33rd and 424tt1 Judicial District Courts
State of Texas
District Courts of
BLANCO · BURNET · LLANO · SAN SABA COUNTIES
J. ALLAN GARRETT 1701 E. POLK Lisa Bell, 33RD Court Coordinator
PRESIDING JUDGE, 33"" JUDICIAL DISTRICT
BURNET, TEXAS 78611 E-Mail: 33coordinator@dcourttexas.org
STEPHANIE LARSEN, Official Court Reporter (512) 756-5436 Fax (512) 756-8478
www.dcourttexas.org JENNIFER BUNTING, 424™ Court Coordinator
EVAN STUBBS E-Mail: 424coordinator@dcourttexas.org
PRESIDING JUDGE, 424m jUDICIAL DISTRICT
SHEILA STEWART, Administrative Assistant
JENNIFER FEST, Official Court Reporter E-Mail: 33424districtcourt@gmail.com
September 3, 2015
Texas Court of Criminal Appeals RirECrE~VLED ~~
Clerk of the Court COURT OF CRJI\IliNAl APPEALS
P. 0. Box 12308 SEP 04 2015
Austin, Texas 78711
Re: WR-83,738-01; In Re Thomas Allen Simon
Dear Mr. Acosta:
Enclosed you will find the Response of the Hon. Evan Stubbs, 424 1h Judicial District Judge,
Respondent in this matter. Please file this in the case for consideration. If you need anything
further, please let me know.
Encl: Response
Cc: Tracy Cluck (VIA EMAIL)
L.T. Bradt (VIA EMAIL)
Gary Bunyard (VIA EMAIL)
Gary Prust (VIA EMAIL)
Wiley "Sonny" McAfee (VIA EMAIL)
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
IN RE THOMAS ALLEN SIMON, Relator ·
ON APPLICATION FOR A WRIT OF MANDAMUS
IN CAUSE NO. 42908 IN THE 424TH DISTRICT COURT
FROM BURNET COUNTY
RESPONSE OF
Hon. Evan Stubbs, 424th Judicial District Judge
Respondent
September 3, 2015
Statement Of The Facts
The Relator was arrested on March 24, 2014, for two counts of Sexual
Assault and one count of Aggravated Assault Causing Serious Bodily Injury.
The Relater is not now and has never been charged with Aggravated Sexual
Assault in regard to this case as is alleged in the Petition for Mandamus.
The previous Judge appointed Tracy D. Cluck on April 8, 2014, to represent
the Relator on these charges. A duly empaneled Grand Jury then returned
an Indictment on June 3, 2014, charging the Relator with two counts of
Sexual Assault and one count of Aggravated Assault Causing Serious Bodily
Injury.
As described by Counsel for the Relator, Tracy D. Cluck filed ex parte
motions seeking funds for the employment of a medical expert and for
additional funds for investigative services. The undersigned called for an ex
parte hearing on these motions. RR Vol. 1 Page 4· Present at this hearing
was Tracy D. Cluck and the Relator. RR Vol. 1 Page 4· In presenting the
reasons for the funds being requested, Tracy D. Cluck informed the
undersigned that he would not be able to provide the Relator effective
assistance of counsel without the funds. RR Vol. 1 Pages 4 - 8. In making
the decision to remove Tracy D. Cluck as counsel for the Relator, the
undersigned stated that the Respondent was not going to put Mr. Cluck in a
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position where he would feel like he was being ineffective. RR Vol. 1 Pages n
- 12.
Later on the same day, the undersigned then appointed Gary Prust as new
counsel for the Relator. Mr. Prust is an experienced felony trial attorney
with a prior attorney/client relationship with Relator.
Response to Issue No. 1
Relator complains that the undersigned did not have good cause to
remove Tracy D. Cluck as Relator's appointed counsel. However, Mr. Cluck
had expressed to the undersigned his belief that he was unable to provide
effective assistance of counsel unless the undersigned granted the funds
requested. The undersigned (a) was not in the position of granting the
funds requested due to the excessive nature of the request, (b) was aware
that none of the other three attorneys representing the three co-defendants
had expressed such an excessive request, ( c) had extensive personal
experience in representing clients acting in the role of a criminal defense
attorney for hundreds of court appointed clients prior to being elected to the
bench, and (d) was sufficiently aware of the facts of the instant case to
believe that the level of funds requested was excessive. For these reasons the
undersigned had concern that if the excessive requests were not granted, Mr.
Cluck would move forward to trial of the case under conditions that would
create an appellate argument for ineffective assistance of counsel and thus,
potentially require a second trial at the expense of judicial economy and the
taxpayers of Burnet County.
The findings of the undersigned on the record in this regard were made
not only from the direct statement of Mr. Cluck but also from the fact that
none of the attorneys from the three co-defendants had informed the
undersigned of similar excessive needs in order to perform their jobs (RR
Vol. 1 Pages 12- 13) and from the undersigned's own personal experiences in
representing criminal clients in this jurisdiction (RR Vol. 1 Page 13) and from
what the undersigned then knew of the facts of the case (RR Vol. 1 Page 13).
Based on these findings, the undersigned did in fact act under the authority
of Art. 26.04 (j) (2) in removing Mr. Cluck for good cause shown on the
record for the protection of the rights of the Relator, and as such, the relief
of Mandamus is not available under these circumstances.
4
Response to Issue No. 2
In as much as this Court has entered an order temporarily staying the
proceedings pending resolution of this complaint, the undersigned believes
that a Writ of Prohibition is duplicitous, unnecessary, and moot.
SIGNED AND PRESENTED on this 3~ayofS~ '2015.
Evan Stubbs, Judge
424th Judicial District
Burnet County Annex North
1701 E. Polk Street, Suite 74
Burnet, TX 786n
(512) 756-5438
424distjudge@gmail.com
RESPONDENT
CERTIFICATE OF SERVICE
This is to certify that a true copy of the above and foregoing instrument,
together with this J?,roof of service hereof, has been forwarded by EServe and
by email on the 6 day of Se.pfllftbeK2o15, to Mr. Tracy D. Cluck,
Attorney for Relator, at tracy@tracyclucklaw.com, and to Mr. Gary W.
Bunyard, Attorney for Real Party in Interest - Wiley B. "Sonny" McAfee,
Di~trictAttorneyatg.buny~~.llano.tx.us~ 6~ P~, l