WR-86,920-02 *JM~S&Ji\cs JL i^AJ'l.^ JL'ftw* COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/9/2017 4:58 PM Accepted 11/16/2017 10:40 AM NO. WR-86,920-02 deanaWilliamson IN THE COURT OF CRIMINAL APPEALS received COURT OF CRIMINAL APPEALS 1 I/I6/20I7 DEANA WILLIAMSON, CLERK IN RE STATE OF TEXAS EX REL. BRIAN W. WICE, Relator
ON STATE'S PETITION FOR WRIT OF MANDAMUS AGAINST THE FIFTH COURT OF APPEALS
ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NOS. 05-17-00634-CV, 05-17-00635-CV & 05-17-00636-CV OF COLLIN COUNTY, TEXAS
COLLIN COUNTY COMMISSIONERS COURT'S MOTION FOR LEAVE TO SUBMIT FOR FILING COLLIN COUNTY COMMISSIONERS' SUR- REPLY TO RELATOR'S REPLY TO THE COLLIN COUNTY COMMISSIONER COURT'S RESPONSE TO PETITION FOR WRIT OF MANDAMUS AND/OR TO STRIKE FROM THE REPLY THE PURPORTED AMICUS BRIEFS INCORPORATED THEREIN BY REFERENCE
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, the Collin County Commissioners Court, a real party in
interest in the above-captioned matter, by and through its undersigned counsel, and
pursuant to Tex. R. App. P. 52, seeks leave of Court to file the attached Sur-reply
to Relator's Reply to the Collin County Commissioner Court's Response to
Petition for Writ of Mandamus and/or Motion to Strike the Purported Amicus
Briefs Incorporated by Reference Therein ("Sur-reply"). OVERVIEW
Collin County seeks to file a Sur-Reply to Relator's Reply to the Collin
County Commissioner Court's Response to Petition for Writ of Mandamus and/or
Motion to Strike the Purported Amicus Briefs Incorporated by Reference Therein.
The grounds for this request include the fact that Relator's Reply Brief (1) includes
apparent misrepresentations of fact; (2) includes in the appendix improper
materials in the form of argument and briefing that exceeds the word/page limits
and includes arguments raised for the first time in the Reply; and (3) disregards
procedural rules by attempting to include by reference materials not yet filed with
the Clerk. Collin County seeks to offer a Sur-reply and/or Motion to Strike in the
interests of justice to address these issues and to aid the court in resolving this
matter. This request is not sought to delay, but so that justice can be done.
ARGUMENT
The matter before the Court involves a conditional order of mandamus
entered by the Fifth Court of Appeals requiring Judge George Gallagher to vacate
an order that Collin County pay in excess of $200,000 in interim attorney fees to
three attorneys pro tern appointed as special prosecutors. Tex. Code Crim. Proc.
Art. 26.05 sets forth the statutory framework for the appointment of counsel
appointed to defend indigent defendants in criminal cases. Tex. Code Crim. Proc. Art. 2.07 applies it to the appointment of attorneys pro tem appointed to prosecute.
In summary, with respect to compensation, the law requires the judges who preside
over criminal cases in a county to develop a fee schedule that states fixed rates or
minimum and maximum hourly rates. The law requires that court ordered fees be
paid according to this fee schedule. Thus, the fees should not exceed (or fall
below) the amounts determined pursuant to the fee schedule. Contrary to the plain
language of the statute, the Collin County Local Rules included Rule 4.0 IB which
provided that in unusual circumstances, the presiding district judge could vary
from the fee schedule. In reliance on this illegal local rule, Judge Gallagher
ordered that the fees in the underlying case shall vary from the adopted fee
schedule and he ordered fees far in excess of those allowed under Collin County's
fee schedule. The Fifth Court of Appeals found that this was an illegal and void
order because Judge Gallagher had no discretion under Texas law to vary from the
fee schedule and that Local Rule 4.0IB did not comply with Texas law. The Fifth
Court of Appeals accordingly entered a conditional writ of mandamus ordering
Judge Gallagher to vacate his order. Thereafter, the attorneys pro tem filed a
Petition for Writ of Mandamus before this Court seeking a mandamus ordering the
Fifth Court of Appeals to vacate its order thereby allowing Judge Gallagher's order
to remain in place. On October 27, 2017 an amicus curiae brief, purporting to be filed on behalf
of the Texas Criminal Defense Lawyers Association, hereinafter referred to as the
"TCDLA," was submitted to the Clerk of the Court. This purported amicus curiae
brief will hereinafter be referred to as the "Disavowed Amicus Brief." It was
accepted by the Clerk at 10:31 AM on October 30, 2017. Disavowed Amicus
Brief, cover page clerk stamp.
The Disavowed Amicus Brief purported to be filed on behalf of the TCDLA,
and it so stated on its cover page, with further explanation in the required Rule 11
certification. On October 31, 2017, the attorney who filed the brief and made the
Rule 11 certification with respect to the Disavowed Amicus Brief, submitted a
Motion to Withdraw Amicus Brief, notifying the Court that contrary to the
representations made upon submission, it had not been approved by the TCDLA.
The filing attorney requested that the brief be withdrawn, stricken and not
considered by the Court. The motion clearly states that the Executive Committee
of the TCDLA instructed the filer to withdraw the brief and request that it be
stricken from the record.
Relator thereafter filed Relator's Reply to the Collin County Commissioner
Court's Response to Petition for Writ of Mandamus ("Reply"), which
acknowledged knowing of the motion to withdraw the Disavowed Amicus Brief.
However, Relator attached a somewhat edited version of the Disavowed Amicus Brief as an appendix to the Reply. The Reply does not plainly advise the Court
that the brief has been disavowed by the TCDLA or that the attorney who had filed
it did not have authority to file it on behalf of the TCDLA. Even after the brief
was disavowed by the TCDLA, Relator continues to mischaracterize it in the Reply
as being "tendered by the Texas Criminal Defense Lawyers Association." Collin
County seeks to address this issue in a sur-reply.
Attaching the Disavowed Amicus Brief to Relator's Reply as an appendix
and attempting to incorporate it by reference into the Reply is improper. In
addition to the procedural irregularities, the Disavowed Amicus Brief generally
consists of new argument, such as arguments prefaced with the statement that they
were not raised by the Relator and other arguments based on authority from outside
Texas and attorney fee plans from other states. It also exceeds the scope of Collin
County's response. The Disavowed Amicus Brief Relator has attached as an
appendix is replete with unauthorized statements and improper argument.
Including argument and briefing in an appendix is improper and it is an attempted
end run around word count and page limitations. Collin County requests leave to
file a sur-reply to address this issue.
In addition to attempting to incorporate by reference the Disavowed Amicus
Brief, Relator also attempts to incorporate in the Reply a yet to be filed amicus
curiae brief that Relator says he expects to be filed by the National Association of Criminal Defense Lawyers. Reply, p. 1, note 1. No further description was given
of the anticipated amicus brief or its positions in the Reply. Incorporating yet to be
filed materials into Relator's Reply is improper. Collin County seeks to file a sur-
reply to address this issue.
Relator's Reply also alleges that Judge Becker, who appointed the attorneys
pro tem and then promptly recused himself, was "an agent of Collin County."
Reply, p. 13, 14. The Honorable Judge George Gallagher was assigned to the case.
Relator's Petition, p. 5; Opinion of Dallas Court of Appeals in Collin County's
Response Appendix Tab 1, p. 3, note 1. There is no authority for the proposition
that Judge Becker was an agent of the county for the purpose of entering into
contracts with attorneys pro tem, especially on a case in which he promptly
recused himself and over which he was not presiding when the fees in question
were incurred. There is nothing in the Collin County Fee Schedule, or Rule
4.0IB, or Texas law that allows a single judge to enter into agreements with
appointed counsel in a case over which the judge would not preside and/or to
approve hourly rates or fees for services yet to be rendered. A Texas judge's
discretion is limited to ordering a fee that falls within the fee schedule adopted by
the district court judges trying criminal cases in the county. Tex. Code Crim. Proc.
Art, 26.05 does not authorize a judge, acting alone, to establish attorney
compensation rates or to bind the county with respect to any such rates. Neither Judge Becker nor Judge Gallagher was authorized to approve and order payment of
attorneys' fees to the attorneys pro tem that exceeded (or fell below) the amounts
allowed by the Collin County fee schedule. Collin County requests leave to file a
sur-reply addressing these issues.
In a footnote to the Reply, Relator recognized for the first time that the
remedy available to the Commissioners Court if they disagreed with the order of
the trial court was through mandamus. Reply, p. 14, note 13. Because of this
available remedy, Relator's Reply says Collin County's concern about sanctions
was "apropos of nothing." Such constitutes an admission that mandamus was the
proper remedy available to Collin County to challenge the underlying order of
Judge Gallagher. Collin County requests leave to file a sur-reply addressing this
issue.
CONCLUSION
Collin County respectfully requests that it be allowed to file the attached
Sur-Reply in opposition to the Reply filed by Relator. This is an important case to
the citizens of Collin County, and citizens all across the state. It is important to the
Rule of Law and the system of reasonably compensating court appointed counsel -
prosecutors and defense counsel alike. The law is clear, properly enacted by the
Legislature and it establishes a wise framework for paying court appointed counsel
that works well when used according to its terms. This Court should not disrupt a
7 statutory framework simply because Relator ignored it and is now faced with a
result Relator considers distasteful. This is especially true where the fix suggested
by Relator would return Texas jurisprudence to a day when court appointed
lawyers were paid at the whim of individual judges on a case by case basis
untethered by a properly adopted fee schedule.
Because of the foregoing, it is important that Collin County be allowed to
file a sur-reply addressing the Reply filed by Relator and the improper attempt to
include new arguments, the Disavowed Amicus Brief and another yet to be filed
amicus brief in the Reply by reference. Such will serve the interests of justice and
is not sought for delay.
PRAYER
Collin County respectfully asks this Court to grant leave to file the Sur-
Reply and Motion to Strike that is attached hereto as Exhibit "A," that Relator's
Petition for Mandamus be denied and the Order of the Fifth District Court of
Appeals be upheld and for any other, further or additional relief to which Collin
County may be justly entitled.
Respectfully submitted,
SIEBMAN, BURG, PHILLIPS & SMITH, LLP
By: Is/ Clyde M. Siebman
Clyde M. Siebman Texas Bar No. 18341600 clydesiebman@siebman.com SIEBMAN, BURG, PHILLIPS & SMITH, LLP 300 North Travis Sherman, Texas 75090 (903)870-0070- Telephone (903)870-0066- Fax
Bryan H. Burg Texas Bar No. 03374500 bryanburg@siebman.com SIEBMAN, BURG, PHILLIPS & SMITH, LLP 4949 Hedgcoxe Road, Suite 230 Piano, Texas 75024 (214)387-9100-Telephone (214)387-9125-Fax
COUNSEL FOR REAL PARTY IN INTEREST, COLLIN COUNTY, TEXAS, COUNTY COMMISSIONERS
CERTIFICATE OF SERVICE
I certify that on November 9, 2017, I served a copy of the foregoing Sur- reply to Relator's Reply to the Collin County Commissioner Court's Response to Petition for Writ of Mandamus and/or Motion to Strike the Purported Amicus Briefs Incorporated by Reference Therein on all counsel of record by delivering a true and correct copy to them by electronic delivery at the time this Motion was filed.
/s/. Clyde M. Siebman EXHIBIT A NO. WR-86,920-02
IN THE COURT OF CRIMINAL APPEALS
IN RE STATE OF TEXAS EX REL. BRIAN W. WICE, Relator
ON STATE'S PETITION FOR WRIT OF MANDAMUS AGAINST THE FIFTH COURT OF APPEALS
ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NOS. 05-17-00634-CV, 05-17-00635-CV & 05-17-00636-CV OF COLLIN COUNTY, TEXAS
COLLIN COUNTY COMMISSIONERS' SUR-REPLY TO RELATOR'S REPLY TO THE COLLIN COUNTY COMMISSIONER COURT'S RESPONSE TO PETITION FOR WRIT OF MANDAMUS AND/OR TO STRIKE FROM THE REPLY THE PURPORTED AMICUS BRIEFS INCORPORATED THEREIN BY REFERENCE
Clyde M. Siebman Texas Bar No. 18341600 clydesiebman@siebman.com SIEBMAN, BURG, PHILLIPS & SMITH, LLP 300 North Travis Sherman, Texas75090 (903) 870-0070- Telephone (903) 870-0066 -Fax
Bryan H. Burg Texas Bar No. 03374500 bryanburg@siebman.com SIEBMAN, BURG, PHILLIPS & SMITH, LLP 4949 Hedgcoxe Road, Suite 230 Piano, Texas 75024 (214) 387-9100-Telephone (214) 387-9125-Fax IDENTIFICATION OF THE PARTIES
Relators: Brian W. Wice Kent Schaffer Nicole DeBorde
Counsel for Relators:
Brian W. Wice 440 Louisiana, Suite 900 Houston, Texas 77002-1635
Respondent:
Court of Appeals Fifth District of Texas at Dallas
Real Party in Interest:
Collin County/Collin County Commissioners Court
Counsel for Real Party in Interest:
Clyde M. Siebman SIEBMAN, BURG, PHILLIPS & SMITH, LLP 300 North Travis Sherman, Texas75090
Bryan H. Burg SIEBMAN, BURG, PHILLIPS & SMITH, LLP 4949 Hedgcoxe Road, Suite 230 Piano, Texas 75024
Real Party in Interest-Defendant:
Warren Kenneth Paxton, Jr.
Counsel for Real Party in Interest-Defendant:
Dan Cogdell 402 Main Street Houston, Texas 77002
Bill Mateja 2950 N. Harwood, Suite 2100 Dallas, Texas 75201
Philip Hilder 819 Lovett Boulevard Houston, Texas 77006
Trial Judges:
Honorable George Gallagher 416th Judicial District Court Collin County, Texas
Honorable Robert Johnson 177th Criminal District Court Harris County, Texas
Amicus Curiae:
County Judges and Commissioners Association:
James P. Allison A.O. Watson House 402 W. 12th Street Austin, Texas 78701
Texas Criminal Defense Lawyers Association:
Hilary Sheard 7421 Burnet Rd. #300-512 Austin, Texas 78757
Gary Taylor 909 909 8th Street, Streel Suite 202 Wichita Falls, Texas 76301
n Kyle Therrian 4500 Eldorado Pkwy, Suite 3000 McKinney, Texas 75070
David Schulman 1801 East 51st Street, Suite 365-474 Austin, Texas 78723
Bexar County District Attorney's Office:
Nicholas Lahood Enrico B. Valdez 101 W. Nueva, 7th Floor San Antonio, Texas 78205-3030
Travis County Attorney:
David Escamilla 314 West 11th Street, Room 300 Austin, Texas 78701
Travis County District Attorney:
Margaret M. Moore 509 West 11th Street Austin, Texas 78701
Former State Prosecuting Attorney:
Lisa C. McMinn 1213 AltaVista Ave. Austin, Texas 78704
Fort Bend County District Attorney:
John F. Healey, Jr. 1422 Eugene Heimann Cir. Richmond, Texas 77469
in TABLE OF CONTENTS
INDEX OF AUTHORITIES v
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 2
ARGUMENT 10
I. The Disavowed Amicus Brief. 10
II. A brief yet to come? 12
III. No agency relationship. 13
IV. The agreement to pay $300 per hour 14 is not allowed by Rule 4.0IB.
CONCLUSION 15
PRAYER 16
CERTIFICATIONS 17
IV INDEX OF AUTHORITIES
Case Law
Lopez v. Munoz, Hockema & Reed, L.L.P., 11 22 S.W.3d 857 (Tex.2000)
Smith y. Flack, 6, 13 728 S.W.2d 784 (Tex. Crim. App. 1987)
Statutes and Rules:
Collin County Local Rule 4.0IB 2, 5, 8, 9, 14
Collin County Local Rule 4.02 14
Collin County Local Rule 4.03 14
Tex. Code Crim. Proc. Art. 2.07 1, 13
Tex. Code Crim. Proc. Art. 26.05 1,5,6, 8, 9, 13-15
Tex. R. App. P. ll(b)&(c) 10
Tex. R. App. P. 52.3 11-12
Tex. R. App. P. 52.4 12
Tex. R. App. P. 52.5 11-12 STATEMENT OF THE CASE
Collin County respectfully submits this Sur-reply to Relator's Reply to the
Collin County Commissioner Court's Response to Petition for Writ of Mandamus
and/or Motion to Strike the Purported Amicus Briefs Incorporated by Reference
Therein ("Sur-reply"). Relator's Reply brief (1) includes apparent
misrepresentations of fact; (2) includes issues raised for the first time in the Reply
and in the Appendix improper materials in the form of further argument and
briefing; and (3) disregards procedural rules by including the attempted
incorporation by reference of materials not yet filed with the Clerk and materials
requested to be stricken. Collin County offers this Sur-reply and/or Motion to
Strike in the interests ofjustice and to aid the court in resolving this matter.
BACKGROUND
The matter before the Court involves a conditional order of mandamus
entered by the Fifth Court of Appeals requiring Judge George Gallagher to vacate
an order that Collin County pay in excess of $200,000 in interim attorney fees to
three attorneys pro tem appointed as special prosecutors. Tex. Code Crim. Proc.
Art. 26.05 sets forth the statutory framework for the appointment of counsel to
defend indigent defendants in criminal cases. Tex. Code Crim. Proc. Art. 2.07
applies that same framework to the appointment of attorneys pro tem to prosecute.
In summary, with respect to compensation, the law requires the judges who preside over criminal trials in a county to develop a fee schedule that states fixed rates or
minimum, and maximum hourly rates. The law requires that court ordered fees be
paid according to the fee schedule. Contrary to the plain language of the statute,
the Collin County Local Rules included Rule 4.0IB which provided that in unusual
circumstances, the presiding district judge could vary from the fee schedule. In
reliance on this illegal local rule, Judge Gallagher ordered that the fees in the
underlying case shall vary from the adopted fee schedule and he ordered fees far in
excess of those allowed under Collin County's fee schedule. The Fifth Court of
Appeals found that this was an illegal and void order because Judge Gallagher had
no discretion under Texas law to vary from the fee schedule and that Local Rule
4.01B did not comply with Texas law. The Fifth Court of Appeals accordingly
entered a conditional writ of mandamus ordering Judge Gallagher to vacate his
order. Thereafter, the attorneys pro tem filed a Petition for Writ of Mandamus
before this Court seeking a mandamus ordering the Fifth Court of Appeals to
vacate its order thereby allowing Judge Gallagher's order to remain in place.
STATEMENT OF FACTS
On October 27, 2017 an amicus curiae brief, purporting to be filed on behalf
of the Texas Criminal Defense Lawyers Association, hereinafter referred to as the
"TCDLA," was submitted to the Clerk of the Court. This purported amicus curiae
brief will hereinafter be referred to as the "Disavowed Amicus Brief." It was accepted by the Clerk at 10:31 AM on October 30, 2017. See Disavowed Amicus
Brief, as originally submitted to Court, cover sheet.
The Disavowed Amicus Brief purported to be filed on behalf of the TCDLA,
a non-profit entity, and it so stated on its cover page and the required Rule 11
certification. Disavowed Amicus Brief, as originally submitted to the Court, p. xii.
On October 31, 2017, the attorney who made the Rule 11 certification with
respect to the Disavowed Amicus Brief, and who signed and filed the Brief,
submitted a Motion to Withdraw Amicus Brief, notifying the Court that contrary to
the representations made upon submission, it had not been approved by the
TCDLA as represented and certified. The filing attorney requested that the brief
be withdrawn, stricken and not considered by the Court. The motion clearly states
that the Executive Committee of the TCDLA instructed the filer to withdraw the
brief and request that it be stricken from the record.
Later in the day on October 31, 2017, Relator filed Relator's Reply to the
Collin County Commissioner Court's Response to Petition for Writ of Mandamus
("Reply"), which acknowledged knowing of the Motion to Withdraw the
Disavowed Amicus Brief. However, Relator nevertheless attached to the Reply as
its Appendix a somewhat edited version of the Disavowed Amicus Brief. Relator
characterized the basis of the Motion to Withdraw the Amicus Brief as a failure to
follow TCDLA's "established procedures and policies relating to the filing of amicus briefs." However, the Reply did not plainly advise the Court that the brief
had been disavowed by the TCDLA and that the attorney who submitted it did not
have authority to file it on behalf of the TCDLA. Moreover, Relator expressly
mischaracterized the Disavowed Amicus Brief in the Reply as being "tendered by
the Texas Criminal Defense Lawyers Association." At the time Relator
represented to this Court that the Disavowed Amicus Brief was tendered by
TCDLA, Relator knew this to be false because he referenced the motion in which
this fact was made clear by the attorney who filed it. The Motion to Withdraw the
Amicus Brief, filed by the very same attorney who submitted the Disavowed
Amicus Brief, stated, "I have been instructed by the Executive Committee of
TCDLA to withdraw the Brief and request that it be stricken from the record."
Motion to Withdraw Amicus Brief, pp. 1-2. The motion also stated "...this brief
was in fact not authorized to be filed by TCDLA." Motion to Withdraw Amicus
Brief, p. 1. Relator's reference to the Disavowed Amicus Brief as TCDLA's brief,
and as being tendered by TCDLA, is simply not true, and knowingly so.
With full knowledge that the TCDLA and the submitting attorney asked that
the Disavowed Amicus Brief be withdrawn, stricken and not considered by the
Court, Relator discussed the Disavowed Amicus Brief in the body of the Reply,
attached it to the Reply as an Appendix and attempted to incorporate it by
reference into the Reply. Relator's statement to this Court that the arguments in the Disavowed Amicus Brief should be considered, despite the fact that the
document should never have been submitted, establishes that the Brief does not
properly belong in the Appendix because it is now Relator's argument, pure and
simple. Moreover, it generally consists of new argument, such as arguments
prefaced with the statement that they were not raised by the Relator and other
arguments based on authority from outside Texas and attorney fee plans from other
states.
The Disavowed Amicus Brief in Relator's Appendix is replete with
unauthorized statements and improper argument. For example, the Disavowed
Amicus Brief alleged that the TCDLA believed that an opinion finding that Collin
County Local Rule 4.0IB violated Tex. Code Crim. Proc. Art. 26.05 would have a
negative impact on indigent defense. Relator's Appendix ("Relator's App."), p. 4.
The authors of the Disavowed Amicus Brief may think that is true, but there was
no authority to say so in behalf of the TCDLA. In fact, the TCDLA made its
position clear, which was that it did not authorize the submission of the Disavowed
Amicus Brief and wanted it withdrawn, stricken and not considered by this Court.
Relator knew not to present the Disavowed Amicus Brief as the Brief of the
TCDLA, and then falsely certified to the Court that he "redacted any mention" of
the TCDLA in the body of the Brief. Reply, p. 17, note 14. Relator failed to do so.1 (see pages 4 and 28 of Relator's Appendix). The Disavowed Amicus Brief
raised an inherent powers argument that opened with a statement that the petition
for mandamus "carefully stops short of stating what should be acknowledged" and
then proposed a new argument. Relator's App., p. 5. The Disavowed Amicus
Brief included the argument that the Commissioners Court had a ministerial duty
to "settle" (meaning "pay") any bill approved by the County Auditor.2 Relator's
App. p. 21, note 11. The Disavowed Amicus Brief also makes separation of
powers arguments "[i]n anticipation that the Commissioners will revive this
Argument before this Court," thus purporting to anticipate Collin County's future
pleadings. Relator's App., p. 23. A proposal to compensate counsel appointed in
Collin County as if there was no Art. 26.05 fee schedule in place, was included in
the Disavowed Amicus Brief. Relator's App., 25. Finally, the Disavowed Amicus
Brief made arguments premised on Florida and Arkansas law. Relator's App., 26,
30. The Disavowed Amicus Brief proposed one excuse for unilateral court action
after another, but did not actually suggest that there was any limit to the fees
1 Worse yet, in the body of Relator's Reply, he refers to the Disavowed Amicus Brief as being filed by TCDLA and as the amicus brief of TCDLA. Reply, p. 17. He obviously knew this was untrue given the other statements in the Reply. The Disavowed Amicus Brief misstates the roles of the County Auditor and Commissioners Court. The Disavowed Amicus Brief did not cite Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987), which discusses the lines of authority in county government, the duties of County Auditors and Commissioners Courts and the ministerial and discretionary duties under a predecessor version of Tex. Code Crim. Proc. Art. 26.05. It also failed to address the issue of whether the auditor approved the subject bill for payment. (fixed, minimum or maximum) that could be awarded, or explain any basis for a
position that the Fifth Court of Appeals misinterpreted Texas law.
As originally submitted, the Disavowed Amicus Brief includes a
certification that "this document, created using WordPerfect™ X8 software,
contains 6,769 words, excluding those items permitted by Rule 9.4 (i)(l)." After
the editing by Relator, it is unclear how many words were added to the Reply
submitted by Relator; however, it seems clear that the length of the pleading
exceeds that allowed under TRAP 9. The result is a Reply measuring 60 pages in
length, with its last 40 pages, and approximately 6,769 words consisting of the
Disavowed Amicus Brief, that constitutes new argument improperly disguised as
an incorporated Appendix.
In addition to attempting to incorporate by reference the Disavowed Amicus
Brief, Relator also attempts to incorporate in the Reply a yet to be filed amicus
curiae brief that Relator says he expects to be filed by the National Association of
Criminal Defense Lawyers (hereinafter referred to as the "NACDL") at an
undisclosed time in the future. Reply, p. 1, note 1. No further description was
given of the anticipated amicus brief or its positions. Relator did not explain how
Relator knew of the NACDL brief or why Relator was willing to incorporate into
the Reply arguments yet to be presented by a third party. Relator's Reply announced that Judge Becker, who appointed the attorneys
pro tem and then recused himself, was "an agent of Collin County." Reply, p. 13,
14. The Honorable Judge George Gallagher was assigned to the case. Relator's
Petition, p. 5; Opinion of Dallas Court of Appeals in Collin County's Response
Appendix Tab 1, p. 3, note 1. There is no authority for the proposition that Judge
Becker was an agent of the county for the purpose of entering into contracts with
the attorneys pro tem, especially on a case on which he promptly recused himself
and over which he did not preside when the fees in question were incurred.
Relator argues in the Reply that Judge Becker agreed to pay the attorneys
pro tem $300 per hour and a "first-year law student could see that this case fell
squarely within the ambit of Rule 4.01B's plain language authorizing Judge Becker
to pay this rate given the unusual circumstances of this case..." Reply, p. 13-14.
Rule 4.0IB did not authorize Judge Becker to agree in advance to anything. It
provided, albeit in violation of Art. 26.05, "[t]he judge presiding over a case may
authorize payment to appointed counsel that varies from the fee schedule in
unusual circumstances or where the fee would be manifestly inappropriate because
of circumstances beyond the control of the appointed counsel." That same
hypothetical law student could see that Judge Becker was not the presiding judge
who, in fact, authorized a payment. Judge Becker could not know what the
circumstances of the case would be or how many attorneys would be hired. Even if Rule 4.01B were valid, which it is not, it wouldn't allow Judge Becker to set a
fixed hourly rate in advance. The attorneys pro tem could not have reasonably
relied on anything Judge Becker did with respect to the issue of attorney fees.
There is nothing in the Collin County Fee Schedule, or Rule 4.0IB for that matter,
or Texas law, that allows a single judge to enter into agreements with appointed
counsel in a case over which the judge would not preside or to otherwise approve
hourly rates or fees for services yet to be performed. Moreover, the $300 per hour
allegedly promised by Judge Becker is a rate and not a fee. Tex. Code Crim. Proc.
Art. 26.05(c) clearly provides that rates will be established by the board of district
court judges trying criminal cases, so there is no authority for a single judge to
agree to a new rate. Relator's argument that Judge Becker could be the agent of
Collin County to establish an hourly rate for the attorneys pro tem completely
ignores the law. Neither Judge Becker nor Judge Gallagher had the authority to
approve fees that varied (above or below) the fixed rates or minimum and
maximum hourly rates of the Collin County fee schedule.
In a footnote to the Reply, Relator recognized that the remedy available to
the Commissioners Court if they disagreed with the order of trial court was through
mandamus. Reply, p. 14, note 13. Because of this available remedy, Relator's
Reply says Collin County's concern about sanctions was "apropos of nothing." Relator's dismissal of the concern about sanctions admits that mandamus is the
appropriate remedy.
Anecdotal musings aside, there has been nothing, especially not evidence or
judicial findings, suggesting that the fees adopted by the judges trying criminal
cases in Collin County were inadequate to attract competent counsel, or that a state
prosecutor could not be found to prosecute the case. Collin County is not a party
to the underlying criminal case and had no opportunity or right to participate in it.
I. The Disavowed Amicus Brief.
The Rules of Appellate Procedure require those who submit briefs as amicus
curiae to certify to their identity and disclose any compensation. Tex. R. App. P.
11(b) & (c). It is now clear that the designation of the TCDLA as the entity on
whose behalf the Disavowed Amicus Brief was submitted was, in fact, false.
Despite knowing that the TCDLA had disavowed the Disavowed Amicus Brief,
Relator continues to mischaracterize the document as being the amicus brief of
TCDLA and being tendered by TCDLA. It is not. It should be stricken from the
record and not considered by the Court.
It is clear that the Disavowed Amicus Brief in Relator's Appendix cannot be
an amicus brief, since it no longer has the certification required for such briefs
pursuant to Tex. R. App. P. 11. Relator removed the certification from the copy of
10 the Brief included in the Appendix which further evidences Relator's knowledge
that it wasn't the amicus brief of the TCDLA. Reply, p. 17, note 14. At this point,
the Disavowed Amicus Brief lacks a submitting sponsor.
Irrespective of whether the Disavowed Amicus Brief remains the brief of
amicus curiae, an appellate court cannot consider arguments raised by an amicus
curiae brief, where such arguments were not raised by parties themselves. Lopez v.
Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857 (Tex.2000). Many of the issues
raised in the Disavowed Amicus Brief were raised for the first time by the brief,
and not raised by Relator until his attempt to include the Disavowed Amicus Brief
as an Appendix to Relator's Reply. This is procedurally improper.
The Texas Rules of Appellate Procedure allow Replies to be filed to address
arguments raised in a response. The rules do not countenance the raising of new
arguments in a reply. "The relator may file a reply addressing any matter in the
response." TRAP 52.5. The Rules of Appellate Procedure do not allow argument
to be included in an appendix or for a reply to exceed the scope of the response to
which it replies. Such is not the purpose of an appendix or a reply.
Word limits cannot be circumvented by including arguments in the
Appendix and thereafter incorporating them by reference. Items should not be
included in the Appendix to attempt to avoid the page limitations. Tex. R. App. P.
52.3(k)(2).
11 With respect to Relator's attempt to incorporate the Disavowed Amicus
Brief by reference, because it has been disavowed by the purported amicus, it is no
longer an amicus curiae brief at all. At most, the Disavowed Amicus Brief consists
of new and further argument by Relator improperly characterized as an appendix
and presented in violation of applicable procedural rules.
Relator's attempts to dignify and exalt the Disavowed Amicus Brief by
reference to the TCDLA fly in the face of the instruction by the Executive
Committee of the TCDLA to withdraw the Brief and request that it be stricken
from the record. The Disavowed Amicus Brief should be stricken and not
considered by the Court, whether included in Relator's Appendix or otherwise.
II. A brief yet to come?
The reference in the Reply to an amicus brief yet to be filed raises
interesting questions. Relator seeks to incorporate the arguments to be found in an
unfiled, undescribed, but expected, amicus curiae brief of a third party, the
NACDL. A proper reply cannot incorporate arguments yet to be made, or briefs
yet to be filed. The Texas Rules of Appellate Procedure provide for the Petition,
the Response and the Reply. Further pleadings by parties are not provided for in
the rules absent leave of Court. Tex. R. App. P. Rules 52.3, 52.4, and 52.5.
Relator seeks the completely open-ended opportunity to pile on page after page of
12 argument after having already submitted his petition and now being limited only to
addressing the matters raised in Collin County's response brief.
III. No agency relationship.
There is no support for the factual allegation raised by Relator in the Reply
that Judge Becker was an agent of Collin County for the purpose of obligating a
future payment of attorney fees, or establishing future hourly rates. Relator alleges
that Judge Becker agreed to pay the attorneys pro tem $300 per hour; however, the
authority over the county fiscal policy and contracting functions lies with the
Commissioners Court. Smith v. Flack, 728 S.W.2d 784, 790-91 (Tex. Crim. App.
1987). There is no sworn statement as to the agency relationship, and nothing to
show how Judge Becker would have obtained the authority to act independently
and in advance of the rendition of services to enter into a contract in behalf of
Collin County.
Judge Becker's authority to determine attorneys' fees was defined in Tex.
Code Crim. Proc. Arts. 2.07(c) and 26.05, and was limited to the fixed rates and
minimum and maximum hourly rates approved by the Collin County District Court
Judges trying criminal court cases. And, of course, such authority would not exist
after he recused himself and was no longer the presiding judge. Art. 26.05(c).
The remedy for a fee schedule containing fixed rates or hourly rates that a judge
considers too low to attract and reasonably compensate competent counsel would
13 be to revise the fee schedule through the exercise of Art. 26.05 procedures and
safeguards. Texas law requires the setting of attorney compensation rates to
involve the collective wisdom of the district court judges trying criminal cases in
Collin County, and does not authorize a single judge to resort to unilateral self-help
and order payments outside (either above or below) the fee schedule.
IV. The agreement to pay $300 per hour is not allowed by Rule 4.01B.
Relator raised the argument in the Reply that Judge Becker agreed to pay the
attorneys pro tem $300 per hour and that he did so because of "the unusual
circumstances of the case" and that "paying the usual rates would be manifestly
inappropriate because of circumstances beyond the Relator's control." Reply, p.
13-14. The argument is irrelevant, since Rule 4.01B is void and in contravention
of Art. 26.05 which requires fee payments be made within a fee schedule that
contains fixed fees or minimum and maximum hourly rates. Neither Judge Becker
nor Judge Gallagher could order a payment that exceeded (or fell below) the fixed
rates or minimum and maximum hourly rates of the fee schedule. Further, the
plain text of the rule invalidates Relator's argument. The rule states that it is the
"judge presiding over a case" who authorizes payment. Judge Becker recused
himself after appointing the attorneys pro tem. Although advance payments for
costs were permitted by the Collin County Local Rules, no provision exists in such
rules for interim fee payments to attorneys. See Local Rules 4.02 and 4.03. Judge
14 Becker could not know in advance of the submission of fee requests, in advance of
his recusal or in advance of the completion of the prosecution how much would be
an appropriate fee to pay the attorneys pro tem. Relator's argument that Judge
Becker was authorized by Rule 4.0IB has no merit at all. Judge Becker had no
authority under the law, not under the Collin Fee Schedule, Rule 4.0IB or Article
26.05, to agree in advance to an hourly rate for court appointed counsel-especially
in a case over which he would not preside because of his voluntary recusal. Rule
4.01B and Art. 26.05(c) limit the authority to the presiding judge and a presiding
judge acting alone has no authority to set a rate in advance. Neither Judge Becker
nor Judge Gallagher had the authority to approve a fee that varied (above or below)
from the fixed rates or minimum and maximum hourly rates identified in the Collin
County fee schedule.
The law is clear and properly enacted by the Legislature. It establishes a
wise framework for paying court appointed counsel that works well when used
according to its terms. This Court should not disrupt a statutory framework simply
because Relator ignored it and is now faced with a result Relator considers
distasteful. This is especially true where the fix demanded by Relator would return
Texas jurisprudence to a day when court appointed lawyers were paid at the whim
of individual judges on a case by case basis.
15 PRAYER
Collin County respectfully asks that this Court deny the writ and let stand
the well-reasoned order of the Fifth Court of Appeals issued on August 21, 2017.
Further, Collin County asks that the Disavowed Amicus Brief in the Appendix to
the Reply be stricken and not considered by the Court, and that any incorporated
part of the NACDL amicus brief, if it is submitted, not be incorporated into the
Reply as requested by Relator. Collin County prays for any other, further or
additional relief to which Collin County may be entitled.
Clyde M. Siebman Texas Bar No. 18341600 clydesiebman@siebman.com SIEBMAN, BURG, PHILLIPS & SMITH, LLP 300 North Travis Sherman, Texas 75090 (903)870-0070- Telephone (903)870-0066- Fax
Bryan H. Burg Texas Bar No. 03374500 bryanburg@siebman.com SIEBMAN, BURG, PHILLIPS & SMITH, LLP 4949 Hedgcoxe Road, Suite 230 Piano, Texas 75024 (214)387-9100-Telephone (214)387-9125-Fax
16 COUNSEL FOR REAL PARTY IN INTEREST, COLLIN COUNTY, TEXAS, COUNTY COMMISSIONERS
CERTIFICATION
I certify that I have reviewed the Sur-reply to Relator's Reply to the Collin County Commissioner Court's Response to Petition for Writ of Mandamus and/or Motion to Strike the Purported Amicus Briefs Incorporated by Reference Therein and concluded that every factual statement in the Response is supported by competent evidence included in the appendix or record.
/s/ Clyde M. Siebman
I certify that on November 9, 2017, I served a copy of the foregoing Collin County Commissioners Court's Response to Relator's Petition for Writ of Mandamus on all counsel of record by delivering a true and correct copy to them by electronic delivery at the time this Response was filed.
17 APPENDIX
1. Motion to Withdraw Amicus Brief
18 APPENDIX TAB
1 No. WR-86,920-02
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
In re The State of Texas ex rel. Brian W. Wice, Relator
On Petition for Writ of Mandamus
Motion to Withdraw Amicus Brief
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
On Friday, October 27, 2017, I caused to be electronically
filed a document entitled "Brief for the Texas Criminal Defense
Lawyers Association as Amicus Curiae Supporting Relator" in
Cause No. WR-86-920-02, "In re The State of Texas ex rel
Brian W. Wice. Relator:7
TCDLA has established procedures and policies relating to the
filing of amicus briefs which are published on the Association's
website.1 Because those procedures were not followed, this brief
was in fact not authorized to be filed by TCDLA. I have been
1 See TCDLA Amicus Brief Committee Guidelines. instructed by the Executive Committee of TCDLA to withdraw the
I hereby respectfully request that the brief be withdrawn,
stricken and not considered by the Court since it was not
authorized to be submitted to the Court by TCDLA.
Respectfuir^ submitted,
Davtet A. Schulman Attorney at Law 1801 East 51st Street, Suite 365474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 eMail: zdrdavida@davidschulman.com
State Bar Card No. 17833400
Co-Chair; TCDLA Amicus Committee Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X8 software, contains 6,769 words, excluding those . items permitted by Rule 9.4 (i)(l), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on October 27, 2017, a true and correct copy of the above and foregoing "Brief for the Texas Criminal Defense Lawyers Association as Amicus Curiae Supporting Relator" was transmitted electronic mail (eMail) to the following individuals: Relators
Brian W. Wice (wicelaw@att.net), Kent Schaffer (kentschaffer@gmail.com), and Nicole DeBorde (nicole@bsdlawfirm.com), Relators Counsel for the Collin County Commissioners Court Clyde M. Siebman (clydesiebman@siebman.com) and Bryan H. Burg (bryanburg@siebman.com) Counsel for Warren Kenneth Paxton, Jr. Dan Cogdell (dan@cogdell-law.com) Bill Mateja (mateja@polsinelli.com) Philip Hilder (phillip@hilderlaw.com) Heather Barbieri (hbarbieri@barbierilawfirm.com) Counsel for County Judges and Commissioners Association of Texas James P. Allison (j.allison@allison-bass.com)
David A. Schulman