Denied in part, Dismissed in part, and Opinion Filed January 17, 2018




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-01151-CV
                                      No. 05-17-01152-CV
                                      No. 05-17-01153-CV

           IN RE DALLAS COUNTY PUBLIC DEFENDER’S OFFICE, Relator

                Original Proceeding from the 204th Judicial District Court
                                  Dallas County, Texas
           Trial Court Cause Nos. F17-75436-Q, F17-75468-Q, and F17-76382-Q

                MEMORANDUM OPINION ON REHEARING
                           Before Justices Lang, Brown, and Stoddart
                                    Opinion by Justice Lang
       Before the Court is respondent’s motion for rehearing.          We deny the motion for

rehearing. We withdraw our prior opinion in this case, substitute this opinion in its place, and

deny relator’s petition for writ of mandamus. The following is now the opinion of the Court.

       In this original proceeding, the Dallas County Public Defender’s Office complains of the

trial court’s denial of the office’s motion to be appointed counsel to represent Emmanuel

Kilpatrick in a capital murder case. The public defender’s office contends that article 26.04(f) of

the code of criminal procedure required the trial court to give the office priority in appointments

and to appoint a member of the office to represent Kilpatrick unless the trial court had good

cause to appoint other counsel. The public defender’s office specifically asks this Court to grant

the writ of mandamus, vacate the order denying the appointment, mandate that the public

defender’s office be appointed to Kilpatrick’s case, and issue a writ of prohibition that prohibits
the trial court from denying future appointments sought by the public defender’s office. For the

following reasons, we deny the petition for writ of mandamus and dismiss the petition for writ of

prohibition.

                                           Background

       Kilpatrick has been indicted on three capital murder charges. The trial judge initially

appointed attorney Richard Carrizales to represent Kilpatrick. Carrizales is only qualified to sit

as second chair in death penalty cases in Dallas County. On September 22, 2017, the trial judge

appointed Karo Johnson to represent Kilpatrick and sit first chair.              Before Johnson’s

appointment, the Dallas County Public Defender’s Office filed a motion to be appointed counsel

to represent Kilpatrick and moved in the alternative for a hearing to demonstrate good cause for

denying the appointment. Assistant Public Defender Christi Dean also sent the court coordinator

an e-mail requesting “a formal written ruling on our motion indicating good cause or, in the

alternative, set it for hearing . . . .” The trial judge denied the motion for appointment by written

order without stating a reason and denied the request for a hearing to demonstrate good cause.

This original proceeding followed.

                                      Mandamus Standard

       To establish a right to mandamus relief in a criminal case, the relator must show that the

trial court violated a ministerial duty and there is no adequate remedy at law. In re State ex rel.

Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding); In re Wingfield, 171

S.W.3d 374, 378–79 (Tex. App.—Tyler 2005, orig. proceeding). For a duty to be ministerial, the

law must “clearly spell [ ] out the duty to be performed ... with such certainty that nothing is left

to the exercise of discretion or judgment.” State ex rel. Hill v. Court of Appeals for the Fifth

District, 34 S.W.3d 924, 928 (Tex. Crim. App. 2001) (quoting Texas Dep’t of Corrections v.

Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981)). In other words, the act must be


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“positively commanded and so plainly prescribed” under the law “as to be free from doubt.”

State ex rel. Hill, 34 S.W.3d at 928 (quoting Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.

Crim. App. 1992)).

                                          Applicable Law

       This case presents the Court with the task of interpreting two statutes: articles 26.04 and

26.052 of the Texas Code of Criminal Procedure. We review questions of statutory construction

de novo. In re Lee, 411 S.W.3d 445, 450–51 (Tex. 2013). Our fundamental objective in

interpreting a statute is “to determine and give effect to the Legislature’s intent.” Id. at 451

(quoting Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012)). “The plain

language of a statute is the surest guide to the Legislature’s intent.” Id. (quoting Prairie View A

& M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012)).                   “[U]nambiguous text equals

determinative text,” and “ ‘[a]t this point, the judge’s inquiry is at an end.’ ” In re Office of

Attorney Gen., 422 S.W.3d 623, 629 (Tex. 2013) (quoting Alex Sheshunoff Mgmt. Servs., L.P. v.

Johnson, 209 S.W.3d 644, 652 (Tex. 2006)). For example, use of the word “notwithstanding”

indicates a legislative intention that the provision using the term should control over other

provisions. In re Lee, 411 S.W.3d at 454 (“the use of the word ‘notwithstanding’ indicates that

the Legislature intended section 153.0071 to be controlling”) (citing Molinet v. Kimbrell, 356

S.W.3d 407, 413–14 (Tex. 2011) (holding that a “notwithstanding any other law” provision

evidenced clear legislative intent to resolve any interpretation conflicts in favor of the statute

containing the provision) and Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d

628, 639 (Tex. 2010) (holding that a statute “manifest[ing] clear legislative intent that conflicting

statutes are ineffective” controlled over such conflicting statutes)).

       It is inappropriate to resort to rules of construction or extratextual information to construe

a statute when its language is clear and unambiguous. In re Lee, 411 S.W.3d at 451. Under this


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text-based approach, we must study the provision at issue and the statute as a whole. Id. “If a

general provision conflicts with a special or local provision, the provisions shall be construed, if

possible, so that effect is given to both.” TEX. GOV’T CODE § 311.026(a). However, in the event

that any such conflict is irreconcilable, the more specific provision will generally prevail. Id. §

311.026(b); see also In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 470–71 (Tex. 2011).

       Article 26.04(f) provides that a court “shall give priority” in appointment to a county’s

public defender’s office but “is not required to appoint the public defender’s office if: (1) the

court has reason to appoint other counsel. . . .” TEX. CODE CRIM. PROC. art. 26.04(f). Article

26.052 is titled “Appointment of counsel in death penalty case; reimbursement of investigative

expenses.” Article 26.052(a) provides:

       (a) Notwithstanding any other provision of this chapter, this article establishes
       procedures in death penalty cases for appointment and payment of counsel to
       represent indigent defendants at trial and on direct appeal and to apply for writ of
       certiorari in the United States Supreme Court.

TEX. CODE CRIM. PROC. art. 26.052(a). Article 26.052(b) also provides:

       (b) If a county is served by a public defender’s office, trial counsel and counsel
       for direct appeal or to apply for a writ of certiorari may be appointed as provided
       by the guidelines established by the public defender’s office. In all other cases in
       which the death penalty is sought, counsel shall be appointed as provided by this
       article.

TEX. CRIM. PROC. CODE art. 26.052(b). Article 26.052 is silent as to whether a court must give

priority to a public defender’s office in making appointments in capital cases. TEX. CRIM. PROC.

CODE art. 26.052.

                                            Discussion

       Here, article 26.052, not article 26.04, controls the appointment of counsel to represent

indigent defendants in death penalty cases because of the inclusion of the words

“notwithstanding any other provision of this chapter” and the provision’s more specific

language.   Applying In re Lee, the use of the term “notwithstanding” in article 26.052(a)

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indicates that the Legislature intended article 26.052 to be controlling as to appointment of

counsel to represent indigent defendants in death penalty cases. Further, like the statute in Lee,

article 26.052 is more specific than article 26.04 because it applies to a specific type of case, i.e.,

a death penalty case. Whereas, article 26.04 sets out the general rules for appointment of counsel

to represent indigent defendants in other cases. Article 26.052 is silent as to whether a court

must give priority to a public defender’s office in making appointments in capital cases. TEX.

CRIM. PROC. CODE art. 26.052. Similarly, article 26.052 includes no language requiring a trial

court to have a reason for declining to appoint the public defender’s office to represent an

indigent defendant in a death penalty case. In the absence of such language, we cannot conclude

the trial court was required to give priority to the public defender’s office in appointment of

counsel in this death penalty case or provide a reason for denying the appointment request. See

In re Lee, 411 S.W.3d at 451 (unambiguous text is determinative text); see also City of Houston

v. Bryant, 516 S.W.3d 47, 53 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Where a

statute is silent on an issue, we presume that the silence is a careful, purposeful, and deliberate

choice”). Respondent did not have a ministerial duty to give priority to the public defender’s

office in appointing counsel to represent Kilpatrick or to provide a reason for declining to

appoint the public defender’s office.       Accordingly, we deny relator’s petition for writ of

mandamus.

                                 Petition for Writ of Prohibition

       “The writ of prohibition is a creature of limited purpose that is appropriate only after an

appellate court’s jurisdiction has been invoked on independent grounds and then only in aid of

that jurisdiction.” In re State ex rel. Munk, 448 S.W.3d 687, 694 (Tex. App.—Eastland 2014,

orig. proceeding). A writ of prohibition is used to protect the subject matter of an appeal or to

prohibit an unlawful interference with enforcement of an appellate court’s judgment. Holloway


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v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex. 1989) (orig. proceeding); In re Bolton, No.

05-10-01115-CV, 2010 WL 4011041, at *1 (Tex. App.—Dallas Oct. 14, 2010, orig. proceeding)

(citing TEX. GOV’T CODE ANN. § 22.221(a) (West 2004)); Humble Exploration Co., Inc. v.

Walker, 641 S.W.2d 941, 943 (Tex. App.—Dallas 1982, no writ). This Court may issue a writ of

prohibition: (1) to prevent interference with its jurisdiction in deciding a pending appeal; (2) to

prevent a lower court from entertaining a suit that will relitigate controversies that have already

been settled by the Court; and (3) to prohibit a trial court's action when it affirmatively appears

that the court lacks jurisdiction. Humble Exploration Co., Inc. v. Walker, 641 S.W.2d 941, 943

(Tex. App.—Dallas 1982, no writ); In re Herrera, No. 05-14-00394-CV, 2014 WL 1477922, at

*1 (Tex. App.—Dallas Apr. 14, 2014, orig. proceeding) (dismissing petition for writ of

prohibition where relator did not demonstrate any of those prerequisites).

       Here, relator seeks a writ of prohibition that prohibits the trial court from denying future

appointments sought by the public defender’s office. We do not have jurisdiction to issue a writ

requiring the trial court to refrain from performing a future act. See In re State ex rel. Munk, 448

S.W.3d 687, 694 (Tex. App.—Eastland 2014, orig. proceeding) (“An appellate court does not

have jurisdiction, absent actual jurisdiction of a pending proceeding, to issue a writ of prohibition

requiring that a trial court refrain from performing a future act.”). No appeal is pending and the

trial court’s actions in appointing counsel do not threaten this Court’s jurisdiction in deciding a

pending appeal. We, therefore, dismiss the petition for writ of prohibition.

       Accordingly, we deny the petition for writ of mandamus and dismiss the petition for writ

of prohibition.



171151HF.P05                                          /Douglas S. Lang/
                                                      DOUGLAS S. LANG
                                                      JUSTICE

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