Weiner v. Dial , 1983 Tex. Crim. App. LEXIS 1102 ( 1983 )

OPINION

CAMPBELL, Judge.

This is an original application for writ of mandamus. Art. 5, Sec. 5, Texas Constitution. Petitioner has filed this cause “to compel Respondent to authorize payment to Petitioner for services rendered by Petitioner as court-appointed appellate counsel.”

Petitioner, an attorney, was appointed by respondent, a district judge, to represent Robert Williams on the appeal of his conviction in cause 81-CR-2029 in the 175th Judicial District Court. Petitioner was compensated for his representation of Williams in the appeal of that conviction. Petitioner also represented Williams in the appeal of a denial of reduction of bail pending appeal of the conviction. He seeks compensation for representing Williams in that habeas corpus appeal.

Respondent by brief before this Court first contends the matter is not within our mandamus jurisdiction. Article 5, Sec. 5, Texas Constitution, restricts the mandamus jurisdiction of this Court to “criminal law matters.” Respondent argues this case “is essentially civil in nature, because it is a claim for compensation for services.” Petitioner, however, asserts entitlement to compensation as a matter of right under Article 26.05 of the Code of Criminal Procedure, which provides for compensation of “counsel appointed to defend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing,” and provides a schedule of minimum amounts of compensation. The provision for appointment and compensation of attorneys to represent indigents in criminal law matters is certainly itself a criminal law matter.¹ The State’s first argument is without merit.

On the merits, petitioner contends he is entitled to separate fees for the appeal of the conviction and the bail habeas corpus appeal. Respondent points out that Williams’ motion for appointment of counsel to represent him in the bail habeas corpus appeal was expressly denied by respondent. We also notice that the motion for that appointment was signed by Williams and by petitioner in the stated capacity of “court-appointed on direct appeal of conviction only.” (Emphasis added.)

It appears that petitioner, before seeking mandamus, and respondent have considered the criminal prosecution and the bail habeas corpus proceeding as separate causes requiring separate orders appointing counsel. Instead of challenging the denial of the motion for appointment of counsel in the habeas corpus matter, petitioner undertook to represent Williams, and now contends his appointment to appeal the conviction also required representation in the bail habeas corpus appeal.

Art. 26.04, Y.A.C.C.P., requires appointment of counsel to represent an indigent “charged with a felony or a misdemeanor punishable by imprisonment.” The article dictates that in such circumstances “the court shall appoint one or more practicing attorneys to defend him.” (Emphasis added.) Similarly, the provision for compensating appointed counsel, Art. 26.05, Sec. 1, supra, speaks in terms of counsel appointed to defend, and counsel appointed to represent an indigent in a habeas corpus hearing. The statute does not appear to require that an appointment of counsel to represent an indigent in a criminal case necessarily be an appointment to represent that person in all ancillary matters, although an order may encompass more than a single matter.

The order in this case, appointing petitioner to represent Williams, does not specify that petitioner was also appointed to represent him in the bail habeas corpus appeal, and from the fact that petitioner filed a motion requesting such additional appointment it appears that petitioner did not consider the original appointment to include the bail habeas corpus.

We conclude that under the facts of this case the order appointing petitioner did not constitute an appointment to represent Williams in the bail habeas corpus appeal, and accordingly the writ of mandamus is denied.

It is so ordered.

1 . We are aware of the decisions in Ex parte Paprskar, 573 S.W.2d 525, and State v. Henson, 573 S.W.2d 548. Those cases were attempted appeals from petitions to expunge arrest records pursuant to Chapter 55, V.A.C.C.P. The opinions held the matters were not criminal cases within the appellate jurisdiction of this Court. Although urged to do so by the dissent, the majority in those cases declined to address the issue of whether the matters could be considered criminal law matters within the mandamus jurisdiction of the Court. To the extent of any conflict, we overrule Ex parte Paprskar and State v. Henson, supra.