Ex parte Doan

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 369 S.W.3d 205
• Docket Number: No. PD–1547–10.,PD–1547–10.
• Parties: Ex parte Dustin DOAN, Appellant.
• Decision Date: 20 June 2012

369 S.W.3d 205

Ex parte Dustin DOAN, Appellant.

No. PD–1547–10.

Court of Criminal Appeals of Texas.

June 20, 2012.

Terence W. Kirk, Austin, Attorneys for Appellant.

Giselle Horton, Asst. County Atty., Lisa C. McMinn, State's Attorney, Austin, for State.

WOMACK, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, COCHRAN, and ALCALÁ, JJ., joined.

The issue in this case is whether the doctrine of res judicata applies to bar a

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prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant's community supervision on the ground that he committed the same offense.

The Third Court of Appeals “h[e]ld that it does not, as [a] Brazos County [community-supervision] revocation hearing did not involve the same parties that the Travis County theft prosecution does.” ¹ We hold that the two prosecutions did involve the same parties.

I. Proceedings Below

After the appellant was placed on community supervision in Brazos County, the Travis County Attorney charged him with a misdemeanor theft in Travis County. The Brazos County Attorney moved to revoke the appellant's community supervision, alleging that the appellant had committed the theft offense in Travis County. At the hearing on the motion to revoke the Brazos County community supervision, the prosecutor called the appellant's probation officer to the stand to ask her how the appellant had violated the condition of community supervision that prohibited committing other crimes. The appellant objected on the basis of hearsay, and the trial judge sustained the objection. The prosecutor made no further effort to introduce evidence of the theft. Finding that the State had failed to meet its burden of proof, the Brazos County court denied the motion to revoke.

In the theft prosecution in Travis County, the appellant filed a pretrial application for a writ of habeas corpus seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion. The trial court initially granted relief, but, when the State moved for reconsideration on the basis that the Brazos County judge's ruling was too vague to constitute a final adjudication of a specific fact question, the trial court entered an order denying relief. This appeal followed.

In the Court of Appeals, the appellant argued that the trial court erroneously ruled that Ex parte Tarver² “demand[s] a specific finding of ‘Not true’ to an allegation in a motion to revoke before the doctrine of [issue preclusion] may be invoked.” Without addressing that argument, the Court of Appeals affirmed the trial court's ruling based on its reading of Reynolds v. State,³ in which (adopting the concurring opinion in State v.Brabson ) ⁴ we held that for issue-preclusion purposes the Department of Public Safety and a district attorney's office should not be considered the same parties.

While the Court of Appeals noted that the parties and circumstances in this case differ from those in Reynolds and Brabson, it cited those cases in concluding that the Travis County Attorney and the Brazos County Attorney were different parties for the purposes of issue preclusion.⁵ The Court of Appeals gave two reasons: (1) The instant case did not involve a person

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“criminally prosecuted twice for the same event,” so double-jeopardy protections were inapplicable. (2) “[T]he Brazos County Attorney and the Travis County Attorney are independent entities with no control over each others' decision-making processes. This means, crucially, that the Brazos County Attorney had no authority to represent the interests of the Travis County Attorney.”

II. The Tension Between Reynolds and Brabson

The fact that the Brazos and Travis County Attorneys do not control each others' decision-making processes may well mean that they do not have “authority” to represent each other in court, but the appellant presents us with a more fundamental argument. His assertion, in essence, is that in a community supervision revocation proceeding and in a criminal trial, both styled, “The State of Texas v. Dustin Doan,” the State is the same party in both cases, regardless of which prosecuting authority represents the State.

At first glance, we appear to have decided that exact issue in Reynolds:

While there is some merit to the position that the Texas Department of Public Safety and a District Attorney represent the same client which is the citizens of this State, these governmental entities nevertheless should not be considered the same parties for [issue preclusion] purposes in cases like this. The citizens of this State have no power, as does a private litigant, to control the course of the litigation by the lawyers representing these governmental entities. These lawyers exercise governmental powers in the public interest. They do not represent any private citizen interest as does a private lawyer.⁶

Each sentence in that paragraph is accurate, on its own. But if the last three sentences are understood as the basis for the holding in the first sentence, the rule becomes stunningly broad. If the reason that the Dallas County District Attorney was not bound by an adverse determination made in a hearing where a DPS attorney represented the State is because the citizens of Texas could not control either attorney, then Reynolds would seem to make any government action immune from claims of res judicata, because in our republican system the citizenry cannot directly control any government attorney. Taken further, this rule could even seem to prevent courts from requiring government appellate attorneys to stand by the actions and arguments of government trial attorneys, as the citizens of Texas have no ability to control either and both are exercising powers in the public interest.

This has not been how we or the courts of appeals have understood Reynolds.⁷ That is understandable, since Reynolds adopted the concurring opinion in Brabson. The Brabson concurrence set forth a much narrower test for considering government agencies to be the same party (or in privity) for purposes of res judicata: “whether or not in the earlier litigation the representative of the government had authority to represent its interests in a final adjudication on the merits.” ⁸ This question, not the overly-broad blanket statement

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from Reynolds, is the correct test for whether a judgment involving one government agency is res judicata in a suit involving another government agency.

To answer that question in this case, we must look at the procedures and issues involved in the Brazos County revocation hearing and in the Travis County criminal prosecution, and ask whether the government prosecutors had the same interests and authority to litigate to a final adjudication.

III. The Nature of Revocation Hearings

A community supervision revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials? To determine whether prosecutors in a revocation hearing can represent the interests of prosecutors at future criminal trials, we must reexamine some of our prior notions of what interests are at stake in revocation hearings.

We have stated more than once that revocation proceedings are “administrative in nature.” ⁹ We began using the label as a result of confusion about federal law, and we have expanded on that confusion over the years. Using the word “administrative” became a way of stating that defendants in revocation hearings do not enjoy the same panoply of procedural rights as defendants in criminal trials. This is true, as far as it goes, but our characterization of a judicial proceeding as an administrative proceeding is, on its face, inaccurate. Moreover, we have used the “administrative” label to imply that we would not strictly enforce procedural rules at revocation hearings, which was an injudicious and inaccurate implication.

The first case to refer to a revocation proceeding as “administrative” seems to have been Hill v. State:

A [community supervision] revocation hearing is not an adversarial proceeding, a civil action, or a criminal prosecution. Hyser v. Reed [318 F.2d 225 (D.C.Cir.1963) ]; Hood v. State [458 S.W.2d 662 (Tex.Cr.App.1970) ] instead, it is administrative in nature, a means of protecting society and rehabilitating lawbreakers. United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir.1970); United States ex rel. Lombardino v. Heyd [318 F.Supp. 648 (E.D.La.1970) ].¹⁰

None of the cited cases, however, supports the proposition that a Texas community supervision revocation proceeding is “administrative in nature.” The only Texas case cited, Hood, states that a community supervision revocation is not a “ ‘trial’ as that term is used by the Constitution,” even if the act for which revocation is sought is a criminal offense, and therefore the appellant was not entitled to a jury at his revocation hearing. Holding that a revocation hearing is not a trial, though, does not mean that it is an administrative hearing, and Hood did not say that it did.

The other cases either deal entirely with federal law or confuse federal law with the law of another state.

Hyser dealt with federal constitutional claims lodged by federal parolees against the federal government in relation to their parole revocation hearing before the United States Board of Parole, an administrative agency.

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Sperling was a habeas corpus application by a federal parolee alleging that the United States Board of Parole, an administrative agency, violated his federal constitutional rights by revoking his parole based on illegally seized evidence.

Lombardino was a federal case from Louisiana where the petitioner alleged that the state trial court violated his federal constitutional rights by revoking his community supervision based on illegally seized evidence. The...