Ex parte Spain, 62656

Decision Date07 November 1979
Docket NumberNo. 62656,62656
CourtTexas Court of Criminal Appeals
PartiesEx parte Raleigh George SPAIN, Jr.
OPINION

PHILLIPS, Judge.

This is a post-conviction proceeding brought under Article 11.07, V.A.C.C.P.

On May 11, 1976, petitioner pleaded guilty to the offense of burglary of a habitation; punishment was assessed at imprisonment for 10 years, probated. On January 8, 1979, the State filed a motion to revoke petitioner's probation, alleging that petitioner violated the conditions of his probation when he failed to report to his probation officer; failed to pay court costs, attorney's fees, and probation fees; and failed to notify his probation officer of a change in residence. Upon holding a revocation hearing the court found that petitioner violated all of the above conditions and revoked his probation. The court sentenced petitioner to imprisonment for eight years.

Petitioner urges that he was denied due process of law because the prosecutor who filed the State's motion to revoke probation and who represented the State at the revocation hearing had originally represented petitioner as defense counsel when petitioner pleaded guilty. We agree and grant relief.

Article 2.01, V.A.C.C.P., provides in part that

Each district attorney shall represent the State in all criminal cases in the district courts of his district, except in cases where he has been, before his election, Employed adversely. (Emphasis added)

This duty to avoid a conflict of interest has long been imposed on the prosecutors of this State. See Article 25 of the former Code of Criminal Procedure; Garrett v. State, 94 Tex.Cr.R. 556, 252 S.W. 527 (Tex. Crim.App. 1923, Opinion on Motion for Rehearing).

Section 1.2 of the American Bar Association's Standards Relating to the Prosecution Function and the Defense Function provides that

(a) A prosecutor should avoid the appearance or reality of a conflict of interest with respect to his official duties.

(b) A conflict of interest may arise when, for example, . . .

(iii) a former client or associate is a defendant in a criminal case.

The commentary to this section states

. . . When a conflict of interest may arise the prosecutor should recuse himself and make appropriate arrangements for the handling of the particular matter by other counsel . . . It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of his office.

When a district attorney prosecutes someone whom he previously represented In the same case, the conflict of interest is obvious and the integrity of the prosecutor's office suffers correspondingly. Moreover, there exists the very real danger that the district attorney would be prosecuting the defendant on the basis of facts acquired by him during the existence of his former professional...

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18 cases
  • Johnson v. State
    • United States
    • Texas Supreme Court
    • 25 Mayo 2005
    ...to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial"). 35. Ex parte Spain, 589 S.W.2d 132, 134 (Tex.Crim.App.1979). 36. Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Roe v. Flores-Ortega, 528 U.S. 470, 476-487, ......
  • Nicholas v. Sammons
    • United States
    • West Virginia Supreme Court
    • 19 Noviembre 1987
    ...State v. Chambers, 86 N.M. 383, 524 P.2d 999 (1974); State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070 (1980); Ex parte Spain, 589 S.W.2d 132 (Tex.Cr.App.1979) (En Banc); Annot., 31 A.L.R.3d 953 Prosecutorial disqualification can be divided into two major categories. The first is where the ......
  • Fisher v. State
    • United States
    • Texas Court of Criminal Appeals
    • 19 Octubre 1994
    ...as to conviction for theft of over $10,000 but not as to conviction for theft of over $200 but less than $10,000); Ex parte Spain, 589 S.W.2d 132 (Tex.Crim.App.1979) (indictment failing to allege culpable mental state fundamentally defective); Ex parte Lewis, 544 S.W.2d 430 (Tex.Crim.App.19......
  • Buntion v. State
    • United States
    • Texas Court of Criminal Appeals
    • 27 Enero 2016
    ...right to due process, and thus the district attorney could not be disqualified. The Landers Court, drawing on its previous holding in Ex parte Spain, reasoned that, since the representation of the defendant was not on the same case that the district attorney was now prosecuting, and there w......
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