author: JAMES T. WORTHEN, Chief Justice.

text:
    In re Raymond WINGFIELD, State Counsel for Offenders and Kim Vernon, Director, State Counsel for Offenders.
    No. 12-05-00151-CV.
    Court of Appeals of Texas, Tyler.
    July 7, 2005.

      Daniel E. Maeso, Adrian L. Young, Austin, for relator.
    Susan Lea Hays, for respondent.
    Mark D. Mullin, Melinda Mayo, Potter County Dist. Atty., Amarillo, Barbara Law, for real party in interest.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Relators Raymond Wingfield, State Counsel for Offenders (SCFO), and Kim Vernon, SCFO Director, seek mandamus relief from two orders signed on December 15, 2004 and April 6, 2005, respectively, by Respondent, the Honorable Jim Parsons, presiding judge of the 3rd Judicial District Court of Houston County, Texas, sitting in the 349th Judicial District Court of Houston County. We conditionally grant the petition in part and deny in part.

Background

The underlying proceeding is a criminal case brought against Wingfield by the State of Texas. Wingfield, along with his codefendant, Dalton Collins, is charged with multiple serious crimes allegedly committed during an escape attempt from a prison unit operated by the Texas Department of Criminal Justice. On November 1, 2004, Respondent signed an order appointing SCFO to represent Wingfield and Collins. Approximately two weeks later, SCFO filed a motion to withdraw as Wingfield’s counsel citing a likely conflict in representing both defendants. On December 15, 2004, without a hearing, Respondent overruled SCFO’s motion and ordered SCFO to take all reasonable steps to erect a “Chinese Wall” during its dual representation of Wingfield and Collins. On February 16, 2005, at SCFO’s request, the trial court set a hearing for April 4 to permit SCFO to re-urge its motion to withdraw.

On February 18, eleven of the thirteen attorneys on the Houston County indigent defense appointment list filed a plea in intervention. Intervenors alleged that the county is to pay $250 of the fee charged by non-SCFO defense counsel appointed to represent indigent inmate defendants and that the state comptroller “shall” pay the remainder that is properly certified. See Tex.Code Ckim. PROC. Ann. § 26.051(h) (Vernon Supp.2004-05). However, Inter-venors averred that “[d]espite certification [of the fee] ..., the comptroller has repeatedly refused to issue payment to court appointed attorneys in these types of cases in the past due to insufficient funds available.” Consequently, Intervenors concluded, allowing SCFO to withdraw and appointing any of the intervenors to represent Wingfield would violate appointed counsel’s rights under the United States and Texas constitutions.

On February 21, Respondent signed an order permitting the intervention “for the limited purpose of representing Interve-nors’ interests at the hearing on the State Counsel for Offenders Motion to Withdraw.” On April 4, SCFO filed a motion to strike the plea in intervention. On the same day, the court held an evidentiary hearing.

At the hearing, Respondent first heard argument on SCFO’s motion to strike. Respondent then ruled that he would “leave [Intervenors] in limited to this sole issue with regard to your withdrawal of my prior order. I view it, though, as an amicus curiae. Their participation will not in any way help or harm the substantive rights of the defendants involved.”

SCFO presented uncontroverted evidence that it could not provide conflict-free representation to Wingfield. During Director Vernon’s testimony, Respondent asked what steps had been taken to comply with the Chinese Wall portion of the December 15, 2004 order. Director Vernon informed Respondent that no steps had been taken.

Intervenors pointed out that payments for indigent inmate defense counsel claims are limited to $25,000 per claim and to $25,000 in cumulative payments to a single claimant during a biennium. See Tex. Gov’t Code Ann. § 408.074(d) (Vernon 2005). If insufficient funds are available to pay the claim, it may not be paid until the Legislature provides for payment. See id. § 403.074(d). Intervenors presented evidence that any claim over $25,000 must be submitted in its entirety to the Legislature for payment and that the attorney’s fee for representing Wingfield could exceed $25,000. Intervenors also presented evidence that (1) even for claims under $25,000, the Legislature has not appropriated dedicated funds; (2) the miscellaneous fund from which those claims are paid had a balance of approximately $9 on the date of the hearing; (3) no further claims can be paid from the miscellaneous fund this fiscal year; (4) additional funds will not be available until September 2005, provided the Legislature makes that appropriation; and (5) the comptroller had no claims pending for attorney’s fees. Finally, Intervenors presented evidence to support their contention that “only the very small class of rural criminal defense lawyers living in prison counties is bearing the burden of Texas’[s] failure to adequately fund indigent inmate defense.”

Intervenors argued that the payment system for non-SCFO counsel requires appointed counsel to undertake representation without adequate, timely compensation and is therefore unconstitutional as a taking, a violation of the equal protection clause, and a violation of a defendant’s right to effective counsel. At the conclusion of the hearing, Respondent denied SCFO’s motion to reconsider his prior order denying SCFO’s motion to withdraw. Respondent also found Director Vernon in contempt for her “open court admissions” that she had taken no steps to erect a Chinese Wall as required by Respondent’s prior order. Respondent sentenced Director Vernon to three days in the Houston County Jail, probated until May 6, 2005 at 1:00 p.m., which was the time set for Wingfield’s arraignment. On April 6, Respondent signed an order incorporating his rulings on SCFO’s motions and Director Vernon’s contempt. Respondent made a finding in the order that appointing non-SCFO counsel to represent an indigent inmate defendant where the anticipated reasonable fee would equal or exceed $25,000 would be an appointment without a reasonable expectation of payment. Respondent further concluded that appointment without a reasonable expectation of payment violates appointed counsel’s “constitutional privilege against unreasonable taking.” This original proceeding followed. We granted SCFO’s motion for emergency relief pending our disposition on the merits.

Availability of Mandamus

Mandamus relief is appropriate if the relator demonstrates that the act sought to be compelled is purely “ministerial” and that the relator has no other adequate legal remedy. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App.2003). For a duty to be ministerial, the law must “clearly spell [ ] out the duty to be performed ... with such certainty that nothing is left to the exercise of discretion or judgment.” State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 928 (Tex.Crim.App.2001) (quoting Texas Dep’t of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim. App.1981)). In other words, the act must be “positively commanded and so plainly prescribed” under the law “as to be free from doubt.” State ex rel. Hill, 34 S.W.3d at 928 (quoting Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Crim.App.1992)).

The “ministerial act” requirement has also been described as a requirement that the relator have “a clear right to the relief sought.” State ex rel. Hill, 34 S.W.3d at 928. This means that the relief sought must be clear and undisputable. State ex rel. Rosenthal, 98 S.W.3d at 198. Thus, its merits must be beyond dispute with nothing left to the exercise of discretion or judgment. Id. If there is any discretion or judicial determination attendant to the act, it is not ministerial, nor is it a ministerial act if the trial court must weigh conflicting claims or collateral matters that require legal resolution. State ex rel. Hill v. Court of Appeals for the Fifth District, 67 S.W.3d 177, 181 (Tex.Crim.App.2001). Mandamus may be used to correct judicial action that is contrary to well-settled law, whether the law is derived from statute, rule, or clear, binding precedent from a court of superior jurisdiction. See State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994).

Denial of Motion to Withdraw

Relators first argue that Respondent had a ministerial duty to appoint a non-SCFO attorney to represent Wing-field. See Tex.Code Crim. PROC. Ann. art. 26.051(g). Relators further contend that they have no adequate remedy at law to challenge Respondent’s denial of SCFO’s motion to withdraw and, therefore, mandamus is appropriate. Withdrawal of counsel is a proper subject of mandamus. Haley v. Boles, 824 S.W.2d 796, 798 (Tex. App.-Tyler 1992, orig. proceeding). Consequently, we must address only whether Relator had a ministerial duty to appoint non-SCFO counsel for Wingfield.

Article 26.051(g) provides as follows:

The court shall appoint an attorney other than an attorney provided by the [Texas Board of Criminal Justice] if the court determines for any of the following reasons that a conflict of interest could arise from the use of an attorney provided by the board [for an inmate who is charged with an offense committed while in the custody of the Texas Department of Criminal Justice]:
(1) the case involves more than one inmate and the representation of more than one inmate could impair the attorney’s effectiveness;
(2) the case is appealed and the court is satisfied that conflict of interest would prevent the presentation of a good faith allegation of ineffective assistance of counsel by a trial attorney provided by the board; or
(3) any conñict exists under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas that precludes representation by an attorney appointed by the board.

TexCode CRIM. PROC. Ann. art. 26.051(g) (emphasis added). The plain language of the statute requires the trial court to appoint non-SCFO counsel if at least one of the three criteria is met. No exceptions are stated. Thus, the act of appointing non-SCFO counsel becomes ministerial once SCFO makes the required showing.

In its motion to withdraw, SCFO alleged that Wingfield’s interest in the defense of the respective charges differed from the interest of his codefendant. For that reason, SCFO alleged, its judgment in behalf of codefendant Collins is likely to adversely affect its representation of Wingfield, which necessitated its withdrawal from the representation. See Almanzar v. State, 702 S.W.2d 653, 655 (Tex.Crim.App.1986) (‘We wish to stress how vital it is for a defense attorney not to become entangled in a web of conflicting interests between two or more defendants.”). The December 15, 2004 order provides in pertinent part as follows:

5. The creation of a “Chinese Wall” is an adequate remedy at law, in lieu of withdrawal which is equally convenient, beneficial and effective. The creation of a “Chinese Wall” will both satisfy the professional requirements of independent representation and assure legal counsel for inmate defendants.
6. The Court has a duty to protect a defendant’s right to due process of law under both the United States and Texas Constitutions. These constitutional considerations override the inconvenience to State Counsel for Offenders in the creation of a “Chinese Wall” to prevent the anticipated conflicts in representation of multiple defendants.
7. Through the creation of a “Chinese Wall” between defense counsels the preservation of the secrets and confidences of respective defendant clients as well as the independent professional judgment of defense counsel may be maintained.
It is therefore Ordered that State Counsel for Offenders take all reasonable steps to create a “Chinese Wall” to protect the confidentiality, secrets, and work product and independent professional judgment of separate defense counsel within the State Counsel for Offenders as they discharge their statutory obligation of representation.

These findings indicate Respondent recognized that a conflict could arise from SCFO’s dual representation of Wingfield and Collins and that the conflict could impair defense counsel’s effectiveness. As such, the statutory prerequisites for appointment of non-SCFO counsel were satisfied. See Tex.Crim. PROC. Ann. art. 26.051(g)(1). However, that is not the end of the matter.

Denial of Motion To Strike Plea In Intervention

Respondent contends that in making his ruling, he was required to balance the interest asserted by Intervenors and Wingfield’s right to conflict-free representation, which, in turn, necessitated resolution of the conflict between Code of Criminal Procedure article 26.051(g) and Government Code section 403.074.

In response to Relators’ mandamus petition, Respondent contends that “[t]he appointment of private counsel without reliable compensation raises takings and equal protection violations for the attorney and adequate representation issues for the defendant.” Consequently, Respondent argues, a “constitutional conundrum” exists and he “made the most palatable decision possible under the difficult circumstances not of the judiciary’s making.” Relators, on the other hand, contend that no provision or precedent exists in Texas criminal law for pleas in intervention. Therefore, Relators contend, Respondent should have granted SCFO’s motion to strike.

Intervention in civil actions has long been permitted in Texas. See Legg v. McNeill, 2 Tex. 428, 430-31 (Tex.1847). In approving the practice, the Texas Supreme Court reasoned that “[hjaving in our system but one form of action, we cannot perceive how the interest of parties not embraced in the suit can always be protected without allowing them to come in as intervenors.... ” Id. at 430. The current rule permits any party to intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. See Tex.R. Civ. P. 60. However, Rule 60 applies to civil cases only. See Tex.R. Civ. P. 2 (Texas Rules of Civil Procedure govern the procedure in all actions of a civil nature.); see also Holloway v. State, 147 Tex.Crim. 106, 108, 178 S.W.2d 688, 689 (Tex.1944) (rules governing civil actions are applicable and controlling in criminal matters only when expressly made so by statute).

Criminal proceedings are governed by the Texas Code of Criminal Procedure. Tex.Code CRiM. PROC. Ann. art. 1.02 (Vernon 2005). A “criminal action,” such as the underlying proceeding, is prosecuted in the name of the State of Texas against the accused and is conducted by some person acting under the authority of the State, in accordance with its laws. Tex.Code Ciom. PROC. Ann. art. 3.02 (Vernon 2005). Unlike the Rules of Civil Procedure, the Code of Criminal Procedure makes no provision for a third party to intervene in a “criminal action.” In his response to Relators’ petition, Respondent does not cite authority permitting intervention in a criminal action. Intervenors rely on Rule 60, but admit that “there may be some question whether an intervention per se is permitted in criminal matters, in the absence of specific authority to do so under the Code of Criminal Procedure.” We have been unable to locate any authority that Rule 60 is an exception to the general rule that the Texas Rules of Civil Procedure are controlling in criminal matters only when expressly made so by statute. See Holloway, 147 Tex.Crim. at 108, 178 S.W.2d at 689.

Additionally, we note that the April 6 order includes findings that Intervenors “had an interest in the issue before the Court, sufficient for them to intervene” and that the intervention was “in the nature of an amicus curie [sic].” A true amicus curiae is without interest in the proceeding in which he appears. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120-21 (Tex.1957). He is a “bystander” whose mission is to aid the court to act only for the personal benefit of the court. Id. Neither Respondent nor Intervenors have cited any authority permitting one claiming an interest in a proceeding to appear in the proceeding as amicus curiae, and we have been unable to locate any such authority.

Based upon the foregoing authority and the absence of contrary authority, we agree with Relators that Respondent had no discretion to deny SCFO’s motion to strike the plea in intervention. It therefore follows that if Respondent had no discretion to deny SCFO’s motion to strike, he had no discretion to consider the issues raised by Intervenors. Because SCFO satisfied the statutory prerequisites, Respondent had a ministerial duty to grant SCFO’s motion to withdraw and appoint non-SCFO counsel.

Contempt Order

An order of contempt is not appealable. Ex parte Gray, 649 S.W.2d 640, 642 (Tex.Crim.App.1983). Generally, if the contemnor has not been confined, she has no other adequate remedy at law but mandamus. Id. However, as an officer of the court, an attorney has a right, upon proper motion filed in the offended court, to be released on her own personal recognizance pending a de novo determination of her guilt or innocence by a judge other than the judge of the offended court. See Tex. Gov’t Code Ann. § 21.002(d) (Vernon 2004); Ex parte Waters, 499 S.W.2d 309, 310-11 (Tex.Crim.App.1973). Once a finding of contempt has been entered and an attorney has filed a motion for referral, the trial court has a ministerial duty to refer the contempt proceeding to the presiding judge of the administrative judicial region in which the alleged contempt occurred for assignment of a judge to re-adjudicate the issues of guilt or innocence and punishment. Tex. Gov’t Ann.Code Ann. § 21.002(d); see Ex parte Howell, 488 S.W.2d 123, 126 (Tex.Crim.App.1972). Therefore, Director Vernon has an adequate remedy at law for the contempt order, and her request for mandamus relief is premature. See Ex parte Waters, 499 S.W.2d at 311.

Conclusion

Relators’ petition, the various responses, and the supporting record identify the legal issues and resulting dilemma in rural prison counties when SCFO, because of a potential or an actual conflict of interest, must withdraw from representing an indigent inmate accused of committing an offense while incarcerated. We are not unsympathetic to the situation. However, our charge is to determine whether the acts Relators seek to compel are ministerial and whether Relators have an adequate legal remedy. State ex rel. Rosenthal, 98 S.W.3d at 198.

We have concluded that Respondent had a ministerial duty to grant SCFO’s motion to withdraw and appoint non-SCFO counsel to represent Wingfield. Therefore, Respondent had no discretion to order the creation of a Chinese Wall in lieu of the withdrawal mandated by article 26.051(g). We have also concluded that Respondent had no discretion to deny SCFO’s motion to strike Intervenors’ plea in intervention. Moreover, Wingfield and SCFO have no adequate remedy at law. See Haley, 824 S.W.2d at 798. However, Director Vernon has an adequate remedy at law for challenging the contempt order.

We conditionally grant the writ of mandamus as to (1) those portions of the April 6 order overruling SCFO’s motion to reconsider Respondent’s denial of SCFO’s motion to withdraw and overruling SCFO’s motion to strike Intervenors’ plea in intervention and as to (2) the portion of the December 15, 2004 order requiring the creation of a Chinese Wall. We are confident that on or before fifteen days from the date of this opinion and corresponding order, Respondent will vacate these provisions of the respective orders and enter an order granting SCFO’s motion for reconsideration of its motion to withdraw and granting SCFO’s motion to strike the plea in intervention. The writ will issue only if he does not. Because Director Vernon has an adequate remedy at law, she has not shown herself entitled to mandamus relief. Therefore, we deny the writ as to the contempt portion of the April 6 order.

The stay of May 2, 2005 is lifted.

      . SCFO represents indigent inmates who are charged with offenses committed while in the custody of Texas Department of Criminal Justice, Institutional Division. See Tex.Code Crim. Proc. Ann. art. 26.051(e) (Vernon. 2004-05).

      . During the hearing, Respondent expressed doubt that the Legislature would approve payment of these claims.

      . On June 20, 2005, Respondent notified this Court by letter that the appropriations bill for the upcoming biennium (fiscal years 2006-07) provides additional funding for the payment of miscellaneous claims, but the $25,000 statutory cap remains. Respondent also reiterated his conclusion that “it is only in cases likely to hit the $25,000 statutory cap where free world counsel does not have a reasonable expectation of payment and thus constitutional takings concerns override.”

      . In this proceeding, Respondent states that "[t]he use of dual representation by the State Counsel even with a Chinese Wall admittedly raises legitimate conflicted representation concerns.”

      . As an aside, we perceive no conflict between the two statutes. Article 26.051(g) prescribes the circumstances under which non-SCFO counsel must be appointed for indigent inmate offenders, and section 403.074 creates a payment system for those appointed. The real issue, as presented by Intervenors at the evidentiary hearing and as argued by Interve-nors and Respondent in this proceeding, is the constitutionality of the payment system.

      . An exception is Texas Rule of Civil Procedure 18a relating to the recusal of judges. See Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App.1993) (holding that Rule 18a, formerly codified in Tex.Rev.Civ. Stat. Ann. art. 200a, § 6 but repealed by Act of June 12, 1985, 69th Leg., R.S., ch 480, § 26(1), 1985 Gen. Laws 2048, applies in criminal cases).


source: Caselaw Access Project

author: BEA ANN SMITH, Justice. DAVID PURYEAR, Justice,

license: Public Domain

text:
    Armando MORAN, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00140-CR.
    Court of Appeals of Texas, Austin.
    July 7, 2005.
    Rehearing Overruled Aug. 10, 2005.

      Erick A. Bovik, Bovik & Meredith, P.C., Austin, for appellant.
    C. Bryan Case, Jr., Assistant District Attorney, Austin, for appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

A jury convicted Armando Moran of murder, and the court sentenced him to fifty years in prison. In this appeal, Moran raises a single point of error contending that the trial court improperly admitted his inculpatory statements. Because we hold that Moran’s statements were the product of custodial interrogation by the police after he had invoked his right to counsel, we reverse the judgment of conviction and remand for further proceedings.

BACKGROUND

Moran’s only point of error concerns the admission of his two written statements into evidence. Moran was convicted of the murder of Tony Alcantar. At the time, Moran was staying in Tony Alcantar’s apartment along with Alcantar’s fourteen-year-old daughter V.A., Alcantar’s ex-wife Hilda Alcantar, and her sons Jose and Jerry Garza. Jose’s fourteen-year-old girlfriend, J.V., was also present during the events in question. Tony and Hilda Alcantar had a loud argument on the evening of May 17, 2002, during which Tony told Hilda and the others to move out of the apartment. Afterward, Moran left the apartment with Tony Alcantar. Moran returned momentarily and retrieved Tony Alcantar’s gun. Later that evening, Moran returned alone and told Hilda Alcantar that he had shot Tony Alcantar in the head and left him near Town Lake.

Following the murder, Moran helped the others move their possessions out of Tony Alcantar’s apartment, and they all spent the night at a motel. The next morning, Moran, Hilda Alcantar, and V.A. took a bus to Laredo; Jerry and Jose took Jose’s girlfriend J.V. home and then drove to Laredo. Tony Alcantar’s body was found near Town Lake that morning. He had been shot in the head, and his pistol was found on the ground about 20 feet away. The police identified the body from a driver’s license found at the scene and subsequently sealed off Tony Alcantar’s apartment. Later in the day, J.V.’s father called the police after visiting the apartment and seeing that it had been sealed as a crime scene. J.V. then told the police what had happened the night before.

Laredo police were contacted, and they located Moran, Hilda Alcantar, her sons, and V.A. All were interviewed at the Laredo police station. As a result of these interviews, Tony Alcantar’s car was found by Austin police in a supermarket parking lot. Police found Tony Alcantar’s jewelry hidden in the tire well of the car.

Laredo detectives Primo Guzman and Martin Guerra interviewed Moran. Guzman testified about his interview of Moran in a pretrial hearing and at Moran’s trial. Guzman stated that he informed Moran of his rights, explained that he was assisting the Austin Police Department in a homicide investigation, and that Moran was a suspect. At that point, Moran told Guzman that he wanted to speak with an attorney. Guzman testified that he then told Moran, “That’s fine, that was his right,” but added that the detectives had already interviewed Hilda, Jose, and Jerry. Guzman stated that he and Guerra then got up and began walking toward the door. Guzman described Moran’s response:

As we reached for the — I reached for the door, and Guerra was right behind me. I just opened it up. And [Moran] said, “simón," which means, yes, I -will tell you, I will tell you what happened.

Guzman and Guerra returned to their seats and Moran began to discuss the murder. Guzman and Guerra then asked Moran to write out a statement. Moran was given a form entitled “Voluntary Written Statement.” He placed his initials next to the following statements on that form:

(1) I have the right to remain silent and not make any statement at all and that any statement I make may be used against me in court;
(2) Any statement I make may be used in evidence against me in court;
(3) I have the right to have a lawyer present to advise me either prior to any questioning or during any questioning;
(4) If I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during questioning; and
(5) I have the right to terminate this interview at any time.

Guzman and Guerra left the room while Moran wrote out a statement. In his first statement, Moran wrote that he went with Tony Alcantar to Town Lake and the two began arguing. Moran wrote that the gun fell out of his jacket during the argument. Tony Alcantar grabbed for the gun, and Moran shot Tony Alcantar as Tony was running.

Guzman testified that he returned to the room after Moran had signed the statement and informed Moran that there might have been an eyewitness to the shooting. This prompted Moran to write a second statement. In this statement, Moran wrote that after he and Tony Al-eantar had been fighting at Town Lake for “a good hour,” Moran “ran in front of him, pulled the trigger and ran.” He then left the gun at the scene of the murder.

Moran also testified at the pretrial hearing. He stated that he was intoxicated during the questioning and that he had not slept the since the day before. On direct examination, Moran stated that he did not recall making an oral statement but did remember making the written statements. On cross examination, Moran testified that he remembered informing Guzman that he wanted to speak with an attorney. Moran was then asked about what happened next:

Q. Do you remember what, what happened after you indicated you wanted to speak with an attorney?
A. Well, I remember — I don’t remember what was said. I just remember him starting to walk out of the door.
Q. All right. What if anything do you remember happening when he started to walk out the door?
A. I believe I told him yes, I’ll say something.
Q. And why did you say that?
A. Because I felt that, you know, I would be able to leave.
Q. What made you think that you would be able to leave if you said something versus not saying it?
A. Because I wasn’t thinking clearly, sir.
Q. All right. So it wasn’t anything that Detective Guzman said? It was just because you weren’t thinking clearly?
A. Well, he said, you know, make it easier on yourself.
Q. When did he say that?
A. Right before he got up.

Moran added that his statement that he would tell Guzman what happened was made directly after Guzman’s suggestion that Moran make it easier on himself.

Both of Moran’s written statements were introduced at trial. Although witnesses testified that Moran made several oral statements to the police, the State did not attempt to introduce those statements at trial.

DISCUSSION

In his only point of error, Moran contends that the trial court erred by failing to suppress his written statements, which were the product of custodial interrogation after he had invoked his right to counsel. In reviewing a ruling on a motion to suppress, we give almost total deference to the trial court’s determination of historical facts. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Hayes v. State, 132 S.W.3d 147, 151 (Tex.App.-Austin 2004, no pet.). The trial court entered findings of fact and conclusions of law stating only that Moran’s written statements were freely and voluntarily made after he knowingly, intelligently, and voluntarily waived his Miranda rights.

Admission of Moran’s Written Statements

Moran relies on the “bright-line rule” set forth by the United States Supreme Court in Edwards v. Arizona; once a suspect invokes his right to counsel, all custodial interrogation must cease. See 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Cross v. State, 144 S.W.3d 521, 526 (Tex.Crim.App.2004); see also Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”). The Court stated that the purpose of the rule is to counteract the inherently compelling pressures of custodial interrogation and to permit a full opportunity for an individual to exercise the privilege against self incrimination. Atizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (citing Miranda, 384 U.S. at 467, 86 S.Ct. 1602). “[T]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” Id.

The United States Supreme Court has repeatedly emphasized the virtue of a bright-line rule in cases following Edwards. See Roberson, 486 U.S. at 681, 108 S.Ct. 2093; Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). The Court explained that the value of “informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements made during such interrogation are admissible,” outweighs the burden of excluding what may otherwise be relevant and trustworthy evidence. Roberson, 486 U.S. at 681-82, 108 S.Ct. 2093; see also Smith, 469 U.S. at 98, 105 S.Ct. 490 (bright-line prohibition needed to prevent authorities from badgering or overreaching, explicitly or subtly, deliberately or unintentionally); McCambridge v. State, 778 S.W.2d 70, 76 (Tex.Crim.App.1989) (purpose of Edwards to establish rule immune from vagaries that invariably accompany diverse factual encounters).

This bright-line rule only applies to the actions of the police. A suspect may waive his previously invoked right to counsel:

A suspect’s invocation of his right to counsel acts like a protective Edwards bubble, insulating him from any further police-initiated questioning. Only the suspect himself can burst that bubble by both initiating communications with police and expressly waiving his right to counsel. Once that bubble is burst, however, Edwards disappears, and the police are free to reinitiate any future communications and obtain any further statements as long as each statement is voluntarily made after the waiver of Miranda rights.

Cross, 144 S.W.3d at 529. In Cross, the court of criminal appeals recognized a two-step test for whether a suspect has waived a previously invoked right to counsel. See id. at 527 (adopting test set forth in Oregon v. Bradshaw, 462 U.S. 1039, 1044-45, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)). In order to prove the waiver of a previously invoked right to counsel, the State must show (1) the suspect reinitiated communication with the police, and (2) after reiniti-ating communication, he validly waived his right to counsel. See id.

Here, the record reflects, and the State does not dispute, that Moran was in police custody and invoked his right to counsel prior to making any inculpatory statement to the police. Thus, we will apply the two-part test discussed in Cross. See id., 144 S.W.3d at 527. We first determine whether Moran reinitiated communication with the police or if his statements were in response to further interrogation. See id. Although the trial court found that Moran validly waived his right to counsel prior to making the written statements at issue, the findings of fact and conclusions of law do not address whether Moran reinitiated communication with the police.

After Moran invoked his right to counsel, Guzman told Moran, “that was his right ... we had already spokefn] to Hilda, we spoke to Jose Luis and Jerry.” Guzman and Guerra then got up from their chairs and began walking toward the door. At this point, Moran decided to make a statement. Moran contends he responded to Guzman’s comment, which was the equivalent of interrogation, and therefore, he did not “reinitiate” communication with the police.

Interrogation is not limited to questions; any words or actions by police may be considered interrogation if the police “should have known [they] were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see Jefferson v. State, 974 S.W.2d 887, 890 (Tex.App.-Austin 1998, no pet). But not all interactions between the police and a suspect in custody will constitute inteiTogation. See Camarillo v. State, 82 S.W.3d 529, 535 (Tex.App.-Austin 2002, no pet.). We do not look at the statements made by police in a vacuum; rather we construe those statements in light of the circumstances of the interaction between the police and the accused on each particular occasion. See Morris v. State, 897 S.W.2d 528, 532 (Tex.App.-El Paso 1995, no pet.). Where the comments of the police are “designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” Innis, 446 U.S. at 301 n. 7,100 S.Ct. 1682.

The court of criminal appeals has discussed those types of questions that will not be found to constitute interrogation. See Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App.1990). “Routine inquiries, questions incident to booking, broad general questions such as ‘what happened’ upon arrival at the scene of a crime, and questions mandated by public safety concerns, e.g., ‘where did you hide the weapon’ when the weapon has just been hidden in the immediate vicinity” are not interrogation. Id. at 174 n. 3. Offhand remarks not designed to elicit any kind of response also do not constitute interrogation. Camarillo, 82 S.W.3d at 535; see Innis, 446 U.S. at 303, 100 S.Ct. 1682; Murray v. State, 864 S.W.2d 111, 114 (Tex.App.-Texarkana 1993, pet. ref'd) (officer wishing suspect “happy birthday” not interrogation).

The State attempts to characterize Guzman’s comment as an “offhand remark” that was not designed to elicit any kind of response. See Camarillo, 82 S.W.3d at 535. Guzman did not testify regarding his motivation in making the comment. However, the only possible conclusion from the record is that Guzman’s comment, that the officers had spoken with other witnesses, was an attempt to influence Moran to change his mind regarding his invocation of his right to counsel. The comment was made in direct response to Moran’s invocation of his right to counsel, and Guzman knew that Moran was already aware of the information provided, that others were also being questioned. In fact, Guzman’s comment to Moran is consistent with recognized interrogation techniques. Inbau and Reid’s seminal work on criminal interrogation explains:

When two or more persons have collaborated in the commission of a criminal offense and are later apprehended for questioning, there is usually a constant fear on the part of each participant that one of them will “talk”.... This fear and mutual distrust among co-offenders can be made the basis for the effective interrogation technique of “playing one against the other.” Since this tactic involves largely a bluff on the part of the investigator, however, it should be reserved as a last resort, to be used only after other possible tactics have failed to produce the desired result.... The investigator may merely intimate to one offender that the other has confessed, or else the investigator may actually tell the offender so.

Fred E. Inbau et al, Criminal Interrogation & Confessions 292-93 (4th ed.2004); see also Charles E. O’Hara & Gregory L. O’Hara, Fundamentals of Criminal Investigation 144 (6th ed.1994) (describing technique of “bluff on a split pair” in which two suspects are separated and one is informed the other has talked). After Moran invoked his right to counsel, Guzman employed the “last resort” interrogation strategy of intimating to Moran that the others had spoken with the police.

This case is distinguishable from the opinions of the Fifth Circuit Court of Appeals and the North Carolina Court of Appeals cited by the State. See State v. Jordan, 128 N.C.App. 469, 495 S.E.2d 732 (1998); Plazinich v. Lynaugh, 843 F.2d 836 (5th Cir.1988). In Jordan, a suspect told an officer that he was telling the truth and that he wanted an attorney. In response, the officer stated, “no you did not that’s bullshit, you’re lying, and you’re going to jail for murder.” at 471, 495 S.E.2d 732. He then ordered the suspect booked into jail. During the booking process, the suspect decided to make further incriminating statements. See id. With little explanation, the court concluded that the officer’s comment was not reasonably likely to elicit an inculpatory response. See id. at 472, 495 S.E.2d 732.

In Plazinich, Cade Plazinich and his “temporary companion” were both arrested. See 843 F.2d at 837. Plazinich invoked his right to counsel while being questioned regarding a murder. See id. While Plazinich was being returned to jail, he was told by an officer that his female companion had attempted suicide. See id. Plazinich responded by asking to speak with an assistant district attorney and that he would consider making a statement. See id. After again speaking with his attorney, Plazinich made an inculpatory statement claiming sole responsibility for the murder. See id.

In both cases, the comment made by the police officer could be construed to serve a purpose other than to induce an inculpato-ry response, or no purpose at all. In Jordan, the statement was simply an expression of anger by the officer. Nor did the certainty of the statement that Jordan was going to jail imply that a more truthful offering by Jordan would produce a more favorable result. See at 471, 495 S.E.2d 732. In Plazinich, the officers informed Plazinich that his companion had attempted suicide. See 843 F.2d at 837. This was information that Plazinich had not confirmed and that Plazinich clearly would have wanted to know. More importantly, Plazinich actually spoke with his attorney after the comment was made but prior to making his inculpatory statement. See id.

By contrast, Guzman’s comments to Moran can only be construed as inviting an inculpatory response by Moran. Guzman’s comment that he had spoken to other witnesses was made immediately after, and in direct response, to Moran’s assertion of his right not to make a statement. Importantly, Guzman’s comment is consistent with well established interrogation techniques. Although the Fifth Circuit’s opinion in Plazinich appears to approve of an officer giving a suspect “food for thought” after the right to counsel is invoked, see 843 F.2d at 840, the United States Supreme Court has indicated that such a practice is not permitted. See Innis, 446 U.S. at 301 n. 7, 100 S.Ct. 1682. Based on the undisputed record, we conclude that Guzman’s comment was an interrogation technique and that Guzman should have known that his comment was reasonably likely to elicit an inculpatory response. See id. at 302,100 S.Ct. 1682.

Although Guzman’s comment to Moran may seem innocuous, it came only seconds after Moran had invoked his right to counsel. In that context, we hold that this classic interrogation technique was reasonably calculated to elicit an inculpatory response. Characterizing such prompting by the police as an offhand remark would blur the edges of the bright-line rule enunciated in Edwards — -a step the Supreme Court and Texas courts have declined to take. See Roberson, 486 U.S. at 681, 108 S.Ct. 2093; Smith, 469 U.S. at 98, 105 S.Ct. 490; Cross, 144 S.W.3d at 526; McCambridge, 778 S.W.2d at 76. We hold that Moran’s statement was made in response to continued interrogation and that Moran did not reinitiate communication after he invoked his right to counsel. See Cross, 144 S.W.3d at 527. Thus, the trial court erred by admitting Moran’s written statements.

Harm Analysis

Because we find that Moran’s Fifth Amendment right to counsel was violated through the admission of his written statements, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R.App. P. 44.2(a) (incorporating holding in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The Supreme Court further explained the Chapman standard in Sullivan v. Louisiana:

Harmless-error review looks, we have said, to the basis on which “the jury actually rested its verdict.” ... The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.

508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (Scalia, J., opinion for unanimous court). We must be especially cautious when applying the Chapman standard in cases where a defendant’s own confession was erroneously admitted:

A confession is like no other evidence. Indeed “the defendant’s own confession is probably the most probative and damning evidence that can be admitted against him ... the admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have a profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even when told to do so.”

Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J. dissenting)).

Applying the Chapman standard to this case, we cannot conclude that the verdict in Moran’s trial was “surely unattributable” to the admission of his inculpatory statements. See Sullivan, 508 U.S. at 279, 113 S.Ct. 2078. Moran’s statements were the centerpiece of the State’s evidence. No physical evidence linked Moran to the crime scene, the gun, or Tony Alcantar’s vehicle. The only other evidence connecting Moran to the murder is the testimony of Hilda Alcantar and Jose Garza who stated that Moran told them that he shot Tony Alcantar. Although the testimony of these witnesses corresponds with the evidence, we cannot ignore the dramatic impact that a confession, written by Moran himself, must have had on the jury’s determination of guilt. See Fulminante, 499 U.S. at 296, 111 S.Ct. 1246. We hold that the error in the admission of Moran’s written statements contributed to the conviction, and, therefore, we must reverse the conviction. See Tex.R.App. P. 44.2(a); Chapman, 386 U.S. at 24, 87 S.Ct. 824.

CONCLUSION

We hold that the trial court erred by admitting Moran’s written statements into evidence because those statements were the product of continued interrogation after Moran had invoked his right to counsel. We cannot conclude beyond a reasonable doubt that this error did not contribute to the conviction. Accordingly, we reverse the judgment of conviction and remand for further proceedings consistent with this opinion.

Dissenting Opinion by Justice PURYEAR.

DAVID PURYEAR, Justice,

dissenting.

Because I strongly disagree with the majority’s characterization of the officer’s offhand comment in this case as one he should have known would elicit an incriminating response, I would affirm the conviction and must respectfully dissent.

DISCUSSION

The issue in this case is whether Moran was “interrogated” in violation of his Miranda rights. The purpose of these procedural safeguards is to prevent the “interrogation environment” from subjugating the suspect to the will of the examiner and thereby undermining his privilege against compulsory self-incrimination. Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These safeguards come into play when a suspect in custody is subjected to questioning or its functional equivalent; that is, words or actions that the police should know are reasonably likely to elicit a response that the prosecution may seek to introduce at trial. Rhode Island v. Innis, 446 U.S. 291, 300-01 & n. 5, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Where, as here, a defendant has invoked his right to an attorney, all further police questioning must stop. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (“[A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.”); see also Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (Miranda’s and Edwards ⅛ prophylactic protections are necessary to counteract inherently compelling pressures of custodial interrogation and suspect’s waiver of rights upon continued pressure despite his request for counsel is presumptively involuntary); Innis, 446 U.S. at 305-06, 100 S.Ct. 1682. Because the “interrogation environment” includes practices other than express questioning of the suspect, the prohibition on custodial interrogation after the suspect requests an attorney includes other “techniques of persuasion,” including statements that the questioners know are likely to elicit an incriminating response. Id. at 299, 100 S.Ct. 1682. However, offhand comments or remarks not designed to elicit a response do not constitute interrogation. Camarillo v. State, 82 S.W.3d 529, 535 (Tex.App.-Austin 2002, no pet.) (citing In-nis, 446 U.S. at 303, 100 S.Ct. 1682). We do not hold the police accountable for unforeseeable results of their words or actions, so the definition of interrogation does not include words or actions unless the police should have known they were likely to elicit an incriminating response. Innis, 446 U.S. at 302, 100 S.Ct. 1682.

Certainly here, where the officers responded to Moran’s request for counsel by saying, “That’s fine,” and that he had the right to an attorney before mentioning that they had spoken to other witnesses and standing up and walking to the door, this statement was not designed to elicit a response. I would hold that, under Rhode Island v. Innis, such a statement cannot be considered interrogation and that Moran’s rights against compelled self-incrimination were not violated.

In Rhode Island v. Innis, the defendant, after having been advised of his Miranda rights, interrupted a conversation between two police officers in his presence regarding the danger to students from a school for handicapped children in the area who might find and accidentally injure themselves with a firearm left in the vicinity. 446 U.S. 291, 295, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The defendant offered to show police the location of the gun; after being reminded of his Miranda rights, he indicated that he understood them but that he wanted to remove the gun because of his concerns for the children from the school in the area, and led the police to the weapon. Id. The United States Supreme Court held that the officers’ conversation in the defendant’s presence did not constitute “interrogation.” Id. at 304,100 S.Ct. 1682.

In reaching this conclusion, the Supreme Court noted that the conversation was not direct questioning, but a dialogue between two officers “to which no response from the respondent was invited.” Id. at 302, 100 S.Ct. 1682. Similarly, Moran was not invited to respond to the officer’s comment, as evidenced by the officer’s acknowledgment that, because Moran requested an attorney, their conversation was over and by both officers’ movement toward the door. “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S.Ct. 1682. In this appeal, we are faced with a situation in which the officers were immediately leaving the room, had ceased communicating with the suspect, and in which there was no visible compulsion other than that Moran remained in custody.

As in Innis, “this case boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response.” Id. at 303, 100 S.Ct. 1682. In Innis, as here, the officers made a few offhand remarks, not a lengthy harangue, and I do not believe that the officer’s comment was particularly evocative, especially given that Moran already knew that the witnesses the officer named had been taken into custody. See id. at 303, 100 S.Ct. 1682 (comments were not particularly evocative and officers had no way of knowing that “respondent would be particularly susceptible to an appeal to his conscience concerning the safety of handicapped children.”). In Innis, this meant that the officer should not have reasonably expected that his remarks would evoke such an incriminating response; I cannot see how Moran could make a more compelling case. The offhand comment does not constitute interrogation as defined by the United States Supreme Court.

Moran’s confession may only be excluded if the State has failed to show that he reinitiated communication with the police and thereafter validly waived his right to counsel. Cross v. State, 144 S.W.3d 521, 527 (Tex.Crim.App.2004). Once a suspect initiates communications with police and expressly waives his right to counsel, the police are free to obtain statements as long as each one is voluntarily made after the waiver of Miranda rights. Id. at 529. Here, the police terminated communication with Moran once he invoked his right to counsel, but Moran reinitiated communication when he stopped the officers from leaving the room as they reached for the door. Before writing his first statement, during which time the officers left the room, Moran initialed statements indicating that he understood his Miranda rights. He then waived his rights by writing his “Voluntary Written Statement.” This waiver was valid if the trial court properly found it to be knowing and intelligent under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. Oregon v. Bradshaw, 462 U.S. 1039, 1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (citing Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880). Here, in admitting both of Moran’s statements, the trial court found that his waiver was knowing and intelligent under all the circumstances. Because the record indicates that Moran was repeatedly informed and understood that he had a right not to talk and to have an attorney present and that the police had demonstrated their willingness to cease questioning if he invoked his Miranda rights, I would uphold the trial court’s finding that the waiver was voluntary and intelligent and its conclusion that the waiver was valid.

Thus, because the State has successfully shown that Moran reinitiated communication with the police and thereafter validly waived his right to counsel, I would hold that the trial court did not err in refusing to exclude his written confessions. Cross, 144 S.W.3d at 527.

CONCLUSION

Because the officer’s remark did not amount to interrogation under Innis and the State has satisfied both prongs from Cross, I would hold that the admission of Moran’s written confessions into evidence was not harmful error and affirm the judgment of the trial court. I respectfully dissent.

      . Moran, who was nineteen years old, had met V.A. on the internet, and the two were dating.

      . In fact, Guzman had no information regarding the presence of an eyewitness to the murder.

      . These findings were made in compliance with our memorandum opinion dated April 19, 2005. In that opinion we noted that article 38.22, section 6 of the code of criminal procedure requires a trial court to make findings of fact and conclusions of law as to whether a challenged statement was made voluntarily. See Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App.2004).

      . Although Moran testified that Guzman told him to "make it easier on himself,” we give deference to the trial court's determination of historical facts. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). Because the trial court denied the motion to suppress, we will assume that the trial court believed Guzman’s account of the events leading up to Moran’s inculpatory statements. However, there is no evidence in the record of Guzman’s intentions in making his comment. Thus, our consideration of the law, as applied to Guzman's account of the questioning, is de novo because it does not turn on an evaluation of his credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Hayes v. State, 132 S.W.3d 147, 151 (Tex.App.-Austin 2004, no pet.).

      . The 1963 edition of Inbau and Reid’s manual on interrogation was cited extensively by the United States Supreme Court in its opinion in Miranda v. Arizona. See 384 U.S. 436, 449-55, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (describing interrogation techniques contained in Fred E. Inbau & John E. Reid, Criminal Interrogation & Confessions (1962)).

      . There is also no evidence that the officer made representations of or threats concerning the content of the other witnesses' statements.

      . Indeed, if anything, Moran’s case is less compelling than that in Innis, where the suspect was confined in a car with two officers who could have gone on pressuring the suspect for any length of time regarding a continuing danger handicapped children. See Innis, 446 U.S. at 294-95, 100 S.Ct. 1682. Although Moran was confined in a room as an incident of his being in custody, the officers questioning him had indicated that they would respect his right to consult an attorney before speaking and had stood up and were exiting the room before he voluntarily spoke to them. There was no threat or possible danger; from all appearances all circumstances would remain as they were until Moran had an opportunity to consult an attorney as requested.

      . Moran initialed statements reading: “I have the right to remain silent ... any statement I make may be used against me in court,” "I have the right to have a lawyer present to advise me either prior to ... or during any questioning,” and "I have the right to terminate this interview at any time,” among others.


author: CHARLES W. SEYMORE, Justice.

text:
    P.B. MEEKEY and Michael Fulmer, Individually and on Behalf of All Others Similarly Situated, Appellants v. RICK’S CABARET INTERNATIONAL, INC., Texas Richmond Corporation d/b/a The Men’s Club, Caligula XXI, D.S.S.S. Ariamerica, Inc., Mylonas Anargyros George d/b/a Baby Dolls Saloon, Ice Embassy, Inc. d/b/a Colorado Bar & Grill, The St. James Restaurant and Cabaret, and D.N.W. Houston, Inc., Appellees.
    No. 14-04-00348-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 14, 2005.

      Sandra Thourot Krider, Houston, TX, for appellants.
    Phillip R. Livingston, David W. Pace, Lauren Serper, Rokki Ford Robert, Albert Thomas Van Huff, Joseph M. Grant, Houston, TX, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION ON REHEARING

CHARLES W. SEYMORE, Justice.

Appellees’ motion for rehearing is overruled. The substitute opinion of April 28, 2005 is withdrawn and the court issues this opinion on rehearing.

In this appeal from a dismissal for want of jurisdiction, P.B. Meekey and Michael Fulmer, individually, and on behalf of all others similarly situated, appeal a judgment in favor of Rick’s Cabaret International, Inc., Texas Richmond Corporation d/b/a The Men’s Club, Caligula XXI, D.S.S.S. Ariamerica, Inc., Mylonas Anar-gyros George d/b/a Baby Dolls Saloon, Ice Embassy, Inc. d/b/a Colorado Bar & Grill, The St. James Restaurant and Cabaret, and D.N.W. Houston, Inc. on the ground that the Finance Commission has exclusive or primary jurisdiction over a dispute concerning an alleged violation of section 339.001 of the Finance Code. We reverse and remand for proceedings consistent with this opinion.

I.BACKGROUND

Appellants used credit cards to purchase dances at the clubs owned by appellees. Appellants allege the regular price for a dance is twenty dollars. When appellants used a credit card, however, they were charged twenty-five dollars. Appellants filed suit alleging the five dollar charge to their credit cards was an illegal surcharge in violation of section 339.001. Section 339.001 of the Finance Code prohibits a seller from imposing a “surcharge on a buyer who uses a credit card for an extension of credit instead of cash, a check, or a similar means of payment.” As damages, appellants sought refund of the allegedly illegal surcharges. Appellees argue the dancers employed by their clubs are independent contractors who set their own prices and that they charge their customers an extra five dollars because that is the fee appellees charge the dancers for use of the clubs’ credit card machines.

In the trial court, appellees filed motions to dismiss and pleas in abatement alleging the trial court did not have original jurisdiction over appellants’ suit. The trial court found appellants’ claims under section 339.001 are purely statutory, arise from a pervasive regulatory scheme, and fall within the Finance Commission’s exclusive jurisdiction. The trial court further found the Finance Commission had primary jurisdiction over appellants’ claims. Because it found no original jurisdiction, the trial court dismissed appellants’ claims without prejudice. Appellant’s motion for new trial was denied.

II.STANDARD OF REVIEW

Whether an agency has exclusive or primary jurisdiction is a question of law we review de novo. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.2002). Under a de novo standard, the appellate court exercises its own judgment and the trial court’s decision is afforded no deference. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

III.EXCLUSIVE JURISDICTION

District courts are courts of general jurisdiction, presumed to have subject matter jurisdiction absent a showing to the contrary. Subaru, 84 S.W.3d at 220. Pursuant to the Texas Constitution, a district court’s jurisdiction “consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Tex. Const, art. V, § 8. A similar presumption does not exist for administrative agencies, which may exercise only those powers the law confers upon them in clear and express statutory language and those reasonably necessary to fulfill a function or perform a duty that the Legislature has expressly placed with the agency. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004). As a creature of the legislature, an agency exercises only those powers conferred by statute. Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex.2001). Because an agency’s power is derived from a statute, whether it has exclusive jurisdiction depends on statutory interpretation. Subaru, 84 S.W.3d at 221. The existence of an agency’s primary or exclusive jurisdiction to resolve an issue is determinative of whether a party must first exhaust administrative remedies before the trial court has subject matter jurisdiction over a dispute. Id. at 222.

Appellees contend the Finance Commission has exclusive jurisdiction over this dispute by virtue of the following statutes:

§ 11.304 .Consumer Credit Rules
The finance commission may adopt rules necessary to supervise the consumer credit commissioner and ensure compliance with Chapter 14 and Title 4.
§ 14.101. General Duties of Commissioner
The commissioner shall enforce this chapter, Subtitles B and C of Title 4 and Chapter 394 in person or through an assistant commissioner, examiner, or other employee of the office.

Tex. Fin.Code Ann. §§ 11.304 & 14.101 (Vernon 1998).

The legislature granted the Texas Finance Commission authority to adopt rules necessary to supervise the Consumer Credit Commissioner and ensure compliance with Chapter 14 and Title 4 of the Finance Code. Tex. Fin.Code Ann. § 11.304 (Vernon 1998). Because Title 4 includes section 339.001, appellees argue the legislature has placed compliance with section 339.001 within the jurisdiction of the Finance Commission. Appellees further contend the commission’s jurisdiction is exclusive because the grant of rulemak-ing authority in section 11.304 makes section 339.001 part of the pervasive regulatory scheme the legislature established through its creation of the Texas Finance Commission. The language in section 11.304, however, does not expressly grant the commission exclusive jurisdiction over a dispute under section 339.001. No remedy is listed in section 11.304 or section 339.001.

In construing a statute, our purpose is to give effect to the legislature’s intent. See Gilbert v. El Paso County Hosp. Dist., 38 S.W.3d 85, 89 (Tex.2001). A statute that deprives a person of a common law right will not be extended beyond its plain meaning or applied to cases not clearly within its purview. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 513 (Tex.1997). The language of section 11.304 does not clearly or plainly state that the legislature intended to replace a consumer’s common law remedies with the exclusive remedy of seeking relief from the Finance Commission. See Thomas v. Long, 97 S.W.3d 300, 303 (Tex.App.-Houston [14th Dist.] 2003, pet. granted on other grounds) (holding statute which provided that commission “shall adopt, publish, and enforce rules” did not refer to exclusive jurisdiction).

Examples of statutory language conferring exclusive jurisdiction are found in section 32.001 of the Public Utility Regulatory Act (“Except as provided by Section 32.002, the Commission has exclusive original jurisdiction over the rates, operations, and services of an electric utility....”) In re Entergy Corp., 142 S.W.3d at 323; section 3.01(a) of article 4413(36) of the Texas Revised Civil Statutes (“The board has the exclusive, original jurisdiction to regulate those aspects of the distribution, sale, and leasing of motor vehicles as governed by this Act....”) See Subaru, 84 S.W.3d at 223; section 14.042(e) of the Water Code (the Texas Commission on Environmental Quality “shall have exclusive original jurisdiction over water and sewer utility rates, operations and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services BCY Water Supply Corp. v. Residential Investments, Inc., 170 S.W.3d 596, 600, 2005 WL 332014, *2 No. 12-03-00249-CV (Tex.App.-Tyler Feb. 10, 2005, no pet. hist.) (not yet published); and section 111.104(b-f) of the Texas Tax Code, which provides an exclusive remedy for an aggrieved taxpayer to obtain a refund for overcharged sales tax. Burgess v. Gallery Model Homes, Inc. 101 S.W.3d 550, 553-54 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). The Finance Code contains no such language with regard to enforcement of section 339.001.

Section 14.101 gives the consumer credit commissioner authority to enforce Subtitles B and C of Title 4. Section 339.001, however, is found in Subtitle A of Title 4. Therefore, there is no explicit grant of exclusive jurisdiction in the statute.

The trial court found that even when the “magic” language of exclusive jurisdiction is absent, courts have found exclusive agency jurisdiction where there is a pervasive regulatory scheme. In Burgess v. Gallery Model Homes, the First Court of Appeals found the remedy for overpayment of sales tax was exclusively statutory and that a claimant had to exhaust administrative remedies before filing suit in district court. Id. at 557-58. In that case, a consumer sought refund of sales tax paid to a furniture company. The Tax Code provides that “[a] tax refund claim may be filed with the comptroller by the person who paid the tax or by the person’s attorney, assignee, or other successor.” Tex. Tax Code Ann. § 111.104(b) (Vernon 2001). The court found the Tax Code affords an exclusive remedy for an aggrieved taxpayer to obtain a refund for overcharged sales tax. Burgess, 101 S.W.3d at 554. The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law, but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects. Id. at 558. (emphasis added)

The Finance Code provisions at issue in this case do not constitute such a pervasive regulatory scheme. While section 339.001 prohibits assessment of a surcharge on credit card purchases, unlike the Tax Code, the Finance Code provides no remedy for the enforcement of section 339.001. Because the Finance Code does not confer exclusive original jurisdiction on the Finance Commission or the Consumer Credit Commissioner, the district court has subject matter jurisdiction. See Subaru, 84 S.W.3d at 221.

IV. PRIMARY JURISDICTION

Primary jurisdiction is an administrative law doctrine that arises when a court and an agency have concurrent original jurisdiction over a dispute. Cash America International, Inc. v. Bennett, 35 S.W.3d 12, 18 (Tex.2000). If a trial court determines an agency has primary jurisdiction, the court should abate the lawsuit and suspend final adjudication of the claim until the agency has had an opportunity to act. Subaru, 84 S.W.3d at 221. In such a case, courts must ask whether the policies underlying the primary jurisdiction doctrine require the court to defer to the agency’s expertise and responsibility to develop regulatory policy. See Southwestern Bell Tel. Co. v. Public Util. Comm’n, 735 S.W.2d 663, 669-70 (Tex.App.-Austin 1987, no writ). The primary jurisdiction doctrine requires courts to permit an administrative agency to initially decide an issue when: (1) an agency is typically staffed with experts trained in handling the complex problems in the agency’s purview, and (2) great benefit is derived from an agency’s uniformly interpreting its laws, rules, and regulations, where courts and juries may reach different results under similar fact situations. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex.2002).

There is no evidence in the record that suggests (1) the Finance Commission is staffed with experts trained in handling surcharges on credit cards, and (2) any special expertise would be necessary to resolve appellants’ claims. Appellees’ primary defense is that they do not charge customers for dances, but the dancers, as independent contractors, charge the customers. Determining who is charging customers does not require the Finance Commission’s special knowledge, experience, or services, nor does it require resolving technical matters. The Consumer Credit Commissioner is no more qualified to make that determination than a trial court or jury. Moreover, because the Finance Commission has promulgated no rules concerning section 339.001, a trial court’s disposition would not lead to an inconsistent interpretation of the law. Consequently, the primary jurisdiction doctrine does not require trial courts to defer to the Finance Commission for resolution of this issue.

y. CONCLUSION

The Finance Commission has neither exclusive, nor primary jurisdiction over the dispute between appellants and appellees. The trial court erred in dismissing the cause for want of jurisdiction. Accordingly, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

EDELMAN, J., concurs in result only.

      . During oral argument both parties seemed to acknowledge that the Finance Code does not authorize a private cause of action for violations of section 339.001; however, the trial court ruled that it had no jurisdiction and our disposition is limited to the jurisdictional issue raised by appellants.