In re Simon

• Decision Date: 22 June 2016
• Docket Number: NO. 03-16-00090-CV,03-16-00090-CV
• Parties: In re Thomas Allen Simon
• Court: Texas Court of Appeals

In re Thomas Allen Simon

NO. 03-16-00090-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 22, 2016

ORIGINAL PROCEEDING FROM BURNET COUNTYMEMORANDUM OPINION

Relator Thomas Allen Simon, who faces pending criminal charges, seeks mandamus relief to compel disqualification of the entire office of the district attorney who represents the State. We will deny the petition.

BACKGROUND

Simon has been charged by indictment in Burnet County with the offenses of sexual assault and aggravated assault. This mandamus proceeding, however, centers instead on a somewhat unusual series of preliminary procedural events—including an earlier mandamus proceeding—involving Simon's appointed trial counsel, Tracy Cluck, and the office of the local district attorney, Hon. Wiley E. (Sonny) McAfee, District Attorney for the 33rd and 424th Judicial Districts. This saga began in August 2015, when Mr. Cluck filed a motion seeking the appointment of a medical expert and additional funds for investigative services.¹ An ex parte hearing² was held before the regular presiding judge of the 424th District Court, Hon. Evan Stubbs, who forreasons unclear from the record directed that a court reporter transcribe that proceeding. The hearing concluded with the district's court's removal of Cluck as counsel.³ Simon, acting through Cluck and additional counsel L.T. "Butch" Bradt, then sought mandamus relief in this Court seeking to compel Cluck's reinstatement as counsel.

In support of this earlier mandamus petition, Simon filed the reporter's record from the hearing under seal. Simon named the State of Texas—specifically, McAfee, as District Attorney—as a real party in interest.⁴ This Court requested responses to the petition, prompting the State to prepare a response. In the course of preparing a response, the State, through Assistant District Attorney Gary Bunyard, requested a copy of the record from our Clerk's office. After obtaining Bunyard's signature on a form confidentiality and nondisclosure agreement, the Clerk's office complied.⁵ After the State filed its response, this Court denied relief.⁶ Simonthen filed a similar petition for writ of mandamus with the Court of Criminal Appeals, which granted relief.⁷

Following the Court of Criminal Appeals's ruling, Judge Stubbs recused himself and the case was reassigned to a visiting judge, Hon. Burt Carnes. Subsequently, Simon moved to disqualify the entire office of the District Attorney. As relevant here, Simon argued that his due-process rights had been violated through the access the District Attorney's office had gained to the hearing record, which Simon characterized as containing core attorney work product.⁸ In response, the State disputed Simon's characterization of the record and the existence of any grounds for disqualification.

A hearing was held at which neither side presented evidence, although it appears that the district court examined the hearing record in camera. Of note, Bunyard acknowledged that both he and McAfee had personally reviewed the hearing record in connection with the earlier mandamus proceeding. However, Bunyard added that the office had erected a "Chinese Wall," keeping the record confidential as to all other personnel, including the attorney who would be handling the trial, and excluding Bunyard and McAfee from any further involvement in Simon's case beyond the disqualification issue.⁹

Following the hearing, the district court took the matter under advisement and ultimately granted the motion to disqualify. However, no further action was taken at that time, such as the appointment of an attorney pro tem to prosecute the case.¹⁰ Instead, Judge Carnes, citing health concerns, withdrew from the case. The case was then reassigned to another visiting judge, Hon. Don Leonard. Following his assignment, Judge Leonard set a hearing to discuss the status of the case.¹¹ The State, through McAfee and Bunyard, subsequently filed a motion for reconsideration of the disqualification order, urging that the ruling had been in error. Simon's defense team did not file a written response to the motion, but objected at the scheduled hearing to the prosecutors' "standing" to seek reconsideration, urging that their sole remedy was to seek mandamus relief. The district court overruled that objection, and proceeded to hear argument on the merits of the motion. Following argument, which was substantively similar to that from the prior hearing, the district court set aside the disqualification order.

Simon seeks to challenge this order through the present mandamus petition.

ANALYSIS

Simon contends that the district court reversibly erred in two respects: (1) the district court lacked power to reconsider and vacate the prior order disqualifying the District Attorney's office; and (2) even if the district court had power to reconsider the prior order, disqualification was compelled on the merits.

Standard of review

In criminal cases, "mandamus relief is appropriate only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision."¹² With respect to the "no adequate remedy at law" requirement, the Court of Criminal Appeals has explained "that a remedy at law, though it technically exists, 'may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.'"¹³ Under the circumstances here, we will assume without deciding that Simon would lack an "adequate" remedy at law to redress any harm from the district court's order¹⁴ and focus instead on the second element, whether he hasdemonstrated any failure by the district court to perform a "ministerial" duty. "A relator satisfies the ministerial-act component when he can show that he has a clear right to the relief sought."¹⁵ "A clear right to relief is shown when the facts and circumstances dictate but one rational decision 'under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.'"¹⁶ "A ministerial act, by its nature, does not involve the use of judicial discretion; it must be positively commanded and so plainly prescribed under the law as to be free from doubt."¹⁷ "Stated another way, an act may be regarded as 'ministerial' when the facts are undisputed and, given those undisputed facts, 'the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment.'"¹⁸

Reconsideration

We first consider Simon's assertion that the district court lacked power to revisit the earlier disqualification order. If valid, a complaint that a trial court lacked authority to act may demonstrate the requisite "clear right to relief" necessary for mandamus to issue.¹⁹ But this is ultimately not the complaint that Simon makes. Instead, Simon focuses on attacking whether the District Attorney's office had "standing" to seek reconsideration of the disqualification order on behalf of the State. Once the District Attorney's office was disqualified, in Simon's view, the office was relegated to seeking relief solely from this Court, through mandamus, and could not request the district court to change its mind. Instead, Simon reasons, the office was required to comply with the disqualification order with respect to all proceedings at the trial level, including even those relating to the disqualification itself.

As support for this contention, Simon points to language in Maness v. Meyers, a case in which the United States Supreme Court addressed "[t]he narrow issue . . . [of] whether a lawyer may be held in contempt for advising his client, during the trial of a civil case, to refuse to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith the material may tend to incriminate his client."²⁰ The Supreme Court held that the lawyer could not be held in contempt under those circumstances.²¹ The court's holdings were preceded by its acknowledgmentof "the basic proposition that all orders and judgments of courts must be complied with promptly" and that "[i]f a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal."²² "This does not mean, of course, that every ruling by a presiding judge must be accepted in silence," the court emphasized, because "[c]ounsel may object to a ruling . . . [which] alerts opposing counsel and the court to an issue so that the former may respond and the latter may be fully advised before ruling."²³ "But," the Court continued, "once the court has ruled, counsel and others involved in the action must abide by the ruling and comply with the court's orders," and it further cautioned that "[w]hile claims of error may be preserved in whatever way the applicable rules provide, counsel should neither engage the court in extended discussion once a ruling is made, nor advise a client not to comply."²⁴

It is from this cautionary language that Simon extracts his proposition that the District Attorney's office lacked "standing" to request reconsideration of the disqualification order. To the contrary, nothing in Maness (if even relevant) purports to prohibit a party from requesting a trial court to reconsider a prior order, let alone one involving the unique context of attorney disqualification. The Supreme Court's focus was merely to emphasize the "basic proposition" that parties should comply with court orders while they remain in effect. To the extent Simon is accusing the District Attorney's office of having violated the disqualification order merely by seeking reconsideration of it, we note that his disqualification motion (and, in turn, the prior order grantingit) was addressed to the office's "prosecuting [of] the case," not the district attorney's...