COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-15-00097-CR
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IN RE: THERESA CABALLERO, AN ORIGINAL PROCEEDING
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Relator. IN MANDAMUS
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OPINION
Theresa Caballero has filed a petition for writ of mandamus against the Honorable Sam
Medrano, Judge of the 409th District Court of El Paso County, Texas, to challenge an order
“commanding her not to submit a voucher for legal services performed on behalf of an indigent
criminal defendant” who she represented by virtue of an appointment order. She asks the Court
to order Respondent to accept her payment voucher and to pay her a reasonable attorney’s fee
according to the applicable fee schedule. We conditionally grant mandamus relief.
FACTUAL SUMMARY
The Public Defender’s Office initially represented Hector Torres on multiple child
pornography charges (cause number 20090D03029) and a possession of control substance charge
(cause number 20090D01913), pending in the 409th District Court. Torres became dissatisfied
with the Public Defender’s Office and he asked Respondent to appoint someone else. When
Respondent refused, Torres waived his right to counsel and exercised his right of self-
representation. Shortly after jury trial began in June of 2010, Caballero and Stuart Leeds offered
to represent Torres pro bono and Torres waived his right of self-representation. Respondent
granted a mistrial in order for Caballero and Leeds to have an opportunity to prepare a defense.
He also determined that he would appoint Caballero and Leeds as Torres’ attorneys so that they
could be compensated. Leeds and Caballero subsequently filed a written notice titled “Notice of
Only One Attorney Voucher”. The notice provided as follows:
NOW COMES the Defendant herein by and through his Attorneys of Record, Stuart
L. Leeds and Theresa Caballero, and files this his Notice of Only One Attorney
Voucher, and in support thereof, would respectfully show unto the Court as follows:
The Court was gracious enough to appoint both of the above two attorneys to
these cases. However, upon further reflection attorneys have reconsidered this
and give notice as follows: Since two attorneys are usually not appointed to non-
capital cases, one of the said attorneys in these two cases will be acting pro bone
[sic] in these cases for purposes of the voucher. A voucher for only one attorney's
work will be submitted in these cases, not both.
The notice did not provide which of the two attorneys would submit the voucher. The case went
to trial in June of 2011, and the jury acquitted Torres of fourteen counts, but it could not reach a
decision on the remaining counts. Leeds subsequently submitted two vouchers, both of which
were approved by Respondent, in the amounts of $3,382.50 (pretrial) and $15,065.07 (jury
trial).1
In February of 2013, Respondent appointed Leeds to represent Torres on a new twenty-
three count indictment, cause number 20130D00610, which is a re-indictment of the remaining
counts. In May of 2013, Leeds license to practice law was suspended. Respondent set Torres’
case for trial in October of 2013. Caballero continued as Torres’ sole appointed attorney and the
case resulted in a mistrial. Leeds’ license to practice law was reinstated in January of 2014, but
he filed a motion to withdraw, citing the history between himself, the trial court, and the
prosecutor. He did not set forth the history to which he referred, but Caballero alleged in a
1
The payment vouchers contain four cause numbers: 20090D03029, 20090D03029-409, 20100D05263, and
20100D05263-409.
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subsequent motion that Leeds withdrew because Respondent, at the request of Assistant District
Attorney Penny Hamilton, had held Leeds in contempt. Hamilton was also the prosecutor in
Torres’ case. Respondent granted the motion to withdraw. Following the withdrawal of Leeds,
Caballero filed a motion for the trial court to appoint her as counsel because she could not afford
to finance the cost of the litigation by herself. Respondent refused to appoint Caballero. Upon
realizing that the court had previously entered an order appointing her as Torres’ attorney,
Caballero filed a motion to enforce the appointment order and she directed the court’s attention
to the original appointment order. At the hearing on the motion, Respondent ruled that Caballero
had always represented Torres pro bono and he directed her to not submit a payment voucher.
Caballero continued to represent Torres and he subsequently entered a negotiated guilty plea in
cause number 20130D00610 to possession with intent to promote child pornography and the
State dismissed the remaining counts. Torres also entered a negotiated guilty plea in cause
number 20090D01913 to possession of a controlled substance.
PAYMENT OF APPOINTED COUNSEL
In three issues, Caballero asserts that she is entitled to mandamus relief because the trial
court had a ministerial duty to pay her reasonable compensation for services she performed as
court-appointed counsel for Hector Torres. To obtain mandamus relief, Caballero must establish
both that she has no adequate remedy at law to redress her alleged harm, and that what she seeks
to compel is a ministerial act not involving a discretionary or judicial decision. State ex rel.
Young v. Sixth Judicial District Court of Appeals at Texarkana, 236 S.W.3d 207, 210
(Tex.Crim.App. 2007).
Caballero does not have any remedy other than mandamus to challenge Respondent’s
refusal to pay her for the work performed on behalf of Torres. The only remaining question is
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whether this original proceeding involves a ministerial act. Article 26.06(a) of the Code of
Criminal Procedure provides that:
A counsel, other than an attorney with a public defender’s office or an attorney
employed by the officer 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 or 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.
TEX.CODE CRIM.PROC.ANN. art. 26.05(a)(West Supp. 2015). Further, all payments must 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.
TEX.CODE CRIM.PROC.ANN. art. 26.05(b)(West Supp. 2014).
Article 26.05 mandates that appointed counsel shall be paid for certain types of work
performed on behalf of the client. Implicit in this statutory mandate is a requirement that a trial
court act on a payment voucher submitted by an attorney who is appointed to represent a
defendant and has performed legal services on behalf of the client. The trial court concluded that
Caballero had always represented Torres pro bono but that is not consistent with the mandamus
record. The trial court appointed both Caballero and Leeds to represent Torres. They filed a
notice with the trial court which stated: “A voucher for only one attorney’s work will be
submitted in these cases, not both.” While Leeds submitted the voucher and was paid for the
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first trial, he subsequently withdrew from representation of Torres and Caballero continued as
Torres’ only appointed attorney from that point forward. It is undisputed that Caballero alone
represented Torres at the second trial and at the guilty pleas in cause numbers 20090D01913 and
20130D00610. Under Article 26.05(a), an attorney appointed to represent a defendant “shall be
paid a reasonable attorney’s fee . . . ” for time spent in court and reasonable and necessary time
spent out of court.
The trial court did not have authority to order Caballero to not submit a payment voucher
in connection with legal services she provided while acting as Torres’ only attorney in cause
numbers 20090D01913 and 20130D00610. We hold that Caballero has carried her burden of
establishing that the trial court had a ministerial duty to accept and act on a payment voucher
submitted by Caballero in connection with her representation of Torres in these cases as his only
attorney. We sustain Issues One through Three and conditionally grant the writ of mandamus.
The trial court is directed to accept the payment voucher submitted by Caballero and pay her a
reasonable attorney’s fee under Article 26.05(a) and according to the applicable fee schedule for
legal services performed on behalf of Torres in cause numbers 20090D01913 and 20130D00610
while acting as Torres’ only attorney. The writ will issue only in the event the trial court fails to
act in accordance with this decision.
December 4, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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