concurring and dissenting on writ of mandamus.
Relator brings this original action against respondent, who presided over relator’s trial in the 229th District Court of Travis County in which relator was convicted of aggravated robbery. During that trial, relator was represented, at first, only by David Grassbaugh. When jury selection began, Karyl Krug was appointed to assist Grassbaugh in his defense of relator. At the conclusion of the trial, after relator was sentenced by respondent, Grassbaugh withdrew from the case and Krug informed respondent that she would be representing relator on appeal. Respondent informed Krug that her “request” would be denied.
In this motion, relator urges two grounds for relief. In the first ground, he requests this Court to issue a writ of mandamus to compel respondent to vacate his orders appointing Susan Taylor and David Fannin to represent him on appeal. In the second ground, relator requests this Court to compel respondent to permit Krug to remain on as his counsel on appeal. The latter is no less than a request that respondent acknowledge that Krug is relator’s appointed counsel within the context of TEX.CODE CRIM.PROC. ANN. Art. 26. The majority grants both requests. I believe all that is required of this Court in this action is to issue a writ of mandamus to compel the trial court to vacate its orders appointing Taylor and Fannin to represent respondent on appeal. In this, I join the opinion of the majority to grant relator’s first ground for relief.
But I also believe this Court should not issue a writ to compel respondent to alter his view that Krug has, intentionally or unintentionally, used a back door to circumvent the usual procedures in Travis County for the appointment of appellate counsel. Because the majority’s vote to grant both of relator’s requests for relief implicitly does this, I dissent to the majority’s decision to grant relator’s second ground for relief.
The majority opinion sets out the language of the appointment order which was signed by respondent. This order appears to be a standard form. However, respondent and Krug express very different views of the meaning of her appointment. Respondent states that Krug was appointed solely to be a “note-taker” for Grassbaugh. Krug states that she was appointed to assist Grassbaugh by preserving error and prosecuting an appeal. The standard form used by respondent does not explicitly support either respondent’s or Krug’s statement.
In his response to relator’s motion, respondent explains that he used this form only because he had no special form to designate his appointment of Krug as an assistant to Grassbaugh, and because it was necessary to facilitate Krug being paid by Travis County for the legal services which she rendered at trial. Respondent also states that he never appoints an assistant trial counsel to handle an appeal, something Krug disputes in her responding affidavit.
Regardless of the particular assertions and counter-assertions in the dispute between respondent and Krug, the record reflects that relator understood at trial, and believes now, that Krug is his attorney and he is her client. On the day respondent sentenced him, relator executed a “statement made under penalty of perjury” in which he stated that Grass-baugh informed him that Krug was appointed to assist Grassbaugh in defending him. Relator also stated that an “attorney/client relationship has developed between Ms. Krug and myself, and I have great confidence in her ability to represent me on appeal and it is my desire that she represent me on appeal.”
I believe the protection of relator’s attorney/elient relationship with Krug is the goal of his request for mandamus action against respondent.
Relator presents two distinct issues in his motion. First is the issue of whether respondent may impose Fannin, Taylor or some other attorney on relator instead of Krug. The second issue is whether Krug will serve relator as his counsel on appeal as an appointed attorney under TEX.CODE CRIM. *370PROC.ANN. Art. 26 and be paid by the taxpayers of Travis County, or simply as the attorney of record on appeal for relator. See TEX.CODE CRIM.PROC.ANN. Art. 26.04(a). I believe that only the first issue is a proper subject for mandamus action at this time.
As pointed out above an attorney/client relationship formed between relator and Krug that entitles relator to have Krug represent him on appeal, regardless of the wishes of the trial court. Powell v. Alabama, 287 U.S. 45, at 53-54, 53 S.Ct. 55, at 58-59, 77 L.Ed. 158 (1932); and Stearnes v. Clinton, 780 S.W.2d 216, at 222 (Tex.Cr.App.1989). Respondent acknowledged the existence of the relationship in his reply to relator’s motion, “Mr. Stotts certainly has the right to retain Ms. Krug, she has the right to represent him on a pro bono basis, but she should not have the right to force the taxpayers of Travis County to pay for her representation of Mr. Stotts.” Since respondent has conceded the existence of the attorney/elient relationship between Krug and relator, respondent should vacate his orders appointing Fannin and Taylor, respectively. Mandamus should be issued pursuant to relator’s first ground for relief.
This would leave Krug as relator’s sole attorney on appeal. Respondent may not interfere with that relationship. If respondent is not to be permitted to make an appointment of another attorney for relator that would interfere with the attorney/client relationship between Krug and relator, the second issue before this Court, whether Krug is an “appointed” attorney or simply the attorney of record, would be irrelevant to relator. I believe an attempt to resolve this issue would be premature at this time. Krug’s status as an appointed attorney would only come into play if she was to request payment from Travis County pursuant to the provisions of Art. 26, which would most likely take place after she has rendered appellate services and submitted a pay voucher to the District Clerk of Travis County. TEX. CODE CRIM.PROC.ANN. Art. 26.04(c).
I do not believe it is necessary, or timely, to issue a writ of mandamus on relator’s second ground for relief. Mandamus should not be lightly or prematurely taken by the Court. State ex rel. Sutton v. Bage, 822 S.W.2d 55, at 56 (Tex.Cr.App.1992). The issue of who, if anyone, will compensate Krug for her services as relator’s attorney of record on appeal is a cause of action for her to pursue at the time that issue has arisen. I would hold that relator’s second ground for review is not ripe for consideration-by this Court. I dissent to the majority’s decision to hold otherwise.
I join the majority’s decision that relator is entitled to the issuance of a writ of mandamus on his first ground for relief only. If respondent would not voluntarily comply and vacate his orders appointing Fannin and Taylor to represent relator on appeal, then I would join the majority in issuing a writ of mandamus to compel respondent to do so.
McCORMICK, P.J., and MEYERS and KELLER, JJ., join this opinion.