                                          33rd and 424tt1 Judicial District Courts
                                                     State of Texas
                                                    District Courts of
                                      BLANCO · BURNET · LLANO · SAN SABA COUNTIES

J. ALLAN GARRETT                                           1701 E. POLK                            Lisa Bell, 33RD Court Coordinator
PRESIDING JUDGE, 33"" JUDICIAL DISTRICT
                                                        BURNET, TEXAS 78611                 E-Mail: 33coordinator@dcourttexas.org
STEPHANIE LARSEN, Official Court Reporter         (512) 756-5436 Fax (512) 756-8478
                                                          www.dcourttexas.org         JENNIFER BUNTING, 424™ Court Coordinator
EVAN STUBBS                                                                                 E-Mail: 424coordinator@dcourttexas.org
PRESIDING JUDGE, 424m jUDICIAL DISTRICT
                                                                                        SHEILA STEWART, Administrative Assistant
JENNIFER FEST, Official Court Reporter                                                       E-Mail: 33424districtcourt@gmail.com




         September 3, 2015

         Texas Court of Criminal Appeals                                                     RirECrE~VLED ~~
         Clerk of the Court                                                               COURT OF CRJI\IliNAl APPEALS
         P. 0. Box 12308                                                                           SEP 04 2015
         Austin, Texas 78711

         Re: WR-83,738-01; In Re Thomas Allen Simon

         Dear Mr. Acosta:

         Enclosed you will find the Response of the Hon. Evan Stubbs, 424 1h Judicial District Judge,
         Respondent in this matter. Please file this in the case for consideration. If you need anything
         further, please let me know.




         Encl: Response

         Cc: Tracy Cluck (VIA EMAIL)
             L.T. Bradt (VIA EMAIL)
             Gary Bunyard (VIA EMAIL)
             Gary Prust (VIA EMAIL)
             Wiley "Sonny" McAfee (VIA EMAIL)
  IN THE COURT OF CRIMINAL APPEALS
              OF TEXAS


     IN RE THOMAS ALLEN SIMON, Relator ·


  ON APPLICATION FOR A WRIT OF MANDAMUS
IN CAUSE NO. 42908 IN THE 424TH DISTRICT COURT
           FROM BURNET COUNTY


              RESPONSE OF
Hon. Evan Stubbs, 424th Judicial District Judge
                Respondent



          September 3, 2015
                        Statement Of The Facts

   The Relator was arrested on March       24, 2014,    for two counts of Sexual

Assault and one count of Aggravated Assault Causing Serious Bodily Injury.

The Relater is not now and has never been charged with Aggravated Sexual

Assault in regard to this case as is alleged in the Petition for Mandamus.

The previous Judge appointed Tracy D. Cluck on April 8,           2014,    to represent

the Relator on these charges.   A duly empaneled Grand Jury then returned

an Indictment on June 3,    2014,   charging the Relator with two counts of

Sexual Assault and one count of Aggravated Assault Causing Serious Bodily

Injury.

   As described by Counsel for the Relator, Tracy D. Cluck filed ex parte

motions seeking funds for the employment of a medical expert and for

additional funds for investigative services. The undersigned called for an ex

parte hearing on these motions. RR Vol.     1   Page 4·      Present at this hearing

was Tracy D. Cluck and the Relator. RR Vol.        1   Page 4·    In presenting the

reasons for the funds being requested, Tracy D. Cluck informed the

undersigned that he would not be able to provide the Relator effective

assistance of counsel without the funds.    RR Vol.     1   Pages 4 - 8.    In making

the decision to remove Tracy D. Cluck as counsel for the Relator, the

undersigned stated that the Respondent was not going to put Mr. Cluck in a
                                       2
position where he would feel like he was being ineffective. RR Vol. 1 Pages n

- 12.


    Later on the same day, the undersigned then appointed Gary Prust as new

counsel for the Relator. Mr. Prust is an experienced felony trial attorney

with a prior attorney/client relationship with Relator.



                          Response to Issue No. 1

    Relator complains that the undersigned did not have good cause to

remove Tracy D. Cluck as Relator's appointed counsel. However, Mr. Cluck

had expressed to the undersigned his belief that he was unable to provide

effective assistance of counsel unless the undersigned granted the funds

requested.   The undersigned (a) was not in the position of granting the

funds requested due to the excessive nature of the request, (b) was aware

that none of the other three attorneys representing the three co-defendants

had expressed such an excessive request, ( c) had extensive personal

experience in representing clients acting in the role of a criminal defense

attorney for hundreds of court appointed clients prior to being elected to the

bench, and (d) was sufficiently aware of the facts of the instant case to

believe that the level of funds requested was excessive. For these reasons the

undersigned had concern that if the excessive requests were not granted, Mr.
Cluck would move forward to trial of the case under conditions that would

create an appellate argument for ineffective assistance of counsel and thus,

potentially require a second trial at the expense of judicial economy and the

taxpayers of Burnet County.

  The findings of the undersigned on the record in this regard were made

not only from the direct statement of Mr. Cluck but also from the fact that

none of the attorneys from the three co-defendants had informed the

undersigned of similar excessive needs in order to perform their jobs (RR

Vol. 1 Pages 12- 13) and from the undersigned's own personal experiences in

representing criminal clients in this jurisdiction (RR Vol. 1 Page 13) and from

what the undersigned then knew of the facts of the case (RR Vol. 1 Page 13).

Based on these findings, the undersigned did in fact act under the authority

of Art. 26.04 (j) (2) in removing Mr. Cluck for good cause shown on the

record for the protection of the rights of the Relator, and as such, the relief

of Mandamus is not available under these circumstances.




                                       4
                         Response to Issue No. 2

   In as much as this Court has entered an order temporarily staying the

proceedings pending resolution of this complaint, the undersigned believes

that a Writ of Prohibition is duplicitous, unnecessary, and moot.




   SIGNED AND PRESENTED on this          3~ayofS~                   '2015.




                                         Evan Stubbs, Judge
                                         424th Judicial District
                                         Burnet County Annex North
                                         1701 E. Polk Street, Suite 74
                                         Burnet, TX 786n
                                         (512) 756-5438
                                         424distjudge@gmail.com
                                         RESPONDENT
                      CERTIFICATE OF SERVICE

   This is to certify that a true copy of the above and foregoing instrument,
together with this J?,roof of service hereof, has been forwarded by EServe and
by email on the 6         day of Se.pfllftbeK2o15, to Mr. Tracy D. Cluck,
Attorney for Relator, at tracy@tracyclucklaw.com, and to Mr. Gary W.
Bunyard, Attorney for Real Party in Interest - Wiley B. "Sonny" McAfee,
Di~trictAttorneyatg.buny~~.llano.tx.us~ 6~ P~, l<mJ2~
       ~a.;f- ~·~                                 ~~
                                       ~                        ~
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                                       Court Coordinator




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