Ex parte Touchet

615 S.W.3d 160 (Mem)

EX PARTE Donald Leonard TOUCHET, Applicant

NO. WR-91,786-01

Court of Criminal Appeals of Texas.

Filed: January 13, 2021

CONCURRING OPINION

Slaughter, J., filed a concurring opinion.

William Jennings Bryan once said, "Next to the ministry I know of no more noble profession than the law. The object aimed at is justice, equal and exact, and if it does not reach that end at once it is because the stream is diverted by selfishness or checked by ignorance." So what was the lawyer in this case – selfish or ignorant? We will never know because no one required him to explain his behavior. But either way, he was certainly ineffective.

The lawyer at issue, appellate counsel Gaylyn Leon Cooper, failed to notify the applicant of the outcome of his direct appeal and of his right to file a petition for discretionary review. Consequently, Applicant was deprived of his opportunity to timely file a petition to this Court. When Applicant filed a post-conviction writ of habeas corpus application claiming ineffective assistance of appellate counsel, the habeas court ordered counsel to file an affidavit in response to this claim. After counsel missed the deadline imposed by the trial court, the trial court's clerk called counsel on several occasions to remind him that his response was overdue. Each time, counsel promised to file an affidavit "within the week." Despite this promise, no affidavit was ever filed. See Ex parte Touchet, No. WR-15-21899-A (Trial Court's Findings of Fact and Conclusions of Law, Crim. Dist. Ct. Jefferson County, Tex., Sept. 16, 2020). The habeas judge never asked counsel for an explanation as to why he failed to respond.¹ With no knowledge of any mitigating circumstances, the only conclusion that may be drawn in light of Cooper's failure to notify Applicant regarding the status of his case, Cooper's multiple misrepresentations to the habeas court clerk that he would file his affidavit "within the week," and his complete failure to ever file a response despite multiple reminders from the clerk, is that Cooper violated the oath he took upon becoming an attorney, the Texas Lawyer's Creed, and the Texas Rules of Professional Conduct.² In response to such blatant violations, the habeas judge should have taken "appropriate action" in response. Tex. Code Jud. Conduct 3(D)(2) ("A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.").

When lawyers (of any kind) or judges (of any kind) behave in a way that shows a clear dereliction of duty, especially that which results in some kind of harm, every member of the bar who becomes aware of it has an obligation to take action.³ See Tex. Disciplinary Rules Prof'l Conduct, Preamble ("A lawyer should aid the legal profession in pursuing [the] objectives [of these Rules] and should help the bar regulate itself in the public interest. ... The legal profession has a responsibility to assure that its regulation is undertaken in the public interest ... and to insist that every lawyer both comply with its minimum disciplinary standards and aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves."); Tex. Code Jud. Conduct, Preamble ("[J]udges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.").

In this case, the habeas court did nothing to warn or reprimand counsel, let alone file a complaint with the State Bar or otherwise punish counsel for his inexcusable unprofessionalism and violation of the Rules. There is also nothing to suggest that the State Bar took any action.⁴ Given that no one to date has taken any action to address these multiple violations of the disciplinary rules and a complete dereliction of duty, we, as a Court, should. At the very least, we should demand an explanation (if there is one) from counsel.⁵

As judges of this Court, we are entrusted with and even commanded to ensure professionalism from attorneys. This is no less true in the context of habeas corpus applications, which number in the thousands annually and which frequently contain claims of ineffectiveness of trial or appellate counsel. An attorney's complete failure to respond to claims raised against him not only hinders judicial economy, but in some instances may result in the Court's inability to fully and fairly decide a claim. Such a serious infraction warrants action by the habeas court. If the habeas court fails to take appropriate action, then this Court should do so or at least require habeas counsel to respond. Yet, we rarely take any action against attorneys who shirk...