A Dallas state district court judge is pushing back against an appellate court decision that orders her to explain why she is declining to appoint the public defender’s office to represent an indigent capital murder defendant — a ruling she fears would negatively impact thousands of criminal cases in Texas.
The November ruling from Dallas’ Fifth Court of Appeals in In Re Dallas County Public Defender’s Office is believed to be the first time an appellate court has enforced 26.04(f) of the Texas Code of Criminal Procedure, which requires trial courts to give the PD’s office priority for indigent appointments unless the judge has good cause to appoint private counsel.
The decision could have wide-ranging implications for both Dallas and Harris County, whose judges balance heavy criminal dockets by appointing both private counsel and public defenders to represent indigent defendants.
Tammy Kemp, judge of Dallas’ 204th District Court, initially appointed two private attorneys to represent Emmanuel Kilpatrick, an indigent defendant charged with three counts of capital murder. However, the Dallas County PD’s Office filed a motion to be appointed to represent Kilpatrick or for Kemp to hold a hearing to demonstrate good cause for why she was denying the appointment.
Kemp denied the PD office’s motion, a ruling it appealed to the Fifth Court via a writ of mandamus. In its decision, the Fifth Court had to parse two statutes in the Code of Criminal Procedure: 26.04 (f), which provides that judges shall give priority in criminal appointments to county public defenders; and 26.052, which requires counties to keep a list of qualified death penalty criminal defense attorneys but is silent as to whether public defenders are to be given priority appointment in capital cases.
The Fifth Court concluded that Kemp had violated a ministerial duty by failing to provide a reason for appointing private counsel to Kilpatrick in a written order.
Last month, Kemp filed a motion for en banc reconsideration of the Fifth Court’s decision, arguing that the ruling would have a negative implications for every county in Texas that uses public defenders and could cause problems in thousands of pending criminal cases.
“Forcing courts to enter these written orders in each criminal case where the public defender is not appointed would tax judicial resources at the trial level, cause potential backlogs in the appellate courts, potentially subject judges to recusal, raise concerns related to judicial ethics, could result in public defender’s offices attempting to manage overwhelming caseloads, and may result in more ineffective assistance findings in criminal cases,” Kemp’s motion alleges.
This week, the Fifth Court has asked for full briefing from the parties on Kemp’s motion for en banc rehearing.
Kemp did not return a call for comment. Neither did Karo Johnson and Rick Carrizales, two private attorneys appointed to represent Kilpatrick. In a previous briefing before the court, Johnson and Carrizales noted that Kilpatrick does not want to be represented by the PD’s office and its attempt to intervene in the case is a breach of the attorney/client privilege. Christi Dean, an appellate lawyer in the three-member capital murder unit of the Dallas County Public Defender’s Office, said they are just following the law — specifically 26.04(f) of the criminal code — by forcing Kemp to explain why she declined to appoint the PD’s office to represent Kilpatrick.
“Our position is that we’ve had this statute since 2015 and nobody has ever pushed it and a lot of people weren’t aware of it,” Dean said. “And there’s not a remedy in that statue. It just says PD’s offices shall be given priority appointments.’’
While the case highlights a change in the law, Dean does not believe enforcing the law will be as onerous as Kemp describes in her pleading.
“The whole point of having a PD’s office is to be efficient and cost effective,’’ Dean said. “We’ve been successful and work hard for our clients.’’
“We’re not going to take on more than we can handle. We will take a full caseload but we will not take on more than we can handle and jeopardize our client’s interest,’’ she said.
And as for the private lawyers’ contention that Kilpatrick does not want to be represented by the PD’s office, Dean notes that Kilpatrick has not yet met any of the lawyers from her office.
“That’s going to happen any time we try to push this,’’ Dean said of the law. “It’s going to happen until we get a ruling on this. He hasn’t even met us. How could he have a position on who he would want as counsel?’’