OPINION
WHITE, Judge.
Relator Danny E. Hill, district attorney of the 47th Judicial District, seeks a writ of mandamus from this Court directing respondent Patrick A. Pirtle, Judge of the 251st District Court of Potter County, to vacate an order prohibiting two assistant attorneys general from serving as assistant district attorneys in certain pending criminal prosecutions. We will conditionally grant the writ. On October 16, 1991, the Attorney General of Texas, acting on behalf of the State, filed a civil action against Texas Health Enterprises, Inc. (T.H.E.) in the 47th District Court of Potter County. The lawsuit, which was pending at the time this cause was filed and set for submission, sought civil penalties and injunctive relief under state law for alleged unlawful treatment of residents of a T.H.E. nursing home in Potter County. See TEX. HEALTH & SAFETY CODE ANN. § 242.001 et seq. That lawsuit was litigated by the Attorney General’s Consumer Protection Division.
On March 27, 1992, the Potter County grand jury returned indictments in the 251st District Court charging T.H.E. and several of its officers and employees (real parties in interest here) with injury to an elderly individual, injury to an invalid, tampering with government records, and misapplication of fiduciary property. See TEX.PENAL CODE ANN. §§ 22.04, 32.45, and 37.10. The criminal charges involve allegations similar, or identical, to those that were the basis of the civil lawsuit.
On November 20, 1992, relator signed a written deputation which appointed assistant attorneys general Jack Else and Rodney Boyles to be relator’s “lawful Assistant District Attorneys.” That deputation empowered Else and Boyles “to do and perform any and all acts and things pertaining to the Office of said District Attorney in and for the 251st Judicial District.” On December 7, 1992, both Else and Boyles signed a sworn affirmation of the oath of office of Assistant District Attorney. In their oaths, Else and Boyles each swore to “faithfully execute the duties of the office of Assistant District Attorney.”
Near the time relator signed the deputation, T.H.E. and another of the criminal defendants filed motions in the 251st District Court to prohibit Else and Boyles from serving as Assistant District Attorneys. The motions advanced a variety of legal theories supporting the requested prohibition.
On January 11, 1993, respondent convened an evidentiary hearing on the motions to [924]*924prohibit. The undisputed evidence at the hearing established that relator retains ultimate supervising authority over the criminal prosecutions; that he may, at his pleasure, dismiss Else and Boyles from their positions as assistant district attorneys; that the assistant district attorney positions occupied by Else and Boyles are unpaid positions; that Else and Boyles serve in the Attorney General’s Medicaid Fraud Control Unit, which is organizationally separate from the Con'sumer Protection Division; that they are paid by the Attorney General’s Office; and that they have no connection with the civil litigation against T.H.E. There was also evidence that the Medicaid Fraud Control Unit shared with the Consumer Protection Division some documents relating to the criminal prosecutions, but there was no evidence as to the number or nature of the documents shared.
Relator also proved at the hearing that he and the permanent members of his staff were involved in conducting the prosecutions. Evidence at the hearing showed that relator had not turned these criminal prosecutions over to Else and Boyles, and then walked away.
It became apparent at the hearing that relator and permanent members of his staff (Mike Meredith and Randy Sims) were going to be involved with Else and Boyles in the business of conducting these criminal prosecutions. At the hearing on the motion to prohibit, Meredith was present with Else and Boyles. During the hearing, Boyles explained to the trial court that Meredith and Sims were present during the grand jury hearings which produced the indictments returned in the 251st District Court, with Meredith being “present during all the grand jury presentations” and having a “fair decision making role.” Boyles stated that Meredith made the “arrangements for these hearings to be set this month.”
When a proponent began to discuss his motion to prohibit, Meredith stood to inform the trial court of the extent of the actions taken by relator’s office on that motion. During the hearing, the proponent called Boyles to the witness stand. Under oath, Boyles testified that he had “discussed many practical and legal problems with the case— with both Hill (relator) and Meredith and I think we had a few discussions with Sims.” Boyles explained that relator wanted him and Else to try the case. Later, Boyles testified to explain the control relator had over these criminal prosecutions:
Q (Mr. Fitzgerald): “Why? You can just show up. You have got a law license. You work for the Attorney General’s Office. Why do it with a deputation?”
A (Mr. Boyles): “No, I do not believe we can do that. I believe we have to have some showing that we are acting at the request and at the desire of the local prosecutor. I don’t believe we have any independent prosecutor authority. I don’t think we have that.”
Boyles also testified that if relator told him he and Else were going to have to try the case, they would try the ease, and if relator told them they would have to leave town and never come back, they “were going to leave town and never come back.” From this it can be seen that relator appointed Else and Boyles to assist him in the prosecution of these cases, perhaps even to take the lead in the trial of these cases, but not to completely take over these prosecutions from relator.
At the conclusion of the hearing, respondent orally granted the motions to prohibit on grounds argued by the proponents of the motions. Respondent gave the following justification for his ruling:
“Whenever the Attorney General’s Office is involved in civil litigation ... and attempts to involve itself in a criminal prosecution, I find great question with that responsibility.
“... I’m going to rule that the Attorney General has no prosecutorial authority, that the attorneys Else and Boyles are, in fact, Attorneys General. They are not Assistant District Attorneys. Therefore, attorneys Else and Boyles have no prosecu-torial authority by virtue of their status as Attorney General.
[925]*925“The Court further finds that their deputation order is void, it is unconstitutional. It is improperly stated. It is ineffective in that it recites an improper district. There’s no authorization from the Potter County commissioners or any other authority and the deputation order is therefore, in the opinion of this Court, void ab initio.
“Because Attorneys Else and Boyles have no prosecutorial authority by virtue of their status as Attorney Generals and because they have no prosecutorial authority by virtue of their deputation, the Court does hereby rule that they shall have no further involvement in this ease.
“The Court further finds by way of admonishment to all Counsel, that there are significant conflicts of interest that present significant questions of disciplinary conduct and that counsel should be aware of those in future dealings with regard to this matter.”
Respondent issued these findings in a January 28, 1993, written order granting the motion to prohibit.
On January 29, 1993, relator asked this Court for a stay of all proceedings in the criminal prosecutions and a writ of mandamus ordering respondent to vacate his order granting the motions to prohibit. See TEX. R.APP.PROC. 211. On February 5, 1993, this Court stayed the proceedings in the trial court and ordered this case filed and set for submission.
In his application for mandamus relief, relator contends that respondent clearly abused his discretion and acted without legal authority in granting the motions to prohibit, and that relator has a clear legal right to have that order vacated. Relator asserts that (1) he has the right under existing case law to appoint any competent attorney to serve as special prosecutor1 in a criminal case unless the defendant can show resulting prejudice, and the defendants in the instant criminal prosecution have not shown resulting prejudice; (2) his appointment of Else and Boyles to serve as assistant district attorneys did not violate our state constitution’s separation of powers provisions because relator retained plenary authority over the criminal prosecutions; (3) any conflict of interest arising from the appointment of Else and Boyles is a matter solely for relator, and not respondent, to determine; and (4) the written deputation was unnecessary and, therefore, any defects in it are legally irrelevant. Relator argues that he has no other adequate legal remedy because “if respondent’s order ... is not withdrawn, relator will be forced to prosecute the criminal cases without the assistance of the assistant attorneys general,” who “possess particular expertise in the legal issues involved.”
Respondent adopted the answer and brief in opposition to the petition for writ of mandamus that was filed by the real parties in interest. He asserts that his conclusions of law regarding the appointment of Else and [926]*926Boyles are correct. Respondent asserts that relator is not entitled to mandamus relief because (1) his application does not comply with TEX.R.APP.PROC. 121 and contains only “cursory allegations” that “do not provide a sufficient basis for this Court to evaluate the propriety of respondent’s order;” (2) a “trial court’s decision [not] to allow a special prosecutor to participate in a case is a discretionary act;” (3) the appointment of Else and Boyles as “special prosecutors” is prohibited by the common law doctrine of incompatibility; and (4) the appointment is also prohibited by TEX. CONST. Art. 16, §§ 33 and 40.
I.
This Court is empowered by Art. V., § 5, of the Texas Constitution to issue writs of mandamus in all criminal law matters. Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex.Cr.App.1993). The issuance of the writ is never a matter of right but rests instead in the sound discretion of this Court. Dickens v. Second Court of Appeals, 727 S.W.2d 542, at 549 (Tex.Cr.App.1987); Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, at 795 (1941). We have also recognized that mandamus is a drastic remedy, to be invoked only in extraordinary situations. Perkins v. Third Court of Appeals, 738 S.W.2d 276, at 284 (Tex.Cr.App.1987). Indeed, “[a] willingness to issue writs of mandamus in less than extraordinary situations would encourage piecemeal litigation and frustrate the efficient administration of justice.” State ex rel Sutton v. Bage, 822 S.W.2d 55, at 57 (Tex.Cr.App.1992). This cautious view of mandamus also reflects our concern that the writ “not be converted into a judicially created form of open-ended discretionary review procedure for orders not appealable as of right.” 3 W. LaFave & J. Israel, Criminal Procedure § 26.4(b), at 227 (1984).
Consistent with this view of the mandamus remedy, we have held that it is available only when the relator can establish that he has no other adequate legal remedy and that, under the relevant law and facts, he has a clear legal right to the relief sought. Braxton v. Dunn, 803 S.W.2d 318, at 320 (Tex.Cr.App.1991); State ex rel. Wade v. Mays, 689 S.W.2d 893, at 898-899 (Tex.Cr.App.1985). Furthermore, as we explained recently in Buntion v. Harmon, 827 S.W.2d 945, fn. 2 at 947 (Tex.Cr.App.1992), a relator may be able to demonstrate a clear legal right to relief if the respondent’s nominally discretionary act actually constituted an abuse of discretion.
In the instant cause, we hold that relator has no other adequate remedy. He may not appeal respondent’s order granting the motions to prohibit under any provision of TEX.CODE CRIM.PROC.ANN. Art. 44.01. See State v. Moreno, 807 S.W.2d 327 (Tex.Cr.App.1991). And we know of no other legal mechanism short of mandamus by which relator may challenge respondent’s order. Thus, unless this Court directs respondent to vacate his order, relator will have to conduct the criminal prosecutions without the assistance of the lawfully appointed assistant district attorneys Else and Boyles. We are left with the question of whether relator has demonstrated a clear legal right to have the respondent vacate his order.
II.
A district attorney may find it useful, or even essential, that he appoint assistant district attorneys to handle or assist in the prosecution of a complex criminal case. A district attorney might make such an appointment because of the unique complexity of a criminal case or in order to preserve the public trust. In the instant ease, relator appointed two assistant attorneys general, Else and Boyles, to serve as assistant district attorneys to assist him in the prosecution of the real parties in interest. Their appoint ment was no less than the exercise of a power necessary in this prosecution for the relator to carry out the powers and fulfill the duties of his office, as set down by the Constitution of this State and implemented by the Legislature.
District attorneys shall represent the State. TEX. CONST, art. V, § 21. The [927]*927duties of those offices are to be regulated by the Legislature. Art. V, § 21; State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1990). The Legislature has codified those rules in statutes.
“Each 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.” TEX.CODE CRIM.PROC.ANN. Art. 2.01. A district attorney may employ, hire or retain any assistant prosecuting attorneys, or any other personnel, that he deems necessary for the proper operation and administration of his office. TEX.GOVT.CODE ANN. § 41.102. These assistant prosecuting attorneys, whether they be permanent or temporary members of his staff, are bound to the same prescribed duty “to see that justice is done.” Art. 2.01, supra. They must be licensed to practice law in this State and serve at the will of the district attorney. TEX.GOVT.CODE ANN. § 41.103 & 41.105.
Relator appointed Else and Boyles to be assistant district attorneys in the instant case under the authority of these statutes. They are lawfully designated assistant prosecuting attorneys on relator’s staff. A district attorney in this state, such as relator, has the right to appoint to his staff personnel which he feels are necessary to carry out the constitutional duties of his office. Relator had the clear legal right, under the constitutional and statutory mandate of his office, to make these appointments.
Respondent, in his second answer to relator’s petition, asserted he had the discretion to decide whether to allow Else and Boyles to represent the State. On the contrary, relator is the only person whose discretion controls who will, or will not, serve on his staff. Neither the district courts, nor the county commissioners of Potter County, possess authority over a relator’s decision of who will be appointed to his staff.
Respondent presumes Else and Boyles to be “special prosecutors” to support his argument that he has discretionary authority over their appointment. The designation of Else and Boyles as special prosecutors is inaccurate. See note 1, supra. The language of relator’s deputation order, and the proof that relator was maintaining control and management of the prosecution, establish that Else and Boyles were no more than assistant district attorneys in this case. By statute, relator possesses authority to appoint Else and Boyles to assist him in the prosecution of the real parties in interest or, for that matter, any other criminal matter pending in his jurisdiction. §§ 41.102 & 41.105, supra.
In spite of this, respondent attempted to prohibit them from carrying out their statutory duties, claiming he had the authority to grant the motions to prohibit under the circumstances of this case. We shall determine whether the trial court exceeded its authority when it decided to prohibit Else and Boyles from serving as assistant district attorneys, beginning with respondent’s decision that Else and Boyles had a conflict of interest.
A.
Respondent concluded without elaboration that the Attorney General’s simultaneous civil litigation against T.H.E. created a “significant conflict of interest” for Else and Boyles. Respondent denied relator the right to appoint the two assistant district attorneys.
A trial court may not disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise to the level of a due process violation. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex.Cr.App.1990). In the instant case, the real parties in interest have not claimed their rights to due process were violated, nor did respondent conclude that due process was offended by the appointment of Else and Boyles as assistant district attorneys. We find respondent did not properly disqualify Else and Boyles on the basis of a conflict of interest because the real parties in interest failed to prove any prejudice to their rights, or deprivation of their right to due process. Respondent also argued several other legal grounds [928]*928to support his conclusion that the deputation order was invalid, and Else and Boyles should be disqualified.
B.
Respondent apparently concluded that the appointment of Else and Boyles amounted to an assumption by the executive branch of a power (the power of prosecution) more properly attached to the judicial branch, thereby violating the separation of powers provision of the Texas Constitution.
Article 2, § 1 of the Texas Constitution provides:
“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy, to wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”
“This separation of powers provision reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of power in a single branch of government.” Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Cr.App.1990). This Court also stated:
“the separation of powers provision may be violated in either of two ways. First, it is violated when one branch of government assumes, or is delegated, to whatever degree, a power that is more “properly attached” to another branch. The provision is also violated when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.”
802 S.W.2d, at 239 (emphasis and citations omitted).
Following this reasoning, we hold that respondent’s conclusion that relator violated the separation of powers provision is plainly incorrect. As long as relator, a member of the judicial branch of government, retains ultimate supervisory authority over the instant criminal prosecutions — as relator proved in the instant ease — then the prosecution power remains in the hands of the judicial branch.
C.
Respondent also concluded that relator’s deputation order, which appointed Else and Boyles to be assistant district attorneys, was void because it “improperly stated ... an improper district.” Respondent explained that relator failed to recite in the deputation order the correct judicial district for which he is district attorney. We find this conclusion to be in error.
In his deputation order, as well as the sworn oaths of Else and Boyles, relator appointed them to be his “lawful Assistant District Attorneys in this cause ... in and for the 251st Judicial District”. Relator also stated that he was the District Attorney “in and for the 251st Judicial District of the State of Texas.” Respondent, though the judge of the 251st District Court, ruled that the deputation order, to be proper and legal, should have set out that relator was the District Attorney of the 47th Judicial District. This ruling is contrary to the law which established the 47th and 251st Judicial Districts.
Relator cited the proper judicial district for the deputation as being in and for the 251st. TEX.GOVT.CODE ANN. § 24.428(a) established the 251st Judicial District as composed of Potter and Randall Counties. The District Court of that District, wherein this cause was heard, was empowered to “hear and determine” “all preliminary or interlocutory matters in which a jury may not be demanded, in any case pending in any county in the district.” § 24.428(b). The provisions of the statute creating the 47th Judicial District Court also applies to the 251st Judicial District Court. § 24.428(e). As the District Attorney of the 47th Judicial District [929]*929of Potter and Armstrong Counties, relator is empowered to represent the State in all the district courts of Potter County, including the 251st Judicial District and the 251st Judicial District Court, § 43.127(a) & (b), so long as the criminal case originated in Potter County.2
Under these laws, relator’s deputation order was valid. As the District Attorney of the 47th Judicial District, he represents the State in the 251st Judicial District in criminal cases that arise in Potter County. As a result, relator is the District Attorney in and for the 251st Judicial District, as stated in his deputation order. Moreover, the deputation order set out that Else and Boyles were deputized to be assistant district attorneys in the 251st Judicial District, where relator was empowered to represent the State and this cause was being heard. We find relator’s deputation order did not recite an improper judicial district.
As a district attorney, relator is not required by law to execute a deputation order whenever he appoints or hires an assistant district attorney. In fact, the law does not prescribe any particular procedure that a district attorney must follow in the selection of his support personnel. In order to appoint or retain an assistant district attorney, only an oath must be administered. Art. XVI, § 1, TEX. CONST. We conclude that any defect in references to the numbers of the judicial districts, if there is a defect in the instant deputation order, is of no legal significance.
D.
Respondent also concluded the deputation order was void because there was “no authorization from the Potter County Commissioners or any other authority.” We hold this conclusion to also be plainly erroneous.
The only authority necessary for the deputation order to be valid is the constitutional authority of the District Attorney. The Commissioner’s Court of Potter County has no power or authority to decide, control or veto who the District Attorney decides to hire, retain, employ, deputize, or appoint to be his assistant district attorneys. Neither the Constitution nor the statutes give the commissioner’s courts of this state any such power.3 The powers of the Commissioner’s Court of Potter County are expressly limited to approval or disapproval of the number and salaries of the personnel chosen by the district attorney who are to be paid from Potter County funds. TEX.GOVT.CODE ANN. §§ 41.106(a), 43.127(d) and (e); see, also, Op. TexAtt’y Gen. No. H-922 (1977). The authority for deciding who will or will not be given the position of assistant district attorney is restricted solely to the district attorney. TEX.GOVT.CODE ANN. § 41.102 & 41.105. If the Commissioner’s Court of Potter County decides not to approve a salary to be paid to the deputized assistant district attorneys in the instant case, they may do so under the statute, and the deputized assistant district attorneys in this cause will not have salaries paid by Potter County.4
The record in the instant case does not show that the Potter County Commissioners complained about the appointment of Else and Boyles. There was no suggestion that the Commissioners questioned who was going to pay the salaries of Else and Boyles, or [930]*930attempted to assert any control, or to inject any input, into relator’s decision to appoint Else and Boyles. We find that the deputation order carried all the authority it required, that being the authority of the relator. We hold the trial court erred in deciding the deputation order was void ab initio.
E.
Before this Court, respondent presented several arguments in response to relator’s application for mandamus.
1.
Respondent contends relator was procedurally barred from obtaining mandamus relief because his application does not meet the requirements of TEX.R.APP.PRO. Rule 121, because the allegations in the application are too “cursory.” This argument is, at best, unpersuasive. First, Rule 121 is inapplicable to criminal cases. Thus, whether relator’s application meets the requirements of Rule 121 is irrelevant. Second, respondent does not claim that relator’s application failed to meet the requirements of TEX.R.APP.PRO. Rule 211, which is the applicable rule in criminal cases. Lastly, respondent fails to explain in what manner relator’s allegations are too “cursory.” This Court has reviewed the allegations and supporting affidavits in relator’s application and finds them to have sufficiently demonstrated a clear right to mandamus relief.
Although respondent did not rule upon the real parties’ in interest arguments concerning the incompatibility doctrine and Art. 16, §§ 38 & 40 of the Texas Constitution, we will address those arguments in the interests of justice and judicial economy.
2.
Respondent also argues that Else and Boyles are prohibited from serving by the common law doctrine of incompatibility. Respondent contends the appointments of Else and Boyles “run afoul” of the policies underlying the doctrine: “First, it is obvious that the [assistant] attorneys general are neither impartial nor undividedly loyal to the district attorney’s office. Second, the assistant attorneys general have the unenviable and irreconcilable conflict of trying to serve two masters.”
Under the common law, one person cannot simultaneously hold two incompatible offices, and the general rule is that the acceptance and qualification for a second office incompatible with the first office is an implied resignation of the first office. Thomas v. Abernathy County Line I.S.D., 290 S.W. 152, 153 (Tex.Comm’n App.1927, judgm’t adopted); Annot., 100 A.L.R. 1162, 1164 (1936). In determining incompatibility, the crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other. See 67 C.J.S. Officers and Public Employees § 27(a) (1978).
Assuming arguendo that the incompatibility doctrine applies to a person serving as an assistant attorney general, we fail to see how such an “office” conflicts with the position of assistant district attorney. Under our state law, only county and district attorneys may represent the state in criminal prosecutions. TEX. CONST, art. 5, § 21; TEX.CODE CRIM.PROC.ANN. Arts. 2.01 and 2.02. The Attorney General, on the other hand, has no criminal prosecution authority. Rather, he is generally limited to representing the State in civil litigation. TEX. CONST. art. 4, § 22; TEX. GOVT.CODE.ANN. § 402.021; see generally K. Taylor, Modernizing the Powers of the State Attorney General, 36 Tex.B.J. 51 (1973). Since the duties of the Attorney General are distinct and generally unrelated to the duties of county and district attorneys to represent the State in criminal prosecutions, this Court fails to see, and respondent has not presented an argument to prove, that the appointment of Else and Boyles as assistant district attorneys will be detrimental to the public interest or that the performance of [931]*931their duties as assistant district attorneys ■will interfere in any way with their duties as assistant attorneys general.
3.
Lastly, respondent contends that Else and Boyles are prohibited from serving as assistant district attorneys by TEX. CONST, art. 16, §§ 33 & 40, which provide in part:
§ 33: “The accounting officers in this State shall neither draw nor pay a warrant or check on funds of the State of Texas, whether in the treasury or otherwise, to any person for salary or compensation who holds at the same time more than civil office of emolument, in violation of Section 40.”
§ 40: “No person shall hold or exercise at the same time, more than one civil office of emolument, ...”
Respondent argues §§ 33 and 40 “prohibit members of the Texas Attorney General’s Office from holding two state government positions simultaneously.”
These constitutional provisions generally prohibit anyone from holding more than one “civil office of emolument” at one time. A “civil office” is an office that pertains to the exercise of the powers or authority of civil government. See 67 C.J.S. Officers and Public Employees § 6 (1978); Black’s Law Dictionary 246 (6th Ed.1990). An “emolument” is a pecuniary profit, gain, or advantage. Irwin v. State, 147 Tex.Crim. 6, 177 S.W.2d 970, at 973 (1944). Unless one holds a “civil office of emolument,” these constitutional provisions are inapplicable on their face.
In Aldine I.S.D. v. Standley, 154 Tex. 547, 280 S.W.2d 578, 583-585 (1955), the Supreme Court explained that the determining factor that distinguishes one who holds a public “office” from one who merely holds public employment is whether any sovereign function of the government is conferred upon the individual to be exercised by her for the benefit of the public largely independent of the control of others. See generally 67 C.J.S. Officers and Public Employees §§ 7-10 (1978). In other words, a public “officer” is authorized by law to independently exercise functions of either an executive, legislative, or judicial character, and the exercise of this power by the officer is subject to revision and correction only according to the standing laws of this state. A public employee, in contrast, is a person in public service whose duties are generally routine, subordinate, advisory, and as directed.
An assistant attorney general is a public employee and not a public officer. An assistant attorney general operates under the direct supervision of the Attorney General and exercises no independent executive power. Since an assistant attorney general does not hold a public “office,” the constitutional provisions in question are inapplicable. See Tilley v. Rogers, 405 S.W.2d 220, at 224 (Tex.Civ.App.—Beaumont 1966, writ ref'd n.r.e.) (professor at state college was public employee and, thus, TEX. CONST, art. 16, § 40, inapplicable).
Even if an assistant attorney general were a public officer for the purposes of Art. 16, § 40, that constitutional provision would still not bar relator’s appointment of Assistant Attorneys General Else and Boyles as assistant district attorneys, because an assistant district attorney is not a public officer for the purposes of Art. 16, § 40. An assistant district attorney is an assistant prosecuting attorney, who is not a public officer under the holding in Aldine I.S.D. v. Standley. An assistant prosecuting attorney is hired by the district attorney, serves under his direction and at his discretion, and exercises no independent prosecutorial power. Thus, since Art. 16, § 40 proscribes only the holding of two civil offices of emolument, it cannot prohibit Assistant Attorneys General Else and Boyles from serving as assistant district attorneys in the instant ease, especially since they were to be drawing no separate salary as assistant district attorneys. We find respondent’s arguments in response to relator’s application for mandamus to be without merit.
[932]*932CONCLUSION
Respondent sought, at the instigation of the real parties in interest, to prohibit Else and Boyles from serving as assistant district attorneys in the criminal prosecution of the real parties in interest. Relator argued this interfered with the lawful exercise of his authority as an elected district attorney to carry out the constitutional duty of his office. As this Court has ruled before, neither an elected prosecuting attorney, nor his assistants, can be disqualified or prevented by a trial court from carrying out their duties to prosecute criminal cases. In State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Cr.App.1990), this Court held that 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.” Eid-son, at 5.
After examining the legal grounds advanced by respondent at the hearing on the motion to prohibit and before this Court, and after reviewing the legal conclusions set out by respondent in his decision to grant the motion to prohibit, we find that respondent lacked the authority to grant the motions to prohibit. The undisputed facts and relevant legal authority presented respondent with but one reasonable course to follow: denial of the motions to prohibit. The trial court’s decision to do otherwise was erroneous.
Thus relator has a clear legal right to the vacation of respondent’s order granting the motions to prohibit. Furthermore, since relator has no other adequate legal remedy, he is entitled to a writ of mandamus from this Court ordering respondent to vacate his order. As is our custom, we will withhold issuance of the writ and accord respondent an opportunity to conform his actions to this opinion. Only if such action is not taken will the writ of mandamus issue.
CLINTON, J., adhering to traditional rules enunciated in State ex rel. Curry v. Gray, 726 S.W.2d 125, 126 (Tex.Cr.App.1987), dissents to this denial of judicial power to decide an issue raised by real parties in interest.
MILLER, J., agrees with Judge MEYERS’ conclusion that from now on this Court will “authorize review by mandamus of discretionary decisions by trial court judges” as long as the discretionary decision is “wrong” enough. To this extreme departure from the doctrine of State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987), he dissents.