in Re State of Texas Ex Rel. Brian W. Wice, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,920-02
IN RE STATE OF TEXAS EX REL. BRIAN W. WICE, Relator
v.
THE FIFTH JUDICIAL DISTRICT COURT OF APPEALS,
Respondent
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NOS. 05-17-00634-CV, 05-17-00635-CV, & 05-17-00636-CV
TO THE FIFTH COURT OF APPEALS
COLLIN COUNTY
R ICHARDSON, J., filed a concurring opinion.
CONCURRING OPINION
This case is not about the merits of the underlying indictments against Ken Paxton,
and it is not about the reasonableness or deservedness of attorneys fees. This mandamus
proceeding is about vacating a trial court’s void order because it failed to comply with the
plain and unambiguous terms of Article 26.05. Article 26.05(a) plainly and unambiguously
states that an appointed counsel “shall be paid a reasonable attorney’s fee” based on “the time
Ex Rel. Brian Wice Concurring Opinion — 2
and labor required, the complexity of the case, and the experience and ability of the
appointed counsel.”1 Article 26.05(b) plainly and unambiguously directs that all such
compensation to an appointed counsel “shall be paid in accordance with a schedule of fees
adopted by formal action of the judges of the county courts, statutory county courts, and
district courts trying criminal cases in each county.”2 Article 26.05(c) further instructs that
“[e]ach fee schedule adopted shall state reasonable fixed rates or minimum and maximum
hourly rates, taking into consideration reasonable and necessary overhead costs and the
availability of qualified attorneys willing to accept the stated rates...” 3
In accordance with Article 26.05(b), the judges of the district courts trying criminal
cases in Collin County (“the judges”) adopted Local Rule 4.01A, which created a “Fee
Schedule for Appointed Attorneys.” The Fee Schedule created by the judges, on its face,
complied with Article 26.05(c), in that it stated “reasonable” fixed rates. Some of these fixed
rates were per type of case, and some of the fixed rates were per hour. Although the judges
had the option under Article 26.05(c) to also set “minimum and maximum hourly rates,” 4 the
Fee Schedule they adopted did not do so. And, as the majority explains, therein lies the
problem. Instead, the judges adopted Local Rule 4.01B, which provided that the judge
1
T EX. C ODE C RIM. P ROC. art. 26.05(a).
2
Id. at 26.05(b).
3
Id. at 26.05(c).
4
Although not relevant to the issue before the Court, the Fee Schedule has since been changed,
effective February 3, 2017, to provide for minimum and maximum hourly rates in certain types of
cases.
Ex Rel. Brian Wice Concurring Opinion — 3
presiding over a case may authorize payment to appointed counsel that can vary from the Fee
Schedule “in unusual circumstances.”5 This local rule had the effect of giving a single trial
court judge unlimited flexibility in setting a fee in order to account for difficult and/or high
profile cases requiring uniquely qualified and experienced attorneys.
In this case, Relator and two other attorneys were appointed to serve as attorneys pro
tem in the matters of State of Texas v. Warren Kenneth Paxton, Jr., Case Nos. 416-81913-
2015, 416-82148-2015, and 416-82149-2015, in the 416th Judicial District Court of Collin
County (“the Paxton cases”). In April of 2015, under the authority of Local Rule 4.01B, the
Collin County Local Administrative Judge entered into an agreement to pay the attorneys pro
tem $300 per hour for their work as special prosecutors in the Paxton cases. A Collin County
District Judge presided over the grand jury proceedings, but at the end of July 2015, the
presiding judge of the first administrative judicial region assigned a Tarrant County district
court judge to preside over the Paxton cases, after the first judge recused himself.
After having worked on the cases for approximately eight months, in December of
2015, the attorneys pro tem submitted their first request for compensation. Under the
authority of Local Rule 4.01B, and in accordance with what he understandably assumed was
5
Effective January 22, 2016, Local Rule 4.01B was amended to specify that “[t]he judge
presiding over a case may authorize payment to appointed counsel that varies from the fee schedule
in unusual circumstances...” The local rule setting the Fee Schedule was also amended at the same
time, adding a reference to this exception in Local Rule 4.01B—“counsel shall be paid according to
the following fee schedule, without exception, except as provided for in Section 4.01B.” Effective
February 3, 2017, Local Rule 4.01B was completely removed and a new Local Rule 4.4 was
promulgated which allows for “reasonable and necessary attorney’s fees” for non-plea cases. Local
Rule 4.4 specifies no fixed, minimum, or maximum amount of fees.
Ex Rel. Brian Wice Concurring Opinion — 4
a valid agreement entered into between the Local Administrative Judge and the attorneys pro
tem, the assigned judge issued an order for the Commissioners Court to pay to the attorneys
pro tem their submitted invoice at the agreed-upon rate of $300 per hour.6 In January of
2016, the Commissioners Court voted and approved payment by the county of the amount
requested by the attorneys pro tem. As the majority points out, the Commissioners Court
knowingly paid this first request for compensation at the $300 per hour rate, and this payment
is not at issue at this time.
A second request for compensation was authorized by the assigned judge, again in
accordance with the original compensation agreement and under the authority of Local Rule
4.01B. However, the second request for payment was rejected by the Commissioners Court,
and these proceedings ensued.
I agree with the majority and with the Fifth Court of Appeals that the judges who
created the Fee Schedule and the local rules never had the statutory authority to promulgate
Local Rule 4.01B.7 The plain language of Article 26.05(c) requires the schedule of fees that
the judges adopt to “state reasonable fixed rates” or “minimum and maximum hourly rates.”
This clearly and unambiguously means that the Fee Schedule must state specific dollar
amounts. The statute even acknowledges that the Fee Schedule must “tak[e] into
6
It is not at all unusual nor surprising that the assigned judge would not have questioned the
authority of the Local Administrative Judge (the judge who assigned him) to set the hourly rate of pay
to the attorneys pro tem at $300 per hour. That was no doubt perceived as an administrative detail that
had been worked out long before he was assigned to the cases.
7
In re Collin Cnty, 528 S.W.3d 807, 813-14, 815 (Tex. App.— Dallas 2017).
Ex Rel. Brian Wice Concurring Opinion — 5
consideration reasonable and necessary overhead costs and the availability of qualified
attorneys willing to accept the stated rates.” There is nothing in Article 26.05 that allows the
local administrative judge or a district court judge presiding over a case to approve the
payment of an attorney pro tem’s hourly rate that does not fall within a specific dollar-
amount-range provided for in the county’s formally adopted Fee Schedule. In fact, Article
26.05(c) provides that if an attorney’s request for payment is disapproved, he may appeal
such disapproval to the presiding judge of the administrative judicial region. However, the
presiding judge only has the authority to approve of such payment if it “is in accordance with
the fee schedule for that county.”8 Thus, although Article 26.05(a) does mandate that the
attorney pro tem be paid a “reasonable” fee, what constitutes “reasonable” has already been
decided by the criminal court judges of the county and provided for in the county’s published
Fee Schedule. Any attorney accepting an appointment as an attorney pro tem is on notice
that his or her compensation must be in accordance with the county’s Fee Schedule. In this
case, understandably misled by Local Rule 4.01B and by the Commissioners Court’s prior
approval of the first payment of fees, the attorneys pro tem continued to work on the Paxton
cases, assuming that they would continue to be paid $300 per hour. However, unfortunately,
they did so at their own peril.9 The judges of Collin County did not have the authority to
8
T EX. C ODE C RIM. P ROC. art. 26.05(c).
9
Judge Keel’s Dissent states that mandamus is precluded here because the Fee Schedule was
defective for not providing for the payment of a “reasonable” fee, and it therefore did not comply with
Article 26.05(a), which thus created a dilemma for the trial court because its duty was not a “clear
duty.” However, the trial court did have a clear duty—to pay the attorneys pro tem in accordance with
the Fee Schedule. So long as a trial court complies with the Fee Schedule, it has discretion in
Ex Rel. Brian Wice Concurring Opinion — 6
promulgate Local Rule 4.01B, which makes it a void rule. Because Local Rule 4.01B is
void, the agreement to pay the attorneys pro tem $300 per hour in accordance with that rule
is unenforceable, and the trial court’s order to compensate the attorneys pro tem $300 per
hour is therefore void.
That does not mean that counties are without the ability to find and pay skilled
attorneys to serve as special prosecutors in complex or unusual cases. The terms of Article
26.05 allow for a Fee Schedule that could cover the need to pay “reasonable” fees based on
the attorney’s experience and the complexity of the case. Local Rule 4.01B went outside the
clear parameters set in Article 26.05. Local Rule 4.01A (i.e., the Fee Schedule) could have
been written so as to account for the need to pay “reasonable” fees within those parameters.
While it is clear that the Local Administrative Judge and the assigned judge believed that
they were acting under valid authority—Local Rule 4.01B—in authorizing and ordering the
payment of $300-per-hour fees to the attorneys pro tem, they were not.
“[A]n agreement which violates a valid statute is illegal and void, and cannot be
enforced.”10 And, because the assigned judge lacked the authority to authorize the payment
of statutorily unauthorized fees, he had a ministerial duty to refrain from taking that action.
determining what constitutes a “reasonable fee” for an appointed attorney within the parameters of that
Fee Schedule. See Tex. Gen. Op. JM-537, 1986 WL 219383 (August 22, 1986) (citing Tex. Gen. Op.
H-909 (1976)). The trial court judge has a ministerial duty to pay appointed counsel in accordance
with the Fee Schedule.
10
Woolsey v. Panhandle Ref. Co., 116 S.W.2d 675, 678 (Tex. 1938) (holding that employee’s
contract for settlement with employer was void and unenforceable because it was executed in violation
of the Workmen’s Compensation Law) (“[T]his court has repeatedly refused to enforce contracts
which are either expressly or impliedly prohibited by statutes or by public policy.”).
Ex Rel. Brian Wice Concurring Opinion — 7
Although unintentionally set in motion, since the trial court took the action of ordering an
unauthorized payment, it now has the ministerial duty to vacate that order.11 I therefore agree
with the majority that the holding of the Fifth Court of Appeals should be affirmed.
It is unfortunate that the attorneys pro tem have not been paid for their work in such
cases in over two years. During that period, they have had to spend a considerable amount
of time, energy, and money engaged in more than one battle over the payment of their fees
they have incurred serving as attorneys pro tem in the Paxton cases. Since January of 2016,
the attorneys pro tem have had to respond to four previous proceedings involving taxpayer-
related claims brought by a private citizen in Collin County attempting to prevent payment
to the special prosecutors.12 Those attempts were unsuccessful. According to the briefs
before the Court, the Commissioners Court has authorized payment of up to $375 an hour
to private attorneys the Commissioners Court has engaged to fight paying the attorneys pro
tem $300 an hour.13
11
State ex rel. Thomas v. Banner, 724 S.W.2d 81, 83 (Tex. Crim. App. 1987) (“If he did not
have the authority it was his ministerial duty to vacate the orders.”). In re Medina, 475 S.W.3d 291,
298 (Tex. Crim. App. 2015).
12
See In re Jeffory Blackard, Relator, No. 05-16-00478-CV, No. 095-16-00479-CV, No. 05-
16-00480-CV, 2016 WL 1756786 (Tex. App.— Dallas, April 29, 2016); In re Jeffory Blackard,
Relator, No. 05-16-00470-CV, 2016 WL 1756786 (Tex. App.— Dallas, April 29, 2016); Blackard v.
Schaffer, No. 05-16-00408-CV, 2017 WL 343597 (Tex. App.— Dallas, January 18, 2017) (This
appeal not only required the involvement of the attorneys pro tem in their official capacities, the Collin
County Judge in his official capacity, the individual commissioners in their official capacities, and the
county auditor in his official capacity, this appeal also involved several additional attorneys
representing the various parties.); Blackard v. Schaffer, No. 05-17-00094-CV, 2017 WL 2493279
(Tex. App.— Dallas, June 9, 2017).
13
See Relator’s Petition for Writ of Mandamus at 7 n.11.
Ex Rel. Brian Wice Concurring Opinion — 8
Moreover, based on the briefs submitted, it appears that the Commissioners Court may
seek to recoup what it already paid to the attorneys pro tem for their work on the Paxton
cases,14 despite voting to approve the first request for payment submitted by the attorneys
pro tem. However, the Commissioners Court should not be entitled to recover what it has
already paid to the attorneys pro tem. Under the Fee Schedule existing at the time, the judge
may not have had statutory authority to order the Commissioners Court to pay the attorneys
pro tem $300 per hour; however, the Commissioners Court certainly had the constitutional
and statutory authority to pay it.15 Counties need not be concerned that the Court’s decision
today precludes the commissioners’s ability to pay an attorney pro tem any fee they deem
reasonable. The Commissioners Court has the spending authority to pay an amount in excess
of what is set out in the county’s Fee Schedule, but it is not required to do so, which is what
happened here. But, since the Commissioners Court may ratify that which it could have
authorized originally,16 the commissioners’s first payment to the attorneys pro tem was a
14
See Relator’s Petition for Writ of Mandamus at 7 n.12, In Re The State of Texas Ex Rel.
Brian W. Wice, Relator, Nos. 416-81913-2015; 416-82148-2015; 416-82149-2015 (Sept. 9, 2017)
(citing Lauren McGaughy, Collin County Wants Back the Money it Spent on AG Ken Paxton
Prosecution, D ALLAS M ORNING N EWS, Aug. 2017).
15
See T EX. C ONST. art. V § 18(b) (Commissioners Court may exercise powers and jurisdiction
over all county business); T EX. LOC. G OV’T C ODE A NN. § 111.010(b) (Commissioners Court may
spend county funds if within the budget); Guynes v. Galveston Cnty, 861 S.W.2d 861, 863 (Tex. 1993)
(“As the administrative head of county government, a commissioners court also possesses broad
implied powers to accomplish its legitimate directives. . . . These powers include the authority to
contract with experts when necessary, including attorneys.”).
16
State v. Carnes, 106 S.W.2d 397, 399 (Tex. App.— San Antonio 1937, no writ) (citing
Cameron Cnty v. Fox, 61 S.W.2d 483 (Tex. Comm’n. App. 1933)). See also Rodgers v. Cnty of
Taylor, 368 S.W.2d 794, 797 (Tex. App.— Eastland 1963, writ ref’d n.r.e.) (The district attorney,
county judge, one commissioner, and the grand jury foreman hired a court reporter to transcribe some
Ex Rel. Brian Wice Concurring Opinion — 9
valid payment of county funds. While the first payment by the Commissioners Court to the
attorneys pro tem may not have prospectively bound the Commissioners Court to continue
paying at the rate originally promised, the first payment by the Commissioners Court was a
clear ratification of the agreement to pay that first amount requested for work already
incurred. Therefore, the Commissioners Court should not be entitled to recoup the fees
already paid.
Moreover, as discussed herein and as pointed out by the court of appeals, rather than
provide for such untethered flexibility and unlimited discretion by any one trial court judge,
the judges have the ability to comply with Article 26.05 by providing in their Local Rule
4.01A Fee Schedule specific amounts for minimum and maximum rates of pay that would
account for extraordinary and unusually complex cases.17 Such rates can include a maximum
testimony, and later the Commissioners Court ratified this expense. The county was liable because
the Commissioners Court ratified the expense, holding that, “[w]hat the Commissioners Court could
have authorized in the beginning, that court could subsequently ratify.”); Morrison v. Kohler, 207
S.W.2d 951, 959 (Tex. App.— Beaumont 1947, writ ref’d n.r.e.) (Commissioners Court was “fully
authorized to ratify and validate the contract and agreement. . . When the fact of the contract came to
the knowledge of the commissioners’ court, and they elected to hold the bonds or take any other
benefit under them, or to carry out its provisions, they ratified it, and the county was estopped to deny
its validity. . . . Under this authority it might be said that the payment to relators on August 8, 1946,
of the advances for services rendered under the verbal agreement also constituted a ratification
thereof.”).
17
I agree with the majority’s discussion of the legislature’s response to this Court’s 1987
decision in Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987). When Smith v. Flack was
decided, Article 26.05 provided for only a minimum rate of pay for appointed attorneys. Without a
maximum cap in the Fee Schedule, district court judges had the authority to order fees in any amount
excess of the minimum. Article 26.05 was amended after that case to provide for a minimum and a
maximum rate allowed. Presumably, this was to prevent a single judge from abusing his or her
discretion by paying special prosecutors exorbitant fees. That was clearly not the case here. In fact,
as noted herein, it appears that the Commissioners Court may be paying more to fight the payment of
Relator’s fees than the actual fees themselves.
Ex Rel. Brian Wice Concurring Opinion — 10
rate of $300 per hour or more.18 Article 26.05 does not mandate that all appointed attorneys
work for the same compensation. Rather, requiring a stated “minimum and maximum hourly
rate” allows the judges of each county to anticipate unusual and complex cases and
collectively, by formal action, authorize adequate compensation for competent counsel by
setting a specific range of pay for appointed attorneys.19 There is nothing stopping the judges
of each county from amending that county’s Fee Schedule to account for the appointment of
qualified lawyers for difficult cases.20 The Fee Schedule at issue in this case did not allow
for a $300 per hour rate; but that Fee Schedule is not written in stone. If the judges wish to
amend the Fee Schedule, they can follow Article 26.05(c) and provide for “minimum and
maximum hourly rates, taking into consideration reasonable and necessary overhead costs
and the availability of qualified attorneys willing to accept the stated rates.” 21 As the court
18
The court of appeals aptly makes this point. In re Collin Cnty, 528 S.W.3d at 813 (“limiting
the scope of the fees that may be paid to an appointed attorney does not eliminate the discretion of the
individual trial judge, regardless of the simplicity or complexity of the case. . . . [E]ach judge has
discretion within that range to set the fee in an individual case.”).
19
There are amicus briefs filed in support of granting relief to Relator, arguing that counties
should have a right to pay the attorneys pro tem $300 per hour. I agree, as long as the county judges
set up a Fee Schedule that allows appointed attorneys to be paid such a rate that is within a range of
minimum and maximum fees, consistent with Article 26.05.
20
The court of appeals correctly noted that Article 26.05 “does not prevent the judges from
taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable
fees allowed. But the legislature intended each county to have an agreed framework that sets out the
specific range of reasonable fees that could be paid.” In re Collin Cnty, 528 S.W.3d at 812 (emphasis
in original).
21
T EX. C ODE C RIM. P ROC. art. 26.05(c). If the judges decide not to amend the current Fee
Schedule, and if other judges in other counties do not heed this majority decision, I can see such
counties having an extremely difficult time finding qualified attorneys to serve as special prosecutors
in similarly high profile and unusually complicated cases. As noted by the majority, an elected district
Ex Rel. Brian Wice Concurring Opinion — 11
of appeals observed, “limiting the scope of the fees that may be paid to an appointed attorney
does not eliminate the discretion of the individual trial judge.”22 Article 26.05 allows the
judges to adopt a range of hourly fees, but each individual judge has discretion to set a fee
within that range that takes into account the complexity of the case and the need for a
qualified special prosecutor. Article 26.05, as plainly and unambiguously written, makes
perfect sense. The creation of Local Rule 4.01B, unfortunately, was not permitted by the
statute, which means the trial court’s order of payment under the authority of Local Rule
4.01B is a void order. Therefore, I agree that mandamus is the proper vehicle to undo that
void order.
Nevertheless, the attorneys pro tem are entitled to be paid for the work they have
done on the Paxton cases. They have put in a significant amount of time and effort—without
compensation—working the cases they were appointed to prosecute, and they have submitted
a request for payment. The amount that they should be paid simply must be in compliance
with a statutorily authorized Fee Schedule. Therefore, I agree that the trial court must issue
a new order for payment of fees in accordance with a Fee Schedule that complies with
attorney from another county could serve as a special prosecutor without collecting any additional
compensation. However, in a high profile, politically-charged case, the presiding judge would likely
have a problem finding another district attorney from the same political party as the defendant who
would take on the job of special prosecutor—I cannot fathom what incentive he or she would have to
take on such a case. On the flip side of that, the judge appointing the special prosecutor would likely
be publicly criticized if he or she appoints a district attorney from the opposing political party as the
defendant.
22
In re Collin Cnty, 528 S.W.3d at 813.
Ex Rel. Brian Wice Concurring Opinion — 12
Article 26.05(c).
With these comments, I concur and join the majority.
FILED: November 21, 2018
PUBLISH