Opinion
NO. WR-85,009-01
12-07-2016
IN RE ERIC DEAN PERKINS, Relator
ON MOTION FOR REHEARING FROM THE DENIAL OF MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS IN CAUSE NO. 14-CR-0694-H IN THE 347TH DISTRICT COURT FROM NUECES COUNTY ALCALA, J., filed a dissenting opinion. DISSENTING OPINION ON MOTION FOR REHEARING
Eric Dean Perkins, an attorney, has filed a motion for rehearing asking this Court to reconsider its denial of his motion for leave to file a petition for a writ of mandamus seeking relief in the form of payment for services he rendered in a capital-murder case. Because this Court refuses to reconsider its prior ruling in this case, I again respectfully dissent. I would grant relator's motion for leave to file a petition for a writ of mandamus, reach the merits of his complaint, and hold that no evidence supports the trial judge's refusal to pay relator for the services he rendered as appointed defense counsel for an indigent, capital-murder defendant facing the death penalty. Because her decision to refuse payment was based on an impermissible rationale, the respondent trial-court judge acted outside the bounds of the law. Mandamus relief, therefore, is appropriate to ensure that relator is paid the approximately $21,000 that the trial-court judge declined to pay him for his work on the case.
Relator is correct that the trial judge employed an impermissible rationale as a basis to deny him the payment that he was owed for the representation he provided as appointed defense counsel. Payment for appointed counsel may be properly declined if the work for which payment is sought was not performed or was unreasonable or unnecessary. See TEX. CODE CRIM. PROC. art. 26.05(a), (c). Here, however, the trial judge never determined that relator did not actually perform the work that was described in his detailed invoices or that the work was unnecessary to effectively represent his client. Rather, the trial judge determined that, because relator had previously represented to her that he was ready for trial when he submitted his prior invoices, he was not entitled to payment for the work he performed after that point, as detailed in his final invoice. The trial judge also took into consideration that the amount sought by relator was excessive as compared to the amounts sought by other attorneys involved in the case.
On original submission, relator showed that he had exhausted his administrative remedies by appealing to the Presiding Judge of the Fifth Administrative Judicial Region. Relator also proved that, despite the absence of express findings of fact and conclusions of law, the trial judge articulated her rationale for denying relator full payment in her response to relator's petition for mandamus relief in the court of appeals. In my dissenting opinion on original submission, I determined that relator had proven that mandamus relief was appropriate based on the trial judge's failure to comply with the clear requirements of Article 26.05(a). In re Perkins, ___S.W.3d___, 2016 WL 5940118, at *5 (Tex. Crim. App. Oct. 12, 2016) (Alcala, J., dissenting). I noted in my dissent that the trial judge declined payment because she generally disagreed with the amount of time it took relator to prepare for trial, rather than declining payment because she had determined that the actual work performed by relator was unreasonable or unnecessary, as the statute requires. Id. at *3 (observing that the trial judge "never determined that the additional work done by relator was unreasonable or unnecessary; rather, she only concluded that he conducted more work after he had represented to her that his work was likely completed"). I additionally observed that the trial judge relied upon a comparison between the fees requested by relator and the fees requested by the first-chair attorney in this case and counsel for a co-defendant, which is not a permissible basis for denial of payment under the plain terms of the statute. Id. at *4. I maintain my view expressed on original submission that relator adequately demonstrated that he had a clear right to relief due to the trial judge's failure to comply with the requirements of Article 26.05, that he exhausted his administrative remedies, and that he was thus entitled to mandamus relief under the relevant standard. See id. at *4-5.
Article 26.05(a) states,
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 . . . ; [and]
(2) reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires . . . .
Alternatively, assuming for the sake of argument that he is not entitled to relief under Article 26.05(a), relator also argues in his motion for rehearing that mandamus relief was appropriate based on the collective workings of Article 26.05(b), Article 26.05(c), Article 26.052, and the Standards and Rules for Death Penalty Qualified Attorneys established by the Fifth Administrative Judicial District. Relator argues that, together, these provisions establish that, when counsel is appointed in a death-penalty case under a judicially fixed hourly rate schedule, that rate is presumptively reasonable and the provisions' plain language imposes a duty on the trial court to reimburse counsel for the hours expended. Consequently, he contends that the trial judge had no discretion to determine the reasonableness of fees judicially set by the Fifth Administrative Judicial District and, therefore, payment of the outstanding balance is a ministerial act. Although the court of appeals concluded that a "trial court's determination regarding the amount of fees to award appointed counsel is a discretionary rather than ministerial act," relator argues that this conclusion was in error. In re Perkins, No. 13-16-00001-CR, 2016 WL 1393652, at *6 (Tex. App.—Corpus Christi April 1, 2016). Specifically, relator disagrees with the court of appeals's assessment that the trial court's duty to compensate counsel is "subject to article 26.05's limitation: the trial court 'shall' award such fees only to the extent that they are 'reasonable,'" and thus the ultimate determination of what fees should be paid is discretionary rather than ministerial. Id. at *5. Relator contends that this assessment by the court of appeals was incorrect because the reasonableness of the fee has already been judicially established when the hourly rate was fixed by the Fifth Administrative Judicial District in its Standards and Rules for Death Penalty Qualified Attorneys. Id.
As both relator's motion and the court of appeals's decision note, resolving the issue of what compensation or reimbursement is guaranteed when counsel accepts appointment to represent a criminal defendant, particularly in a death-penalty case, is critical to ensuring the availability of qualified and effective appointed counsel. Because uncertainty on this issue can undermine the fundamental fairness of our criminal-justice system, I would address relator's arguments as to all of the foregoing matters on their merits, and I would reach the merits of his complaints by asking for a response from the trial judge and then filing and setting this case. Because the Court declines to do so and instead dismisses relator's motion, I respectfully dissent. Filed: December 7, 2016 Do Not Publish