Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
In re Simon Fletcher
Case Number: 01-18-01109-CR
Judge: Sarah Beth Landau
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Scott Ray Peal
Defendant's Attorney: Andrew Willey
Market Your Practice In Ten Counties for $10 A Month
Click Here For Cost Effective Affordable Internet Marketing For Your Practice
In spring 2017, Fletcher was arrested for the misdemeanor of driving while
intoxicated in Chambers County. See TEX. PENAL CODE § 49.09(a). In July 2017,
he was charged by criminal complaint and information. Two months later, the
respondent, the Honorable Jimmy Sylvia, Chambers County Court Judge,2 signed
an order finding Fletcher indigent and appointing Drew Willey as Fletcher’s trial
Almost a year after his appointment, shortly before his scheduled paternity
leave, Willey wrote to the administrative assistant in the County Judge’s office,
informing her that he “did not want [his] name to be reactivated for potential
appointments in Chambers County.” More than a month later, the assistant emailed
Willey asking him to complete and return an “Attorney Affidavit” requesting
“Exclusion From the Appointment List.” Willey explained in his affidavit that
“[t]he inadequate compensation [for appointed counsel] and conflicts of interests, 1 The underlying case is State v. Simon Fletcher, Cause No. 17CCR00241, pending in the County Court at Law, Chambers County, Texas, The Honorable Jimmy Sylvia presiding.
2 As County Judge, Judge Sylvia is not only the chief administrator and budget officer for Chambers County, presiding over Commissioners’ Court and serving as a voting member, but also a judge presiding over Civil, Probate, Juvenile, and County Criminal Courts. See https://www.co.chambers.tx.us/page/county_judge (last visited May 2, 2019).
namely, the [Chambers] County Attorney controlling the judicial offices, makes it
impossible to continue to provide effective assistance of counsel.” A month after
Willey handed in the affidavit, the assistant emailed Willey asking him if he
wished to remain as Fletcher’s counsel, and he responded that he did. Willey did
not file a motion to withdraw as counsel for Fletcher.
The respondent, however, had already removed Willey from the case. Three
days earlier, the respondent signed an “Order Removing Appointed Counsel.” The
order stated that the respondent was removing Willey as Fletcher’s appointed
counsel for good cause because Willey was “no longer on appointment list” and
that new counsel would be appointed according to the Chambers District and
County Court Plan. The respondent signed another order finding Fletcher indigent
and appointing Chiquia J. Roberson as Fletcher’s counsel.
On November 13, 2018, the respondent signed a letter to Willey explaining
his decision to remove Willey as Fletcher’s counsel and appoint new counsel.
Because Willey had “not withdrawn [his] affidavit,” based on Willey’s “sworn
statement,” the respondent believed that he “had no choice but to appoint counsel
to [Willey’s] clients who felt confident in their ability to effectively represent the
clients.” The respondent further explained that if the two “differences [Willey had]
with the county truly prohibit [him] from effectively advocating for any potential
future client,” then, in the respondent’s view, “they would also inhibit [Willey’s]
ability to represent the clients to whom [he was] already appointed.”
On December 3, 2018, Willey filed an “Ex Parte Motion to Reverse
Removal of Court-Appointed Attorney,” seeking reconsideration of the
respondent’s September 25, 2018 Order removing him as Fletcher’s counsel. Three
days later, the respondent signed an order denying this motion.
A few weeks later, Willey filed this mandamus petition contending that the
respondent lacked authority to discharge appointed counsel over Fletcher’s and
Willey’s objections and that no adequate remedy at law exists. Willey sought to
vacate the September 25, 2018 order removing him as Fletcher’s counsel and the
December 6, 2018 order denying his motion for reconsideration, and to reinstate
him as Fletcher’s counsel.
Per this Court’s order, counsel for the respondent, Judge Sylvia, responded.
He contended that he had the authority to remove Willey for good cause, or a
“principled reason,” based on Willey’s affidavit asking the county to remove him
from the appointment list. Because Willey had stated that he could not provide
effective assistance of counsel in Chambers County, the respondent argued that the
order protected Fletcher’s rights by removing Willey and appointing new counsel
who could provide effective assistance of counsel, under Chambers County’s
Indigent Defense Plan.
Mandamus Relief for Sua Sponte Removal of Appointed Counsel
To be entitled to mandamus relief, a relator must satisfy two requirements:
(1) there must be no adequate remedy at law to redress his alleged harm; and
(2) the relator must have a clear right to the relief sought. Buntion v. Harmon, 827
S.W.2d 945, 947 (Tex. Crim. App. 1992); Stearnes v. Clinton, 780 S.W.2d 216,
219 (Tex. Crim. App. 1989).
As for the second requirement, the relator “must show that what he seeks to
compel is a ministerial act, not involving a discretionary or judicial decision.”
Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011). Relator can
satisfy this second requirement “if the relator can show he has a clear right to the
relief sought – 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.” Id.
(citing State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d
207, 210 (Tex. Crim. App. 2007)).
A. Inadequate appellate remedy
The Court of Criminal Appeals has held that, in “a mandamus case involving
the arbitrary disqualification of appointed counsel rather than retained counsel of
choice,” the regular appellate process “‘does not provide an adequate remedy even
if it results in a reversal and new trial.’” Bowen, 343 S.W.3d at 813 (quoting
Stearnes, 780 S.W.2d at 225). Thus, Fletcher lacks an adequate appellate remedy
and has satisfied the first requirement. See Stearnes, 780 S.W.2d at 225. The
parties do not dispute this.
B. Clear right to relief to ministerial act
Fletcher has also satisfied his burden to demonstrate his clear right to relief
to a ministerial act. Although respondent provided a reason for the sua sponte
removal of Willey as Fletcher’s counsel, that reason does not withstand Willey and
Fletcher’s request to continue the representation.
“The right of the accused to counsel, both at trial and on appeal, is
fundamental.” Buntion, 827 S.W.2d at 948–49 (citations omitted). Under the Sixth
and Fourteenth Amendments, an indigent defendant is entitled to the appointment
of counsel. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). “A criminal
defendant is entitled to counsel of his choice if he is able to pay for the counsel,”
Powell v. Alabama, 287 U.S. 45, 53 (1932), but “an indigent defendant does not
have the right to the appointment of counsel of choice.” Stearnes, 780 S.W.2d at
“Although an indigent defendant does not have the right to counsel of his
own choosing, once counsel is appointed, the trial judge is obliged to respect the
attorney-client relationship created through the appointment.” Buntion, 827 S.W.2d
at 949 (citing Stearnes, 780 S.W.2d at 221); see TEX. CODE CRIM. PROC. art.
26.04(j)(2) (appointed attorney must continue representation until replaced by
other counsel after “finding of good cause is entered”).
A trial court may overcome the presumption against the removal of
appointed counsel after an attorney-client relationship has been established when
the record shows some “principled reason” for the removal. Buntion, 827 S.W.2d
at 949 (there must be “some principled reason, apparent from the record,” to justify
a trial judge’s replacement of appointed counsel against the defendant’s wishes).
The Court of Criminal Appeals has held that, “[g]iven the fundamental nature of an
accused’s right to counsel, we cannot agree that a trial judge’s discretion to replace
appointed trial counsel over the objection of both counsel and defendant extends to
a situation where the only justification for such replacement is the trial judge’s
personal ‘feelings’ and ‘preferences.’” Id. (citing Stearnes, 780 S.W.2d at 222).
With limited exceptions, a trial court may not remove such an attorney over the
objections of both the accused and counsel. See Stearnes, 780 S.W.2d at 222–23.
“[C]ourts must exercise caution in disqualifying defense attorneys, especially if
less serious means would adequately protect the government’s interests.” Gonzalez
v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003). For example, it may be
proper for a court to remove counsel over the client’s objection where the integrity
of the judicial process and orderly administration of justice is impeded. Id.
While a trial judge has “an independent interest in ensuring that criminal
trials are conducted within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them,” a mere potential conflict that has
been waived by the relevant parties will not “override the relators’ own perception
that the best way they could assure fairness for themselves was to be ‘defended by
the counsel [they] believe[d] to be best.’” Bowen, 343 S.W.3d at 812 (quoting
Wheat v. United States, 486 U.S. 153, 160 (1988)); id. at 816 (quoting United
States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006)).
Thus, not all reasons qualify as “good cause.” See, e.g., Stotts v. Wisser, 894
S.W.2d 366, 367–68 (Tex. Crim. App. 1995) (trial judge’s intention to appoint
attorney for limited purpose of notetaking and assisting lead counsel only did not
constitute good cause for removing counsel on appeal); In re Moore, No. WR
87,158-01, 2018 WL 2716699, at *2–6 (Tex. Crim. App. June 6, 2018) (not
designated for publication) (trial judge did not show good cause for removing
appellate counsel for failing to timely file a brief). Even the judge’s opinion that
counsel is incompetent may not justify removing the attorney. See Smith v.
Superior Court of Los Angeles Cty., 440 P.2d 65, 67, 75 (1968) (cited with
approval in Stearnes, 780 S.W.2d at 221). In Smith, the trial judge removed
defense counsel because he believed counsel to be incompetent to try a death
penalty case. Smith, 440 P.2d at 68. The judge raised counsel’s lack of experience
in trying capital cases only after a difficult exchange over a motion in which
counsel repeatedly interrupted the judge, who reprimanded him. Id. at 67. As the
attorney argued, “if the advocate must labor under the threat that, at any moment, if
his argument or advocacy should incur the displeasure or lack of immediate
comprehension by the trial judge, he may be summarily relieved as counsel on a
subjective charge of incompetency by the very trial judge he is attempting to
convince, his advocacy must of necessity be most guarded and lose much of its
force and effect.” Id. at 74 (quotation omitted). The attorney was ordered
reinstated. Id. at 75.
The appearance of a conflict of interest may not suffice to show good cause
for removal. Indeed, the Court of Criminal Appeals has held that a trial court
abused its discretion when it disqualified retained counsel because of his former
representation of one of the state’s key witnesses against his client. Bowen, 343
S.W.3d at 816.
Even an attorney’s belief that a judge’s decision renders him unable to
provide effective assistance of counsel is not grounds for that attorney’s removal.
See Harling v. United States, 387 A.2d 1101, 1106 (D.C. 1978) (cited with
approval in Stearnes, 780 S.W.2d at 221). In Harling, appointed counsel in a
murder case noted that he would not be able to provide effective assistance if he
walked into court after the judge denied his motion for discovery of the names of
eye witnesses. Id. at 1103. The trial judge’s response was to replace the
complaining court-appointed counsel. Id. On appeal, the court determined that the
attorney’s discharge was “not only an encroachment on appellant’s right to
counsel, but also a threat to the independence of the bar.” Id. at 1106.
Here, the conflict identified by the respondent is an abstract one and one
that, if given effect, would stymie any appointed representation in Chambers
County. The compensation for appointed attorneys is the same whether Willey
represents Fletcher or whether another attorney represents him. The structure of
Chambers County, with respondent serving as both chief executive with budgetary
responsibility and as criminal judge, would not change if the judge appointed
another attorney. Thus, any possibility of a conflict would remain the same no
matter which attorney represented Fletcher. Willey, the attorney objecting to how
appointments work in the county, is best situated to assess, in consultation with his
client, whether continuing to represent Fletcher after a year of legal work poses a
true conflict, or whether his concerns were limited to the viability of accepting
additional appointments in the future.
Fletcher informed the court that he prefers to continue to be represented by
Willey, his counsel of over one year. The complaint about the general conditions of
working as court-appointed counsel, without inquiry about how those conditions
would create a conflict here,3 cannot override Fletcher’s Sixth Amendment right to
be “defended by the counsel he believes to be best.” See Gonzalez-Lopez, 548 U.S.
at 146. And, even if the trial judge thought the course of events reflected on
Willey’s competency, as shown above, those concerns did not authorize Willey’s
removal over his and Fletcher’s objections. See Harling, 387 A.2d at 1106.
Outcome: We conditionally grant the petition for writ of mandamus. We direct Judge
Jimmy Sylvia to vacate his order removing Willey as counsel and his order
denying relator’s motion to have Willey continue as counsel. We are confident
respondent will comply, and mandamus will issue only should he fail to do so.