in Re the State of Texas Ex Rel. Josh Schaffer, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-88,366-01
IN RE THE STATE OF TEXAS EX REL. JOSH SCHAFFER, Relator
ON PETITION FOR A WRIT OF PROHIBITION
ANCILLARY TO CAUSE NOS. 24975, 24976, 24977, 24978, 24979, 24980 & 24981
IN THE 252ND DISTRICT COURT
FROM JEFFERSON COUNTY
Y EARY, J., filed a dissenting opinion.
DISSENTING OPINION
After the Jefferson County Criminal District Attorney (hereinafter, “Respondent”)
voluntarily recused himself from representing the State in the above cause numbers, Relator
was appointed to represent the State in those criminal cases as a prosecutor pro tem. Relator
obtained indictments but was ultimately unsuccessful in obtaining convictions, and the cases
came to an end. While the cases were still pending, Relator submitted one voucher that was
approved by the judge presiding over the district court and paid by the Commissioners Court,
at the rate of $175 per hour. After the criminal cases were concluded, Relator submitted a
second voucher. The presiding judge approved the second voucher as well, at the same
hourly rate. But before the Commissioners Court could authorize payment of the second
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voucher, the Chief Civil Attorney of Respondent’s Office sent Relator a letter to inform him
that he had been paid at an hourly rate that was inconsistent with the Jefferson County fee
schedule, under which he should not have been paid at a rate greater than $75 per hour.1 She
informed him that the amount he had already received, on his initial voucher, exceeded what
he was entitled to be paid under both vouchers, and demanded that the balance be repaid to
the county.
Relator has filed an application for writ of prohibition in this Court. In his prayer, he
simply asks that we order Respondent and his office “not to interfere with the enforcement
of the trial court’s order to pay Relator’s attorney fees and reimburse his expenses.” He
argues that Respondent, having recused himself, and thereafter having been disqualified by
the trial court from participating in the cases, was absolutely prohibited from getting involved
in the process of compensation for Relator’s services as prosecutor pro tem. Without
explanation, in a per curiam opinion that rightly declines to address the merits of the
underlying fee dispute, the Court today grants that limited relief. I dissent.
Relator invokes this Court’s constitutional power to issue the writ of prohibition “in
criminal law matters.” T EX. C ONST. art. V, § 5. He argues that Respondent’s interference
with his compensation for his services as a prosecutor pro tem is a “criminal law matter”
1
As authority for the proposition that Relator had been overcompensated, Respondent’s
Chief Civil Attorney referred Relator to In re Collin County, 528 S.W.3d 807 (Tex. App.—Dallas
2017). This Court later essentially ratified the Dallas Court of Appeals’ opinion in Collin County.
See State ex rel. Wice v. Fifth Judicial District Court of Appeals, ___ S.W.3d ___, No. WR-86,920-
02, 2018 WL 6072183 (Tex. Crim. App. Nov. 21, 2018).
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inasmuch as it relates to the criminal cases he shepherded, citing Smith v. Flack, 728 S.W.2d
784 (Tex. Crim. App. 1987) and Weiner v. Dial, 653 S.W.2d 786 (Tex. Crim. App. 1983).
Those cases are not directly on point, however, since each involves the fee dispute itself—not
the propriety of a particular party’s involvement in that dispute. Here, the criminal cases were
resolved by the time Respondent became involved. Moreover, Respondent became involved
in the dispute, not in his capacity as the State’s representative for “criminal matters,” but in
his more general capacity to “represent Jefferson County in any court in which the county has
pending business.” T EX. G OV’T C ODE § 44.223(a).
Perhaps it could be argued that the relief Relator seeks involves a “criminal law
matter” if only because it involves a construction of the attorney pro tem statute in the Code
of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 2.07. That statute provides for the
appointment of a prosecutor pro tem “in any case or proceeding” for which the attorney for
the State is disqualified. It may be necessary to construe the scope of the phrase “case or
proceeding” in order to determine whether Respondent’s recusal reached beyond the criminal
prosecutions themselves, and extended all the way into any potential fee disputes that might
have arisen between the county and the appointed prosecutor pro tem. Is Respondent recused
and disqualified from representation of the county in this new matter even though the
criminal “case” has come to a conclusion and he is acting now only pursuant to his separate
statutory authority to represent the county in his broader capacity? I do not think so.
In Smith, the Court observed that our constitutional mandamus authority is invoked
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“when a criminal law is the subject of the litigation.” 728 S.W.2d at 788. However, we later
observed, in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex. Crim. App.
1993), that the Smith pronouncement “was not intended to be a definitive statement of the
meaning of ‘criminal law matters.’” There, we construed the phrase to mean, “at a minimum,
all legal issues arising directly out of a criminal prosecution.” Id. More recently, we held that
the issue of whether funds from an inmate trust fund account could be garnished pursuant to
an assessment of costs to satisfy a judgment from a criminal prosecution did not arise directly
enough from that criminal prosecution to render it a “criminal law matter.” Johnson v. Tenth
Judicial District Court of Appeals, 280 S.W.3d 866 (Tex. Crim. App. 2008). I am more
inclined to believe that the question of whether Respondent should be involved on behalf of
the county in Relator’s fee dispute is a civil matter—and that, like the matter in Johnson, it
is a civil matter that is insufficiently related to the criminal prosecutions which gave rise to
it to constitute a “criminal law matter.”
What is more, even if I thought that what was at issue here was a “criminal law
matter” simply because it might involve a construction of Article 2.07, I would decline to
grant prohibition relief in this matter—for essentially the same reason that I would hold that
the issue is not a “criminal law matter” in the first place. It is not at all clear to me that we
should construe the phrase “case or proceeding” in Article 2.07 to extend beyond a criminal
prosecution in which an elected prosecutor has recused him- or herself. I would not construe
the recusal to encompass a subsequent fee dispute—especially one brought by appointed
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prosecutors, not defense attorneys—that only arises after all criminal prosecutions have been
concluded. As far as I am aware, we have not construed the phrase this broadly. And it is
certainly possible, and perhaps even likely, that we would not construe the statute so broadly,
particularly in view of Respondent’s independent duty under the Government Code (“[h]e
shall”) to represent the county in appropriate non-criminal law matters as well. T EX. G OV’T
C ODE § 44.223(a).
In order to be entitled to prohibition relief, Relator must show that he is indisputably
entitled to the relief he seeks. E.g. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App.
2009) (holding that a relator must show a “clear” right to relief—“that is to say, ‘when the
facts and circumstances dictate but one rational decision’ under unequivocal, well-settled
(i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal
principles”) (quoting State ex rel. Young v. Sixth Judicial District Court of Appeals, 236
S.W.3d 207, 210 (Tex. Crim. App. 2007))). As far as I am concerned, Relator has not shown
as a matter of law that the fee dispute that forms the backdrop for this matter is part of the
same “case or proceeding” as the criminal prosecutions from which Respondent recused
himself. Absent such a showing, Relator is not entitled to prohibition relief.
For these reasons, I respectfully dissent.
FILED: December 12, 2018
PUBLISH