Between a Reversal at the Court of Appeals and Discretionary Review: What Are Appointed Counsel’s Duties?

Even now one feels pity for the indigent appellant whose appointed counsel achieved a reversal in the court of appeals and proudly retired from the appellate affray with his victory, leaving his erstwhile client to fend for himself when the State seeks discretionary review from this Court . . . trouble [is] in store for the appellant who is converted into a respondent on the State’s filing its petition for discretionary review.1

Under two US Supreme Court rulings,2 where a state provides for appellate review of criminal convictions, an indigent appellant enjoys a constitutional right to appointment of counsel for an initial appeal of right, but not for filing a petition for discretionary review. And under the applicable statute, unless discretionary review is granted, counsel need not be paid for anything beyond a motion for rehearing. Sounds straightforward, doesn’t it? But it isn’t.

Some 20 years ago the Court of Criminal Appeals handed down three successive decisions addressing the extent of appointed counsel’s duties after a court of appeals issues a ruling. None, though, requires the lawyer to do more than send the cli­ent a letter and a copy of the opinion. In the first, Ex parte Jarrett in 1994, the Court held that once the court of appeals hands down its decision, appellate counsel bears the duty both to advise the client on the possibility of discretionary review and to express to the client counsel’s “professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review.”3 Jarrett noted that the rules of appellate procedure presume an appellant “has a right to prepare and file a petition for discretionary review.”4 A year later in Peterson v. Jones,5 a mandamus case, a defense attorney who had filed PDRs for two indigent defendants was deemed not entitled to compensation.6

Two years after that, in Ex parte Wilson in 1997, the Court backed away from Jarrett, holding that because no right exists to counsel on discretionary review, after a court of appeals issues its opinion appellate counsel need no longer give professional advice on potential issues or on the benefits and disadvantages of filing a PDR.7 Instead counsel need only send the client the opinion and inform the client of “the availability of discretionary review.”8 An “appellate attorney has no duty to inform a defendant of details pertinent to further review,” says Wilson, because “a defendant has no right to counsel for purposes of discretionary review.”9 And although under the statute counsel must also continue to “represent the defendant until . . . appeals are exhausted” unless allowed or ordered to withdraw,10 the phrase “appeals are exhausted” has been construed to exclude the process of petitioning for discretionary review.11 Wilson still stands as controlling law.

And the glaring deficiency in these cases and statutes is that they contemplate only affirmance at the court of appeals. They nowhere address counsel’s duties where the appeal has resulted in a victory for the client. Where a state PDR is granted, then at that point appointment of counsel to represent the defendant-appellee at the Court of Criminal Appeals is statutorily required.12 But between the court of appeals’ ruling in the client’s favor and the grant or refusal of discretionary review, counsel’s guiding hand is evidently not required. And under Wilson counsel need not even inform the client of the possibility that the state can file a PDR—merely that discretionary review is available.13 Even further, under Wilson, counsel need not even forward the state PDR to the now unrepresented defendant-respondent.

Yet the defendant-respondent has a possible means of attacking a state PDR. Just as Jarrett noted that the Texas Rules of Appellate Procedure presume an appellant has a right to prepare and file a PDR, in at least four places the rules also note a defendant-respondent’s right to file a response or reply—the terms are evidently synonymous in this context—to a state PDR.14 And while filing a response might be assumed trivial, such an assumption is misplaced.15

Even further, a concurring opinion in Valcarel v. State notes that some matters are most appropriately raised in a reply to a PDR:

Now, for the first time, in its brief on the merits the State asserts that the ground for review “should be dismissed as improvidently granted because appellant’s contention was not advanced in the court of appeals.” State’s Brief, at 6.

A more timely and orderly medium for raising questions of that nature is the reply to petition for discretionary review; it will alert the judge responsible for making an initial review to a putative problem, so that he may inform himself and, in making his report on the petition to the Court, direct its attention to the matter at the threshold of its determination of whether to grant or refuse the petition.16

Without counsel the right to file such a response is lost. Most likely the client never even realizes the right.

The main argument for requiring appointed counsel to advise or prepare a response is that of equal protection. At first glance such a claim wouldn’t work; contentions that counsel should be appointed for defendants’ PDRs have been repeatedly denied, not only by Wilson and Peterson but originally by the U.S. Supreme Court in Ross v. Moffitt in 1974.17 At that time the question of discretionary review didn’t exist in Texas—before 1981 the courts of appeal had only civil jurisdiction. In Ross the Supreme Court denied the North Carolina defendants’ equal protection argument for appointed counsel for a defendant’s PDR, holding that counsel is unnecessary at that stage since the defendant-appellant “will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases” the court of appeals’ ruling, which “would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.”18

But the question of a reply to a state PDR aside, applying Ross to the denial of counsel for a defendant’s PDR is immediately suspect in Texas, since unless counsel files an Anders brief, Wilson does not require that the client be sent a copy of the trial records, which Ross assumes the client will have to write a pro se PDR. And most records today are provided only in electronic form, and the average prisoner has no access to a computer in order to view digital files even if his appellate law­yer is willing to send him the records in that form. Only the most conscientious attorneys are likely to agree to print the records without compensation; this could be cost-prohibitive, particularly where the client had a full jury trial. And whether a county would reimburse counsel for printing and mailing it to the client—particularly under Wilson—is doubtful at best.

And in any event, a defendant’s PDR and a response to a state PDR are very different things. Where a state PDR is filed—by well-versed attorneys, as is discussed below—the document may raise concepts not mentioned in any document the client may possess. Even if given timely knowledge of the state PDR’s existence, the defendant-respondent must try to navigate what is likely to be a bewildering document with no one even to explain its argument and vocabulary. And a state PDR may cite to the trial record, but the defendant-respondent, who likely does not have a copy of the trial record, is unable to intelligently rebut the state’s interpretation of evidence and testimony. The “Cowboy Codes of the West” implore readers to “never shoot an unarmed man,”19 but the defendant-respondent may not even comprehend the shot before it hits him and puts in jeopardy any appellate ruling in his favor.

Ultimately the Equal Protection Clause compels appointed counsel for a response to a state PDR. Ross noted that the Four­teenth Amendment “does not require absolute equality or precisely equal advantages,” but does mandate that a “state appellate system be ‘free of unreasoned distinctions,’” and that “the question is not one of absolutes, but one of degrees.”20 State appellate systems must give indigents “an adequate opportunity to present their claims fairly within the adversary system,”21 and in any event, the Sixth Amendment’s guarantee of assistance of counsel “encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’”22

In Texas the degree of “unreasoned distinction” regarding the response to a PDR is enormous. To file state PDRs and to reply to defendants’ PDRs, the state funds not only local appellate prosecutors but the Office of the State Prosecuting Attorney as well, whose highly qualified and experienced appellate lawyers examine courts of appeals’ decisions and use discretionary review to attack rulings the state doesn’t like. In short, in ad­di­tion to the district attorneys and county attorneys who can them­selves file PDRs, the state pays the highly experienced State Prosecuting Attorney and her assistants in part to do a job that the Supreme Court in Ross and the Court of Criminal Appeals in Wilson say can be done by uneducated prisoners.

And no office like the State Prosecuting Attorney exists to represent defendants before the Court of Criminal Appeals. TDCJ’s State Counsel for Offenders is no substitute: Its attorneys have no duty to represent any particular prisoner except those accused of crimes on prison units and inmates facing sex offender commitment proceedings. Where State Counsel didn’t do the initial appeal, the legal advice it offers regarding a PDR is likely to be a desultory and vague form letter, and in any event is often not sent through the post. Instead the prison transportation system (“truck mail”) may be used, which might take two weeks to convey a letter to the defendant-respondent. Counting the time for the prisoner’s letter to arrive and be routed to and processed by a State Counsel lawyer, whatever advice is offered may not reach the defendant-respondent until the time for filing a response to a state PDR has expired. As opposed to the local prosecutors and the State Prosecuting Attorney, indigent defendant-respondents unquestionably suffer from an “unreasoned distinction” in Texas’ appellate system, denying them equal protection.23

I recently brought this matter to the Court of Criminal Appeals’ attention via an amicus brief when the state filed a PDR in Grado v. State.24 The court of appeals had awarded my client a new sentencing hearing. After the state PDR was granted, I repeated the argument in my brief on my client’s behalf. The Court of Criminal Appeals affirmed the reversal for resentencing, which was gratifying, but didn’t mention the need for counsel to reply to the state PDR.25

Several potential means exist to remedy the discrepancy. First, Wilson could be modified to require appellate attorneys, when prevailing at the courts of appeals, to continue to represent their clients through the PDR stage. Or alternatively, the applicable statute, article 26.05(a)(3-4) of the Code of Criminal Procedure, could be amended to revive counsel’s appointment when the state files a PDR. But this raises a further question: What would appellate counsel’s duties be if the court of appeals reverses only part of the judgment below? For example, if a client wants to seek discretionary review to challenge the affirmance of the conviction while a state PDR challenges a grant of resentencing, a suggestion that counsel should be compensated only for responding to the state PDR seems odd at best. And appellate pros­e­cu­tors are always willing to argue that a defendant is not en­ti­tled to “dual representation,” and that courts should ignore pro se filings where the defendant is represented by counsel. Thus providing appointed counsel for a defendant-respondent but not for a defendant-petitioner, while quick and easy, would be problematic.

Or, of course, a “State Defending Attorney” could be appointed to fulfill much the same function as the State Prosecuting Attorney in representing defendants before the Court of Criminal Appeals. If the Legislature wished, it need not set up a new office; instead it could simply require that State Counsel create a department to take on this duty in the same manner as that office represents inmates facing new charges and civil com­mitment proceedings. But this still leaves open the question of whether the attorneys so designated will have the power or funds to represent prisoners as petitioners as well as respondents. If not, the “dual representation” conundrum again appears.

In any event, the current system is insufficient. Having an office or department assume the same function for defendants as the State Prosecuting Attorney does for the state—including filing PDRs and responding to state PDRs—seems the most appropriate solution. The current Legislature has passed laws to ensure that its citizens may carry firearms to defend themselves, even on college campuses. Whether the Legislature will also have the same sense of fair play to go on paying for PDRs to attack defendants’ appellate victories—while leaving little-educated, uncounseled, and possibly uninformed defendant-respondents without the means to understand or answer those attacks—is in some doubt.


1. Ayala v. State, 633 S.W.2d 526, 528–9 (Tex. Crim. App. 1982) (Clinton, J., concurring).

2. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

3. 891 S.W.2d 935, 939–40 (Tex. Crim. App. 1994).

4. Id.

5. Peterson v. Jones, 894 S.W.2d 370 (Tex. Crim. App. 1995).

6. Id. at 373.

7. 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

8. Id.

9. Id.

10. Tex. Code Crim. Pro. Ann. Art. 26.04(j)(2) (Vernon supp. 2015).

11. Peterson, 894 S.W.2d at 375–6.

12. Tex. Code Crim. Pro. Ann. Art. 1.051(d)(2) (Vernon supp. 2014).

13. Ex parte Wilson, 956 S.W.2d 25, 27.

14. Tex. R. App. P. 9.4(i)(2)(D) (A “petition for discretionary review and response in the Court of Criminal Appeals” is limited to 4,500 words or 15 pages); Tex. R. App. P. 68.2 (the Court of Criminal Appeals may also “extend the time to file a response” to a PDR); Tex. R. App. P. 68.9 (the “opposing party has 15 days after the timely filing of the petition in the Court of Criminal Appeals to file a reply to the petition with the clerk of the Court of Criminal Appeals”); Tex. R. App. P. 68.10–68.11 (and a reply to a PDR must be served on the State Prosecuting Attorney and “may be amended or supplemented at any time justice requires”).

15. See, e.g., Goldberg v. State, Reply to PDR #0041-03, 2003 WL 25759829, regarding 95 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

16. Valcarel v. State, 765 S.W.2d 412, 419 (Tex. Crim. App. 1985) (Clinton, J., concurring).

17. 417 U.S. 600.

18. Ross, 417 U.S. at 615.


20. Ross, 417 U.S. at 612.

21. Id.

22. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

23. Ross, 417 U.S. at 612.

24. 445 S.W.3d 736 (Tex. Crim. App. 2014).

25. Id.

John Bennett
John Bennett
John Bennett practices post-conviction criminal defense in Amarillo. He has been board certified in criminal appellate law since 2012. His JD is from Texas Tech University; he also holds a PhD in church history from the University of Birmingham (in the UK) as well as five assorted bachelor’s and master’s degrees.

John Bennett practices post-conviction criminal defense in Amarillo. He has been board certified in criminal appellate law since 2012. His JD is from Texas Tech University; he also holds a PhD in church history from the University of Birmingham (in the UK) as well as five assorted bachelor’s and master’s degrees.

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