriate. Because our decision today does not grant mandamus relief to Relator, I dissent.

I — Appropriate Relief

In its application for writ of mandamus filed with the court of appeals, the Collin County Commissioners Court prayed for the following relief:

Collin County and its Commissioners Court pray that this Court [the court of appeals] issue a writ of mandamus and vacate the district court's order. Collin County prays for such other and further relief, at law or in equity, to which Collin County and its Commissioners Court may be justly entitled.

Pet. for Writ of Mandamus and Order that Second Order is Void 34, In re Collin County , 528 S.W.3d 807 (Tex. App.—Dallas 2017) (Nos. 05-17-00634-CV, 05-17-00635-CV, 05-17-00636-CV). The court of appeals granted the full scope of the relief sought:

We conditionally grant relators' petition for writ of mandamus. We order Judge Gallagher to vacate the Second Order on Payment of Attorney's Fees to Attorneys Pro Tem.

In re Collin County , 528 S.W.3d at 815. As I explain below, vacatur of the Second Order was excessive. Instead, the court of appeals should have ordered Judge Gallagher to modify or amend the Second Order.

The problem with vacating the payment order is that it results in no payment whatsoever to Relator and the other attorneys pro tem. It is undisputed that the attorneys pro tem provided services. Indeed, the trial court compensated them for their services under the first order, and he attempted to compensate the attorneys pro tem for additional services through the Second Order. Those services were documented with the Second Order. See Collin County Commissioners Court's Resp. to Relator's Pet. for Writ of Mandamus, App. Tab 2. Yet, by vacating the Second Order, the services provided will go uncompensated.

Although some may dismiss this concern as an unfortunate consequence of an improper order which should not have been ordered in the first place, I must point out that payment of attorneys pro tem is unquestionably required by the statutory scheme involved in this case. Article 2.07 of the Code of Criminal Procedure, providing for attorneys pro tem in the first place, requires that they be paid: "[an appointed attorney pro tem] shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person." TEX. CODE CRIM. PROC. Ann. art. 2.07(c) (emphasis added). Article 26.05 provides, in part:

(a) A counsel, other than an attorney with a public defender's office or an attorney employed by the office of capital and forensic writs, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel :

(1) time spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited;

(2) reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires;

(3) preparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Court of Criminal Appeals; and

(4) preparation of a motion for rehearing.

(b) All payments made under this article shall be paid in accordance with a schedule of fees adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county. On adoption of a schedule of fees as provided by this subsection, a copy of the schedule shall be sent to the commissioners court of the county.

(c) Each fee schedule adopted shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates, and shall provide a form for the appointed counsel to itemize the types of services performed ....

Id. art. 26.05(a)–(c) (emphasis added).

I read article 26.05 as structured like many statutes. It begins with what is the primary purpose of the statute, and then it includes other provisions that provide a framework to meet that primary purpose. Therefore, I believe that the primary purpose of article 26.05 is to ensure that appointed attorneys are paid reasonable fees based on the time and labor required, the complexity of the case, and the experience and ability of the appointed attorneys, as reflected by article 26.05(a). Subsections (b) and (c) are provisions that provide a framework to effectuate the primary purpose of the statute. The court of appeals ordered the trial court to vacate the Second Order on Payment, effectively dropped the payment to Relator and the attorneys pro tem from approximately $200,000 to zero. This result is a most egregious violation of the primary purpose of article 26.05.

To determine the appropriate level of mandamus relief in a case like this one, courts should look to the law to determine what the trial judge's clear duty must be. If there are multiple bodies of law that appear to conflict, the primary, controlling law should be followed, and the less applicable law serves to provide guidance to the extent that it does not conflict with or negate the primary law. In this case, there is no doubt that the statutes of the State of Texas take precedence over the local rules of Collin County. Article 26.05 was passed by an Act of the Legislature and approved by the Governor, whereas the local rules of Collin County were written and approved by the judges of Collin County. Therefore, the court of appeals's job was to grant mandamus relief that would, first and foremost, follow the duties of the individual judges as set out by article 26.05. The local rules serve as guidance so long as they do not conflict with article 26.05.

On the whole, the statutory scheme is entirely concerned with making sure that appointed counsel is paid a reasonable fee. How much an attorney pro tem, including Relator and the attorneys pro tem in this case, should be paid may be up for debate, but the requirement that they be paid a reasonable fee is undeniable. The use of the words "shall be paid a reasonable fee" is proof positive of that fact.

In contrast to article 26.05(a)'s demand, article 26.05(b)'s duty—to pay appointed counsel in accordance with the fee schedule—was not violated. Even though the disputed payment order relied upon Local Rule 4.01(B), that rule was incorporated, by reference, into the fee schedule. The fee schedule in effect at the time began with:

In all felony cases, except as hereafter provided, counsel shall be paid according to the following fee schedule, without exception, except as provided for in Section 4.01(B) :

(emphasis added). By this emphasized language, the fee schedule incorporated Local Rule 4.01(B), and the rule's provision for departure from the fixed rates, without limitation, became a part of the fee schedule. See Jaubert v. State , 74 S.W.3d 1, 2–3 (Tex. Crim. App. 2002) ( Tex. Code Crim. Proc. art. 37.07 § 3(g) incorporates, by reference, Tex. R. Evid. 404(b)'s provision limiting notice to State's case-in-chief evidence); Green v. State , 799 S.W.2d 756, 760 (Tex. Crim. App. 1990) (when search warrant incorporates by reference a supporting affidavit, the affidavit becomes a part of and can be used to aid the description in the warrant); see also In re 24R, Inc. , 324 S.W.3d 564, 567 (Tex. 2010) ("Documents incorporated into a contract by reference become part of that contract."). Thus, although the trial court's payment order was premised on Collin County Local Rule 4.01(B), which the Court finds invalid for failing to include reasonable fixed rates or minimum and maximum hourly rates, the order itself did not violate article 26.05(b) because that rule was a part of the fee schedule as what I consider to be an "exceptional circumstances clause."

Additionally, article 26.05(c), the provision which is violated in this case, is not directed toward the judge who is being asked to order payment of fees. To the contrary, article 26.05(c) is directed towards the group of judges who are in the process of creating fee schedules. It prescribes the requirements that they are to abide by while drafting the payment structures for the provision of indigent defense in their counties. Consequently, in this case, Judge Gallagher had no duties directly imposed by article 26.05(c).

Thus, when it comes to the actual payment of attorneys pro tem, it seems obvious that article 2.07 and article 26.05(a) take higher precedence than article 26.05(c). That is not to say that article 26.05(c) is wholly irrelevant. As the Court decides today, a trial court faced with payment of attorney's fees based on a fee schedule which fails to meet the requirements of article 26.05(c) is under a duty to avoid making an order based on said invalid schedule. But said invalidity does not vitiate the importance of paying counsel a reasonable fee as mandated by article 26.05(a). Ultimately, then, placing article 26.05(c)'s requirement of reasonable fixed rates or minimum and maximum hourly rates to such a high regard that it would override the greater statutory concern, which intends both indigent counsel and attorneys pro tem to be paid a reasonable fee, creates a result that I do not agree with. The proper solution that the court of appeals should have arrived at is not to vacate the Second Order, as was requested by the Commissioners Court. Instead, the court of appeals should have granted, as "such other and further relief, at law or in equity, to which Collin County and its Commissioners Court may be justly entitled," a writ of mandamus ordering the trial court to modify or amend the Second Order to provide for appropriate payment. No payment at all is too much relief. As the expression goes, two wrongs don't make a right. Relator and his fellow attorneys pro tem are entitled to compensation for their services rendered. While it is true that the Second Order on Payment of Attorney's Fees had an invalid basis, it is also true that the payment must comply with article 26.05(a). It must be reasonable.

II — A Side Note on Exceptional Circumstances ("Opt-Out") Provisions

Finally, I believe it is important to emphasize that the Court's holding today, finding the exceptional circumstances provision in the Collin County fee schedule invalid, does not mean that all such provisions are hereby forbidden. The problem with the exceptional circumstances provision incorporated into the fee schedule in this case is that it did not itself contain reasonable fixed rates or minimum and maximum hourly rates as required by article 26.05(c). Plainly, then, if an exceptional circumstances provision is incorporated into the fee schedule, and the provision provides for its own set of reasonable fixed rates or minimum and maximum hourly rates, a trial court's order of payment of fees based on such a provision would not be subject to mandamus. Thus, I caution the counties throughout the State of Texas which have fee schedules incorporating some form of exceptional circumstances provision to consider and hopefully implement changes to avoid the problems the Court identifies with the provision that was in Collin County's fee schedule. Had Collin County's judges written rates into Local Rule 4.01(B), the order of payment of attorneys fees relying on that rule likely would withstand challenge before the court of appeals or this Court even if it provided for the same dollar amount of compensation or, quite possibly, a higher number than that.

III — Conclusion

Although article 26.05(c) is clear that fee schedules must have reasonable fixed rates or minimum and maximum hourly rates and that the trial court's order of payment of attorney's fees in this case was based on a fee schedule provision which contained neither. The Commissioners Court was not entitled to the full extent of the mandamus relief sought and granted from the court of appeals. It was "justly entitled" to "such other and further relief" of a writ directing the trial court to amend the payment order to provide for proper payment, not rescission of the payment order altogether. The court of appeals's writ of mandamus should have provided less relief than that which was specifically prayed for. See , e.g. , Mau , 565 S.W.3d at 642, 2018 WL 5623985 at *1. Because the court of appeals's writ of mandamus was too broad, it should not have been issued, and we should not let it stand. I would grant mandamus relief to Relator and issue a writ of mandamus directing the court of appeals to amend its prior writ. The court of appeals's amended writ should direct the trial court to change its order of payment to one based upon article 26.05(a), rather than one based on Local Rule 4.01(B), and to order payment of a reasonable fee in a manner consistent with this opinion. I respectfully dissent.

House Research Organization, Bill Analysis, S.B. 7, 77^th Leg., R.S. (emphasis added). Given the Legislature's awareness of opt-out provisions such as the one in Local Rule 4.01(B), it seems that, if the Legislature believed that type of provision to be foreclosed by Article 26.05, then it would have taken some corrective action by amending the statute to prevent such provisions. That it has not done so speaks volumes about its legislative intent in this area.