In re Ligon
Citation | 408 S.W.3d 888 |
Decision Date | 14 August 2013 |
Docket Number | No. 09–13–00242–CR.,09–13–00242–CR. |
Parties | In re Brett W. LIGON. |
Court | Court of Appeals of Texas |
OPINION TEXT STARTS HERE
William J. Delmore III, Asst. Dist. Atty., Conroe, for Relator.
Katherine Shipman, Katherine Shipman, PLLC, Conroe, for Real Party in Interest.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
The Montgomery County District Attorney, Brett W. Ligon, seeks mandamus relief from orders in misdemeanor prosecutions recognizing his disqualification and appointing a prosecutor pro tem. He is the complaining witness named in the charging instruments.
The trial court could reasonably conclude under the circumstances that the orders were required by due process of law. Because relator has not established a clear and indisputable right to the relief sought, we decline to issue a writ of mandamus compelling the trial court to vacate the orders.
Real parties in interest Joseph Michael Leners and Robert Tyler Anderson were arrested on warrants and charged by complaint and information with trespass. SeeTex. Penal Code Ann. § 30.05(a) (West Supp.2012); seeTex.R.App. P. 52.2. Leners was also charged by complaint and information with burglary of a vehicle.1SeeTex. Penal Code Ann. § 30.04(a) (West 2011). The entry on the property and the breaking in or entry in the vehicle are alleged by the State to be without the effective consent of the owner, Brett W. Ligon.
Leners and Anderson filed motions to disqualify the District Attorney due to his dual status in the cases. They supplemented the motions to specify that a failure to disqualify the District Attorney and his staff would violate due process. They asserted that the District Attorney is personally interested in the cases as a private citizen. The trial court signed orders granting the motions to disqualify and appointing a special prosecutor.
A trial court may appoint an attorney to represent the State “[w]henever an attorney for the state is disqualified to act[.]” Tex.Code Crim. Proc. Ann. art. 2.07(a) (West 2005). Relator contends the trial court may exercise this authority only when a district attorney voluntarily recuses himself. SeeTex.Code Crim. Proc. Ann. art. 2.07(b–1) (West 2005); see alsoTex.Code Crim. Proc. Ann. art. 2.08 (West Supp.2012). Relator has not recused.
Relator does not distinguish recusal from disqualification. He asserts “[r]ecusal or disqualification is within the sole discretion of the elected district or county attorney, although the consequences of the exercise of that discretion are subject to review on appeal.” He contends a defendant's only remedy for a due process violation is to seek reversal on appeal of the conviction.
Relator argues he has no adequate remedy by appeal. See State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Crim.App.1990) (plurality opinion). He argues that a writ of mandamus is his appropriate remedy. See Tex.R.App. P. 52. The real parties in interest argue the trial court's decision was a judicial one concerning a matter on which the law is unclear, and a writ of mandamus is not appropriate in these circumstances. See Bowen v. Carnes, 343 S.W.3d 805, 810 & n. 6 (Tex.Crim.App.2011) ( ).
The Court of Criminal Appeals has explained that, to be entitled to a writ of mandamus from an appellate court, “the State must demonstrate that: (1) there is no other adequate legal remedy, and (2) there is a clear and indisputable right to the relief sought.” State v. Patrick, 86 S.W.3d 592, 594 (Tex.Crim.App.2002). When a trial court's ruling is a rational one supported by the law, and so does not represent a clear abuse of discretion, a writ of mandamus will not issue to compel a different ruling. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n. 3 (Tex.Crim.App.2003). But a trial court has no discretion to rule on a matter when the court lacks authority to rule, or to decide a matter contrary to the law established by statute, rule, or a superior court. See id.
If the trial court clearly abused its discretion in ordering disqualification, a writ of mandamus will issue to require the trial court to vacate the order, assuming there is no other adequate legal remedy. See Patrick, 86 S.W.3d at 594. The real parties in interest do not dispute the relator's contention that he has no remedy by appeal. They contest only whether relator has shown a clear and indisputable right to mandamus relief.
“The standard of review for disqualification of the prosecutor by the trial court is whether the court abused its discretion.” Landers v. State, 256 S.W.3d 295, 303 (Tex.Crim.App.2008). In ruling on the disqualification issue, “[t]he trial court abuses its discretion only when the decision lies ‘outside the zone of reasonable disagreement.’ ” Id. The trial court's application of law is reviewed de novo.Id. This is an original proceeding not an appeal,but we consider a disqualification order for which there is no adequate remedy by appeal, and so we apply the appellate review standard in determining whether relator has shown a clear and indisputable right to a writ of mandamus.
As applied to prosecutors in Texas, disqualification and recusal are not interchangeable words. See In re Guerra, 235 S.W.3d 392, 410 ( ). Legal disqualification refers to the ineligibility to act as the prosecutor in a particular case. See Coleman v. State, 246 S.W.3d 76, 81 (Tex.Crim.App.2008) ( )” Recusal refers to the voluntary removal of oneself as a prosecutor because of a conflict of interest or for other good cause. SeeTex.Code Crim. Proc. Ann. art. 2.07(b–1); Coleman, 246 S.W.3d at 81. The trial court cannot require a prosecutor's recusal. Coleman, 246 S.W.3d at 81.
Instances of legal disqualification are few. Id. The constitutional authority of a district attorney cannot be abridged or taken away. See Eidson, 793 S.W.2d at 4. Yet the State may not deprive a defendant of his liberty without due process of law. U.S. Const. amend. XIV. The trial court has the constitutional authority to decide questions of law in the case. SeeTex. Const. art. II, § 1, art. V, § 1; Tex. Gov't Code Ann. § 21.001(b) (West 2004); Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239–40 (Tex.Crim.App.1990); Lytle v. Halff, 75 Tex. 128, 12 S.W. 610 (1889). Consequently, “[a] district attorney may be disqualified only for a violation of the defendant's due-process rights[.]” Landers, 256 S.W.3d at 310.
Legal disqualification may arise when the prosecuting attorney has dual roles in a criminal matter. See In re Guerra, 235 S.W.3d at 415–16 ( ). When Guerra was decided, article 2.08 had not yet been amended to provide that a trial court may appoint an attorney pro tem to assist a grand jury in a criminal investigation of the district attorney. See Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 2.08, 1965 Tex. Gen. Laws 317, 326 ( )(current version at Tex.Code Crim. Proc. Ann. art. 2.08(b) (West Supp.2012)). The court in Guerra held nevertheless that article 2.07 authorized the trial court to appoint a prosecutor pro tem to investigate the elected district attorney. 235 S.W.3d at 414–15;seeTex.Code Crim. Proc. Ann. art. 2.07 ().
Additionally, in Guerra the court found the trial court's appointment of a prosecutor pro tem “was implicitly authorized by a court's inherent power.” In re Guerra, 235 S.W.3d at 415. By denying the district attorney the opportunity to participate in the grand jury's investigation into his own conduct, the appointment served to preserve the integrity of the court and aid in the administration of justice. Id.
In a separate issue in Guerra, the relator also challenged the particular prosecutor appointed, noting one of the allegations against relator involved election fraud, and the prosecutor pro tem was relator's opponent in the election. Id. at 428–29. The court decided under the circumstances of that case that the prosecutor pro tem was disqualified due to a conflict of interest that rose to the level of a due process violation. Id. at 431. The appellate court reasoned that a due process violation occurs where the prosecutor's personal interest generates a structural conflict that presents a potential for misconduct deemed intolerable. Id. at 430. The court also noted that under the circumstances the prosecutor pro tem “could be a material fact witness,” and that if he testified “the confusion that would most likely result” from the “multiple roles as prosecutor, witness, and interested party would substantially affect the jury's verdict.” Id. at 432.
The Court of Criminal Appeals cited Guerra and article 2.08 as “instances in which the district attorney is legally disqualified from acting.” Coleman, 246 S.W.3d at 81 & n. 12 (citing In re Guerra, 235 S.W.3d at 420–24). The Court distinguished recusal from legal disqualification. See id. at 81. The recusal procedure “allows the district attorney to avoid conflicts of interest and even the appearance of impropriety by deciding not to participate in certain cases.” Id. “The responsibility for making the decision to recuse himself is on the district attorney himself; the trial court cannot require his recusal.” Id. But if a prosecutor...
To continue reading
Request your trial- Thomas v. State
-
In re Simon
...his staff on the basis of a conflict of interest that does not rise to the level of a due process violation."). 41. See, e.g., In re Ligon, 408 S.W.3d 888, 896 (Tex. App.—Beaumont 2013, orig. proceeding); Marbut v. State, 76 S.W.3d 742, 748-49 (Tex. App.—Waco 2002, pet. ref'd); State ex rel......
-
Cash Biz, LP v. Henry
...the victim or complainant has a personal interest in the prosecution and thus plays a unique role in criminal proceedings. See In re Ligon , 408 S.W.3d 888, 896 (Tex. App.—Beaumont 2013, orig. proceeding).Third, I disagree with the majority that Cash Biz's actions in "merely" filing the cri......
-
In re State
...level of a due process violation due to a substantial connection to a case that did not arise from prior representation. See In re Ligon , 408 S.W.3d 888, 896 (Tex. App.—Beaumont 2013, orig. proceeding) (citing potential conflicts of interest arising from having a financial interest in the ......