In re Guerra, No. 13-07-165-CV.

CourtCourt of Appeals of Texas
Writing for the CourtYañez
Citation235 S.W.3d 392
PartiesIn re Juan Angel GUERRA, District and County Attorney for Willacy County, State of Texas.
Decision Date21 September 2007
Docket NumberNo. 13-07-165-CV.
235 S.W.3d 392
In re Juan Angel GUERRA, District and County Attorney for Willacy County, State of Texas.
No. 13-07-165-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
September 21, 2007.
Rehearing Overruled October 16, 2007.

[235 S.W.3d 398]

Juan Angel Guerra, Willacy County District and County Attorney, Raymondville, pro se.

Gilberto Hinojosa, Magallanes & Hinojosa, Brownsville, for Juan Angel Guerra.

E. Paxton Warner and Yolanda De Leon, Harlingen, for Judge Migdalia Lopez.

Mervyn M. Mosbacker, Houston, for Judge Gustavo "Gus" Garza.

Sheriff Larry Spence, Raymondville, pro se.

Alberto Garcia, Harlingen, for real party in interest.

Gilbert Lozano, District Clerk, Raymondville, pro se.

John T. Blaylock, Harlingen, for real party in interest.

Ruben Cavazos, County Treasurer, Raymondville, pro se.

David W. Hartmann, Harlingen, for real party in interest.

Lawrence A. Walsh, Brownsville, for Grand Jury.

Terry Flores, County Clerk, Raymondville, pro se.

Williacy County Bail Bond Board, pro se.

[235 S.W.3d 399]

Before Justices YAÑEZ, BENAVIDES, and VELA.

OPINION

Opinion by Justice YAÑEZ.


This is an original application for writ of mandamus by which the District Attorney of Willacy County, as relator, seeks to have an order entered by respondent trial judge set aside. Relator, Juan Angel Guerra, alleges respondent, Judge Migdalia Lopez of the 197th District Court of Cameron County, exceeded her authority as a magistrate by entering an order appointing Gustavo Garza as attorney pro tem. The parties have filed motions for contempt and sanctions. We conditionally grant the writ and deny the motions for contempt and sanctions.

I. BACKGROUND

On January 11, 2007, the 197th Judicial District Grand Jury for Willacy County, July Term, asked to meet with respondent, Judge Lopez.1 In that private meeting, the grand jury expressed concerns that relator had abused his office in several respects and requested that an attorney pro tem be appointed to assist in the grand jury's investigation of those concerns. In response to that request, respondent issued an order on January 17, appointing Gustavo Garza as attorney pro tem. Respondent had previously appointed Garza as attorney pro tem on August 2, 2006, after respondent approved relator's request to be recused in the investigation of State of Texas v. Eliseo Barnhart and State of Texas v. Andrea Espinosa, two cases pending in the Willacy County District Attorney's Office. The January 17 order, which was drafted by Garza after reviewing the reporter's record of the meeting between the grand jury and respondent, provides as follows:

On January 11, 2007, in Willacy County, Texas, the Grand Jury for the 197th District Court, whose term was extended met in open court with District Judge Migdalia Lopez. On the record the Willacy County Grand Jury addressed various concerns regarding the District Attorney, Juan Angel Guerra and his conduct as District Attorney.

I.

The Grand Jury expressed concern that the District Attorney, Juan A. Guerra was abusing his office and abusing his power.

II.

The Grand Jury was concerned with the request by the District Attorney to investigate and indict several Willacy County elected officials.

III.

The District Attorney requested the Grand Jury to subpoena the District Judge.

IV.

District Attorney, Juan A. Guerra requested indictments from this Grand Jury without presenting any evidence.

V.

The District Attorney ordered the Grand Jury to create a five member committee and the District Attorney named two of the committee members. This Grand Jury committee was to investigate

235 S.W.3d 400

and recommend indictment for neglect of office against the District Clerk, County Clerk, County Sheriff and other bail bond board members. This matter was a civil matter.

VI.

The District Attorney demanded $10,000.00 from a bail bond company. The Grand Jury suspected that a person was indicted for a sex offense in retaliation for nonpayment of the $10,000.00 demanded.

VII.

The District Attorney requested the Grand Jury to `true bill' a case that the Grand Jury was in favor of a `no bill' by stating that the suspect was going to be arrested anyway.

VIII.

The Grand Jury expressed concern that the District Attorney, Juan Angel Guerra uses the grand jury process to intimidate individuals or get even.

IX.

The Grand Jury was aware of voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004.

Because of these concerns, the Grand Jury requested the 197th District Court meet with the Grand Jury and requested that a special prosecutor be appointed to assist and guide the Grand Jury in investigating the aforementioned areas of concern and any other wrong doing involving the Willacy County District Attorney, Juan Angel Guerra.

Order

Pursuant to the request by the Willacy County Grand Jury, on this the 11th day of January, 2007, IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor to investigate and prosecute these matters referenced above and any other criminal activity connected or arising out of these allegations; the Attorney Pro Tem will be able to obtain assistance of co-counsel. Considering the fact that the Court has appointed Gustavo Ch. Garza as attorney pro tem on August 2, 2006, this Court by this Order is extending the assignment of August 2, 2006, and the Oath of Office filed with the County Clerk shall continue in full force and effect until the completion of these matters.

On February 10, Daniel Cavazos, Jr., a special investigator with the Raymondville Police Department, alleged in an affidavit that he had probable cause to believe that relator had committed certain criminal acts. In his affidavit, Cavazos requested a search warrant to investigate those acts. Garza then presented the affidavit to Judge Janet L. Leal of the 103rd District Court of Cameron County, whereupon Judge Leal issued the warrant, authorizing the search and seizure of various items within the Willacy County District Attorney's Office.2

On February 11, Cavazos drafted an "affidavit for warrant of arrest" under

235 S.W.3d 401

Garza's supervision, which led to the issuance of three arrest warrants against relator. The warrants accused relator of two counts of theft by public servant and one count of attempted theft by public servant.3 Later that day, police officers with the Raymondville Police Department, acting under Garza's direction, executed a search of the district attorney's office and seized a number of items. Relator was also arrested in the process for interfering with the search. On February 23, the complaints against relator — three felony counts of theft by public servant and the later added charge of interfering with public duties — were dismissed by Raymondville Municipal Judge Hector Huerta.

On March 14, relator filed with this Court a "Petition for Writ of Injunction (Temporary Restraining Order)"4 and "Motion for Stay of Execution of Order" of the 197th District Court. This Court granted relator's stay motion on March 15,5 ordering the trial court's order of January 17 stayed and setting the matter for oral argument on April 4.

On March 21, the aforementioned grand jury met and issued a subpoena directed to Garza; the subpoena requested the draft indictments against relator that Garza had previously prepared. Garza provided the grand jury with those indictments and the grand jury issued the indictments that same day. As a result, relator was once again arrested.6

On March 22, relator filed a motion for contempt, contending that respondent and Garza had violated this Court's stay order. Respondent and Garza individually filed a motion to dismiss relator's motion for contempt, and subject thereto, a response and counter-motion for sanctions. Accordingly, this Court issued an order setting the motion for an evidentiary hearing. Respondent and Garza were ordered to appear before this Court on April 4 to respond to relator's motion and show cause why they should not be held in contempt of court and punished for their alleged failure to comply with this Court's March 15 order.7

On March 31, while a decision on relator's petition was pending before this Court, relator's motion to recuse respondent in the pending criminal matters against relator was granted by Judge J. Manuel Bañales, the presiding judge of the Fifth Administrative Judicial Region. In connection with that recusal, Judge Bañales

235 S.W.3d 402

appointed himself to preside over this matter.8 Two days prior to this, relator filed an amended petition asking that this Court (1) command respondent (who, pursuant to Judge Bañales's order is no longer the presiding judge) to vacate her January 17 order, and (2) remove Garza as attorney pro tem.

II. THE ISSUES

In his petition, relator asserts the following six issues:9 (1) this Court has jurisdiction to grant relator's writ of mandamus; (2) the trial court abused its discretion by not initially seeking to have relator temporarily removed from office through the procedures prescribed in chapter 87 of the Texas Local Government Code; (3) the trial court abused its discretion by appointing an attorney pro tem without relator's consent; (4) the trial court abused its discretion by failing to provide relator with notice and a hearing prior to the appointment; (5) the trial court abused its discretion by taking an act that caused the district attorney's office to cease all operations; and (6) the trial court abused its discretion by appointing an individual who was not a "competent attorney" because of, inter alia, bias and conflicts of interest.

In response, respondent contends that (1) relator has adequate remedies at law, (2) she acted within her legal capacity in appointing an attorney pro tem, and (3) she has taken no action which has caused the district attorney's office to cease all operations.

III. Mootness and...

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31 practice notes
  • State v. Gravois, NO. 17–KA–341
    • United States
    • Court of Appeal of Louisiana (US)
    • December 13, 2017
    ...1314 (1935).In this case, defendant argues that Mr. Mohon's actions amounted to a due process violation. In the case of In re Guerra , 235 S.W.3d 392 (Tex. App.–Corpus Christi 2007) (orig. proceeding), the court set forth a framework for analysis that it used to consider whether prosecutori......
  • Judge Carlos Cascos, No. 13-10-00016-CV
    • United States
    • Court of Appeals of Texas
    • September 2, 2010
    ...exists, or on some matter which, when granted, cannot have any practical legal effect on a then-existing controversy. See In re Guerra, 235 S.W.3d 392, 433 (Tex.App.-Corpus Christi 2007, orig. proceeding). Texas courts have held that the expiration of an order granting injunctive or protect......
  • In re Ligon, No. 09–13–00242–CR.
    • United States
    • Court of Appeals of Texas
    • August 14, 2013
    ...As applied to prosecutors in Texas, disqualification and recusal are not interchangeable words. See In re Guerra, 235 S.W.3d 392, 410 (Tex.App.-Corpus Christi 2007, orig. proceeding [mand. denied] ). Legal disqualification refers to the ineligibility to act as the prosecutor in a particular......
  • Martinez v. State, No. 08-14-00130-CR
    • United States
    • Court of Appeals of Texas
    • August 24, 2016
    ...on the party seeking disqualification of the prosecutor to present evidence establishing the existence of that prejudice. In re Guerra, 235 S.W.3d 392, 430 (Tex.App.--Corpus Christi 2007)(orig. proceeding). The party seeking disqualification cannot invent the necessary prejudice by unnecess......
  • Request a trial to view additional results
31 cases
  • State v. Gravois, NO. 17–KA–341
    • United States
    • Court of Appeal of Louisiana (US)
    • December 13, 2017
    ...1314 (1935).In this case, defendant argues that Mr. Mohon's actions amounted to a due process violation. In the case of In re Guerra , 235 S.W.3d 392 (Tex. App.–Corpus Christi 2007) (orig. proceeding), the court set forth a framework for analysis that it used to consider whether prosecutori......
  • Judge Carlos Cascos, No. 13-10-00016-CV
    • United States
    • Court of Appeals of Texas
    • September 2, 2010
    ...exists, or on some matter which, when granted, cannot have any practical legal effect on a then-existing controversy. See In re Guerra, 235 S.W.3d 392, 433 (Tex.App.-Corpus Christi 2007, orig. proceeding). Texas courts have held that the expiration of an order granting injunctive or protect......
  • In re Ligon, No. 09–13–00242–CR.
    • United States
    • Court of Appeals of Texas
    • August 14, 2013
    ...As applied to prosecutors in Texas, disqualification and recusal are not interchangeable words. See In re Guerra, 235 S.W.3d 392, 410 (Tex.App.-Corpus Christi 2007, orig. proceeding [mand. denied] ). Legal disqualification refers to the ineligibility to act as the prosecutor in a particular......
  • Martinez v. State, No. 08-14-00130-CR
    • United States
    • Court of Appeals of Texas
    • August 24, 2016
    ...on the party seeking disqualification of the prosecutor to present evidence establishing the existence of that prejudice. In re Guerra, 235 S.W.3d 392, 430 (Tex.App.--Corpus Christi 2007)(orig. proceeding). The party seeking disqualification cannot invent the necessary prejudice by unnecess......
  • Request a trial to view additional results

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