       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-19-00825-CR


                                  Leroy Pickens, Jr., Appellant

                                                 v.

                                   The State of Texas, Appellee


                 FROM THE 35TH DISTRICT COURT OF MILLS COUNTY
             NO. 3274, THE HONORABLE STEPHEN ELLIS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Leroy Pickens, Jr., was convicted of possessing less than one gram of a controlled

substance in March 2019, see Tex. Health & Safety Code §§ 481.102(6), .115(a), (b), and this

Court affirmed his conviction in October 2019, see Pickens v. State, No. 03-19-00194-CR,

2019 WL 5199251, at *7 (Tex. App.—Austin Oct. 16, 2019, pet. filed) (mem. op., not designated

for publication). A few weeks after his conviction was affirmed, Pickens filed with the district

court a “Motion to Compel Production and Delivery of the Attorney-Client File” requesting that

his formerly appointed trial counsel send him the attorney-client file from the trial proceedings.

The district court denied the request. Following that ruling, Pickens filed a notice of appeal with

this Court seeking to appeal the district court’s denial of his motion.

               Both the motion and the notice of appeal assert that the relief requested pertains to

the same cause number in which he was found guilty and in which this Court affirmed his

conviction, but the district court no longer has plenary power over that cause. See Ex parte
Matthews, 452 S.W.3d 8, 13 (Tex. App.—San Antonio 2014, no pet.) (setting out deadline by

which trial court loses plenary power over case and explaining that “[a]fter its plenary power

over a cause expires, the trial court generally lacks the authority to take any action in the cause”).

We are aware of no constitutional provision, statute, or caselaw authorizing individuals to

appeal in these circumstances the denial of a post-trial motion to compel a trial attorney to turn

over the contents of an attorney-client file to a former client where the record demonstrates that

there is no current pending action before the district court and that the district court no longer has

plenary jurisdiction over the original criminal proceeding. Cf. In re Rhodes, No. 14-15-00195-CR,

2015 WL 1247267, at *1 (Tex. App.—Houston [14th Dist.] Mar. 17, 2015, orig. proceeding)

(mem. op., not designated for publication) (denying petition for writ of mandamus, in part, where

relator had “not identified any applicable statute that would give the trial court jurisdiction over a

post-trial dispute between [him] and his former counsel”); In re Kennedy, No. 12-13-00195-CR,

2013 WL 2456488, at *1 (Tex. App.—Tyler June 5, 2013, orig. proceeding) (mem. op., not

designated for publication) (noting that trial courts do not have duty to rule on free-floating motions

“unrelated to currently pending actions” where relator’s conviction was final and that trial courts

have no jurisdiction to rule on motions if they have no plenary jurisdiction over associated cases).1


       1
          We note that the Court of Criminal Appeals has previously explained in In re McCann
that a “client’s file belongs to the client” and, accordingly, that attorneys should honor the wishes
of their former clients regarding whether to release the contents of their attorney-client files.
422 S.W.3d 701, 704, 709 (Tex. Crim. App. 2013). Although those directives are unquestionably
true, see Tex. Disciplinary Rules Prof’l Conduct R. 1.15(d) (requiring attorney to surrender “papers
and property to which the client is entitled”), reprinted in Tex. Gov’t Code, tit. 2, subtit. G,
app. A, McCann, unlike this case, involved a situation in which there was a pending dispute
before a trial court. Specifically, a trial court appointed an attorney to represent an individual,
Turner, in a habeas proceeding after Turner was convicted of capital murder, and the appointed
habeas attorney successfully sought an order compelling the former trial attorney to release the
contents of Turner’s client file despite Turner’s specific instructions to his former trial attorney
not to disclose the contents of the file to the habeas attorney. Id. at 702-03. The trial attorney
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               To the extent that Pickens’s unambiguous notice of appeal could be construed as

a petition for writ of mandamus seeking the release of the client file, we note that this Court

and other appellate courts have found in similar circumstances that mandamus relief was not

authorized. See In re Martinez, No. 04-18-00320-CR, 2018 WL 2323565, at *1 (Tex. App.—

San Antonio May 23, 2018, orig. proceeding) (mem. op., not designated for publication)

(concluding that individual was not entitled to mandamus relief challenging district court’s denial

of his request to compel his trial attorney to release client file because relator failed to show that

he was seeking purely ministerial act); In re Coleman, No. 03-14-00432-CV, 2014 WL 4179431,

at *1 (Tex. App.—Austin Aug. 19, 2014, orig. proceeding) (mem. op.) (deciding that relator,

whose conviction had been affirmed on appeal, was not entitled to mandamus relief compelling

trial court to order “trial attorneys to relinquish his client files to him or to hold the attorneys in

contempt,” in part, because acts he sought “to compel are not ministerial acts”); see also In re

Rhodes, 2015 WL 1247267, at *1-2 (denying petition for writ of mandamus requesting that

appellate court order trial court to rule on his motion to compel his former attorney to release his



sought mandamus review of the trial court’s order, and the Court of Criminal Appeals ultimately
concluded that the trial counsel was correct to follow the wishes of his former client and not
relinquish the contents of the file and that the trial court did not have the authority to compel the
attorney to violate his fiduciary duty to Turner. Id. at 710, 711. Accordingly, given the different
procedural posture between this case and McCann as well as the ultimate resolution of McCann,
we do not believe that McCann can be read as authorizing Pickens’s appeal of the district court’s
denial of his motion to have his former attorney release the contents of the client file from the
trial where the record reveals that there is no pending proceeding before the district court and
that the district court no longer has jurisdiction over the underlying criminal proceeding. Cf. id.
at 711 (noting that there was “no constitutional provision, statute, or caselaw” that authorized
trial attorney “to appeal the order of the trial judge compelling him to turn over the trial file”);
see also In re Coleman, No. 03-14-00432-CV, 2014 WL 4179431, at *1 & n.1 (Tex. App.—
Austin Aug. 19, 2014, orig. proceeding) (mem. op.) (agreeing that relator was “entitled to his
client file from his trial attorneys” as stated in McCann but concluding that relator was not
entitled to that relief through petition for writ of mandamus asking that trial court be ordered to
compel attorneys to comply with his request for his client file).
                                                  3
client file and noting that “[t]he trial court’s plenary power ha[d] expired,” that trial court did not

have duty to rule on free-floating motions unrelated to current pending actions, and that in

absence of statute providing trial court with jurisdiction over his request, trial court had no duty

to rule on motion). In light of this authority, we would similarly conclude that Pickens is not

entitled to mandamus relief under the circumstances present here.

               For these reasons, we dismiss this appeal for want of jurisdiction. See Tex. R.

App. P. 43.2(f).



                                               __________________________________________
                                               Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Baker and Triana

Dismissed for Want of Jurisdiction

Filed: February 28, 2020

Do Not Publish




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