November 30, 2018

Texas Court of Criminal Appeals

In re State ex rel. Wice v. Fifth Judicial District Court of Appeals

No. WR-86,920-02                  11/21/18


May a trial court pay an appointed prosecutor at a rate outside the fee schedule approved by the local judges?


No. Under Code of Criminal Procedure Art. 26.05, a fee schedule must be set for payment of appointed attorney at either a fixed rate or a fixed range with minimum and maximum hourly rates. A county fee schedule may not include an “opt-out” provision that allows a judge to approve a different rate on a case-by-case basis. Read opinion.

Concurrence (Richardson, J.):

Although the judge did not have the authority to set a payment rate outside the fee schedule, the original payment that was approved by the commissioners court may not be rescinded, and the attorneys pro tem should be paid for all remaining work at a rate within the fee schedule. Read opinion.

Concurrence and Dissent (Yeary, J.):

“[T]he Court purports to ‘vacate the trial court’s second order for interim payment and order the trial court to issue a new order for payment of fees in accordance with a fee schedule that complies with Article 26.05(c) of the Texas Code of Criminal Procedure.’ … [W]e are not called upon in this matter to order the trial court to do anything. In this mandamus proceeding, we are asked to compel the Fifth District Court of Appeals to, in essence, un-mandamus the trial court judge. For the reasons developed in the body of the Court’s opinion today, I agree we should not. Our disposition should simply announce that the mandamus relief Relator seeks is denied—period.” Read opinion.

Dissent (Alcala, J.):

“The court of appeals erred by holding that the trial judge had a ministerial duty to vacate his order paying the special prosecutors in the underlying case for their second voucher reflecting work they had already performed in accordance with the judge’s agreement to pay them at a special rate that the judge had determined was appropriate due to the complexity of the case and the prosecutors’ experience and ability. I would sustain [the] relator’s complaint that the Fifth Court of Appeals wrongfully ordered the trial court to vacate its payment of the second voucher.” Read opinion.

Dissent (Keel, J.):

“Collin County’s one-size-fits-some scheme makes it impossible to pay a reasonable attorney’s fee based on the variables listed in Article 26.05(a) in time-consuming and complex cases, and its fixed fee schedule fails to state reasonable fixed rates or minimum and maximum hourly rates as required by Article 26.05(c). Because of these defects in the fee schedule, the trial court was bound to violate either paragraph ‘a’ [payment of reasonable attorney’s fee] or paragraph ‘b’ [in accordance with the fee schedule] of the statute when it paid the attorneys pro tem in this case. That dilemma precludes mandamus because the trial court did not have a clear duty to sacrifice one part of the statute in favor of another.” Read opinion.

Dissent (Walker, J.):

 “The Commissioners Court was entitled to, at most, a writ of mandamus directing the trial court to amend its payment order. The Commissioners Court was not entitled to vacatur of the payment order, and the scope of the court of appeals’s writ is not appropriate. … Because the court of appeals’s writ of mandamus was too broad, it should not have been issued, and we should not let it stand. I would grant mandamus relief to Relator and issue a writ of mandamus directing the court of appeals to amend its prior writ. The court of appeals’s amended writ should direct the trial court to change its order of payment to one based upon [A]rticle 26.05(a), rather than one based on Local Rule 4.01(B), and to order payment of a reasonable fee in a manner consistent with this opinion.” Read opinion.


This case will impact only the relatively rare situation in which a non-prosecutor is appointed to be a prosecutor pro tem. Judge Newell’s majority opinion makes it clear that this decision is not intended to impact the compensation for indigent defense counsel because an analysis of such compensation would involve constitutional guarantees that are not involved in this case. Current prosecutors who are appointed to be prosecutors pro tem in another county are not entitled to compensation in addition to that which is paid to them as prosecutors. Judge Keel makes some good points with regard to the inherent conflicts in the controlling statutes, and that may be something that the Legislature will want to explore. The bottom line is that a fee schedule can be amended by the county’s judges to allow for a greater-than-usual payment in an appropriate case, but a greater-than-usual payment cannot be provided in a particular case by an individual judge outside the parameters of the fee schedule. This decision appears to bring this particular dispute in this very high-profile case to a close. More disputes are sure to come.

Lang v. State

No. PD-0563-17                       11/21/18


May shoplifting by a defendant working alone constitute the offense of organized retail theft under Penal Code §31.16(b)?


No. Legislative analysis shows that the organized retail theft statute does not target the conduct of ordinary shoplifters acting alone, but it was enacted to target professional theft rings. It requires proof of conducting, promoting, or facilitating some activity that is distinct from the act of theft itself. Read opinion.

Concurrence (Keller, P.J.):

“The organized retail theft statute says: ‘A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of … stolen retail merchandise.’ … Although terms in a statute can sometimes overlap, rendering the main verbs in a statute meaningless is an absurd result that the legislature could not have possibly intended. But that is exactly what happens if this statute is applied to a mere shoplifter. It is suggested that [the defendant] was not a mere shoplifter because she left the store with the items she stole. But the whole point of theft is to ‘deprive the owner of property.’ One does not expect a person who steals property from a store to remain in the store indefinitely, so leaving the store is not a sufficiently distinct act from the initial theft.” Read opinion.

Dissent (Yeary, J.):

“Here, the question is whether the reach of the organized retail theft statute extends to [the defendant’s] conduct. The court of appeals found that the language of the statute plainly did, and it declined to consult extra-textual factors to ‘construe’ that which it believed needed no construction. I agree that the meaning of the statute is plain on its face—though I believe its plain meaning to be different in an important respect from the court of appeals’s perception. Because I find the statutory language to be unambiguous, I disagree with this Court’s resort today to extra-textual factors. And because I believe the statute on its face plainly extends to proscribe [the defendant’s] conduct, I would ultimately affirm the court of appeals’s judgment.” Read opinion.


This case is an interesting bookend to the Court’s other opinion issued the same day regarding statutory construction (see Wice above). Here, the Court finds an ambiguity in the statutory language that allows use of the limited legislative history to resolve the ambiguity. Generally, the Texas Legislature has given us an excellent penal code. This statute may have alien DNA that led to the particular problem in this case. Prosecution under this statute requires an activity more than simple theft by a single person. Look instead for “fences” or persons assisting the thieves through other means as the targets for this statute. In most cases, Texas prosecutors (and justice) are best served by applying the plain language of the statute.

Texas Courts of Appeals

Speck v. State

No. 14-17-00755-CR               11/20/18


Must a person driving in a lane that is not an “exit only” lane—but connects with an optional exit ramp—use a signal to indicate his intention to take the optional exit?


Yes. Under Transportation Code §545.104(a), a driver is required to use a signal “to indicate an intention to turn, change lanes, or start from a parked position.” Here, the defendant was not required to exit the highway and could have continued driving straight along the highway but chose to shift to the exit ramp. This shift from one strip of roadway to another requires a signal. Read opinion.


This will be a valuable case because so many criminal cases begin with the investigation of a traffic offense.

Howard v. State

No. 01-18-00076-CR               11/27/18


Does a warrantless search of a contraband phone found in a parolee’s possession violate the Fourth Amendment?


No. Probation and parole supervision may impose reasonable conditions that deprive a defendant of some freedoms. Here, the defendant had a reduced expectation of privacy during his supervised residency at a halfway house, at which the rules prohibit the possession of unauthorized cell phones and permit searches of residents’ personal belongings. Given these terms of parole, the defendant had no reasonable expectation of privacy in a contraband cell phone, and the search did not violate his Fourth Amendment rights. Read opinion.


This case may be of limited applicability, but it shows the value of thorough case investigation and preparation. By gathering and reviewing the defendant’s parole documents and halfway-house agreements, prosecutors found the combination of documents that defeated the defendant’s illegal search claim.


Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.