State Ex Rel. Eidson v. Edwards

793 S.W.2d 1, 1990 Tex. Crim. App. LEXIS 131, 1990 WL 87314

• Court: Court of Criminal Appeals of Texas
• Decided: June 27, 1990
• Docket: 70260
• Status: Published

Opinions

OPINION ON STATE’S MOTION FOR REHEARING

WHITE, Judge.

This is an original application for the writ of mandamus brought by Hon. James Eidson, the Criminal District Attorney for Taylor County. Relator Eidson seeks an order from this Court compelling the Hon. Billy John Edwards, Judge of the 104th Judicial District Court, to withdraw his order which disqualified Relator and his entire staff “in the prosecution of [trial court cause numbers 9212-B, 9213-B, and 9214-B, in which James Edward Clayton is the defendant].”

On original submission, we found the application to be moot and dismissed the cause in an unpublished opinion. State ex rel. Eidson v. Edwards, 764 S.W.2d 804 (Tex.Cr.App.1989).¹

James Edward Clayton was charged with three counts of capital murder and one count of murder in connection with the violent death of Lori Michell Barrett occurring on or about September 17, 1987. In separate cause numbers, he was also charged with unlawful use of a vehicle and credit card abuse. In October, 1987, Ross Adair was appointed to represent Clayton. Adair, along with co-counsel Ken Leggett, represented Clayton until January, 1988. During Adair’s tenure as Clayton’s attorney, he interviewed Clayton and several possible witnesses, receiving confidential information. He had numerous discussions concerning trial and pre-trial strategy with his client and co-counsel. He acted as lead counsel at Clayton’s examining trial. His tenure as a defense attorney in the case came to an end when Adair was appointed as Judge of the County Court at Law Number 2 for Taylor County in January, 1988.

Adair served as a judge until shortly after the primary election for the judgeship, about three months after his appointment to the bench. At that time, Adair resigned his position and approached Relator about employment on Relator’s staff as an assistant prosecutor. Adair soon joined the staff, but at no time did he discuss the Clayton case with anyone in Relator’s office. Several weeks before the motion to disqualify was filed, and after Relator remembered that Adair had previously represented Clayton, Relator gave Adair explicit instructions neither to discuss the case with anyone in the District Attorney’s office, nor to allow anyone to discuss it in his presence. Adair did not participate in the prosecution of the case in any way, except for helping Relator brief the law on prose-cutorial office disqualification when Clayton’s attorneys filed the Motion to Disqualify the District Attorney as Prosecuting Attorney.²

Respondent, Hon. Billy Edwards, Presiding Judge of the 104th District Court of Taylor County, Texas, found that Adair had complied with Relator’s instructions and that Adair had in no way revealed confidences to his associates in the District Attorney’s office or participated in the prosecution in any improper way by helping to prepare for the disqualification hearing. Although Adair and Relator promised to continue Adair’s disassociation with the prosecution, Respondent disqualified the entire District Attorney’s office “to avoid the. appearance of impropriety.”

The first question we must decide is whether the mandamus application has become moot since special prosecutors have already been appointed and have prosecuted the murder indictment to a successful conviction in the trial court. On original submission, we found that the application was moot because the disqualification order encompassed only “the prosecution” of the [trial court cause numbers]. However, appellate review of a capital case is automatic and a very important phase of the prosecution. The appeal of a conviction is a duty which falls directly upon the District Attorney’s office. Respondent has effectively continued Relator’s disqualification into the appellate stage by appointing a special prosecutor to represent the State on appeal. Also, Clayton stands charged with two other offenses which the District Attorney may wish to prosecute were the entire office not disqualified. Because Relator’s office is currently precluded from pursuing its normal duties with respect to the capital murder appeal and the two other indictments against Clayton, we find that the mandamus action is not moot and turn to an examination of its merits.

In pertinent part, Article V, Section 21 of the Texas Constitution reads:

The County Attorneys shall represent the State in all cases in the District and inferior courts of their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature. The Legislature may provide for the election of District Attorneys in such districts, as may be deemed necessary, and make provision for the compensation of District Attorneys and County Attorneys. District Attorneys shall hold office for four years, and until their successors have qualified.

Relying on Tex. Const. Article V, Section 21, Texas courts have uniformly declared that the offices of county and district attorneys are constitutionally created and therefore constitutionally protected. See State v. Moore, 57 Tex. 307, 315 (1882). See also Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261, 264 (1944); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918); Shepperd v. Alaniz, 303 S.W.2d 846, 850 (Tex.Civ.App.—San Antonio 1957, no writ); Neal v. Sheppard, 209 S.W.2d 388, 390-391 (Tex.Civ.App.—Texarkana 1948, writ ref’d.); State Board of Dental Examiners v. Bickham, 203 S.W.2d 563, 566 (Tex.Civ.App.—Dallas 1947, no writ); State ex rel. Hancock v. Ennis, 195 S.W.2d 151, 152-153 (Tex.Civ.App.—San Antonio 1946, writ ref'd. n.r.e.).

The authority of county and district attorneys “cannot be abridged or taken away.” Bickham, 203 S.W.2d at 566. See also Moore, 57 Tex. at 315; Maud, 200 S.W. at 376; Adamson v. Connally, 112 S.W.2d 287, 290 (Tex.Civ.App.—Eastland 1937, no writ); American Liberty Pipe Co. v. Agey, 167 S.W.2d 580, 583 (Tex.Civ.App.—Austin, 1942) aff’d., 141 Tex. 379, 172 S.W.2d 972 (1943). “Nor may the State be represented in district or inferior courts by any person other than the county or district attorney, unless such officer joins them.” Bickham, 203 S.W.2d at 566, citing Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928) and State ex rel. Downs v. Harney, 164 S.W.2d 55 (Tex.Civ.App.—San Antonio 1942, writ ref’d. w.o.m.).

The Legislature, in creating the Taylor County Criminal District Attorney's Office, has mandated that “the Criminal District Attorney of Taylor County shall perform all the duties in Taylor County required of District Attorneys by general law.” Tex. Gov’t.Code Ann., Sec. 44.321 (emphasis added). The Code of Criminal Procedure sets forth that “[e]ach district attorney shall represent the state in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely.” Article 2.01, V.A.C. C.P. (emphasis added).

By preventing the Taylor County District Attorney and his entire staff from participating in the Clayton prosecution, the trial court has constructively removed the District Attorney from his elected office with respect to that case. The Texas and this State’s laws forbid trial court removal of District Attorneys, except under statutorily defined circumstances after a trial by jury.³

The Texas Local Government Code provides for District Court removal of county officials, including District Attorneys, for three causes: (1) incompetency; (2) official misconduct; or (3) intoxication. V.T.C.A., Local Gov’t.Code Sec. 87.013. The District Judge may not remove the official merely by his order, as was done in the instant case; a trial by jury must be held before removal. V.T.C.A., Local Gov’t.Code Sec. 87.018(a). Where power is granted by statute or constitution to remove a public officer for certain specified causes, the power of removal is limited to the causes specified. Ridgeway v. City of Fort Worth, 243 S.W. 740 (Tex.Civ.App.—Ft. Worth 1922, writ dism’d.). We therefore conclude that a trial court can remove a District Attorney only for one of the three causes enumerated in Sec. 87.013 and only after the trial by jury mandated in Sec. 87.018(a).⁴ Therefore, it is more than evident that when the trial court judge disqualified the Taylor County Criminal District Attorney from prosecuting this case, he did so without authority or jurisdiction.

Generally the extraordinary relief of mandamus will not issue unless the result sought by the aggrieved party is manifestly “ministerial” in nature, as opposed to being “judicial” or “discretionary.” State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex.Cr.App.1985). Cf. Texas Department of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Cr.App.1981). However, a writ of mandamus will also issue to nullify a void order. State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 482 (Tex.Cr.App.1985); State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex.Cr.App.1984). As this Court stated in Millsap, “[bjeing without jurisdiction, the order entered after [a] hearing is void and a writ of mandamus will issue to compel vacation of the . order.” 692 S.W.2d at 482.

In Terrell v. Greene, 88 Tex. 539, 31 S.W. 631 (1895), the Supreme Court, in restoring a county attorney to his elected office after a trial court refused the attorney permission to appear before that court, ruled:

“In the case of public officers, the general rule is that, where a person holds an uncontested title to an office, mandamus will be issued to put him in possession, or where he had an undisputed right to exercise the function of an office, and, having actual and undisputed possession, he is illegally ousted or suspended from the performance of its duties, he may be restored to his rights as such officer by writ of mandamus.” 31 S.W. at 635 (emphasis added).

Any distinction between removing an elected prosecutor from a case and “removal from office” is belied by this quotation. A trial court judge is without legal authority to remove a District Attorney from a case and, as such, any order attempting to do so is void.⁵

There may be instances when a prosecutor must recuse himself from the prosecution of an individual. See generally, Annot. 31 A.L.R.3d 953. If there is a conflict of interests on the part of the district attorney or his assistants however, the responsibility of recusal lies with them, not with the trial court judge. See Article 2.01, V.A.C.C.P., Tex.Gov’t.Code Ann.Sec. 44.321.⁶ We do not wish to imply that a defendant would be left without recourse if the prosecution’s failure to recuse itself violated his due process rights. If, for example, a prosecutor who had previously represented a defendant later personally prosecuted the defendant in the same matter, the defendant’s conviction would violate the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. Ex parte Spain, 589 S.W.2d 132 (Tex.Cr.App.1979); Ex parte Morgan, 616 S.W.2d 625 (Tex.Cr.App.1981).

Contrary to the charge of our dissenting brother, we are not in any way saying that Texas prosecutors are immune from the Code of Professional Responsibility. We merely recognize that the current state of the law accords no authority for the trial courts to enforce these rules by disqualifying an entire prosecutorial office. Unlike any private attorney, the local prosecutor — be he district attorney, county attorney, or criminal district attorney — is an elected official whose office is constitutionally mandated and protected. Prosecutors are still subject to the Rules of Professional Responsibility, but they must police themselves at the trial court level because of their status as independent members of the judicial branch of government. Such a holding is not tantamount to making the fox guardian of the henhouse or letting the wolf keep watch on the flock, because a prosecutor who violates ethical rules is subject to the disciplining authority of the State Bar like any other attorney. Perhaps even more importantly, as mentioned above, his violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant. Lastly, he, like all elected public officials, must regularly answer to the will of the electorate. Should his conduct create too much appearance of impropriety and public suspicion, he will ultimately answer to the voters.

In the case before us, the trial court judge has for all practical purposes removed the Taylor County Criminal District Attorney from his constitutionally protected office regarding the prosecution of this case. We hold that the trial judge erred in entering this order. We assume that the Respondent will immediately withdraw it. The writ of mandamus will issue only if he refuses to do so.

It is so ordered.

1 . Portions of this opinion are borrowed from Presiding Judge McCormick’s dissenting opinion on original submission.

2 . The dissent concludes that Adair particpiated in the prosecution of Clayton by helping Relator prepare for the Motion to Disqualify. This conclusion is unwarranted. The Motion to Disqualify involved legal issues only and required no disclosure by Adair of any facts and circumstances of his former representation of Clayton, other than those testified to in open court at the hearing on the motion. Additionally, Relator’s response to this motion in no way contributed to the prosecution of appellant, but only determined who might be prosecuting him from then on.

3 . Similarly, constitutional considerations prohibit judges from removing appointed defense counsel from a case except in certain narrowly-defined circumstances. See Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989).

4 . Article 2.07, V.A.C.C.P., provides for court appointment of an "attorney pro tern,” a.k.a. a "special prosecutor”, whenever an attorney for the state is "disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state.” Art. 2.07(a). “Disqualified” is defined in Art. 2.08 as follows:

"[d]istrict and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State."

Nowhere do these statutes give trial courts any authority to remove prosecutors from cases for any of these reasons, including "disqualification”; responsibility for recusal is left with the prosecutor.

5 .We have examined a recent case on this subject from the Amarillo Court of Appeals, State ex rel. Sherrod v. Carey, 790 S.W.2d 705 (Tex.App.—Amarillo, 1990). In that case, the court decided that disqualification of the District Attorney’s office was within the discretion of the trial court pursuant to its responsibility to ensure due process. These vague due process concerns were said to outweigh any inconsistent implications of Art. 2.01, V.A.C.C.P. The Court of Appeals bolstered this argument by citing State v. May, 270 S.W.2d 682 (Tex.Civ.App.—San Antonio 1954, no writ), and Worthington v. State, 714 S.W.2d 461 (Tex.App.—Houston [1st Dist.] 1986, pet. ref'd.), and claiming that these two cases mandate a broad interpretation of 2.01, V.A.C.C.P. May, however, stands only for the proposition that if an elected district attorney has been lawfully disqualified from prosecution of certain causes, so have his assistants who serve at his will and pleasure. May, 270 S.W.2d at 684. In Worthington, the question of prosecutorial disqualification was never presented to the trial court and nothing was preserved for review. Worthington, 714 S.W.2d at 465. We find the Amarillo Court’s position unpersuasive.

6 . It should be noted that this case does not represent a situation where the District Attorney need necessarily have recused himself from the prosecution of the defendant. Although the dissent characterizes this case as one in which Relator violated DR 9-101, Code of Professional Responsibility, an examination of the rule itself reveals that none of its subsections even remotely apply to the situation at hand. DR 9-101, captioned "Avoiding Even the Appearance of Impropriety,” reads:

(A) A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

The record clearly indicates that the trial judge was concerned with the ethical considerations accompanying Canon 9 of the Code, not with any violation of DR 9-101. However, his interpretation of Canon 9 was erroneous.

There is quite a difference in the relationship between lawyers working in private law firms and lawyers representing the State. The American Bar Association’s Committee of Professional Ethics recognizes that there are substantial reasons against treating the State as a private enterprise. The Committee has ruled that other government lawyers should not be disqualified from handling matters in which an associate was involved in his or her former private practice. The Committee wrote:

"When the disciplinary rules of Canons 4 and 5 mandate the disqualification of a government lawyer who has come from private practice, his governmental department or division cannot practicably be rendered incapable of handling even the specific matter. Clearly, if DR 5-105(D) were so construed, the government’s ability to function would be unreasonably impaired.” Formal Opinion No. 342, 62 A.B.A.J. 517 (1976).

The Committee reasoned that:

"The important difference in the adversary posture of the government lawyer is recognized by Canon 7: the duty of the public prosecutor to seek justice, not merely convict, and the duty of all government lawyers to seek just results rather than the result desired by the client. The channeling of advocacy towards a just result as opposed to vindication of a particular claim lessens the temptation to circumvent the disciplinary rules through the action of associates. Accordingly we construe DR 5-105(D) to be inapplicable to other government lawyers associated with a particular government lawyer who is himself disqualified by reason of DR 4-101, DR 5-105(D), DR 9101(B), or similar disciplinary rules.”

The Committee concluded that when the individual attorney is separated from any participation on matters affecting his former client, "vicarious disqualification of a government department is not necessary or wise.” (Emphasis added).

We note that the new Texas Disciplinary Rules of Professional Conduct, approved over one year after this case arose, would not change the result in this case, nor do they depart from the general principles discussed in this footnote. See Rules 1.09(b), 1.10(d), and 1.10(e)(1), and especially Comment 9 to Rule 1.10.