           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
                                                                               SCHAFFER — 2

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).
                                                                             SCHAFFER — 3

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
                                                                              SCHAFFER — 4

“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
                                                                              SCHAFFER — 5

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
