*1 liable for the acts of Bauer.3 Generally, ty way such a to bind the firm to his law Texas, the liability, doctrine vicarious or partial summary judg- actions. Under respondeat superior, principal makes a lia Bauer, liability ment granted to is at- ble for the employee conduct of his or him; if liability, tributed to Bauer has no agent. Goodman, Minyard Food Stores v. neither does the law firm.4 The trial court 573, (Tex.2002); 80 S.W.3d Baptist by rendering take-nothing did not err Mem’l Hosp. Sys. Sampson, v. 969 S.W.2d summary judgment in favor of the law (Tex.1998). liability This is based firm. principal’s right on the control or to con judgment. We affirm the agent’s trol the undertaken actions to fur principal’s objectives. ther the Wing See Enters, Alvarado, v. foot (Tex.2003).
In its motion for summary judgment, firm stated that lav? Bauer was not an “officer, shareholder, employee agent” firm,
of the argue law and then on to went (as if Bauer the alleged agent) ob- GUERRA, Angel In re Juan District partial summary judgment tained a in his County Attorney Willacy favor, the law firm should also obtain a County, of Texas. State summary judgment, any liability because No. 13-07-165-CV. necessarily firm law rested liability. Bauer’s issue whether Texas, Appeals Court of acting Bauer was on behalf of the firm law Corpus Christi-Edinburg. point is the vigorously about which Owens Sept. 2007. objects, maintaining that a fact issue exist- ed as to that matter. Rehearing Overruled Oct. However, part the second of that state- dispositive ment is appeal indepen- of this
dently of Bauer acting whether was for the take-nothing firm. Bauer obtain a law did judgment judg- his favor. Since that appealed,
ment was never a final became judgment. As Owens structured his law-
suit, the liability sepa- law firm’s Bauer; rather, rate from that of it rode solely on the proof coattails of the liability, alleged
Bauer’s who was to have operating capaei- been in some authorized conclusively prevail summary judg pleads 3. To on a establishes each ele motion for ment, Spec affirmative defense. Science a movant ment of an must establish that there is no Martinez, trum, genuine Inc. material fact and that issue 1997). (Tex. judgment the movant is entitled to as a matter 166a(c). Summary of law. Tex.R. Civ. P. judgment proper nothing.” for a defendant is when the "Nothing nothing from leaves negates Nothing defendant at least one element of Nothing written Bruce Fish- er, Preston, plaintiff's recovery performed by Billy each of the theories of *6 Angel Guerra, Juan Willacy County Dis- trict and County Attorney, Raymondville, pro se. Hinojosa,
Gilberto Magallanes Hinojo- & sa, Brownsville, for Angel Juan Guerra. E. Paxton Warner and Yolanda De Leon, Harlingen, for Judge Migdalia Lo- pez. Mosbacker,
Mervyn Houston, M. Judge Gustavo “Gus” Garza. Larry Spence, Raymondville,
Sheriff pro se. *7 Garcia,
Alberto Harlingen, for real party in interest. Lozano, Clerk,
Gilbert Ray- District mondville, pro se.
John T. Blaylock, Harlingen, for real party in interest. Cavazos, Treasurer, County
Ruben Ray- mondville, pro se. Hartmann,
David W. Harlingen, for real party in interest. Walsh, Brownsville, A.
Lawrence for Jury. Grand Flores, Terry Clerk, County Raymond- ville, pro se. Board,
Willacy County pro Bail Bond se. re jury and BENAVIDES, grand YÁÑEZ, meeting between Before Justices provides as follows: spondent, and VELA. Willacy Coun- January On
OPINION Texas, the 197th Jury the Grand for ty, Court, extend- term whose District by Justice YÁÑEZ. Opinion court with District open ed met for original application This is an writ the record Lopez. On Judge Migdalia Attorney the District mandamus ad- County Jury Willacy Grand relator, Willacy County, as seeks regarding concerns dressed various by respondent trial have an order entered Angel Guerra Attorney, Juan District Relator, Angel Juan Gu- judge set aside. Attorney. as District his conduct erra, alleges respondent, Judge Migdalia of the 197th District Court Cam- Lopez I. authority County, eron exceeded her as by entering appoint- an order magistrate concern Jury expressed The Grand tem. ing attorney pro Gustavo Garza as Attorney, Juan A. Gu- the District filed motions for con- parties have abusing abusing his office erra was conditionally tempt and sanctions. We power.
grant deny the motions for writ
contempt and sanctions. II. Background
I. Jury was concerned with The Grand 11, 2007, January On the 197th Judicial Attorney to request by the District Jury Willacy County, District Grand Willacy investigate and indict several Term, July respondent, asked to meet with County elected officials. meeting, Judge Lopez.1 private In that grand jury expressed concerns that III. relator had abused his office in several Attorney requested the The District respects requested the District Jury subpoena Grand pro appointed tem be to assist Judge. jury's investigation of those concerns.
response request, respondent to that is IV. January appointing an order on
sued Garza as tem. Re Gustavo A. Guerra re- Attorney, Juan District spondent previously appointed had Garza from this Grand quested indictments 2, 2006, August tem on pro Jury presenting evidence. without relator’s re respondent approved after *8 investigation be recused in the of quest to V. State Texas v. Eliseo Barnhart of Attorney ordered the The District Espinosa, two State Texas Andrea of Jury to create a five member Willacy County Dis Grand pending cases Attorney and the District January The committee Attorney’s trict Office. members. of the committee order, by Garza after named two which was drafted to in- Jury committee was of the This Grand reviewing reporter’s record (Vernon 2005). July a "holdover” 19.07 1. The Term was See Tex.Code Crim. grand jury. Proc. Ann. art. At-
vestigate volving Willacy County and recommend indictment for District neglect Angel torney, of office the District Juan Guerra. Clerk,
Clerk, County County Sheriff and Order other bail bond board members. This matter was a civil matter. request by Pursuant to the the Willa- 11th
cy County Jury, Grand on this VI. January, day of IT IS THE OR- COURT that Gustavo THE DER OF Attorney District demanded Garza appointed attorney Pro Tem $10,000.00 from a company. bail bond Special Prosecutor otherwise known as Jury The Grand suspected person that a investigate mat- prosecute these was indicted for a sex offense in retalia- any ters referenced above and other $10,000.00 tion for nonpayment activity arising criminal connected or out demanded. Attorney allegations; of these Pro Tem will be able obtain assistance VII. fact that Considering co-counsel. Attorney requested The District appointed the Court has Gustavo Ch. Jury Grand to ‘true bill’ a case that the August Garza as tem on Jury by Grand of a ‘no was favor bill’ this Order is extend- Court stating suspect going that the to be 2, 2006, ing assignment August anyway. arrested filed and the Oath Office in full force County Clerk shall continue VIII. completion and effect until the these matters. Jury expressed The Grand concern Attorney, Angel the District Juan Cavazos, Jr., a February On Daniel grand jury process Guerra uses the special investigator Raymondville with the get intimidate individuals even. in an Department, alleged Police affidavit cause to probable that he had believe
IX. certain criminal relator had committed affidavit, requested In his acts. Cavazos Jury The Grand of voter was aware those acts. investigate search warrant fraud committed the District Attor- presented Garza then the affidavit ney, Angel during Juan Guerra the elec- District Judge Janet L. Leal of the 103rd tion of March 2004. County, whereupon Court Cameron concerns, Because of these the Grand warrant, authorizing Judge Leal issued Jury requested 197th District Court seizure of various items the search and Jury requested meet with Grand Attor- Willacy County District within special prosecutor appointed that a ney’s Office.2 in in- guide Jury assist and the Grand drafted an vestigating February the aforementioned areas of On Cavazos under in- of arrest” any wrong doing concern and other “affidavit warrant property permitted and all record books of seized 2. The warrant the search and sei- *9 drives, funds, computers, zure of "all the hard flash expenditures of of forfeited and records drives, discs, floppy any computer files, videos, and other recordings kept including tapes, device that will store information electroni- Willacy County Dis- and contained within the cally.” It further allowed for the seizure of Attorney’s trict Office.” records, receipt "all financial all books and prepared. provided the issu- Garza supervision, previously Garza’s led to which against of three arrest rela- and the ance warrants those indictments grand jury with relator of two tor. warrants accused that jury issued the indictments grand by public one counts of theft servant and result, once day. As a relator was same attempted public of serv- by count theft again arrested.6 Later that officers day, police ant.3 with 22, a motion for March relator filed On Raymondville Department, Police act- and contending respondent contempt, that direction, ing under Garza’s executed stay order. had violated this Garza Court’s attorney’s office and search individually filed Respondent and Garza of seized a number items. Relator was for con- to dismiss relator’s motion motion interfering also arrested for process subject thereto, response and tempt, 28, the search. February with On According- for sanctions. counter-motion against felony complaints relator —three setting issued an order ly, this Court by public counts of theft and the servant hearing. Re- evidentiary motion for charge interfering pub- later added with ap- and Garza ordered to spondent were Raymond- lic by duties —were dismissed re- April before this Court on to pear Municipal Judge Huerta. ville Hector cause spond to relator’s motion and show On March this relator filed with contempt of why they should not held in Injunction a “Petition Court for Writ of failure punished alleged for their Order)”4 (Temporary Restraining this 15 or- comply to with March Court’s Stay “Motion Execution of Order” of der.7 the 197th District This Court. Court granted relator’s March stay motion on on rela- On March while a decision 15,5ordering the of Jan- trial court’s order this petition pending tor’s was before uary stayed the matter for setting Court, respon- relator’s motion to recuse argument April oral criminal matters pending dent Judge J. granted by relator was against On March the aforementioned Báñales, presiding judge Manuel jury met and issued to subpoena directed Garza; subpoena Region. Fifth Administrative requested the draft Judicial recusal, indictments Ba- Judge relator that Garza had that connection with (Vernon capacity. § perjuiy, 3. See Tex. Code Ann. 31.03 and abuse of See official Penal Supp.2006). 15.01(a), 31.03(e)(7), §§ Penal Code Ann. Tex. 37.02, 31.03(e)(4), 37.10, (Vernon 2003 39.02 title, Despite petition's petition relator's Supp.2006). & writ, argue pray injunc- does for a Instead, prays tion. relator for the same they respondent 7.We notified and Garza general relief he later sets out in his right representation by at had the to counsel petition, amended which is outlined below they hearing if desired. We ordered this so writ and construed this Court as a relator, respondent, any to file and Garza Head, mandamus. See In re Estate of necessary any upon support facts affidavits (Tex.App.-Texarkana hearing they planned rely at the (holding pet.) “are construe that courts alleged contempt. prove, deny, or excuse the pleadings party’s liberally than limit rather party any ordered other according We further pleadings the function of those any they given”). proceeding file affidavits the mere titles this should also are necessary to show relevant facts P. See 52.10. TexR.App. proceedings recorded date. The were same reporter. by a certified court following of- 6. Relator indicted for the theft, degree felony attempted fenses: first records, theft, tampering governmental *10 appointed preside bales himself to over attorney’s office to cease all this, matter.8 days prior this Two to rela- operations.
tor petition asking filed amended III. Mootness and Abatement (1) (who, this Court command respondent Before discussing the merits of relator’s pursuant to Judge Bañales’s order is no on appeal, issues must we comment on longer presiding judge) to vacate her whether this case has become moot or (2) January order, remove Garza as should be abated. attorney pro tem. A case is determined to be II. The Issues “moot” if the presented issues in the case petition, relator asserts the fol- longer are no or if parties “live” lack a (1) lowing six issues:9 this Court has legally cognizable interest in the outc jurisdiction grant to relator’s writ of ome.10 An appeal entire does not become (2) mandamus; the trial court abused its moot, however, simply because one issue in discretion initially seeking the case becomes moot.11 If a case be have relator temporarily removed from appeal, comes moot on the appellate court through procedures office prescribed must set previous aside all orders and in chapter 87 of the Texas Local Gov- judgments; both the appeal and the un (3) Code; ernment trial court derlying cause must be dismissed.12 abused its discretion appointing an attorney pro tem without relator’s con- January appointed 17 order (4) sent; the trial court abused its dis- to “investigate” Garza concerning matters by failing provide cretion relator with relator, gave way to Garza’s involve notice hearing prior and a ap- ment with the July grand jury. Term (5) pointment; the trial court abused its appeal pending, While relator’s was by taking discretion an act that caused result, grand jury’s expired; term as a this the district attorney’s office to cease all portion of the order has been rendered (6) operations; trial order, however, moot. The appointed also abused its by appointing discretion “prosecute” Garza to certain matters— individual who not a “competent was at- matters for which relator has been indict of, alia, torney” because inter bias and ed. Accordingly, This issue is still alive. conflicts interest. relator’s original proceeding is not moot. In response, respondent contends that (1) abatement, As to the law, relator matter of this adequate has remedies at (2) whether, she acted Court has legal capacity light within her considered (3) appointing tem, an attorney pro respondent’s subsequent recusal and the she has taken no action appointment Banales, which has caused of Judge pro- this original organization, 8.If of the issues purposes raised 9. For relator's is- proceeding presented Judge have been Bá- sues have been reordered and will be referred numerically sequenced. upon ñales for him act as herein as a threshold matter, appellate entirely record is silent Comm'n, show, regard. Employment 10. Camarena v. in that The record does how Texas ever, (Tex. 1988). Judge declined Báñales to void the January upon recusing respondent. 17 order ap We believe that his refusal to do so 11. See id. propriate. Valley See Rio Grande Gas Co. v. Pharr, (Tex. Burrows, City 637-38 12. Freeman v. Tex. (1943). App.-Corpus pet. w.o.j.). Christi dism'd *11 er- prejudicial to a clear to amount to rule ceeding pursuant should be abated of factual 7.2(b).13 to resolution respect Rule ror.18 With procedure appellate the trial committed to 7.2(b) or matters issues states: discretion, the review- example, court’s original proceeding If the case is judgment may not substitute its ing court must abate the Rule the court under The relator the trial court.19 for that of to re- the successor proceeding allow could the trial court must establish decision. original party’s consider only one deci- reached reasonably have abate, cases, In all the suit will other reviewing if the would Even sion.20 be bound and the successor will it can- differently, the issue have decided if judgment court’s or order as appellate unless the trial court’s decision not disturb original party.14 the successor were and unreason- arbitrary it is shown to 7.2, of rule A in the context “successor” able.21 however, is an individual succeeds who hold public officer has ceased to who hand, of a review of- On the other case, respondent has In the instant legal court’s determination trial fice.15 office; simply she has not ceased hold ruling much controlling its principles proceeding. recused from this Addi- been A trial court has no deferential.22 less tionally, apply- found no case law we have determining the law is what “discretion” 7.2(b) in to a recusal that ing response rule Thus, a to the facts.23 the law applying or pending original proceeding occurred analyze by the trial court clear failure appeal. persuaded Because we are not correctly will constitute apply the law proceed- to this applicable that the rule is discretion, result an abuse of decline to abate. ing, we by extraordinary writ.24 reversal appellate confronted with a trial court is Even when IV. Issue One: Jurisdiction Texas, the impression in an issue of first only Mandamus issues to correct in determin no “discretion” court still has a clear abuse of discretion or a violation of applying the law is or law ing what duty there is no imposed law when trial “Consequently, facts.25 remedy.16 If the trial adequate other conclusion, legal even court’s erroneous discretionary court’s order is one its within law, is an abuse an unsettled area of powers, the relator must show that is a discretion.”26 of discretion.”17 A trial court “clear abuse to correct A not issue clearly discretion if it reaches a writ will abuses its if abuse of discretion relator arbitrary unreasonable as a trial court’s decision so 7.2(b). 13. Tex.R. 20. Id. Civ. P.
14. Id. 21. Id. 7.2(a).
15. See id.
22.
Id.
Packer,
16. Walker
23.
Id.
(Tex. 1992) (orig.proceeding).
24.
Id.
Court,
Dist.
17. Urbish v. 127th Judicial
1986)
(Tex.
(orig.proceeding).
S.W.2d
DeShazo,
Huie v.
25.
(Tex. 1996) (orig.proceeding).
Walker, 827
at 839.
Id.
Id.
*12
that,
grievances grievances
fails to
to air certain
demonstrate that
has
ade-
—
quate remedy by
times,
Mandamus is
under
only
properly
at
can
raised
appeal.27
extraordinary remedy,
intended
be an
of
of
The chal-
auspices
one
the hats.
only
available
in limited circumstances.28
identify
lenge before this Court is to
only
The writ will
in-
issue
situations
wearing
hat relator is
he raises a
when
volving
urgent necessity
manifest and
specific argument.
If
come across an
we
grievances
may
not for
that
be addressed
argument
only
that can
be raised under
by
requirement
other remedies.29
“The
defendant,
the hat of a criminal
then
is
persons seeking
mandamus relief es-
upon
to dismiss that
incumbent
this Court
adequate
tablish the lack of an
appellate
argument
appropriate
because all
reme-
remedy is a ‘fundamental tenet’ of manda-
through
dies can be obtained
the criminal
appellate remedy
mus
An
is
justice system at this time.
practice.”30
merely
not inadequate
may
because it
in-
Court,
equally
It
incumbent upon
is
this
expense
delay
volve more
than obtain-
however,
provide appropri-
to address and
ing mandamus relief.31
grievances
ate relief when relator raises
response
In her
petition,
relator’s
re-
wearing the hat of
attor-
while
a district
spondent contends that relator has ade-
ney.
original
At the time relator filed his
quate
through
remedies “afforded to him
Court,
petition
this
there were no
with
justice system”
pur-
the criminal
for the
outstanding
indictments
him. Re-
pose
responding
appointment
“to the
solely
capacity
lator
before us
as
other
issues
relate to that
Attorney Willacy County
District
—an
appointment.” Respondent explains that
elected official whose office is “constitu-
“[sjince the filing
original proceed-
of these
tionally created and therefore constitution-
ings,
by
Relator has been indicted
a Willa-
ally
Relator has raised some
protected.”32
cy
Therefore,
County
Jury.
Grand
Relator
complaints
appeal
that are not charac-
justice
can
avail himself
the criminal
defendant;
typical
teristic of the
criminal
system any
accused can and address his
rather,
an
complaints
these
are those of
agree
concerns
that forum.” We
elected officialwho contends that his statu-
respondent’s contention to a limited extent.
torily
powers
been
provided
have
unlawful-
tricky
particularly
What makes this case
ly usurped
respondent’s appointment
wearing
relator comes before us
attorney
pro
tern.33
different hats:
the hat of
district
two
framework,
Guided
we find that
the hat of a criminal defen-
remedy
ability
adequate
dant. Each hat affords relator the
relator does not have
Walker,
27. See
by appeal.34 Accordingly, we must now Govern- the Texas Local chapter issues remaining to deter- assess relator’s or- respondent’s January mine whether ment Code. discretion, clear abuse of der constitutes a judge a district chapter Under entitling to mandamus relief. thus relator officer a district county (e.g., remove a Chapter 87 of the Texas
Y. Issue Two: of- attorney) incompetency, office *13 Local Government Code A re- misconduct, intoxication.38 ficial or Proceedings Chapter under 1. Removal begins by filing writ- proceeding moval 87 (1) the of petition ten in a district court (2) resides, the officer county in which Constitution,
According to the Texas of re- alleged the cause county the where Legislature by for provide “The shall law the occurred, county if that is in moval trial and from office of all removal petition This judicial officer’s district.39 of this the modes for officers which any resident of this state may be filed not been in provided have Constitu- 35 in the has for at least six months subject who lived tion.” officers are to this County petition is to be filed county in Accordingly, constitutional which provision.36 currently under indictment Legislature gov- enacted the and who is has rules (1) must be erning county.40 petition removal of trial and a district Greene, 539, ... relief his duties mandamus 34. See Tenell v. 88 Tex. 31 S.W. formance of 631, (1895) ("In public prosecutors who have 635 the case of offi has been available is, general where person prohibited representing cers the rule the State from been office, Reed, cases."); an holds an uncontested title to man also 137 in see In re criminal may 676, put posses damus be him issued to (Tex.App.-San Antonio S.W.3d 677 sion; undisputed right 2004, an where he has (conditionally grant orig. proceeding) office, to exercise the functions of an and attorney ing where mandamus relief district having undisputed possession, actual and he recusing sought an order the dis to vacate illegally suspended ousted or from the attorney’s prosecuting from trict office duties, performance re of its case); Hilbig Mc ex v. see also State rel. rights stored to his as such officer a writ 469, Donald, (Tex.App. 877 S.W.2d 469-70 mandamus.”); ex v. of see also State rel. Hill 1994, (condi orig. proceeding) San Antonio Pirtle, 921, (Tex.Crim.App. 887 S.W.2d 926 tionally granting mandamus where dis relief 1994) (mandamus remedy was available to sought re- attorney to vacate an order trict attorney judge’s district to vacate district or office). cusing attorney’s entire district prohibiting gen attorneys der two assistant Goodman, re Cf. serving eral from attor as assistant district 2006, orig. proceeding) (Tex.App.-Texarkana neys; legal no other mechanism short re (conditionally granting mandamus relief allowed at mandamus would have district county attorney). quiring of a disqualification torney challenge court's and trial order legal right attorney district had clear to have XV, § 7. 35. Tex. art. Const, order); judge district vacate the State ex rel. Eidson, (Tex.Crim.App. 793 S.W.2d Tunics, (Tex. Meyer 1990) (mandamus relief available to 1962). challenge removing district order case). appellate The intermediate 37. See id. ju courts have likewise exercised mandamus In re risdiction over such situations. See §§ 87.012-013 38. Tex. Gov’t Code Ann. Loc. Rodriguez, State ex rel. (Vernon 1999). (Tex.App.-El orig. proceeding) Paso (“[I]t long has the law in Texas that been 87.015(a). § 39. Id. at mandamus relief is available restore rights who been of office to an official has 87.015(b). illegally suspended per § Id. ousted or from the at relator, addressed the district of the court judge criminally investigate sire to re- (2) filed, forth the set spondent had the option to direct grounds alleged for the removal grand jurors to file a petition in a manner in plain intelligible language, officer prescribed by chapter 87, of imme- instead (3) place cite the time diately appointing an tem. If alleged ground occurrence each act as a grand juror had filed appropriate certainty for removal with as much petition, respondent granted could have permits.41 nature the case citation, allowing the order for thus re- filed, petition After for removal is spondent to temporarily suspend relator filing petition apply person must to the appoint pro tem judge writing order re- place purpose for the all of assuming quiring officer be served with relator’s official duties. Relator contends petition.42 citation and the If the judge *14 respondent fashion, that had acted in this citation, to refuses issue the order for the County Attorney’s the Willacy District Of- dismissed, petition appeal will be and no or fice in currently would be enmeshed judge’s of error can be taken the writ from power ongoing struggle the rela- between If judge grants decision.43 the the order Furthermore, tor ar- and Garza. relator citation, the for clerk will then issue the gues respondent clearly her abused copy peti- citation with a certified the in appointing attorney pro discretion tion.44 The citation the will order officer removing tem first suspending without appear petition.45 and answer the After requiring the issuance of the order citation relator from office under be- chapter officer, may of the tem- judge district allegedly requires cause the law that rela- porarily suspend may ap- the officer and tor be removed or office suspended from point person another perform prior being indicted. duties.46 3. Discussion may only An officer be removed follow- by begin recognizing nothing by jury.47 We ing proceeding a trial In a office, the district attorney remove the January the face of 17 order indicates county attorney adjoining from an formally is respondent attempting to as county, by selected the commissioners Though remove relator from office. county proceed- court of which the pave fu- may way order for relator’s ing pending, represent shall the State.48 removal,49 simply ap- ture the order itself 2. Relator’s Claim for the points Garza as tem purpose investigating prosecuting grand
Relator asserts that when initially alleged notified of its jury respondent activity.50 de- relator for criminal 87.015(c). 87.018(f). § at§ 41. Id. at 48. Id. may E.g., office 49. relator be removed from 87.016(a). §at
42. Id. being charge ema- a result of convicted of a 87.016(c). nating from indictments drafted Garza. §at 43. Id. (Vernon § See Tex. Loc. Gov’t Code Ann. 87.031 1999). 44. Id. that, arguably 50. One could assert under 87.016(d). §at 45. Id. interpretation crimi strained court of Edwards, opinion 87.017(a). appeals’ § nal Eidson v. at Id. (Tex.Crim.App.1990), the or 87.018(a). respondent § Id. at der’s from a criminal removal prose county held that a “officer regard With to relator’s claim that prior from office after crimmally he must be removed ... either cuted before indictment, clearly chapter we find that proceedings.”53 the removal of the shows otherwise. Section 87.031 procedure clearly The code of criminal government local code states: “The convic needs, jury the idea that a reflects county petit jury tion of a officer for on, law, rely right under the has the involving or for a felony misdemeanor the State”54 “attorney representing operates official misconduct as an immedi attorney) assist the (e.g., a district who will ate from office of that officer.”51 removal A fulfilling its duties.55 This section that conviction can reveals grand jury that must seek advice with,52 precede, simultaneously or occur attorney is the assistance of district who It stands to reason that an removal. thus subject jury’s investigation is a reci indictment, a preliminary which is necessi disaster, pe place for because the rules conviction, ty for can pursuing logi position in the best district cally, precede would also removal. Fur thermore, The code Supreme obstructing investigation.56 the Texas has Court himself, investigation, Legislature provi- one directed has enacted several albeit at analogous procedure to a removal from office. Id. at 4- code of criminal deal- sions note, however, ing 5. We and its that Eidson was a office *15 plurality opinion. justices grand jury process. While four en with the Un- interactions proposition provisions, dorsed the that removal of a some of these a district attor- dis der (1) grand attorney particular ney go jury trict from a case is tanta "is entitled to before the removing attorney mount to the district and inform them of offenses liable to indict- office, they justices explicitly reject any except elected when are his five ment at time dis- proposition concurring cussing propriety finding ed this in their and the an indictment same,” (2) dissenting opinions. "may Accordingly, voting upon examine the afore or grand jury proposition mentioned and ... is of limited or no the witnesses before value, interrogating precedential although may proper we look to advise as to the mode of them,” (3) plurality opinions persuasive prepare for their value. “shall all indictments State, found, Compare Cooper delay with as little 67 S.W.3d 224 which have been (Tex.Crim.App.2002) (holding plurality possible, a and deliver them to the foreman.” 20.03, 20.04, value); opinion precedential limited has or no Tex.Code Crim. Proc. Ann. arts. 2005). (Tex. (Vernon provisions Vernon v. Additional 20.20 Crim.App.1992) (noting attorney participate plurality opin permit that a the district to fur- "significant precedential grand jury’s Under ion does not have ther at the discretion. value”); (1) Hardy, "grand jury may provisions, with State v. these a send ("we (Tex.Crim.App.1997) attorney representing and ask look to for the the state any upon ‘plurality’ opinions persuasive upon their val advice matter of law or for his ue”). arising respecting proper any question duties,” (2) discharge at- of their district 87.031(a) (Ver- § 51. Tex. Loc. Gov't Code Ann. torney may issue a summons or attachment 1999). non (3) county; in the for witness attorney may subpoena a district cause 87.031(b) ("The rendering § Id. at attachment to be issued on a witness who judgment in such a case include an shall testimony. may provide Id. at arts. material judgment.”). removing the order officer 20.10, 20.05, 20.11. Meyer, (emphasis at add- Supreme 56. See note 62. The Colorado infra ed). Court, addressing the notion of a district " charged attorney assisting grand jury that is attorney representing ‘The the State' office, duty investigating with the has General, Attorney attorney, means the district stated: attorney, county criminal district attor- attorney legal ney.” is the adviser of Tex.Code Crim. Proc. Ann. art. 20.03 The district (Vernon 2005). duty appear grand jury; it is his grand juror petition to file procedure “clearly Requiring of criminal envisions evidentiary an burden attorney grand place that both district would also [the jury] together particu jury to resolve likes of which have upon grand will work —the issue,”57 lar at and this can If a recognized matters vision been this state. never only safeguarded, required petition be sort situa to file a grand juror is herein, through appoint tion discussed chapter juror under would have attorney ment of an tem. pro We believe the re- grounds alleged “set forth grand jury affords a the automatic law intelligible plain of the officer in moval right to have a district it can as “cite the time and language,” as well appropriately, right work with but alleged of the occurrence of each act place if grand jurors ceases become automatic Placing this ground as a for removal.”60 required petition chap are to file a under on a evidentiary burden purpose acquiring ter 87 for the legal simply acquire competent wishes attorney pro tern’s assistance. nonsensical, especially utterly assistance placed on a because no such burden is ever grand juror If to file a were to initiate an grand jury when it decides petition, would inquiry.61 automatically placed temporary sus pension appoint tem did Accordingly, respondent find that we juror’s petition in his place. ed not commit a clear abuse of discretion approved by first to be a dis would have relator un- failing temporarily suspend judge, judge trict and if the refuses to an at- prior appointing der chapter pursuant petition, issue citation to the tem. torney pro grand juror remedy by would have Appointment of Attor- Issue Three: VI. appeal.58 seemingly This run afoul would ney Tem Relator’s Consent Pro Without law, great of a deal of case because “Texas Jury 1. Relator’s Grand Concerns *16 the long grand jury courts have described relator initiates discus- tribunal, petition, In his separate independent as a of the by asserting respon- that of this issue judges prosecutors.”59 conti'ol of and sion (Vernon advise, § 87.016 before and them from the evidence 58. Tex. Loc. Gov't Code Ann. make; 1999). testimony charges is what what material, sufficient, and what relevant and State, Whittington 512 v. not; if, prior presentment, is and to his ref'd). (Tex.App.-Tyler pet. place in his and one can be substituted which, manage investigation in stead to (Vernon § 87.015 Tex Loc. Gov’t Code Ann. court, directly from the of the is charge, 1999). indirectly implicated, it would be within power his to thwart the administration proce- criminal Article 20.09 of the code of steps justice by preventing preliminary inquire the "grand jury shall dure states that finding being necessary to the of an taken of which liable to indictment into all offenses knowledge, may or of any indictment. have member Court, attorney by People Lindsley they 29 Colo. the ex. rel. v. Dist. shall be informed (1901). any light other credible representing In of the 66 P. art. 20.09 person." Tex.Code Crim. Proc. Ann. statutory provisions previous outlined in the 2005) added). (Vernon Nothing footnote, (emphasis by we believe the concerns raised grand jury pre- suggests that a is this article Lindsley Supreme Court in are the Colorado attor- inquiring into a district from cluded import equal in this state. conduct, suggest ney’s nor does criminal Salinas, evidentiary be satisfied bar must that an 57. State ex rel. Holmes 1990). inquiry to commence. order for (Tex.Crim.App. As a his indictments. quash set aside acts that violate various dent committed to rem- seek chapter attorney, under code district relator articles (1) procedure. These acts include by directing criminal them his edy grievances jury room being present grand while on Ju- State Commission either the Texas jury conducting proceedings,62 grand is or the Texas Commission dicial Conduct (2) addressing about a mat- Lawyer Discipline. for (3) jury,63 the grand ter before communi- Attorney Pro 2. Distinction Between jury in a cating grand with the manner Special Prosecutor Tem and (4) statutorily prescribed,64 that is not returning to the failing preserve secrecy grand In our focus proceedings.65 order, Relator also asserts take note the jury January we time to by respondent allowing erred ORDER “IT IS THE language: order’s jury investiga- to initiate a criminal grand is Garza OF THE Gustavo COURT during por- him tion extended Pro otherwise appointed attorney Tem term.66 tion of its Though Prosecutor....” Special known as “attorney pro the terms the order treats capacity believe that relator has the We they if prosecutor” as “special tem” and hats, these grievances to assert under both are far terms interchangeable, were alleged judicial because this behavior— attorney A “district synonymous. when taken outside context of even court, by pro appointed tem” the district give both case—should criminal defen- office, taking and after the oath of assumes attorneys everywhere dants and district Nevertheless, cause for concern. we also the the elected district duties of sup- even if grievances, and, effect, per believe these replaces the latter law, fact ported by do not relate to the forming functions of office germane single question presented for relator has contemplated appointm purposes respondent our consideration: Did commit hand, “special ent.67 the other On by issuing a clear abuse of discretion elected permitted by prosecutor” result, January 17 order? As a no matter participate particu in a wears, hat jury what relator prose lar case extent allowed to the us, properly concerns are not before required to cuting attorney, being without sought relief on this basis is denied. office.68 oath of take the constitutional terms Though order used the respondent’s claims, however, denying these we *17 sought it is clear that she interchangeably, note that we have not left relator without arti appoint attorney pro to tem under an defendant, recourse. As criminal relator contend 2.07, parties cle do not may through jus- seek relief the criminal file to system, tice where he could motions otherwise.69 term); original v. during State Ann. initiated its 62. See Tex.Code Crim. Proc. art. 20.011 (Tex. al., 621, 2005). (Vernon Flournoy, 187 S.W.3d 624 et 2006, App.-Houston pet.). Dist.] no [14th § Id. at 63. 20.04. Rosenbaum, 525, 529 67. State v. § 64. Id. at 20.06. (Clinton, J., concurring). (Tex.Crim.App.1993) §at Id. 20.02. Id. (stating § generally at 19.07 66. See id. ability decipher order's judge may grand jury’s to an term 69. This Court’s district extend importance of minimize up ninety days jury intent to allow should ap- carefully wording the order complete ongoing investigation a trial an that was court 3. Relator’s Claim rendered meaningless. language This clearly possibility envisions the that a dis- Relator correctly asserts that judge attorney may trict disqualified prior be may only appoint tem request said, for recusal. With that (1) when one of four circumstances exist: we must now determine the circumstances (2) State; there no attorney is for the “possibility” which such a is created. attorney district is absent from the county Existing Disqualifi- Limitations on (3) district; or attorney district is un- cation perform office; able to the duties of his (4) the attorney disqualified is Edwards, In Eidson v. the court of crim- in any act case proceeding.70 Though held, appeals inal there is a “[i]f conflict of January 17 order does not tell us interests on the part of the district attor- on,
which circumstance the judge relied ney or his ... assistants the responsibility the factual nature of this case and the them, lies recusal not with the trial arguments of the parties direct our atten- judge.”72 Though ques- Eidson is of tion to the disqualification issue of from a precedential value,73 tionable its “holding” case or proceeding. adopted later the court of criminal 2.07, appeals
Relator in majority opinion.74 date, contends that under article To a district attorney only only can there are disqualified recognized two exceptions the attorney requests when to be disquali- holding. to this The first is from derived fied and a court approves request. the court of criminal appeals’ plurality (b- Relator seemingly Pirtle;75 relies on opinion subsection in Hill v. the second 1) 2.07, states, of article “An attor- comes from article 2.01 of the code of ney for the state disqualified Hill, who is not procedure.76 criminal According to “A may request act permit court to him to trial court ... disqualify a district recuse himself in a good case for cause attorney or his staff on the basis of a upon approval by the court disquali- is conflict of interest ... rises to the 71 If interpretation fied.” relator’s of sub- level of a process due violation.”77 Under (b 1) correct, section the initial language the code of procedure, criminal a district — attorney “[a]n for the disqualified representing subsection— state not disqualified who is been, act”—is the State “in cases where he has Goodman,
pointing
805,
pro
tem and the constitu-
73. See In re
210 S.W.3d
oath,
2006,
distinguish
(Tex.App.-Texarkana
tional
so as to
orig. proceeding);
between an
McDonald,
"attorney pro
Hilbig
"special prosecu-
tem" and a
State ex rel.
v.
877 S.W.2d
State,
(Tex.App.-San
Stephens
tor.”
Antonio
See
pet.).
ref'd).
(Tex.App.-Austin
pet.
74. See Johnson v.
2.07(a)
70. See Tex.Code Crim. Proc. Ann. art.
("A
*18
(Tex.Crim.App.2005)
prosecutor's refusal
(Vernon 2005).
to recuse himself
a
from case cannot be cor-
authority
rected
the trial
because
court has no
2.07(b-l).
71. Id. at art.
recusal.").
to force a
Eidson,
holding
72.
The the district The court signed commonwealth contested this act, judge rejected argument, stating: to a requiring the seek declara- rights appeals tion before the eminently appointment ... was regarding appointment. the In the course attorney the was a proper, as district assessing propriety judge’s the at general at the election candidate action, appeals the court stated: alleged the frauds were commit- which stated, ted, frauds, in-
There can if it is be no doubt that the com- It therefore attorney monwealth under indict- creased his vote. would was disqualified professional ment he from been a breach of would be have himself, him to acted prosecuting propriety the case official for have But attorney and the circuit court in such case as district these cases. has right appointment illegal it appoint a commonwealth attor- is said the was ney adopted since pro tern to conduct the trial of a because Constitution felony charge against passed, the act of 1866 was makes commonwealth officer, true, attorney. attorney a constitutional being This it follows as district stripped he cannot be of his a matter of course that when the and as such jury legislature. such a There is lit- actually investigating powers is charge against suggestion. tle force in this While the the commonwealth attor- office, it ney, automatically legislature may he not abolish the thereby is dis- They regu- can qualified assisting grand jury can control officer. from duties, investigation,83 performance in such late the of his misconduct, him for as in the punish McHale,84 In Commonwealth v. case of other officers. And where tri- Pennsylvania Supreme upheld Court where, act, or refuses to neglects judge’s appointment “special al of a district case, given the circumstances McHale, attorney.” regular district him to improper it is and indelicate for attorney sign had refused to and send act, legislature it competent is grand jury indictments to a because he remedy.86 afford claimed the factual indictments contained county attor In Lattimore v. errors. an These indictments addressed Vernor87 after a ney sought prohibition a writ of that, allegation of electoral fraud —fraud if an judge appointed district true, would increased the district at- have grand jury that was investi tern assist torney’s in an earlier election.85 The vote county attorney had gating whether judge provided attorney trial district The Okla committed criminal acts.88 opportunity sign the indictments or Supreme homa Court held: indictments, present alternative but the county attorney disqualified A failed to do so. The grand jury when said appear then to assist before a judge appointed the conduct investigating grand jury. appeal supreme On to the the district court, county attorney, and argued that the indictments of said under section authority, court has quashed they should be because were Vernor, added). 142 Okla. 288 P. (emphasis at 87. Lattimore v. 83. Id. 71-72 (1930). McHale, generally 84. See Commonwealth (1881). Pa. 397 88. at 463. Id. Id. at added). (emphasis Id. *20 language, act” “disqualified the to disqualifica- to the not have C.O.S. declare far as county the in so attorney, tion of its court utilized district could have the disqualified, appoint spe- to he is appoint- to make the power” “inherent attorney to county cial or substituted ment.91 the such far as inquiry, conduct so Supreme the In to Oklahoma addition attorney subject county disqualified, has the Court, assertion that a court the by the Su- superintending to a control pro appoint attorney to an power inherent preme Court.89 county attorney is the tem elected when An Oklahoma state statute authorized been jury investigation has under to appoint district court an Supreme the Arkansas embraced attorney the “dis- county tem when Court,93 Court,92 Supreme Ohio Colorado supreme to act.”90 qualified Court,94 noted, however, Supreme Indiana Supreme if the statute did even those here Id. at 464. under circumstances such as held that there is presented, courts have 90. Id. Section 5745 the Oklahoma statutes of power make inherent in the courts to an court, provided "The whenever that: district appointment. We hold that such an attorney county there shall be no for the have such in- Arkansas Circuit Courts also county, county attorney when the or shall be power. herent court, from the to attend to absent or unable Id. duties, act, disqualified appoint, may his by an order to be entered in the minutes Henderson, 123 ex rel. 93. State Thomas v. court, person perform some suitable (1931) 866-67 Ohio St. N.E. being required by law to time duties (recognizing power the inherent court— performed county attorney, be and the "[tjhere being specific stat- despite definite appointed person thereupon so vested shall be finding temporary utory provision for a of the attorney powers county with all the of such prosecuting attor- disqualification of the purpose.” for that See Okla. Comp. Stat. attorney ney,” appoint to assist —to (1921), § discussed in Lattimore. "by prosecutor him- reason of the making being investigation,” under thus self 91. Id. any impossible that he or assistant “it either Anderson, 92. Weems v. 257 Ark. act”). under his direction should (1974). Weems, the su- preme court stated: Lindsley, at 66 P. The Colorado 898-99. prosecuting attorneys Since and other Supreme Court stated: State officials indicted and tried for If, suffi- source which he deems from alleged criminal activities whether there act, ciently prompt reliable him to not, impeachment there must be judge implicating the obtains information way some within of our the framework attorney any alleged offense district legal system prosecuting at- State’s for the which he has called to the attention torney to be when indicted and tried even information, grand jury, acting on such alleged crime within the same occurs body investigate the district directs that judicial district in which he is elected offense, respect attorney such with to such prosecuting attorney.... ipso disqualifies facto district at- action matters; acting torney and the in such statutory specific The absence of authori- doing, charged with the judge so as he is appointment special prose- ty for the aof permitting knowingly responsibility attorney cuting under the circumstances justice obstruct- the channels to become this case does not mean that the court is ed, authority, and it authority justice, has undoubted reason without to do what duty, appoint an would be bounden common be done. sense dictate must attorney place act in and stead of jurisdictions there was the In other where respect mat- authority ap- to such statutory lack of for the same special prosecuting the inherent pointment of ters. The district court has *21 414
Court,95 appeals.96 indictments, and California court of preparation by of the au- thorization of the court.97 Holding 7. This Court’s currently areWe confronted a case in with opinion In an authored over 140 undoubtedly special which there exist rea- years ago, Supreme the Texas Court held: why sons relator why should not act and a part duty It is of the of the district disqualified he is to act. Accordingly, re- attorney to prepare judgments under spondent appoint was authorized to a com- the direction grand jury; of the but the petent person to act in place, relator’s powers and grand jury duties of the do we find that this authorization explicitly is not may cease because there happen to derived from article 2.07 of the code of be no attorney. district In case of a criminal procedure.98 vacancy attorney, office of district or in case of the attorney’s district tem- judge A has the authority, as well act, porary disability any to or in partic- obligation, as an appoint to ular case where might there exist spe- grand tem to assist a jury that intends to act, why cial reasons he should criminally investigate the district attorn competent other person might situation, act in the ey.99 such a the district itself, power crime, protect investiga- to and direct regular pros- or in which those tions in a manner which will render them disqualified ecutors are for some other rea- thorough impartial. Reason dictates son. simple justice that no demands official Id. part investiga- or individual can take in an grand jury Gonzales, 197, 199, tion before a the result of which 97. State v. 26 Tex. 1862 him, may directly indirectly. 2833, affect (1862) added). either (emphasis WL *2 (citations omitted). Id. (Vernon 98. Tex.Code Crim Proc Ann. 2.07 art. Spencer 95. State ex rel. v. Criminal Court of 2005). County, Marion 214 Ind. 15 N.E.2d (1938) (discussing a court’s inher- judge 99. We observe that while a power noting ent cannot ”[i]t be —when resembling faced with a respon- situation that, doubted where it is established that the may obligated appoint be an attor- prosecuting attorney party is an interested ... dent's — ney pro grand jury's tem to assist the investi- appoint the court repre- state”). gation, judge way sent the of the is a slave to that interests investigation. As noted the court of crimi- Hammond, Cal.App. 96. Sloane v. appeals nal in Ex Parte Edone: (1927). P. The California court of the court also exerts some "control” or appeals stated: supervision grand jury over the under [arti- settled, upon just The law is well consid- proce- cle 20.15 of the code of criminal seen, public policy, erations of as we have question dure]. The court decides if the possess power that courts the inherent propounded grand jury prop- before the special place name act in counsel to er, and, thus, decides whether or not to aid disqualified public prosecutors.... Several investigation jury by then pointed of the cases to which we have compelling an answer. Without the action above are to the effect that the inherent powerless of the court the power appoint courts to irre- exists investigative duty gain enforce its testi- spective independent of statute.... It mony from a witness and decide on the questioned duty cannot be that it is the presentment of an indictment. In this legislature to enact laws under which sense, independently the court acts and in a attorneys ap- district shall elected or supervisory (deciding role whether to com- pointed, general duty and to make it the answer).... law-making pel an body provide for an ade- Edone, (Tex. quate prosecution Ex Parte of those cases in which attorneys charged Crim.App.1987). themselves are not commit a did respondent for hold that to act” “disqualified is deemed disqualifying 2.07(a) clear abuse of discretion of the code purposes of article *22 his consent. relator without procedure, disqualification criminal attorney’s solely not arise from the need of this Court’s The Limitations (b- motion to recuse under subsection own Holding 1)100 essential observa- must make few We respondent’s appoint- find that While we holding. We concerning this Court’s tions attorney explicitly tern pro ment of an was that, record observing from the begin by 2.07, find by authorized article we further us, grand jurors appears that the before au- appointment implicitly that such respondent with collectively approached In by power. thorized a court’s inherent The record investigate to relator. desire Johnson,101 the Texas State v. Court disquali- respondent that does not reflect Appeals held: Criminal only that receiving notice upon fied relator specific power In addition to to act jury members wanted grand one or a few provision, conferred constitutional observe investigate to relator. We also law, statute, all courts have or common investigat- grand jury apparently that authority to take certain ac- inherent initiative; the record ed relator on its own Eichelberger Eichelberger, tions. In respondent directed does not reflect (Tex.1979), our sister the commencement prompted express court noted that in addition to regarding If the record investigation. grants power, a court has inherent otherwise, reflected these circumstances call judicial power, may upon which it re- say opinion that our would we cannot jurisdiction, to aid in the exercise itsof main the same. justice, in the administration or in preservation independence its respondent Lastly, we held integrity. may implied also have Courts relator be authority disqualify to had act, authority arising specific investigate grand jury cause the wished grants of power. (e.g., criminal conduct possible relator for sum, particular In a court take a fraud”). grand jury When a wishes “voter only action if that action is authorized attorney for pos the district investigate statute, provision, constitutional or com- wrongdoing, we have found sible criminal law, power mon or the to take the action judge legally ap is authorized to that a implied pow- arises from an inherent or tern to assist with point er.102 doing because so is neces investigation able grand jury that the Through appointment attorney sary of an to ensure ap An tern, perform its duties. respondent properly denied relator pro similarly justified, cannot be participate grand pointment opportunity however, is made to appointment jury’s investigation into his conduct. when jury investigating a dis so, pre- assist a doing appointment served matters be attorney for non-criminal of the court and aid trict integrity serve the acting out- grand jury cause the would justice. We thus administration (footnotes omitted) 2.07(a), (b- (emphasis at 612 Ann. art. Id. 100. Tex.Code Crim. Proc. 1) (Vernon 2005). added). Johnson, 609, 612 101. State v. (Tex. 1991). App. Crim. tem, legally
side of It prescribed appoint pro its duties. should evident under the of Texas that a hearing law been afforded notice and a have authority has no to investigate prior appointment. to the While this is any investigation civil matters or to make 2.07, explicitly required by article rela- into circumstances where no criminal of- implicitly requires tor contends the law fense is suspected alleged.103 Aceord- hearing that notice and a be afforded when ingly, judge should be inclined to re- a district has not elected to volun- strain, assist, grand jury rather than tarily disqualify himself. Relator states *23 investigating scope a matter outside the finding disqualification that of would “[a] authority. of its require hearing, that the conduct a Court presentation allow for the evidence case, In the instant respondent disqualification, duly and the elected allow wrongfully grand jury assisted the in com Attorney opportunity pres- District the to mencing investigation into several non showing ent evidence and authorities by appointing criminal matters an attor not Relator disqualification proper.” was ney pro tem to in investigating aid said any cite to support does not law his asser- matters. These matters related to wheth tion, our efforts to find on and own law (1) requested grand jury er relator the to again to look point has led us toward case (2) matters, investigate subpoena civil the law from other states. (3) Judge, investigate District and indict officials, Willacy County several elected Treatment Outside (4) present being indictments without Only a handful of courts have addressed (5) evidence, supporting shown and “true very the contention relator asserts herein. though grand jury bill” case even the courts, treatment Among these find the we inwas favor of a “no bill.” These con by Virginia Supreme the provided West suggest any intelligible cerns fail to indicia of great guidance. Court to be criminal offense that have been committed. all to While we find Virginia a. West problematic, we do believe that Ziegler,104 In State ex rel. Matko v. January order should be deemed voida Virginia Supreme Court addressed a West did, ble as a result. The order nonethe nearly factually identical to the case that is less, acquire jury’s evidence the desire to The facts in Matko one now before us. the assistance tem to are as follows: investigate possible relator for criminal 1970, 12, theft, grand On after the wrongdoing theft, attempted tam November — indictments, records, pering perjury, jury abuse of of had returned several fice, grand jury of the informed and voter fraud —a fact that is essen the foreman tial to members of holding. special judge this Court’s that some grand jury investigate desired to Right and a Issue Four: to Notice VII. matters, grand juror, and one other Hearing prosecutor], of the presence [elected relat- question Relator if stated that the matters respondent asserts that even prosecu- disqualify bribery concerning him power [the had and ed Ziegler, 154 W.Va. 104. State ex rel. Matko v. 103. See Tex.Code Crim. Proc. Ann. art. 20.09 (1971), (Vernon 2005); overruled on other 179 S.E.2d Op. Att’y Tex. Gen. No. M- Dingess, grounds 160 W.Va. Smoot (1972). 1171 at *4 (1977). 236 S.E.2d act attorney to jury competent practicing court advised the some tor].... [T]he court and case.”106 The then went investigate that it could the matters in such claim grand jury reject prosecutor’s in- presence and a afforded notice should have been formed that he would prosecutor] [the special hearing, stating: appoint prosecuting investigation conduct as the clearly contemplates sum- The statute prosecutor] of the opinion [the court, trial mary action disqualified and assistants were makes no pending, proceeding then acting the matters. The court prosecuting notice to the for provision jury until excused November hearing concerning his attorney or for a particular act in disqualification to notice Any provision
circumstances. delay result in hearing would on Novem- reconvened operate purpose defeat ber on November returned Furthermore, notice and hear- statute. prosecutor]. [the indictment [an] *24 for, as generally unnecessary ing are the, the adjournment grand Before here, material dispute there is no ... jury, prosecutor] peti- filed his [the prosecuting and and the facts the court prayed grand tion in he that the which entirely fa- attorney equally were and dismissed; be and ... jury discharged disquali- miliar the situation which special attorney that the be prosecuting from as the petitioner acting the fied him discharged and the order appointing connection with prosecuting rescinded; that, grand ... if the [and] indict- relating to his proceedings the discharged, jury were not ... that [the prosecution.107 ment prosecutor] permitted appear be be- grand jury give fore the testi- such revis Supreme The Court Virginia West mony might [T]he desire.... ex years Matko in State eight ited later jurors informed the court that Preissler, a rel. Preissler v. Dostert.108 In they unwilling any were to hear testimo- from prosecutor elected judge removed the ny by ... the prosecutor], [the to act in appointed a case and grant prosecutor’s] [the court refused to a judge The received place.109 his never prayer.... request prosecu to remove the formal re supreme tor; rather, judge The first the predicated court ruled that prosecutor had that the judge authority appoint- upon to make the moval his belief 7-7-8, § under about the case Virginia ment West had made statements Code (1) re provided professional “if in code of any case violated the (2) intent not attorney and prosecuting sponsibility his assistant evidenced court, recog act, supreme The opinion prosecute.111 unable to if nizing judge disqualified it or his that the had improper court would be him for act, request appoint the court without formal prosecutor assistant shall Id. at Id. at 281. 105. 737-38. 109. added). (emphasis Id. at 742
106. Id. at 285. 110. 107. Id. at Id. 285 n. Dostert, State ex 163 W.Va. rel. Preissler (1979). 260 S.E.2d 286-87 so, held that “was not judge empow prosecuting attorney do recusal of a from to enter on prosecution ered the order his own mo the criminal case un- proceeded tion.” The court then § ad der sought W. Va.Code 7-7-8 is question judge dress whether had failure to perform basis of his his power summarily “to discharge pub duties, official the circuit judge licly prosecutor perform elected from the summarily prosecutor cannot recuse the duty.” addressing ance of his opportunity but must afford the to have compared question, the court Preissler and a hearing on the matter.... Matko, noting the factual distinctions that that, Preissler thus established as a gen- to each prosecutor’s disqualifi led elected rule, eral prosecutor an elected is entitled cation: hearing prior to notice judicial and a to a note, however, We that Matko involved disqualified determination he is to act proceeding the circuit court wherein meanwhile, in a case or proceeding; Mat- prosecuting attorney elected had holding unique ko’s factual —bound indicted upon been situation from which was derived —was felony charge. disqualification left exception as an to this rule. Preissler the prosecutor to act resulted from his that, prosecutor went on to before a hold defendant, status as a criminal obvious may be disqualified acting partic- on the face of the indictment. There case, ular disqualifica- “the reasons hearing was no need for a since his record, tion appear must on the and where inherently prosecu- status rendered his question there is any factual as to the *25 Here, improper. tion the case howev- propriety prosecutor acting er, impropriety the determination to matter, he must be afforded notice and an act is not based on the status of the opportunity to be heard.”114 but on the issue of
prosecutor rather the b. Other Courts prosecute. to prosecutor’s refusal Not In State ex Ilvedson v. rel. District only question require presenta- does the Court,115the Supreme North Dakota Court tion of facts in to enable the judge order confronted a factually case that was simi- matter, reach an the opinion to but it Ilvedson, lar to group Preissler. In a requires prosecu- also a that the charge presented the prosecu- individuals elected avoiding sidestepping the tor duties petition, requesting tor with a that he take imposed on him the Constitution and county to against action the commissioners by his office. In a situation the such to county.116 recover a debt the owed judge circuit court cannot summarily prosecutor When the to failed take an override the Constitutional mandate that petition’s action that the satisfied endors- attorney perform prosecuting the ers, they requested the assistance of the duties his office first conduct- without response, district judge.117 judge ing hearing. a full and proper Conse- disqualified prosecutor from undertak- quently, holding limit the we would Matko, issue, ing any on this to the facts in that further action the commis- case, sioners, responsibility and hold that and assigned we would where Court, Id. at 115. State ex rel. v. District 112. 285. Ilvedson (N.D.1940). N.D. N.W. 620 Id. at 113. 286-87. 116. Id. at 622. /¿at Id. and ex appointed
all
to an
attor-
In Lattimore v. Vernor121
State
future action
Henderson,122 the Okla
rel. Thomas v.
ney.118
judge
The
derived his appointment
and the
Supreme
homa
Ohio Su
Court
authority from a statute that
allowed
Court,
held
an
respectively,
preme
judge
appoint
to
an
when
entitled to
prosecutor
elected
was
notice
prosecutor
neglected
prosecute
failed or
to
being involuntarily
to
hearing prior
judge
a case that the
believed should be
disqualified
having
prosecuted.119 Though the
not
statute did
in his
subsequently appointed
place.
tern
to
explicitly
the'prosecutor
right
afford
response
held in
a trial
Both courts so
notice
hearing prior
finding
and a
judge
appointed
who had
disqualification,
prosecutor argued
criminally
grand jury
investigat
assist a
was
much.
supreme
entitled
cases,
prosecutor.
In both
ing court agreed
prosecutor, stating:
with
initiative, empaneled
judge, on
his own
deciding,
Assuming,
without
jury
directed the
investi
legislature may provide for
partial
gate
prosecutor,
attorney—
limited removal of the state’s
Contrasting
c.
Matko
far
removal in so
as the institution and
discussed,
just
only
Of the
cases
five
prosecution
particular
of one
action is
prosecutor
Matko held that
the elected
clearly it
not authorize
concerned—
to notice and a hearing
was
entitled
except
such
after
removal
notice and
prior
disqualification.
to his
While Matko
Hence,
hearing.
legislature
if the
in-
may appear to be inconsistent with the
upon
tended to confer
judge
holdings,
other cases’
there are two critical
power to determine whether the state’s
holding
facts Matko that make its
dis-
attorney has refused or
neglected
tinguishable,
obviating any
thus
conflict
perform
duty,
and to order that the
the other cases.
attorney be deprived
power
state’s
of all
Matko,
Vernor,
and duty as such in connection with the
like Lattimore and
in-
institution
prosecution
prosecutor
disqualified
of a certain
volved a
who
*26
action, all
notice to
of a
being
subject
grand
without
the state’s
as a result of
the
attorney,
opportunity
or
to
jury
be heard on
Preissler and
investigation.
Ilvedson
the question whether he has
or
prosecutor
refused
each involved a
who was dis-
neglected to
to
perform
duty,
qualified
allegedly failing
perform
his
then the
for
manifestly
(i.e., refusing
statute is
the duties
his office
unconstitutional.
But,
case).123
it
not be presumed
prosecute
will
the
a
The difference be-
legislature
intention,
any
grounds
disqualifica-
had
such
un-
these
for
tween
two
tion,
less
from
clearly expressed
previously
it has
such inten-
as we
noted
Preis-
sler,
tion in
The
presumption
question
the law itself.
is that
the
whether a
for
legislature
prosecutor
disqualified
that the
intended that the
should be
refus-
ing
prosecute requires
it
not
proceeding
prescribed
only
removal
the
in accordance
in order to
princi-
“presentation
should be
with the
of facts
enable
ple
judge
on
mat-
process
opinion
of due
law.120
the
to reach
the
Thomas,
118.
N.E. at
122. State ex rel.
867.
Id.
119.
Id. at 623-24.
287;
Preissler,
260 S.E.2d
123.
at
State
ex rel.
Ilvedson,
The second
factual distinction in
jury,
sought
its own
inves
Matko,
present
which is not
tigate
possible
the district
cases,
(2)
other
is that in Matko:
wrongdoing;
judge, upon
criminal
*27
being
grand jury’s
confronted
the
de
with
grand jury
was members
the
who
[I]t
attorney,
investigate
sire to
the district
approached
judge
the criminal court
to
attorney
par
from
request
disqualified the district
permission
investigate
the
Matko,
jury’s investigation;
prosecutor.
ticipating
grand
elected
Thus in
the
(3)
judge
way
judge subsequently appointed
criminal
in no
initiated
Preissler,
Preissler,
124.
125. See
jury investigation. light with its While by requires notice and a hear- holdings undeniably implicitly are influenced 2.07 herein, they out-of-state case law discussed with Texas law.133 ing is consistent observa- primarily predicated upon are our not decision to extend This Court’s tions the law this state. hearing a to the instant right to notice and support in the of this case also finds law by there are means While various rec- Supreme Court has state. The Texas attorney may lawfully a which district be is county official ognized that an elected performing, from restricted whole hearing a always not entitled notice office, duties of means part, the his these being perform- restricted in the prior typically him afford notice and a hear with Thomas, ance of duties. his Griner instance, ing. For our state consti under Thomas, signed judge, a an order district tution, a district cannot judge remove Griner, county suspending a temporarily attorney for incompetency, district official temporary The sus- judge, from office.134 misconduct, causes other defined of a pending hearing made pension was law, the attorney being without found of Griner from petition for removal charges at the guilty against him complained that appeal, office. On Griner jury hearing.130 a conclusion of Addition power to temporarily if Thomas had the ally, in cases where a criminal defendant him, not done so suspend he could have files a pretrial disqualify motion to affording him notice and without first district from a case prosecuting hearing, provided.135 The which were not him, may grant the motion not be rejected complaint, supreme court proving ed without defendant at a stating: hearing that there is a conflict of interest
that
to the
process
argued
rises
level of
due
is
... notice and
[I]t
Even
hearing
required
violation.131
in instances in which
be
before a sus-
should
voluntarily
the district
It
conceded that the
pension
wishes
is made.
terms,
himself,
not,
no-
require
recuse
article 2.07 demands that
statute
does
approval
tice,
the district
it is
attorney seek
but it is
essential
insisted
the judge
showing good
process
cause for his
to that
of law without which
due
requirement
deprived
property,
recusal —a
no one
necessitates
requirement
some
level of
in
of it should
basic
communication and
and that
judge
teraction
read into the
But
between
and district
therefore be
law.
taxes,
V,
prosecute
pay
§
See Tex.
with their
is unfit
Const,
art.
provide
given
ev-
court must
case....
Hill,
such a requirement
officer,”
would be
order requiring
inconsis-
citation of the
statute,
(2)
tent with the
of the
terms
which
person
and
appointed
after “the
to
prescribes
only
the
notice to
given,
bond,
serve executes a
with at least two
hearing,
that of the
final
authorizes
sureties,
good sufficient
in an amount fixed
the suspension
any time
at
after the
by
judge
the
required
and conditioned as
order
been
therefor has
made. To hold by
judge.”139
the
It is conceivable that
hearing
that notice and a
were neces-
both of
requirements
these
can be fulfilled
sary
suspension
before
would render the
prior
acquiring
the officer
notice
power futile. To the contention that
through
of
receipt
his
the citation and
suspension
depriva-
without notice is a
petition;
therefore, chapter 87 does not
tion of property
process,
due
without
the
appear
guarantee
the officer will
property right
answer is that such
in an
prior
suspension.
receive notice
his
qualified
office as the
has
by
holder
all Lastly, chapter
clearly does not guaran-
pre-existing
provide
valid laws which
right
tee the
hearing prior
suspen-
to a
termination,
its
suspension
and,
sion, for it
prescribing
contains
statute
hence,
application
the
of remedies so
requirement.
such a
provided for
not unduly deprive
does
him any
One
property.136
aspect
final notable
of Griner is the
supreme
response
court’s
to “the conten-
petition
for removal Griner does
tion that suspension without notice is a
appear
not
to operate
differently than
deprivation of property
pro-
without due
modern-day
the
petition that
is filed in
cess.” The supreme court’s answer—“that
accordance
chapter
87 of the local
property
such
in an
right
office as the
government
Chapter
code.
87 states that
by
holder has is
all
qualified
pre-existing
trial,
pending
county
officer’s
“district
provide
suspension
valid laws
for its
judge may
suspend
temporarily
the officer
termination” —reflects
idea that an
may
appoint
person
per-
another
public
form
individual
office
accepts
the duties
office.”
who
takes it
of the
While a
onere,140
officer,
is,
judge may suspend
cum
individual “as-
(1) “[ajfter
do so until
obligations
issuance of the
sumes the
burdens and
136. Id.
declared in favor
his fitness for the office
respects;
people
in those
but the
declared, by
provision
whole State have
87.017(a) (Ver-
§
137. Tex. Loc. Gov’t
Ann.
Code
Constitution,
disqualified
he is
1999).
non
office,
holding
notwithstanding
his
election,
found, by the
if he is
means thus
138. Id.
provided,
guilty
to be
of habitual drunke-
right
ness. His
franchise is thus
87.017(b).
§
139. Id. at
limitation;
subject
made
to that
subjected
term of his office is thus
to a
accepted
140. The idea that an office is
cum
period
years
shorter
the two
for which
than
State,
Trigg
onere was also
v.
reflected
he was
received the office
elected. He
sub-
(1878). Trigg,
Tex.
an elected coun-
terminated,
ject
being
place
to its
and his
ty attorney, appealed
supreme
to the
being
person,
by
filled
another
mode
after he
upon being
was removed from office
pointed
out
the Constitution.
guilty
found
of habitual drunkenness and offi-
Griner,
Trigg
Id.
implicit
While
discussing
cial
misconduct.
constitu-
supreme
express
explicitly
court did
this idea
removal,
tionality
Trigg’s
supreme
Sparks
Tex.Crim.
60 S.W.
court commented:
(1900)
sheriff,
("The
when he under-
elective,
office,
being
qualified
The office
vot-
took the
assumed them
duties of
have,
election,
onere.").
county
voluntarily
ers of the
and cum
*29
benefits,
if
assume
subjects
the office as
as
without merit. Even we
well
its
were
correct,
is
it does not
legislative
himself to all constitutional and
relator’s contention
none-
office,
change
respondent
the fact that
was
provisions
to
and under-
relating
the
relator,
disqualify
given
required
theless
to
perform
imposed
takes to
all the duties
(1)
subject
relator’s status as the
that:
occupant.”141
its
his involvement
investigation
the
rendered
nothing incredibly
There is
novel about
investigation inherently improper;
this
decision that relator
not
Court’s
was
(2)
pro-
respondent was not authorized to
hearing prior
entitled to notice and a
to his
if she felt it
investigation,
hibit the
even
Qriner,
disqualification.
light
arewe
(3) the
questionable necessity;142
was
clearly not the first court to find that a
entitled,
grand jury
expressed
ear-
was
county
lawfully impeded
officer can be
by
to be
opinion,
lier
assisted
performance
the
of his official duties with-
appropri-
that it
could work with
receiving
hearing.
out first
notice and a
(4)
had an obli-
ately;
respondent
moreover,
finding,
present reality
This
is a
appoint an
gation
disqualify
to
relator and
temporary suspensions
chapter
with
under
integrity
tern to
the
secure
Lastly,
holding
we note that in
system
the
grand jury
proper
relator
not
to notice
was
entitled
and a
Only
justice.
administration of
hearing,
opposition
we have not acted in
to
jury
have terminated the commence-
could
holdings
any
out-of-state cases dis-
investigation,
ment of its
and whether or
point
fully
cussed herein —a
de-
to
opportunity
not relator is afforded
veloped
opinion by
earlier in this
our dis-
grand jury
is a matter that is
address
cussion distinguishing Matko.
him.144
by
jurors,143
by
decided
case,
In the
grand jury
instant
Furthermore, any public benefit that could
notified respondent of its desire to investi
being
from relator
afforded a
have derived
gate relator for possible
wrongdo
case,
criminal
hearing
negligible in this
because
that,
ing. Relator
by
contends
had he been
any
trumped
such benefit is
need
hearing,
afforded a
provid
would have
recognize
longstanding reasons
respondent
testimony
ed
maintaining
secrecy
grand jury’s
and evidence
grand jury’s
proceedings.145
show
concerns
Preissler,
grand jury conducting
Article 2.07 states a can attorney serving Willacy County, tem pro point “any competent The attorney.”168 in justice peace he a of the Camer- while is statute wording contains no from which Second, County. relator has not dem- on one can interpretation derive the that a of these onstrated how Garza’s fulfillment judge cannot appoint a criminal defense positions to the two will be detrimental counsel in practicing who is the same coun- of public performance interest or how ty. Although Legislature could have justice peace will inter- his duties as of appointment written restrictions into arti- 2.07(a), attorney Furthermore, any way fere in his duties as cle it did not do so. with fails to pro Accordingly, tem. this Court question, light while this Court of respondent on expressed preceding part the concerns see error on the paragraph, good whether was a idea to this basis. appoint purpose Garza for the of investi- Animosity, Bias, Conflicting In- c.
gating relator, say respon- we cannot terests dent committed a clear abuse of discre- dis- argues Relator also that Garza was tion.169 attorney pro as an tem because qualified b. Justice of the Peace unbiased, independent, Garza “not was interest,” a is conflicts of and was
Relator contends that Garza
without
legally incompetent
attorney pro
to one of the concerns raised
to act as
witness
differently,
Op.
Att’y
it cannot
167.
Tex.
Gen. No. GA-0241 at *10-
have decided
issue
(2004) (citations omitted).
decision unless it is
disturb the trial court’s
arbitrary and unreasonable.”
shown to be
2.07(a) (Ver-
art.
Tex.Code Crim.
Ann.
Proc.
omitted).
Walker,
(citations
ney 2004.”172 further there is whether question that “there is a tremendous amount dependent upon of interest is a conflict animosity relator Gus- Judge between Be of the individual case. circumstances it has in a tavo Garza such that resulted for deter bright-line cause there rule altercation on at physical between two the level mining a conflict rises to whether one points least occasion.” Relator also violation, each case must due-process of a out that Garza candidate for As peculiar facts to it. analyzed which, as the same election ex tem, Supreme Court has attorney pro he was re- the United States investigating argues lator “voter fraud.” Relator plained:
that Garza’s tem service concep- process Due “is not a technical questions the integrity raises about tion fixed content unrelated process criminal appear- and creates an Rather, time, place and circumstances.” ance of impropriety.173 phrase expresses requirement fairness,” requirement “fundamental impartial
The absence of an be as as its meaning opaque can whose prosecutor and disinterested has been held Due importance lofty. Applying pro violate criminal defendant’s due *35 right Process Clause is therefore an uncertain fundamentally cess to a fair trial.174 must enterprise another discover what way, process rights [that] Put the due of of in a a criminal are a “fundamental fairness” consists defendant violated when considering prosecuting attorney by who has a conflict of first particular situation interest to the any precedents relevant defendant’s case relevant and then acknowledged poten- 172.We would note that the election for 1992 173. Garza himself Willacy Attorney, impropriety in his County appearance for an wherein Garza tial attorney pro tem instant opponents, Guerra as an were resulted in an elec service Accordingly, an assis- appealed case. Garza associated tion contest which was this Court. Garza, (Tex. prosecute pro tem to the trial See Guerra 865 tant v. S.W.2d 573 1993, planned not to w.o.j.). case relator App.-Corpus Christi writ dism’d Guerra, case, participate the trial himself. Party In that the Democratic nominee, Garza, candidate, sued write-in (4th contesting 709, general the canvass of the Ganger Peyton, results v. 379 F.2d 714 174. Cir.1967) (conviction election which declared Garza the winner. violated fundamental alleged process See id. at when 574. Guerra that Garza fairness due clause assured conspired part-time his workers to obtain votes and commonwealth suffered Willacy County by impermissible by prosecut- defraud voters of com conflict of interest mitting ing while si- multiple violations of Texas Elec defendant for criminal assault trial, multaneously representing wife in defendant’s tion Code. See id. After bench the trial action). divorce court Guerra's declared denied contest and Id. Garza winner. This Court reversed 927; Eidson, Pirtle, judgment and remanded the case to the at 808; 6; Goodman, open trial with instructions to the ballot at at S.W.3d (Tex. 152, boxes and recount the in a manner ballots Fluellen pet.). opinion. App.-Texarkana at consistent with our See id. assessing the several interests that prosecutor are higher who covets office or who at stake.176 personal has a political grind axe to well prosecutor exceed zeal of’ a who The burden party seeking is dis- has more limited ambitions.181 Neverthe- qualification prosecutor present less, a prosecutor’s political ambitions establishing evidence the existence of dis- enough alone are not qualifying support finding prejudice.177 bias or Mere alle- prosecutor gations sufficiently disin- wrongdoing will not suffice.178 Furthermore, terested.182 Texas case law The issue of what constitutes an “impar- clearly shows that a potential mere prosecutor tial” requires explanation. A perceived conflict of interest is not suffi- prosecutor “partial” is not simply because cient to warrant disqualification.183 We do zealously Rather, seeks a conviction. not lightly disrupt orderly prosecution “partiality” in this context is similar to a of those who have committed crimes conflict of interest the sense that against the State and her citizens. prosecutor personal has a interest or stake in the outcome of the prosecution. criminal prosecutor’s A “primary duty” Thus, “partiality” refers not to personal convict, is “not to but justice to see that zeal but to a situation personal where the done.”184 regard, In this any interest that prosecutor interests of the generate a is inconsistent prosecutor’s with the duty structural conflict of interest.179 That is to justice see that is done is a conflict that say, prosecutor’s personal interest or could potentially violate a right defendant’s partiality may present “an actual conflict to fundamental example, fairness. For if a if potential interest its for misconduct is prosecutor has a financial stake in the deemed intolerable.”180 outcome prosecution, of a the conflict be regard,
In this
note
we would
tween that interest and the duties of the
courts have observed that “the zeal of
public
office clearly presents constitutional
Servs.,
Id.,
Dept.
States,
176. Lassiter v.
Wright
Soc.
452 U.S.
v. United
Til F.2d
18, 24-25,
101 S.Ct.
(2d
concerns.185
Garza’s direct
investigation of these
potential access to or use of confidential
sults of the criminal
through prior repre-
duty
jus-
obtained
charges
information
and Garza’s
to see
of the defendant could under-
not be
prosecutor
sentation
tice is done. A
should
the prosecution.186
mine
fairness of
confi-
subject to influences that undermine
Moreover,
arising
prose-
a conflict
from a
can be conduct-
prosecution
that the
dence
in
non-economic, personal
cutor’s
interest
cannot
ed in a disinterested fashion. We
right
the case can violate a defendant’s
in
proceeding
in a
which
have confidence
process.187
example,
due
For
certain viola-
prosecutor plays
the critical
interested
give
tions of the election code can
rise to
the case
preparing
presenting
role of
monetary damages
causes of action for
believe,
guilt.
defendant’s
We
un-
for the
opposing
candidate in a race.188
circumstances,
been
der these
relator has
conflict, and
prejudiced by
will
context,
In this
relator’s com
of a due
such conflict rises
the level
plaints
appoint
improper
process violation.
in
investigate
Garza to
fraud
an elec
voter
tion
significant
lost are of
con
Serving
d. Prosecutor
as Witness
knew,
cern. Garza
when he drafted the
contends that Garza’s status as
Relator
appointing
order
himself as
relator
a candidate
the election which
tem,
allegations against
that one of the
is accused of
fraud “makes
fraud,
[relator]
voter
specifically
relator involved election
determining
whether coun-
fraud
witness.”
“voter
committed
the District
Attorney,
Angel
disqualified
Juan
sel should be
because counsel
during
Guerra
witness,
potential
election of March 2004.”
Texas courts use
Garza was rela
opponent
disciplinary
tor’s
in that election.
rule 3.08 of the Texas
rules of
According
ly,
potential
there is a
conflict
professional
guideline.189
between
conduct as a
See,
e.g., Ganger Peyton,
Disciplinary
v.
379 F.2d
of the Texas
Rules of Profession-
(4th
1967).
provides,
part;
al Conduct
712-13
Cir.
(a)
lawyer
accept
A
shall not
or continue
See,
Goodman,
e.g.,
at
employment
before a tribu-
as an advocate
contemplated
pending adjudica-
nal in a
Balenger,
187. See Commonwealth v.
704 A.2d
lawyer
tory proceeding if the
be-
knows or
(Pa.Super.1997) (granting
a new
lawyer
lieves that the
is or
be a witness
prosecutor
trial where the
was involved
necessary
fact on
to establish
essential
relationship
client,
romantic
with the defendant’s
lawyer’s
behalf of the
unless:
wife), appeal denied 556 Pa.
727 A.2d
(1)
testimony
relates to an uncontested
(Pa.1998).
issue;
433 court, contempt oc- constructive Accordingly, conditionally issue while we will respect mandamus relief to relator’s presence. with outside the court’s curs fourth issue. case, of a contempt alleged in this violation order, presence outside the court written
X. Contempt and Sanctions court, contempt. A of the is constructive Contempt to a Motion for finding contempt 1. for of disobedience a rea- requires proof beyond order Contempt broadly of court is (1) specific a reasonably doubt of: sonable disrespect defined as disobedience to or of (3) (2) order; order; of the and violation by acting opposition a court to its aut the order.201 the willful intent violate hority.199 definition, Within this there are types contempt: contempt of two direct motion filed an unverified Relator contempt.200 Direct con constructive Court,202 alleging contempt for this that
tempt type of disobedience or disre of Garza spect presence respondent which occurs within the had violated act, is, 2003, denied) appointment (Tex.App.-Texarkana pet. anof tem, (same); pro is of League such short duration that relator v. Bu- Univ. Interscholastic chanan, 298, (Tex.App.-Aus- cannot obtain review before the issue be 848 S.W.2d 304 moot, 1993, (same). expec pet.) comes and there is a no reasonable tin that, again Finally, September tation that the action if we same will occur would note on 2007, 11, contempt the issue not considered. v. See Blum relator filed "motion for Lanier, 259, (Tex. 1999). equita- 997 S.W.2d 264 motion for mandamus and/or and/or alternative, We further ble relief or in the motion “public conclude that the inter affidavit, exception stay," supported by which he est” mootness doctrine also respondent have applies. pub This contends that and Garza is an issue of considerable meeting importance privately with a new capable lic been and the issue is of repetition in relator's absence and “is concerned parties between either same intervention, Appeals’ without this Ngo, Court public. Ngo other members of the v. See 688, grand jury, direction with this new under the 133 S.W.3d (Tex.App.-Corpus 692 2003, [respondent] illegal participation and the pet.). Supreme Christi no The Texas Garza, again him- ... Relator will once find yet recognized public Court has not inter being investigated, arrest- self indicted and exception est to the mootness doctrine Accordingly, ed." based on the record as appellate intermediate courts are not motion, whole and this recent we conclude unanimity regarding availability, its this but continuing herein are vital and that the issues specifically recognized excep Court has in nature. tion, as have of our several sister courts. 692; Ngo, 133 S.W.3d at see v. Nueces FDIC Chambers, 257, parte Ex 898 259 S.W.2d 766, (Tex. 1994) County, 886 S.W.2d 767 (Tex. 1995). ("This previously Court has not decided the viability public exception, of the interest Id. unnecessary we find to reach that issue here.”); Houston Chronicle Pub. Co. v. Thom as, 396, Id. (Tex.App.-Hous 196 S.W.3d 399-400 2006, pet.) (noting split ton no [1st Dist.] among regarding availability contempt typically veri- courts 202. Motions for are fied; however, accept- public exception); interest rel. Cock unverified motion is State ex Cockerham, 298, provides other- erham v. 302 able unless a relevant statute 2007, See, 12, Winfree, (Tex.App.-Texarkana (recogniz parte Tex. pet.) e.g., Ex 153 wise. (1953) (verification ing public exception mootness S.W.2d 156-58 interest to the 263 Hall, doctrine); Keller, Guardianship jurisdictional); parte In re see also Ex 2005), (Tex.App.-Waco (Tex.Civ.App.-Dallas S.W.3d rev’d S.W.2d (instituting grounds, Wuemling, proceeding) contempt pro- Zipp orig. other v. on (Tex.2007) (same); Securtec, ceeding complaint vio- Inc. does not unsworn County Gregg, process). 810-11 late due *39 434
this Court’s March stay 15 presented. Therefore, order —which evidence was be- stayed January the appointing 17 order cause the evidence before us does not show Garza as attorney pro by meeting beyond a reasonable doubt that respon- tem — grand jury with the on March 21 for the dent and stay Garza violated the order purpose of handing down indictments meeting grand jury 21, with the on March against relator. This Court was mindful of 2007, respondent we do not find or Garza the charging seriousness of a sitting judge in contempt of this Court.206 contempt. judge’s A “refusal to obey the direct superior order of a court threat- for Motions Sanctions very integrity ens the and continued validi- Respondent Garza have each ty of judicial system.” the State Ac- requested that this Court sanction relator cordingly, we scheduled a show cause filing for the contempt. his motion for hearing to ascertain validity the of rela- Rule 52.11 of the Appellate Texas Rules of allegation.204 tor’s Procedure states: Prior to the hearing, show cause On motion of any party or on its own respondent and Garza filed motions dis initiative, may court notice miss relator’s contempt. motion for Re —after and a opportunity reasonable to re- spondent’s motion asserts that she “did not spond impose just sanctions on party direct the Jury Willacy Grand County to — or 21, meet on who is not acting good March issue true Garza, bills Relator.” faith as indicated by any his mo of the follow- tion, similarly asserts ing: that he “did not directly indirectly recommend, or request (a) filing petition clearly or [grand jury] direct to meet on groundless; 21, March to issue indictments and/or (b) bringing petition solely delay against [relator].” Their assertions were of an underlying proceeding; supported
later
at
hearing
the show cause
(c) grossly
through
misstating
omitting
their
an ob-
testimony,
own
as well as
forep
testimony
viously
grand jury
important
and material fact in
No contradictory testimony
petition
or response; or
erson.205
Reed,
604,
(Tex.
In re
901 S.W.2d
reporter
court
for the 197th Judicial District
App.-San
orig. proceeding).
Antonio
arranged
reporter
Court and
for the
to meet
grand jury
at the sheriff’s office. Accord-
appeals
204. The
authority
court of
has the
ing
foreperson, only
reporter
to the
the court
evidentiary hearing
conduct its own
on a con-
grand jurors
and the
present
twelve
were
tempt allegation
or it
refer the matter of
proceedings
being
while
were
conducted
taking testimony
hearing
evidence to a
grand jury;
proceedings
these
were under
Reed,
district court.
In re
Though at the show cause evidence motions filed this cause Any pending hearing support allega- failed to relator’s are specifically and not addressed herein tion, it also failed to show that relator had dismissed as moot. in good good not acted faith. A lack of faith would be more evident if the evidence ruling, do not address so we indicated that relator that his allega- knew regarding related the future devel- issues appropri- tion false and failed to take was case, or actions opment of this what will ate apprise measures the Court appropriate light of Garza’s removal However, fact. relator’s counsel asserted tem. Such matters shall be pro hearing at the that he and relator did not for his consid- presented Judge Báñales allegation learn that called into was ruling prerequisite eration and as an initial question respondent until and Garza filed review, if any for our further is indeed responses contempt to the motion for a necessary. day hearing cause before show Therefore,
scheduled commence. after by Justice Dissenting Opinion carefully considering respondent and BENAVIDES. sanctions, Garza’s motions for we find BENAVIDES, Justice, dissenting.
both motions should be denied.
I. Introduction
3. Costs part, majority has For the most extraordinary eloquent opinion is thor- Court incurred costs crafted $2,210.90 $1,016.20 ex- developing oughly painstakingly researched and I-XIV, noting evidentiary necessary plained. Reading record Parts resolve careful consideration of all foregoing contempt motion for and mo- its delicate and law, law, disposition including our relevant out-of-state tions for sanctions. Given majority that the would contempt of the motion for and motions for one would assume sanctions, solidly sup- its deliberate and hereby the Court assesses these continue Sur- analysis through to the end. equally. ported costs relator and Garza my disappointment, prisingly, great costs and to parties pay We order these such majori- days foundation on directly thirty sturdy to this Court within which IX, Part ty collapses stands at opinion. opinion the date of this The Clerk of the 2.d, 2.c, opinion, 2.e of the subparts the bills un- Court is directed to forward majority ultimately finds Garza parties upon to the derlying these costs attorney pro tem. disqualified to serve as request. R.Arp. 207. Tex P. 52.11. *41 fact so, the that Garza could be material wit- doing majority glosses the over disagree holdings. I both ness. with jurisdiction, the ignores
Court’s lack of record, in the and fails to ad- deficiencies are moot. A. These issues now previous analysis. here to its own indicted for a criminal Guerra was never participation out of his arising offense VIII; 1, join subparts I Parts Part IX I— grand 2004 election. the the March With 2.a, 2.b; subparts Part X 1 and 2 and and no expired, Garza can jury’s term now the correctly because those sections state longer investigation prose- in the assist applicable properly apply that law. law Thus, of Guerra’s election conduct. cution However, disagree majority’s I the conditionally grant purporting to while conditionally grant mandamus decision relief, majority’s opinion is mandamus the against Garza. I relief and to assess costs dog a bite—the issues on which without deny petition the for of manda- would writ longer no majority grants the relief are against mus and assess all costs Guerra. Garza has part proceedings below.1 below, I Accordingly, fully and as set out of a “interest” the outcome voter no respectfully dissent. long- there is no prosecution fraud because Further- prosecution. er a voter fraud II. Discussion more, cannot be obviously, Garza majority grants The relief on two testify prosecution because no called to grounds, arising from apparently both January proceed can under voter fraud political Garza’s as former status Guerra’s 17 order. opponent. Garza a candidate ran was who majority briefly describes Although for election Guerra in 2004. This ju- constitutionally mandated this Court’s to in was the same election referred opinion fails requirements,2 risdictional by Judge Lopez, January 17 order issued granting relief explain how the order stated, Jury “The Grand was aware effect on have discernible will by the District of voter fraud committed Presumably, the ma- prosecution below.3 Attorney, Angel during Juan Guerra essentially ignores this defect jority election of 2004.” March can- recognizes that we opinion because finds ap- that Garza’s majority first to deter- “go behind the indictment” process pointment violates Guerra’s due as Guerra’s mine Garza’s status whether allegedly im- rights because Garza has an somehow tainted opponent former election re- Second, actually interest. the indictments that were permissible conflict of record, Moreover, on this we relief because it finds turned.4 majority grants 434, State, advisory opinions, prohibition lie in the v. 463 436 1. See Davis S.W.2d separation (Tex.Crim.App.1971) (rejecting as moot chal- which in turn stems from the lenge paragraph of indictment doctrine.”). to second powers paragraph present where did not State 466, State, jury); Rojas v. 662 S.W.2d (citing Tex. majority opinion note 198 3. See 1983, ref'd) pet. (Tex.App.-Corpus Christi LaFleur, Safety Dep’t v. 32 S.W.3d Public (holding challenge in- defendant’s to State's 2000, 911, no (Tex.App.-Texarkana 913-14 alleging multiple was dictment as felonies pet.)). moot, present- given only count one jury). ed to State, (Tex. v. 4. See Dean State, 799 Crim.App.1988); DeBlanc v. Parenthood, 971 2. Patterson v. Planned (Tex.Crim.App.1990); Mat (Tex. 1998) ("The S.W.2d constitu (Tex.App. ney v. justiciability doctrines such as tional roots mootness, McCoy pet.); standing [1st Dist.] Houston ripeness, as well as because, First, Supreme Texas I note that assumption make such an cannot out, “public majority repeatedly points yet recognized has not Court jury approached Lopez with grand Judge doc- exception to the mootness interest” concerns about election fraud its de- Appeals The Houston Court trine.8 before involved, notwithstanding Garza was holding that adopt exception, clined to jury failed investigation, its high- from the of direction in the absence *42 return an indictment on that issue. State, improper in our it is est majority juris-
The concedes that these issues limited constitutionally expand our moot, in a are but footnote without Notably, the cases cited none of diction.9 ex- majority asserts two explanation, nor Texas case majority, any other by the The to the mootness doctrine.5 ceptions matter, this ex- applied has that ever for that interest” majority “public asserts I proceeding. in a ception mandamus to mootness exception applies because exception from applying refrain would investigate of Garza voter appointment all, application particularly and its at of public fraud is “an issue considerable in a proceeding. mandamus inappropriate and the of importance capable issue is has exception been “public The interest” repetition parties between either the same by apply this Court to when issue held public.”6 or other members Addi- is “ca- public importance” of “considerable tionally, majority that Garza’s claims repetition either pable of between appointment investigate prosecute parties other members same allegations “capable voter fraud is appel- evading but for some reason evades repetition public, but I cannot review.”7 “mat- join holding. either late review.”10 What constitutes 777, majority opinion (Tex.App.-Corpus 773 S.W.2d note 198. 779 5. See 1989, ref'd). pet. long Christi It has been may quashed an indictment law that not be id. 6. See “person set aside because the who acted as by empowered was law not 7. Id. do The act of the so. indictment was the Gonzales, 197, grand jury.” v. State 26 Tex. 766, County, See FDIC v. Nueces 886 S.W.2d 198, 2833, (Tex.1862). WL Fur 1862 at *2 1994). (Tex. 767 thermore, January directed 17 order investigate that Garza to several concerns Thomas, Publ’g v. Chronicle Co. 9. Houston fraud, allegations were unrelated to of voter 396, (Tex.App.-Houston [1st 400 196 S.W.3d appointment is not as to these matters 2006, ("The Supreme pet.) no Texas Dist.] by invalid that rendered a determination yet public recognized the inter- has not disqualified acting Court be as at Garza torney pro investigat exception to doctrine and purpose tem for the est the mootness ing possible voter compels fraud. See Kubena wait until judicial restraint us to that Hatch, 144 Tex. 193 S.W.2d split authority court decides resolve the (1946) ("Contrary to law rule courts.”). the common appellate in the intermediate judgment entirety as an considered whole, vacated is well and must be as a (Tex. Ngo, Ngo v. 10. See judgment may in this state that a settled pet.); App.-Corpus Christi Nueces part part provided void in valid in Inc., Trucks, Whitley County v. portion dependent is not so the inval valid 1993), (Tex.App.-Corpus Christi writ it.”). majority id as to fall with concedes w.o.j., County, Nueces dism'd F.D.I.C. v. refusing much to invalidate the entire (Tex. 1994) recognize (refusing to S.W.2d 766 order, January though even it finds that exception, determining that ex public interest included the order civil matters appeals recognized by did ception as court of investigate. properly could not moot). dismissing apply, and case as majority opinion, subpart 8. See Part VI significant ter of public importance” is not found his decree upon some rule that is specifically law, defined in the case and the equally applicable to all circumstances of lack of any definition or discernible bound- limitation, If kind. he be under no potential aries creates the for abuse. It appear arbitrary, though decrees will brings to mind the wise words of caution just and, worse, substantially which is — by Henry written Home and reiterated arbitrary, will often be substantially Supreme the Texas regarding Court such, unjust; for frequently, too are hu- of equity boundaries and the need dis- man proceeding subjected when to no cernible rules: rules, true, control. General it is must equity If an jurisdiction court’s lim- produce often decrees that are material- reach, only by experience ited its dem- ly unjust; for equally just no rule can be onstrated that the arbitrary exercise of application in its to a whole class power was certain to result. ifAnd *43 cases that being are far from the same every we endeavored: “To determine every circumstance —but this incon- particular according case to just, what is tolerated, venience must be avoid equal, salutary, taking all circum- greater, that making judges arbitrary. of stances is undoubtedly [it] the idea of a equity A court of happy is a invention court of equity perfection; its and had remedy the errors of common law: but angels for judges we such would be their remedy stop where; this must some of proceeding method regarding without courts cannot be established without any rules: but men are [and women] énd, to be one upon checks another. prejudice error, liable to and for hence, is, that, And in the nature of reason, safely cannot be trusted things, there any cannot be other check powers. with unlimited Hence the ne- upon a court equity general of but cessity rules, of establishing preserve rules.”11 uniformity judgment of in matters of Because we should our reserve extraordi-
equity as
of
well as
common law: the
nary
power
writ
for circumstances where
necessity
perhaps greater
in the for-
our decision has an effect
mer,
proceed-
on the
variety
because of the
intricacy
below,12
ings
amorphous
and an
equitable
exception
of
circumstances.
Thus
though particular
to the mootness
may require
engage
case
doctrine would
interposition of
this
in an
equity
impermissible
to correct a
Court
extension of
defect;
wrong
supply
yet
judge
our limited
jurisdiction,
mandamus
I would
ought
interpose,
not to
unless he can hold that Guerra’s issue is
moot.
now
Morales,
S.W.2d.941,
(Tex.
restricted.”);
11. State v.
869
944
should be
In re State ex rel.
1994) (refusing
expand equity jurisdiction)
454,
Rodriguez,
(Tex.App.-
196 S.W.3d
459-60
(quoting
46
Henry
2006, orig. proceeding) (dismissing
Principles
Home,
Equity
E1Paso
as
(2d
1767)).
ed.
petition seeking
moot mandamus
relief from
intervention,
denial of motion to strike
where
Perez,
(Tex.
12. Minton v.
841 S.W.2d
intervening party
separate
was severed into
1992) (dismissing
petition,
mandamus
hold
suit); Cappadonna
Mgm’t
Elec.
v. Cameron
ing
challenge
removing
that relator’s
to order
County,
(Tex.App.-Cor
him from office after criminal conviction was
("When
pus
orig. proceeding)
Christi
moot because relator obtained reversal of
controversy,
there has ceased to be an active
Packer,
appeal);
conviction on
Walker v.
‘the
appellate
decision of an
be a
1992)
would
(Tex.
("Avoiding
inter
")
that,
(quoting
mere academic exercise.'
Hanna
locutory appellate review of
errors
Godwin,
harmless,
analysis,
prove
(Tex.App.-El
final
will
to be
1994, writ)).
principal
one of the
reasons that mandamus
Paso
not
to issues that are
Second,
explain
ceptions only apply
majority
does not
investigate
by the normal
why
appointment
capable
being
Garza’s
reviewed
Guerra,
in this
has re-
prosecute
process.14
who
context
This Court
appellate
excep-
the hat of a criminal defendant and
“public
wears
interest”
apply
fused to
attorney,
is a
the hat
been
the issue has
tion to cases where
importance
matter of such
that the consti-
by other courts
reviewed on the merits
jurisdiction can
tutional
limitations on our
have
if other courts
appeals;
logically,
great
takes
majority
be discarded. The
issue,
re-
escaped
it has not
reached the
Guerra’s sta-
pains
distinguish
between
fact,
this Court was reversed
view.15
attorney,
tus
a district
and his claims
as
it erro-
Supreme
the Texas
Court when
regard,
made in that
and his status as an
“public interest” ex-
neously applied the
ordinary criminal defendant.13 Neverthe-
ad-
issue that had been
ception to an
less,
majority ignores
the fact
appellate decisions.16
dressed
numerous
ordinary
Guerra
the hat of an
crimi-
wears
majority claims that
the issues
regard
challenges
nal defendant with
to his
conflict of interest and status as
Garza’s
qualifications.
why
to Garza’s
I fail to see
review,
they
evades
potential witness
prosecution
any greater public
is of
to moot-
exceptions
to fit
must
within
than
prosecution.
interest
other
however,
ness;
ignores the
majority,
decisions that have ad-
Third,
appellate
numerous
majority
explain
does not
*44
issues,
of
same
“public
exception overlaps
interest”
dressed the merits
these
relies on in
majority
some extent
some of which the
“capable
repetition
Thus, it
clear
yet evading
exception
reaching
ex-
their decision.17
is
review”
—both
State,
825,
(Tex.Crim.
majority opinion
827
13. See
Part IV.
aid v.
453 S.W.2d
(reviewing
appeal claim that
App.1969)
on
Ngo,
133 S.W.3dat693.
prosecutor
improper financial interest
had
State,
28,
Canady
prosecution);
v.
100 S.W.3d
15. Id.
2002,
(review
(Tex.App.-Waco
pet.)
31-32
no
alleged
appeal);
ing
conflict of interest on
County,
16. See Nueces
repetition
evading
but
review”
above,
argument
Guerra’s
As noted
Finally, although
possible
it is
disqualified to serve as
Garza is
grand jury
investigate
second
could
Guer-
only be raised when Guerra
pro tem can
violations,19there is
ra for election fraud
criminal defendant.
the hat of a
wears
suggest
no evidence to
that Such will be
(if he
other criminal defendant
any
Like
Moreover,
if
the case.
even
that were to
defendant),
can
Guerra
ever becomes
truly speculative proposition—
happen —a
stage
the pretrial
address this matter at
and a
indicted Guerra on voter
Nevertheless,
majori-
prosecution.
specula-
it
more
allegations,
fraud
is even
departure
no reason for their
ty provides
again
to assume that Garza would
tive
in Part
lengthy discussion
IV
from the
fact,
appointed
tem.
(or
inadequate rem-
necessity for an
about the
unlikely
Judge Lopez
highly
*45
matter)
judge
appoint
edy by appeal.
other
for that
would
624,
(Tex.
State,
227,
Rogers
625-27
(Tex.Crim.App.1996)
v.
956 S.W.2d
S.W.2d
229-30
1997,
ref'd);
pet.
v.
(same).
App.-Texarkana
Gaitan
State,
703,
(Tex.App.
905 S.W.2d
707-08
1995,
ref'd); Mejia
pet.
Dist.]
Houston [14th
Reed,
(reviewing on
18.See
fendant subject
possibility,
to the same
possibility
nor D. The mere
of Garza testi-
fying
automatically
does not
warrant
majority explain
does the
why Guerra
disqualification
error,
or constitute
would not benefit from state and constitu-
supports
majority’s
no evidence
con-
protections
tional
could raise
the trial
clusion.
appeal.
court and on
recog-
Courts have
appeals
of criminal
has held
that
process protects
nized
due
a defen-
party seeking disqualification
“can-
trial,
right
dant’s
a fair
may
necessary
invite the
actual prejudice
if
jeopardized
prosecutor
testifies as a
by unnecessarily calling
opposing
coun-
material witness on an element of the
Furthermore,
sel as a witness.”29
crime charged
argues
and later
his own
court has seemingly distinguished between
credibility
jury.27
to the
Yet
majority
situations in
testimony
which counsel’s
inexplicably
require
does not
Guerra to
critical to the issue of innocence and situa-
prove
process
a due
regard
violation with
testimony
tions where the
“merely
tan-
potential testimony,
to Garza’s
which ad- gential
guilt,”
to the case or to defendant’s
mittedly, Guerra
attempt
did not even
to finding that only the former scenario re-
prove.28
recognizes
The majority
gen-
quires
Therefore,
disqualification.30
mere fact
that Guerra
elect to call
eral rule that a trial court may disqualify a
witness,
Garza as a
or the fact that Garza
prosecutor only
allegations
if the
rise to a
may be
testify
tangential
called to
mat-
process
due
explain
violation but does not
(e.g.,
ters
simply testify
that he
awas
why
exempt
Guerra is
from this rule. Be-
issue),
candidate
the election at
does not
majority
cause the
purports
grant
relief
create a
affording
basis for
Guerra relief.
potential testimony,
based on Garza’s
but
presented
Guerra has not
this Court
not require
does
Guerra to demonstrate
any explanation
allegedly
for Garza’s
possibility
rises to the
level
“required” testimony,
I
nor can
fathom
violation,
process
due
I dissent.
State,
any.31
Gonzalez v.
the court of
Brown,
J„
(Keller,
issue;”
"(2)
lish.” While a court can
on
signed
noticed the order
was
[sic]
matters,
“cannot
speculation
these
be
accep-
meeting
the 17th. The
and
unsupported
majority
The
dubious.”33
on the
appointment
tance of the
was
opinion recognizes as much.
already
I had
said I
11th.
would.
However,
majority ignores
the rec-
me
Judge Lopez
already
had
introduced
case,
ord in this
not support
which does
grand jury.
to the
the conclusion that Garza would be called
concern
occurred to me
That
never
testify.
only
evidence before this
I
involved me because
never
possibility
Court
addresses the
brought any
against
issues of fraud
Juan
being
Garza
in
called as a witness Guerra’s
any
Angel Guerra
of the elections.
prosecution
testimony
comes from
Garza
Q: You knew?
provided at the
hearing
show cause
before
No,
say
I
A:
sir. Don’t tell me what
In
testimony,
this Court.
Garza ne-
[sic],
brought any
I
issues of
never
gates the idea that he would have to serve
Angel
fraud
Juan
Guerra
voter
as a witness:
any
way
of the elections. I had no
Q:
you
And
[Guerra’s counsel]:
when
I
I
say was a witness. Of course was
appointed by Judge Lopez
you
were
not a witness.
concerns,
out
found
to be one of the
you
you
knew that
were
the middle of
indicating
There is no evidence before us
that election
my
where
client was al-
any knowledge
relating
that Garza has
leged
fraud,
to have committed election
illegal
act in
whether Guerra committed
why
you
isn’t it that
didn’t tell the judge,
election,
the March 2004
nor is there evi-
“Look, I’m a witness here.
I
in-
was
indicating
anticipates
dence
that Garza
be-
any
volved
this election. If there ing
testimony suggests
His
witness.
fraud,
election
I might know about it
contrary,
knowledge
any
that he
has
I might
person
have to be the
that material, disputed
regarding
facts
the al-
gets up
testify
on that witness stand and
fact,
leged election fraud.
because Gu-
about that”?
fraud,
indicted for election
it
erra was not
testify
impossible
that Garza will
against Guerra. Without
evidence
all,
[counsel],
A:
First of
[Garza]:
conclusion,
support its
this Court is bur-
judge pulled
me out and
when
when
obligation
dened
it cannot fulfill—
judge
go
pull
had an officer
me
Guerra,
i.e.,
explain
why
out of the office of
either
would
Angel
Juan
necessary
I
for the
or Guerra to call
working
plea bargain
whom was
State
Williams,
Gonzalez,
504 U.S.
112 S.Ct.
I
if Garza
further note
even
were
voluntary man
convicted of
who had been
in the non-existent
testify
somehow
conviction
argued that his
slaughter,
fraud,
prosecution for election
reversible
the trial court
should be reversed because
solely on
error
not result based
would
district at
allowing
assistant
erred
two
a
potential
disciplinary
Garza’s
violation
allegedly pro
torneys
testify,
which was
In Brown v.
professional
rule of
conduct.
Rules of
Disciplinary
the Texas
hibited
State,
appeals
the court of criminal
found
The court of crim
Conduct.40
Professional
appeals
that the court of
erred
revers
“unnecessary
it
held that was
appeals
inal
ing a
The Fort
defendant’s conviction.34
like this to decide whether
cases
had reversed the
Appeals
Worth Court
professional
rule of
con
State
[a
violated
finding
after
that the trial court
conviction
can
This
because if a defendant
duct].
permitting
prosecutor
erred in
to con
alleged
from an
prejudice
actual
show
prosecuting
tinue
the case after she testi
State,
rule violation
disciplinary
a
in the case.35 The court
fied as witness
to relief on
then he
not be entitled
will
appeals,
plurality opinion,
of criminal
in a
case,
has
In the instant
Guerra
appeal.”41
2.5(c), Texas Prosecu
noted “that Section
or
no evidence
presented this Court with
Guidelines, provides
tor Standards and
acting
Garza
argument to indicate that
not be
prosecutor
disqualified
shall
affect Guerra’s substantial
a witness would
testifying
as a witness ‘when
fair trial.
Guerra of a
rights
deprive
pro
testimony
during
need of the
arises
”36
ceeding.’
plurality
The
contended
of factual
respect to the resolution
With
both
brief and the court of
the defendant’s
being dealt
issues,
the factual issue
such as
disciplinary
rule
appeals
solely
relied
here,
that the
Guerra must establish
reversing
the conv
violation as
basis
reasonably reached
trial
could have
plurality
then held:
iction.37
if this Court
only one decision.42 Even
differently, it
issue
have decided the
applicable rule here is that viola- would
[T]he
decision
the trial court’s
not re-
cannot disturb
disciplinary
tion of a
rule does
arbitrary and
to be
can unless
is shown
quire a reversal unless
defendant
record, particular-
On this
af- unreasonable.43
disciplinary
rule violation
show
that Guerra
not ever raise
ly given
did
rights
deprived
fected his substantial
court,
say that
the trial
I cannot
Ap-
issue with
him of a fair trial. The Court
her discretion.
Judge Lopez
abused
rely solely
disciplin-
on a
peals erred to
indicted
Moreover, Guerra has not been
the convic-
ary rule violation to reverse
possibility
is no
record,
for election fraud —there
appellant’s remedy
tion. On this
Brown,
40.
Id. at 252.
34.
35.
Id. at 229.
41.
Id. at 253.
Id. at 229 n. 2.
36.
Walker,
at 839.
42.
Id. at 229-30.
Id.
omitted).
(citations
Id. at 230
(Tex.
39. House
1997).
Crim.App.
*49
personal
Garza’s direct
testify
him.
as-
conflict between
against
Even
Garza will
in-
ongoing
of the criminal
suming
prosecution
that the
was
in the results
interest
properly
had been
Garza’s
charges
and that
issue
these
vestigation of
below,
testimony is
because Garza’s
raised
done.”47
justice
is
duty to see
possibility, the trial
only
hypothetical
“conflict,” majority
alleged
finding this
reasonably concluded that
court could have
absurdity,
point of
to the
strains
that could
addressed
a matter
be
evidentiary rec-
any
or an
law
absence
and,
necessary,
if
at the trial of the case44
holding.
its
support
ord to
deny
I
appeal.45 Accordingly, would
on
earlier,
majority
First,
stated
relief.
that the
ignores the fact
completely
IN
E.
“INTEREST”
THE PROSECUTION.
GARZA’S
election
Guerra for
not
indict
jury did
Garza’s
majority
The
takes issue with
Thus,
Garza’s
grasp
I fail to
how
fraud.
Guerra,
history
manufactur-
alleged
underlying
can affect the
alleged “interest”
conflict
ing
they deem an intolerable
what
already
I
addressed
have
proceedings.
ultimately finding
that this
of interest
repeat
depth
not
this issue
will
process
a due
alleged conflict constitutes
here.
majority
The
cites three rea-
violation.
ma-
Second,
on
the “conflicts” which
(1)
independence:
sons for Garza’s lack of
by the rec-
supported
are not
jority relies
long-time political oppo-
Garza is Guerra’s
majority points out the
Although the
ord.
in the 2004 elec-
nent and was
candidate
both can-
Guerra and Garza were
fact that
(2)
tion,
animosity against
Garza harbors
election, majority is
in the 2004
didates
physical
Guerra that resulted in a
alterca-
ambi-
political
to note that mere
careful
(3)
tion,
personal
Garza has a
and financial
not
grind
axe to
political
tions or a
proceeding.
interest in the outcome of the
Al-
disqualification.48
enough to warrant
Although
majority recognizes
clear,
entirely
I do not
though it is not
clearly
a mere
“Texas case law
shows that
granting
majority’s opinion as
construe the
potential
perceived
conflict of interest is
cer-
this fact alone—which would
relief on
disqualifica-
not
sufficient
warrant
for relief
tainly be an insufficient basis
tion,”46 they determine that relief should
granted
potential
be
“there is a
this case.
because
(holding
prosecutor
Hanley,
44. The
concern with a
46. See
testifying
disqualify
of fact
as witness is that
trier
could not
that the defendant
may
prosecutor’s
be confused
dual
pros-
grounds that the
on the
roles. Tex.
R. Prof’l
Disciplinary
“prejudice"
"predisposi-
ecutor had
Conduct
3.08(a).
problem
cured at trial
proving that his
tion”
him without
by having
prosecutor actually try
another
process
a due
allegations rose to the level of
case,
prosecutor’s
if the need for the
testimo-
violation); Offermann,
at 876
Bahn,
ny cannot be avoided. See In re
disqualify
(holding that defendant could
(Tex.App.-Fort Worth
grounds that the
on the
the district
orig. proceeding) (holding that
trial court
grudge”
"personal
prosecutor harbored a
disqualifying attorney
abused its discretion
failed to estab-
against him because defendant
assisting
pretrial
matters because the
alleged
as a result of the
lish
harm
apply
does not
when
rationale of Rule 3.08
"grudge”).
merely
lawyer
performing
out-of-court
functions).
majority opinion Part IX.2.C.
47. See
Eidson,
(stating that
45. See
cation between Guerra and Garza is a com- ported by an
made on personal
affidavit
Gutierrez,
plaint signed by Eutimio
ac- knowledge,
transcription
a certified
of tes-
himself,
knowledged by Guerra
in support
in
timony
underlying
or a
proceeding,
of an information that Guerra filed at-
certified or
of a
copy
sworn
document filed
tempting
prosecute Garza.49 This is
in
underlying proceeding.54
Gutier-
merely an
by
accusation Gutierrez and Gu-
rez’s statement meets none of these basic
finding
proof
erra —it is not a
that the
requirements.
It is not based on Gutier-
actually
altercation
occurred.50 The fact
personal
rez’s
knowledge
statement
—the
a person
that
has been accused of a crime
that
says
good
Gutierrez “has
reason to
give
does not
rise to an inference that the
charge”
believe and does
believe
person
guilty.51
is
Yet that
is
what
Guerra,
Garza assaulted
is
insuffi-
majority apparently infers from Guerra’s
Moreover,
cient.55
the document
is not
accusation
Garza.
copy
certified
and is not even sworn as a
fact,
the accusation
Gutierrez is
copy by
true and correct
Guerra.56 At
not even
a form that
this
can
Court
most,
majority
only
can
speculate as to
recognize
competent
evidence.
“In
occurred,
whether an altercation ever
greater certainty
mandamus actions
speculation
certainly
this
is
insufficient to
pleadings and the facts to be established
support
finding
process
of a due
viola-
by modes
appropriate
appellate courts
tion.57
required.”52
are
The reason for this re-
Additionally,
record,
on
I
fail to see
stated,
quirement, as this
has
Court
personal
what
or financial
interest Garza
appeals
equipped
courts
are not
to find
proceeding.
facts
the first
has
the outcome of the
As-
rely
instance—-we must
presented
suming
the truth of the record as it is
that Guerra
re-
was convicted and
Thus,
office,
the Court.53
our rules require that moved from
Garza
not neces-
would
Valderas,
405,
attempted
Wright
49.
It
almost
comical that Guerra
52.
v.
575
406
S.W.2d
prosecute
respect
1978,
Garza
an act
orig.
(Tex.Civ.App.-Fort
proceed-
Worth
alleged
which Guerra was the
victim and
ing).
now,
complainant,
yet
attempt-
Guerra is
ing
disqualify
poten-
Garza because he is a
Whittle,
681,
Chapa
53.
v.
536 S.W.2d
683
tial witness.
1976,
(Tex.App.-Corpus
orig. proceed-
Christi
Hamilton,
ing); Elliott v.
512 S.W.2d
V,
(‘‘An
§
50. Tex.
art.
12
information is
Const,
1974, orig.
(Tex.Civ.App.-Corpus
Christi
presented
a written instrument
to a court
proceeding).
charging
person
for the State
offense.”);
with the commission of an
Tex.
52.3, 52.7(a);
(Vernon
TexR.App
Code Crim. Proc. Ann. art. 21.20
see Johnson
P.
1989);
("The
id. art.
Hughes,
(Tex.App.-Houston
[an
38.03
fact that
ac-
arrested, confined,
has been
or indict-
cused]
orig. proceeding); Wright,
[1st Dist.]
for,
with,
charged
ed
or otherwise
the offense
brought grand jury. before the majority stretches to create an “inter- prosecution est” the outcome of the supported by is not the record and uses purported support interest as for its determination to afford Guerra relief.
III. Conclusion reasons, For all the I foregoing respect- fully deny requested dissent. I all would proceed-
relief and all assess costs ing against Guerra. Kay LEE, Appellant
Tammie BOOTHE, M.D., A. William d/b/a Eye Boothe and Laser Care Center, Appellee. No. 05-06-00776-CV. Texas, Appeals Court Dallas. 3,Oct. (unlawful ballot), buying voting), returning (assisting 276.010 marked 86.010 (mis- materials), voter), voter), (retaliation balloting selling 501.029 276.001 (Vernon (unlawful box), petition) 2003 & representation of 276.003 removal from ballot (unlawfully prohibiting employee Supp.2006). 276.004