Curry v. Wilson

853 S.W.2d 40, 1993 Tex. Crim. App. LEXIS 82, 1993 WL 99907

• Court: Court of Criminal Appeals of Texas
• Decided: April 7, 1993
• Docket: 71393
• Status: Published

Opinions

OPINION

WHITE, Judge.

In an original application for writ of prohibition, applicant has requested that this Court order respondent, The Honorable Sharen Wilson, to refrain from activity that would allow the enforcement of Capias Pro Finum No. C-3328 and to cease all of her efforts to collect $16,055.00 in legal fees. Tarrant County incurred the legal fees as a result of its provision of appointed counsel to applicant throughout his criminal trial. After reviewing the facts and law, and after determining the merits of the case presented, we will not issue the requested writ.

In order to place the matter in its proper perspective, we will first briefly review the facts leading up to the instant application. On February 5, 1990, applicant was charged with involuntary manslaughter in Tarrant County. His trial began on November 12, 1990 in Criminal District Court Number One, where respondent sits as a district judge. The trial ended on November 20, 1990. The jury returned a verdict of “not guilty.”

After respondent dismissed the jury, she immediately notified applicant that she had become aware that he had the resources to pay for his legal representation. Additionally, she notified applicant that pursuant to Tex.Code Crim.Proc.Ann., Art. 26.05(e), he would be required to pay for his attorneys’ fees. Article 26.05(e) provides:

“If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay the amount that it finds the defendant is able to pay.” (emphasis added).

Respondent then ordered applicant and his attorneys to return to her court later to work out the repayment schedule details.

On December 10, 1990, applicant and his attorneys appeared, as ordered, for a hearing in respondent’s court. At that hearing, respondent ordered applicant to repay the legal fees which the county incurred in his defense. Applicant was allowed to participate in the development of the repayment plan; in fact, the plan was modified, at applicant’s suggestion, to fit his budget. The following exchange took place:

“THE COURT: I’ve had a chance to review your PSI and under the law you are not indigent and, therefore, I’m going to order that you pay back the court the attorneys’ fees and investigative fees and other fees that were expended on behalf of your defense. You’re going to want to do that, I think, because you had very good results. You got a couple of the best lawyers in town.

MR. CURRY: Yes, ma’am.

THE COURT: You’re going to be ordered to pay $16,055 into the registry of the court. Those payments will be made on a monthly basis and according to you income, I’m going to order them in an amount of $300 a month. Is there any problem with that?

MR. CURRY: Yeah.

MR. KEARNEY: Just tell her you can do the best you can.

MR. CURRY: That’s all I can do.

THE COURT: What amount can you pay, because it’s contempt of court for you not to pay them, and that means you go to jail?

MR. CURRY: We’re in the off-season where I work. We don’t work this time of year.

THE COURT: What months do you work?

MR. CURRY: February through August.

THE COURT: Okay. So, how much can you pay in the off-season?

MR. CURRY: $300 a month, right now there’s no way.

THE COURT: What can you pay in the off-season?

MR. CURRY: I have — I don’t have any idea.

THE COURT: Are you not working at all the rest of the year?

MR. CURRY: We take off.

THE COURT: You don't work at all?

MR. CURRY: We don’t make any—

THE COURT: You just have this one job and that’s only six months a year, and the rest of the year you don’t work at all on any job?

MR. CURRY: I work for my brother and I still work on cars and everything.

THE COURT: How much do you make when you do that?

MR. CURRY: $300.

THE COURT: A month?

MR. CURRY: A week.

THE COURT: In the off-season; that is, the months other than February through August, he’s ordered to pay $100 a month. February through August, he’s ordered to pay $300 a month until this is paid in full. Do you understand that?

MR. CURRY: Yes.

THE COURT: Failure of your — I will put you in jail for failure to pay. Do you understand that?

MR. CURRY: Yes.”

Applicant did not object to the proceeding or to the order of the court.

Following the hearing, respondent issued a “Certification of Proceedings.” The certification documented applicant’s duty to follow the order of the court. Applicant completely and utterly failed in his duty to make a single payment to the court. As a result, on September 20, 1991, respondent issued a “capias pro finum.” Applicant was never arrested and his liberty was not otherwise restricted.

On February 20,1992, applicant, through his attorneys, filed a “Motion to Recall, Vacate, and Set Aside Capias Pro Finum for Want of Jurisdiction.” The same day, a hearing was held before respondent. At the hearing, the Tarrant County District Attorney’s Office indicated that it did not wish to participate. Consequently, respondent announced that she would appoint a special prosecuting attorney to represent the state and that the hearing would reconvene on March 5, 1992. Additionally, respondent recalled the court’s warrant for the arrest of applicant.

On Feb. 26, 1992, applicant filed this original application for writ of prohibition. Applicant requested that this Court issue an order to prohibit respondent from enforcing its capias pro finum and from taking further action to collect the legal fees.

The first question which we must address is whether this Court has jurisdiction to hear and determine this matter. Respondent argues that we do not have jurisdiction; that this is not a criminal law matter.

This Court has the power to issue writs of prohibition in criminal law matters. TEX. CONST., Art. V, § 5. Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution, are criminal law matters. As Judge Campbell said previously in Smith v. Flack:

“Undoubtedly, the enforcement of an order issued pursuant to a criminal statute is a criminal law matter as much as the issuance of the order itself, even if it requires this Court to examine civil laws in the process. Were it otherwise, this Court’s power to decide criminal law matters would be seriously eroded or eliminated all together by the incidental presence of civil law matters.”

Smith v. Flack, 728 S.W.2d 784, at 788-789 (Tex.Crim.App.1987) (Involving, similarly, a dispute over Tex.Code.Crim.Proc.Ann., Art. 26.05).

The instant case arose out of a dispute over a district judge’s authority to enforce an order which was mandated by Tex.Code Crim.Proc.Ann., Art. 26.05(e). Additionally, the order was issued by a district judge in an effort to recoup the cost of legal services provided to a defendant in a criminal trial. Therefore, this dispute is a criminal law matter and this Court has jurisdiction to hear the case and determine whether a writ of prohibition should issue.¹

We will now address the merits of applicant’s claim. In order to show that he is entitled to extraordinary relief, applicant must demonstrate to this Court that: (1) he has no other adequate remedy at law; and that (2) he is clearly entitled to the relief sought. Buntion v. Harmon, 827 S.W.2d (Tex.Crim.App.1992) (see footnote 2); Sutton v. Bage, 822 S.W.2d 55, at 57 (Tex.Crim.App.1992); and Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Crim.App.1989).

After careful consideration, it seems abundantly clear to us that, indeed, applicant has no other adequate remedy at law at this time. However, we believe that he is not clearly entitled to the relief he seeks.

Applicant prays that this Court order respondent to refrain from arrest, detention or seizure of applicant or his property and to refrain from any action to coerce payment of the fees which respondent has ordered him to pay. At the hearing on applicant’s “Motion to Re-call, Vacate and Set Aside Capias Pro Finum” which was held on February 20, 1992, respondent withdrew the court’s warrant. She stated: “The court’s warrant is re-called.” We can only construe the court’s statement as a withdrawal of the “Capias Pro Finum.” Thus, we need not address the question of whether it is within respondent’s authority to seize applicant or his property for failure to pay as ordered. To do so would be merely advisory since applicant is no longer under imminent threat of confinement. Additionally, if respondent were to seize applicant or his property, applicant would have an adequate remedy by way of habeas corpus.

Nevertheless, there still exists the matter of the court’s authority to seek reimbursement of the legal fees expended on applicant’s behalf. Applicant advances the claim that any attempt by the court to seek reimbursement for his legal expenses pursuant to Tex.Code Crim.Proc.Ann., Art 26.-05(e) is void. In support he argues that respondent had no jurisdiction to order him to re-pay the legal fees because at the moment respondent entered a judgement of acquittal in his case, the court’s jurisdiction was terminated.

It is true, as applicant notes, that in Garcia v. Dial, 596 S.W.2d 524 (Tex.Crim.App.1980), we reiterated the well settled principle that:

“when a trial court empowered with jurisdiction over a criminal case sustains a motion to dismiss the indictment or information, the person accused thereunder is, in law, discharged from the accusation against him; there is concomitant to such dismissal, no case pending against the accused and, accordingly, no jurisdiction remaining in the dismissing court.”

Garcia v. Dial, 596 S.W.2d, at 528

That statement of law from Garcia is certainly the general rule. However in Garcia we also stated that:

“attachment of jurisdiction ... conveys upon that court the power to determine all essential questions ‘and to do any and all things with reference thereto authorized by the Constitution and statutes ... ’” (emphasis added).

Id., at 527-528. And, in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, (Tex.1926), the Texas Supreme Court stated that:

“[T]he ... court, having ... acquired jurisdiction, may exercise it to dispose of the whole subject-matter of the litigation and adjust all the equities between the parties, and it is entitled to do so.” (emphasis added).

Cleveland v. Ward, 285 S.W., at 1070.

It follows that although a court may have ultimately decided the merits of a party’s claim, it does not lose it’s general jurisdiction to act until all of the issues which arise as a result of the initial action have been resolved.²

The Texas courts derive their authority to act from the Constitution and laws of the State of Texas. Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403 (1903); See also Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), and see Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979). We must be ever aware of the legislature’s authority to impose collateral duties upon the courts which might extend their jurisdiction in certain cases. Tex. Const., Art. V § 1. A court must perform those collateral judicial duties that the legislature orders it to perform as long as they are constitutionally permissible.

This legislative mandate has created an additional duty which the courts must carry out whenever appointed counsel is provided to a defendant who has the financial resources to offset the county’s legal fees. Respondent did not have discretion with regard to this measure. Further, the legislature did not provide that the court must perform this act before a judgment on the merits is entered. It only mandated that the courts issue the orders.³

Here, after discovering that a defendant, who had been provided appointed legal counsel at the expense of the county, actually had sufficient financial resources to offset the costs of his defense, respondent ordered him to repay the county pursuant to Tex.Code Crim.Proc.Ann., Art. 26.-05(e). It is true that, when it ordered applicant to repay the county, the trial court no longer had authority to determine the issues presented in the indictment against applicant because the jury had already returned a verdict of not guilty. However, Section (e) of Art. 26.05 provided it with continuing authority to order repayment of the county funds expended for applicant’s appointed legal defense by virtue of its determination that applicant was financially able to offset those costs.

Additionally, applicant makes claims that the Texas recoupment statute violates the Due Process and Equal Protection provisions of the State and Federal Constitutions. Although these claims present us with issues of first impression in this state, similar issues have been addressed by some of our sister states and by the United States Supreme Court. We will attempt to take guidance from them.

We will first address applicant’s Due Process claim. Applicant argues that any attempt to force him to pay money is an attempt to punish him “notwithstanding exoneration by the jury’s verdict of not guilty.” He contends that consequently any attempt to enforce the provisions of the statute against him will violate principles of Due Process. We disagree.

In People v. Kelleher, 116 Ill.App.3d 186, 72 Ill.Dec. 211, 452 N.E.2d 143 (4th Dist. 1983) cert. denied sub nom Kelleher v. Illinois, 466 U.S. 907, 104 S.Ct. 1686, 80 L.Ed.2d 160 (1984),⁴ the Appellate Court of Illinois, Fourth District, addressed a very similar claim. Where an accused, who had received the benefit of appointed legal counsel, was acquitted of two counts of forgery, the court observed that:

“[A] nonindigent, although acquitted, is ordinarily required without reimbursement by the state, to pay for counsel. To require an indigent, although acquitted, to reimburse the county, to the extent he is able, for the expense of furnished counsel, tends to put indigents and nonindigents who are acquitted on the same basis and is consistent with due process.”

The United States Court of Appeals for the Seventh Circuit reached a similar decision in a case where the defendant was acquitted. In United States v. Durka, 490 F.2d 478 (1973), the Court held that a federal district court had jurisdiction “to enter an order affecting the defendant’s property rights despite the passage of three months from the rendition of judgment and defendant’s discharge.” There, the court decided that the rule announced in “18 U.S.C.A. § 3006 A vests in the district court broad authority to issue such an order.” Further, that court observed that three months was not an “unreasonable” length of time.

Additionally, when the defendant in Dur-ka argued that the court’s failure to grant him a hearing on the issue before issuing the order to pay violated principles of due process, the court concluded that “[T]he fixing of compensation and reimbursement pursuant to 18 U.S.C.A. § 3006 A ... is a matter within the exclusive discretion of the district court and is not such an event that requires the procedural safeguards of an adversary hearing.” The court also found that “if the defendant refused to comply with the district court’s order and contempt proceedings are recommended ... the defendant will be entitled to a hearing ... at which time he may assert his defenses to payment.” The decision reached in Durka has been followed and has not been disturbed.⁵

The State of Texas has a significant interest in assuring that persons with the financial resources to pay for their own representation do not take a free ride at the expense of its taxpayers. It is apparent from a plain reading of the Texas statute that the legislature intended to protect its taxpayers from persons who would abuse the right to free legal services. TEX.CODE CRIM.PROC.ANN., Art. 26.-05(e). In providing legal services to those indigent citizens who cannot afford to pay for their own defense, this State provides an important service. Nevertheless, it is not an inherent violation of due process for the State to take reasonable steps to collect on expenditures made on behalf of those who have the ability to off-set the State’s expenses.

Applicant has received notice of all actions taken by the trial court with regard to this matter. Additionally, the trial court has afforded applicant every opportunity to be heard and to voice objections. Consequently, we find that neither Article 26.-05(e) nor its application in the instant case violate principles of Due Process in the manner argued by applicant.

We next address applicant’s Equal Protection claim. He argues that, since the “capias pro finum” issued by the trial court orders the Sheriff to “take the body of him, the said: Dusty Duane Curry and deliver him, to the jailor of the said County,” he has been singled out for discriminatory treatment much like the defendant in James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). In James v. Strange, the U.S. Supreme Court held a Kansas recoupment statute to be invalid as a violation of Equal Protection because it did not allow indigent defendants all of the exemptions provided to other judgement debtors. Specifically, the Court stated:

“We recognize, of course, that a State’s claim to reimbursement may take precedence, over the claims of private creditors and that enforcement procedures with respect to judgements need not be identical. This does not mean, however, that a state may impose unduly harsh or discriminatory terms merely because the obligation is to public treasury rather than to a private creditor.”⁶

James v. Strange, 407 U.S., at 138, 92 S.Ct., at 2033.

Nevertheless, in the instant case, the trial court withdrew its warrant for the arrest of applicant at the hearing it held on February 20, 1992. As a result, applicant is no ' longer under imminent threat of incarceration for his violation of the court’s order. We therefore see no need to address the propriety of the trial court’s issuance of the capias pro finum.

Additionally, the statute addressed in James v. Strange, Id., is distinguishable from the Texas statute in question. The statute addressed in James v. Strange actually spelled out a denial of exemptions to persons who fell under its terms, while, the Texas statute contains no such denial of exemptions and does not provide for persons who fall under its terms to be treated any differently than other judgement debtors.

A similar distinction was raised in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974).⁷ There, the U.S. Supreme Court upheld the validity of an Oregon recoupment statute. The Court explained that the Oregon statute did not contain the same problems as the Kansas statute addressed in James v. Strange⁸. Consequently, we find that Article 26.05(e) of the Texas Code of Criminal Procedure does not violate principals of Equal Protection in the manner alleged by applicant.

We hold that respondent had specific legislative authority to issue the order requiring applicant to pay for the services he received. Additionally, applicant is not entitled to have this Court interfere with a legitimate exercise of authority by the district court. Provided that the requirements of due process are met, the court may enforce its own order. We will not issue the requested writ of prohibition.⁹

1 . For a better understanding of this Court’s jurisdiction in such matters, see also Commissioners' Court v. Beall, 98 Tex. 104, 81 S.W. 526 (1904); Weiner v. Dial, 653 S.W.2d 786 (Tex.Crim.App.1983); and see Dickens v. Court of Appeals, 727 S.W.2d 542 (Tex.Crim.App.1987) and Lanford v. The Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex.Cr.App.1993).

2 . See e.g. Sutherland v. De Leon, 1 Tex. 250 (1846); and see Willy v. Coastal Corporation, — U.S. -, -, 112 S.Ct. 1076, 1080, 117 L.Ed.2d 280 (1992) (Considering whether a federal district court could impose sanctions when it did not have subject matter jurisdiction, Chief Justice Rehnquist noted in his majority opinion that: "[I]t is well established that a federal court may consider collateral issues after an action is no longer pending....” quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394, 110 S.Ct. 2447, 2455, 110 L.Ed.2d 359 (1990). And see, United States v. Durka, 490 F.2d 478 (7th Cir.1973) (Finding that a trial court had jurisdiction to order a defendant to pay back funds expended on appointed counsel even though the defendant had been acquitted three months earlier.).

3 . The dissent argues that we are employing Art. 26.05(e) to "extend or expand the jurisdiction of the trial court.” Dissenting Opinion, at p. 48. We are not ruling that the statute serves to artificially extend a trial court’s jurisdiction. Our decision holds that a trial court has not lost jurisdiction over a criminal law matter until all of the issues, herein the repayment of county funds employed to secure counsel for appellant, attendant to that criminal law matter are resolved.

The dissent also argues that our decision contravenes the intent of TEX.CODE CRIM.PROC. ANN. art. 37.12, which provides in the event of an acquittal, a "defendant shall be at once discharged from all further liability upon the charge for which he was tried; ...”. We disagree, and shall focus "our attention on the literal text of the statute in question and attempting to discern the fair, objective meaning of that text at the time of enactment." Boykin v. State, 818 S.W.2d 782, at 785 (Tex.Cr.App.1991). We believe that Art. 37.12 serves only to discharge a defendant from any further criminal liability for the offense for which he was tried. A literal reading of the text of Art. 37.12 does not indicate a defendant is also to be discharged from any civil liability for repayment of attorney’s fees upon the event of an acquittal.

4 . See, also, ILL.REV.STAT. Par. 113-3.1 (1981, Ch. 38).

5 . See, also, United States v. Martin Trigona, 684 F.2d 485, 492 (7th Cir.1982); United States v. Gurtunca, 836 F.2d 283, 289 (7th Cir.1987); United States v. Angulo, 864 F.2d 504, 509 (7th Cir.1988); and United States v. Ross, 917 F.2d 997, 998 (7th Cir.1990). These four cases, are factually distinguishable from the instant case because, in them, the defendants were convicted and not acquitted.

The California Supreme Court reached a similar decision in a case where the defendant also was convicted. In People v. Amor, 12 Cal.3d 20, 114 Cal.Rptr. 765, at 770, 523 P.2d 1173, at 1178 (1974), it was held:

"Does the fact that acquitted defendants may be required to reimburse the county under section 987.8 of the Penal Code for counsel fees result in a denial of due process?

"No. To begin with, defendant was not acquitted, and her right to raise this issue is questionable. In any event, no punishment of acquitted defendants is authorized by section 987.8. Requiring that a defendant, to the extent that he has the financial ability to do so, reimburse the county for services received does not constitute punishment by any definition ordinarily ascribed to such term. Furthermore, as hereinabove indicated, under the statute the burden of reimbursement is placed upon all indigent defendants according to their ability to pay, and there is no singling out of acquitted defendants."

6 . See, also, KAN.STAT.ANN. § 2d-4531 (Supp. 1971).

7 . See, also, OREGON REV.STAT. § 161.665(2).

8 . Fuller v. Oregon, 417 U.S., at 47, 94 S.Ct., at 2121 referring to James v. Strange, (supra).

9 . Although applicant requested a writ of prohibition in the instant case, to prevent the trial court from any action that would enforce the Capias Pro Finum, it appears that the more appropriate remedy would have been for him to request mandamus to compel the trial court to withdraw that order. See, and compare, State ex rel. Hawthorn v. Giblin, 589 S.W.2d 431, at 432-433 (Tex.Cr.App.1979) (wherein, the prosecutor sought a writ of prohibition to prevent the trial court from entering a judgment of acquittal that it was considering, but had not yet entered.). Based on the reasoning above, this Court would also have denied an application for a writ of mandamus in this cause.