Simon, Thomas Allen

WR-83,783-01,02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS December 14, 2015 Transmitted 12/14/2015 2:50:46 PM Accepted 12/14/2015 3:36:36 PM ABEL ACOSTA CLERK DOCKET NO. WR-83,783-01

IN THE

COURT OF CRIMINAL APPEALS

AT AUSTIN, TEXAS

IN RE:

THOMAS ALLEN SIMON,

Relator

MOTION TO PUBLISH OPINION

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Thomas Allen Simon, Relator, moves this Court, pursuant to Tex. R. App. P. 77, to order that the Court’s opinion in this cause be published, and shows:

1. Relator filed a petition for writ of mandamus in this court, under the authority of Stearnes v. Clinton and its progeny, after the trial court had removed his trial counsel. 780 S.W.2d 216 (Tex.Crim.App. 1989). Relator was denied relief in the lower court of appeals without comment. This court conditionally granted the relief sought by relator in a per curiam, un-published opinion citing, inter alia, Stearnes. Id.

2. Relator, in his Petition for Writ of Mandamus presented an issue of great importance which may be paraphrased as follows: may a judge ignore a defendant’s Due Process rights and this Court’s pronouncements of law by removing appointed counsel on a whim, without notice that complies with due process and without a proper hearing.

Relator suggests that this issue is of great importance, not only to him, but also to the criminal jurisprudence of Texas. The issue of appointed counsel being removed by the trial court, in light of this Court’s Opinion in Stearnes v. Clinton, is unfortunately becoming more and more prevalent in Texas. 780 S.W.2d 216 (Tex.Crim.App. 1989); See, e.g., In re Brandon Jay Carter, Cause No. WR-83,286-01, In The Texas Court of Criminal Appeals.

3. Relator notes that not only has this issue come up for him, it has come up for other similarly situated litigants in Texas recently. Id. Relator further notes that the Third Court of Appeals erroneously denied relief without comment when the same issue was presented to them.

Further, the Third Court of Appeals erroneously required that Relator file his writ there as a civil matter and pay civil filing fees (later refunded in light of this Court’s opinion).

4. The foregoing suggests that the trial courts and appellate courts of this state are challenging the vitality of Stearnes v. Clinton and its progeny. Id. In doing so, the rights of accused have been compromised at the trial court and appellate court level in Texas. Therefore, Relator respectfully suggests to the Court that it would benefit the jurisprudence of this state on an issue of great importance if this Court ordered its opinion published thereby strongly affirming that Stearnes remains good law in Texas. Id.

5. Relator therefore prays that this Honorable Court grant his motion to publish the opinion in this case and order that the opinion be published.

Respectfully submitted, /s/ Tracy D. Cluck _____________________________ Tracy D. Cluck

Texas Bar No. 00787254 12600 Hill Country Blvd., Suite R-275 Austin, Texas 78738

Tel: (512) 329-2615

Fax: (512) 329-2604 [email protected]

L.T. “Butch” Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478 (281) 201-0700

Fax: (281) 201-1202 [email protected]

Attorneys for Relator, Thomas Allen Simon

CERTIFICATE OF SERVICE

I, the undersigned attorney, in accordance with the Rule 9.5, T.R.A.P., certify that a true and correct copy of the foregoing Petition was delivered to the following on December 14, 2015 by e-mail:

Honorable Evan C. Stubbs

424th Judicial District Court

Burnet County Annex North

1701 E. Polk Street, Ste. 74

Burnet, Texas 78611

[email protected]

Wiley B. “Sonny” McAfee, Jr., District Attorney

Gary Bunyard, Ass’t District Attorney

Burnet County Annex North

1701 E. Polk Street, St. 24

Burnet, Texas 78611

[email protected] [email protected]

/s/ Tracy D. Cluck ____________________ Tracy D. Cluck