WR-83,783-01,02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
December 14, 2015 Transmitted 12/14/2015 2:50:46 PM
Accepted 12/14/2015 3:36:36 PM
ABEL ACOSTA
CLERK
DOCKET NO. WR-83,783-01
IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
IN RE:
THOMAS ALLEN SIMON,
Relator
MOTION TO PUBLISH OPINION
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Thomas Allen Simon, Relator, moves this Court, pursuant to Tex. R.
App. P. 77, to order that the Court’s opinion in this cause be published, and
shows:
1. Relator filed a petition for writ of mandamus in this court,
under the authority of Stearnes v. Clinton and its progeny, after the trial
court had removed his trial counsel. 780 S.W.2d 216 (Tex.Crim.App. 1989).
Relator was denied relief in the lower court of appeals without comment.
This court conditionally granted the relief sought by relator in a per
curiam, un-published opinion citing, inter alia, Stearnes. Id.
1
2. Relator, in his Petition for Writ of Mandamus presented an
issue of great importance which may be paraphrased as follows: may a
judge ignore a defendant’s Due Process rights and this Court’s
pronouncements of law by removing appointed counsel on a whim, without
notice that complies with due process and without a proper hearing.
Relator suggests that this issue is of great importance, not only to him, but
also to the criminal jurisprudence of Texas. The issue of appointed counsel
being removed by the trial court, in light of this Court’s Opinion in Stearnes
v. Clinton, is unfortunately becoming more and more prevalent in Texas.
780 S.W.2d 216 (Tex.Crim.App. 1989); See, e.g., In re Brandon Jay Carter,
Cause No. WR-83,286-01, In The Texas Court of Criminal Appeals.
3. Relator notes that not only has this issue come up for him, it
has come up for other similarly situated litigants in Texas recently. Id.
Relator further notes that the Third Court of Appeals erroneously denied
relief without comment when the same issue was presented to them.
Further, the Third Court of Appeals erroneously required that Relator file
his writ there as a civil matter and pay civil filing fees (later refunded in
light of this Court’s opinion).
2
4. The foregoing suggests that the trial courts and appellate courts
of this state are challenging the vitality of Stearnes v. Clinton and its
progeny. Id. In doing so, the rights of accused have been compromised at
the trial court and appellate court level in Texas. Therefore, Relator
respectfully suggests to the Court that it would benefit the jurisprudence of
this state on an issue of great importance if this Court ordered its opinion
published thereby strongly affirming that Stearnes remains good law in
Texas. Id.
5. Relator therefore prays that this Honorable Court grant his
motion to publish the opinion in this case and order that the opinion be
published.
Respectfully submitted,
/s/ Tracy D. Cluck
_____________________________
Tracy D. Cluck
Texas Bar No. 00787254
12600 Hill Country Blvd., Suite R-275
Austin, Texas 78738
Tel: (512) 329-2615
Fax: (512) 329-2604
tracy@tracyclucklawyer.com
3
L.T. “Butch” Bradt #02841600
14015 Southwest Freeway, Suite 4
Sugar Land, Texas 77478
(281) 201-0700
Fax: (281) 201-1202
ltbradt@flash.net
Attorneys for Relator, Thomas Allen Simon
CERTIFICATE OF SERVICE
I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P.,
certify that a true and correct copy of the foregoing Petition was delivered
to the following on December 14, 2015 by e-mail:
Honorable Evan C. Stubbs
424th Judicial District Court
Burnet County Annex North
1701 E. Polk Street, Ste. 74
Burnet, Texas 78611
424distjudge@gmail.com
Wiley B. “Sonny” McAfee, Jr., District Attorney
Gary Bunyard, Ass’t District Attorney
Burnet County Annex North
1701 E. Polk Street, St. 24
Burnet, Texas 78611
Wiley1450@yahoo.com
g.bunyard@co.llano.tx.us
/s/ Tracy D. Cluck
____________________
Tracy D. Cluck
4