Peterson v. Jones

OPINION

McCORMICK, Presiding Judge.

This is a mandamus case. Respondent appointed Relator, who is an attorney, to represent two indigent appellants in their first level of appeals of their convictions until the appeals were exhausted. Following the intermediate appellate court’s affirmance of the indigent appellants’ convictions in these appeals, Relator filed in both cases petitions for discretionary review, which this Court refused.

After Relator filed the petitions for discretionary review, he submitted to Respondent the required “form for reporting the services performed and request for compensation” for filing the petitions for discretionary review. Respondent refused to authorize payment for these services.

Relator filed a motion for leave to file a petition for writ of mandamus requesting this Court to issue a writ of mandamus directing Respondent to authorize payment. Before deciding whether to grant Relator’s motion for leave to file, we afforded Respondent an opportunity to respond to Relator’s allegations, and he has responded. The Texas Criminal Defense Lawyers Association also has filed a motion for leave to appear as Amicus Curiae and a brief in support of Relator. We grant the Texas Criminal De*372fense Lawyers Association’s motion for leave to appear as Amicus Curiae, and order its brief be filed with the papers in this case.

Relator claims Respondent is violating a ministerial duty by refusing to approve compensation for the services he rendered in filing the petitions for discretionary review. We have held mandamus is the appropriate vehicle to resolve the type of claim Relator asserts here. See Smith v. Flack, 728 S.W.2d 784, 789-94 (Tex.Cr.App.1987).

Therefore, in this case, we revisit two right to court-appointed counsel on appeal eases this Court decided under prior law, and construe several statutory provisions of the Texas Code of Criminal Procedure. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Cr.App.1991); Flack, 728 S.W.2d at 789. In construing these provisions, our duty is to attempt to discern the legislative intent or purpose by, if reasonably possible, giving effect to the plain meaning of the statutes’ language. See Muniz v. State, 851 S.W.2d 238, 265 (Tex.Cr.App.) (Clinton, J., dissenting), cert. denied, — U.S. -, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993); Boykin, 818 S.W.2d at 785-86.

In Ayala v. State, 633 S.W.2d 526, 527-28 (Tex.Cr.App.1982), this Court held the Fourteenth Amendment, and former Articles 26.04 and 26.05, V.A.C.C.P., imposed no duty on this State to provide counsel to an indigent appellant in seeking discretionary review in this Court. When this Court decided Ayala, former Article 26.04(a), V.A.C.C.P., in relevant part, provided:

“Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him."1 (Emphasis Supplied).

Former Article 26.05 Section 1(e), in relevant part, also authorized fees to be paid to court-appointed counsel:

“For the prosecution to a final conclusion of a bona fide appeal to a court of appeals or the Court of Criminal Appeals_”2 (Emphasis Supplied).

In Polk v. State, 676 S.W.2d 408, 411 (Tex.Cr.App.1984), this Court construed the foregoing statutory term “bona fide appeal to the Court of Criminal Appeals” to mean one in which this Court has granted a petition for discretionary review. Therefore, under prior law, this Court has interpreted the applicable statutory provisions to require the appointment of counsel in “the one and only appeal an indigent has of right” and one in which this Court had granted a petition for discretionary review. See Polk, 676 S.W.2d at 411; Ayala, 633 S.W.2d at 527-28. Under prior law, Relator would not be entitled to any compensation for filing the petitions for discretionary review.

Since this Court decided Ayala and Polk, the Legislature has amended Articles 26.043 and 26.05,4 and added Article 1.051(d),5 V.A.C.C.P. Article 26.04(a), V.A.C.C.P., in relevant part, now provides:

“Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice *373require representation of a defendant in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him. An attorney appointed, under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.” (Emphasis Supplied).

Article 26.05(a)(3), V.A.C.C.P., in relevant part, authorizes a reasonable attorney’s fee for:

“preparation of an appellate brief to a court of appeals or the Court of Criminal Appeals.” (Emphasis Supplied).

And, Article 1.051(d)(2), in relevant part, requires a trial court to appoint counsel to represent an indigent defendant in:

“an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted.” (Emphasis Supplied).

Relator claims that because of his appointment under Article 26.04(a) until all appeals were exhausted, Respondent has a ministerial duty under Article 26.05(a)(3) to compensate Relator for filing the petitions for discretionary review. We disagree because the 1987 amendments to Articles 26.04 and 26.05 and the addition of Article 1.051(d) retain the holdings of Ayala and Polk subject to the exceptions set out in Article 1.051(d)(3) and (4), V.A.C.C.P., which are not applicable here.

Consistent with Polk, Article 1.051(d)(2) provides for the appointment of counsel in an “appeal” to the Court of Criminal Appeals only if a petition for discretionary review has been granted, and Article 26.05(a)(3) provides for a reasonable attorney’s fee for preparation of an appellate brief to the Court of Criminal Appeals. An appellate brief is not filed in the Court of Criminal Appeals unless a petition for discretionary review has been granted. See Tex.R.App. Proc. 203. There is nothing in the language of either Article 26.05(a)(3) or Article 1.051(d)(2) to indicate the Legislature intended for the appointment or compensation of counsel to file a petition for discretionary review.

In addition, Article 26.04(a), in relevant part, provides for court-appointed counsel for an indigent appellant until “appeals are exhausted.” Article 1.051(d) defines those “appeals” for which an indigent appellant is entitled to court-appointed counsel. Consistent with Ayala, the filing of a petition for discretionary review is not included in any of these definitions, and the court has made no finding, pursuant to Article 1.051(d)(4), V.A.C.C.P., “that the interests of justice require representation.”6

Relator also claims Respondent’s failure to authorize payment violates the indigent appellants’ due process and equal protection rights and also denies them adequate access to this State’s courts. Assuming Relator has standing to assert these claims, we rejected them in Ayala and we reject them now. Texas actually provides more protection to an indigent appellant in appellate proceedings than what the United States Constitution requires. See generally Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); see also Douglas v. California, 372 U.S. 353, 361-64, 83 S.Ct. 814, 818-20, 9 L.Ed.2d 811 (1963). We hold an indigent appellant is not automatically entitled to assistance of court-appointed counsel to file a petition for discretionary review, and Respondent has no ministerial statutory duty in this case to authorize payment for the services Relator performed in filing the petitions for discretionary review. See Polk, 676 S.W.2d at 411; Ayala, 633 S.W.2d at 527-28.

Mandamus relief is denied.

MEYERS, J., not participating.

. See Acts 1965, 59th Leg., p. 317, ch. 722, section 1, eff. January 1, 1966. See also Historical Note to current Article 26.04.

. See Acts 1981, 67th Leg., p. 803, ch. 291, section 106, eff. September 1, 1981. See also Historical Note to current Article 26.05.

. See Acts 1987, 70th Leg., ch. 979, section 2, effective September 1, 1987.

. See Acts 1987, 70th Leg., ch. 979, section 3, eff. September 1, 1987.

.Article 1.051(d) provides that an "eligible indigent defendant” is entitled to court-appointed counsel in the following appellate and postcon-viction habeas corpus matters: (1) an appeal to a court of appeals; (2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted; (3) a habeas corpus proceeding if the court concludes that the interests of justice require representation; and (4) any other appellate proceeding if the court concludes that the interests of justice require representation.

. Cf. Faulder v. Hill, 612 S.W.2d 512, 526-28 (Tex.Cr.App.1981) (on appellant's mot. for reh’g) (Dally, J., concurring) (State's petition in the United States Supreme Court for review by cer-tiorari is not an “appeal”).