In re State
| Citation | 572 S.W.3d 264 |
| Decision Date | 20 December 2018 |
| Docket Number | No. 07-18-00265-CR,07-18-00265-CR |
| Parties | IN RE the STATE of Texas, Relator |
| Court | Court of Appeals of Texas |
Having previously granted relator’s motion for rehearing, see In re State , No. 07-18-00265-CV, 2018 WL 3827285,1 2018 Tex. App. LEXIS 8586 (Tex. App.—Amarillo Oct. 18, 2018, orig. proceeding) (Order) (per curiam), we withdraw our opinion and judgment of August 10, 2018, and substitute the following in its place.
On July 25, 2018, relator Christopher Dennis, District Attorney for the 286th Judicial District of Hockley County, filed a petition for writs of mandamus and prohibition in this Court. See TEX. GOV'T CODE ANN . § 22.221 (West Supp. 2018); TEX. R. APP. P. 52. By his petition, Dennis asks this Court to issue a writ of mandamus ordering the Honorable Pat Phelan, presiding judge of the 286th District Court of Hockley County, to withdraw his July 2 and August 15 orders disqualifying the District Attorney’s Office from prosecuting thirteen causes,2 and a writ of prohibition preventing the trial court from disqualifying the District Attorney’s Office in the future absent good cause shown. We conditionally grant Dennis’s petition for writ of mandamus and deny Dennis’s petition for writ of prohibition.
Dennis and the attorney for the real parties in interest, Christina Woods Duffy, engaged in an apparently contentious exchange relating to Duffy’s motion to exclude expert witnesses in an unrelated case in which Dennis represented the State and Duffy represented the defendant. On June 4, 2018, Dennis sent Duffy a text message withdrawing any existing plea offers on all pending cases for which she was the attorney of record. By letters of the same date, Dennis notified Duffy that "[t]here will be no offer at this time" apparently as to two of her pending cases.
Duffy subsequently filed a motion to disqualify the 286th District Attorney’s Office in each of the cases in which the plea offers were potentially withdrawn. Shortly after holding a hearing on Duffy’s motion to disqualify, Judge Phelan issued an order declaring the District Attorney’s Office disqualified and appointing a special prosecutor in seven of the cases. Judge Phelan did not rule on the motions to disqualify filed in six other cases. On August 15, Judge Phelan heard argument in these remaining cases and, after hearing arguments, granted these motions.
In response to these disqualification orders, Dennis filed his petition for writs of mandamus and prohibition. On August 10, this Court issued our opinion denying Dennis’s petition on the basis that he failed to meet his burden to show that he was entitled to relief because he did not comply with the documentation requirements identified in Texas Rules of Appellate Procedure 52.3 and 52.7. See In re Tex. , No. 07-18-00265-CV, 2018 WL 3827285, 2018 Tex. App. LEXIS 6315 (Tex. App.—Amarillo Aug. 10, 2018, orig. proceeding). On August 25, Dennis filed the instant motion for rehearing, which, when coupled with the petition, complies with the requirements applicable to Dennis’s requests for mandamus and prohibition relief. We requested a response from Duffy, which she filed on September 6.
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." In re Allen , 462 S.W.3d 47, 49 (Tex. Crim. App. 2015).
The State’s right to appeal is limited by statute and does not include the right to appeal a pretrial order disqualifying the elected district attorney. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West 2018). As such, we agree with Dennis that the State’s statutory right to appeal is an inadequate remedy and, therefore, it is appropriate for him to seek mandamus relief. In re State ex rel. Warren , No. 02-17-00285-CV, 2017 WL 4019244, at *2, 2017 Tex. App. LEXIS 8663 at *4-5 (Tex. App.—Fort Worth Sept. 12, 2017, orig. proceeding) (citing Greenwell v. Court of Appeals for the Thirteenth Judicial Dist. , 159 S.W.3d 645, 648-49 (Tex. Crim. App. 2005) (orig. proceeding) ).
To meet his burden to establish entitlement to mandamus relief, Dennis must show that the trial court had a ministerial duty to deny Duffy’s motions to disqualify. Stated another way, for the trial court to have a ministerial duty, denial of the motions to disqualify Dennis and the 286th District Attorney’s Office in these cases must have been the "one rational decision" that the trial court could have made "under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles." In re Simon , No. 03-16-00090-CV, 2016 WL 3517889, at *6, 2016 Tex. App. LEXIS 6562, at *15 (Tex. App.—Austin June 22, 2016, orig. proceeding) (mem.op.) (quoting In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding) ). However, "it is not well-settled that the district court had the authority to disqualify the District Attorney under these circumstances." Id.
"A trial court has limited authority to disqualify an elected district attorney and [his] staff from the prosecution of a criminal case." Buntion v. State , 482 S.W.3d 58, 76 (Tex. Crim. App. 2016). "The office of a district attorney is constitutionally created and protected; thus, the district attorney’s authority ‘cannot be abridged or taken away.’ " Id. (quoting Landers v. State , 256 S.W.3d 295, 303-04 (Tex. Crim. App. 2008) ). The district attorney "shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely." TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005). Even with this express basis for disqualification, it has been held that a trial court’s authority to disqualify a district attorney in a particular case requires proof that the district attorney has a conflict of interest that rises to the level of a due process violation. Landers , 256 S.W.3d at 304 ; State ex rel. Hill v. Pirtle , 887 S.W.2d 921, 927 (Tex. Crim. App. 1994). A due process violation arises as a matter of law when a prosecuting attorney has formerly represented the defendant in the same criminal matter as that currently being prosecuted. Landers , 256 S.W.3d at 304. A due process violation may arise if a prosecuting attorney has previously represented the defendant in a different matter but only if the defendant can prove that he would be actually prejudiced by the prosecutor’s prior representation. Id. at 304-05. Actual prejudice requires proof that the prosecutor has previously personally represented the defendant in a substantially related matter, and that he obtained confidential information by virtue of that representation which may be used to the defendant’s disadvantage. Id. at 305. In most instances, to establish a conflict of interest that rises to the level of a due process violation, the district attorney must be shown to have previously represented the defendant in the current case.3
In re Simon , 2016 WL 3517889, at *7, 2016 Tex. App. LEXIS 6562, at *17 ; see Buntion , 482 S.W.3d at 77 ( ). However, some limited instances have been identified where a district attorney could be deemed to have a conflict of interest rising to the 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 prosecution, being a material fact witness, or being the alleged victim of the charged crime).
In the present case, Dennis attested that he has never represented any of the defendants for which disqualification was sought and granted. He also made like statements under oath and in open court. Further, no assertion has been raised that Dennis has a financial stake in the prosecution of any of the defendants, is a material fact witness in any of the cases for which disqualification is being sought,4 or is the victim of any of the crimes alleged in these cases. As such, we cannot conclude that a conflict of interest exists between Dennis and any of the defendants for whom disqualification has been sought. Consequently, Judge Phelan’s order of disqualification violated well-settled legal principles, and Dennis has shown a clear right to mandamus relief.5
Further, even when we look beyond the lack of a disqualifying conflict of interest, we conclude that Duffy has not proven that any of the defendants in this case have had their due process rights violated. Duffy has not presented evidence that any of the defendants had pending plea offers that were withdrawn by Dennis’s June 4 text.6 However, evidence was presented that Dennis never intended any withdrawal of plea offers to be permanent. In fact, his intent was proven by his making of a plea offer to one of Duffy’s clients on July 24.7 We cannot conclude that the temporary withdrawal of plea bargain offers, even if the withdrawal is based on the identity of the attorney, constitutes a conflict of interest that rises to the level of a due process violation. Certainly, our conclusion might be different had Duffy proven that Dennis had taken action consistent with the permanent withdrawal of plea bargain offers to all of her clients. But, such is not what is shown by the evidence in this case.
What Duffy invites us to do is to conclude that the temporary withdrawal of plea bargain...
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