State ex rel. Eidson v. Edwards

• Citation: 793 S.W.2d 1
• Decision Date: 27 June 1990
• Docket Number: No. 70260,70260
• Parties: STATE of Texas ex rel. James EIDSON v. Hon. Billy John EDWARDS, Judge, 104th Judicial District of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1

793 S.W.2d 1

STATE of Texas ex rel. James EIDSON v. Hon. Billy John EDWARDS, Judge, 104th Judicial District of Texas.

No. 70260.

Court of Criminal Appeals of Texas En Banc.

June 27, 1990.

James M. Eidson, Abilene, for relator.

Randy Wilson, Abilene, for respondent.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

WHITE, Judge.

This is an original application for the writ of mandamus brought by Hon. James Eidson, the Criminal District Attorney for Taylor County. Relator Eidson seeks an order from this Court compelling the Hon. Billy John Edwards, Judge of the 104th Judicial District Court, to withdraw his order which disqualified Relator and his entire staff "in the prosecution of [trial court cause numbers 9212-B, 9213-B, and 9214-B, in which James Edward Clayton is the defendant]."

On original submission, we found the application to be moot and dismissed the cause in an unpublished opinion. State ex rel. Eidson v. Edwards, 764 S.W.2d 804 (Tex.Cr.App.1989). ¹

James Edward Clayton was charged with three counts of capital murder and one count of murder in connection with the violent death of Lori Michell Barrett occurring on or about September 17, 1987. In separate cause numbers, he was also charged with unlawful use of a vehicle and credit card abuse. In October, 1987, Ross Adair was appointed to represent Clayton. Adair, along with co-counsel Ken Leggett, represented Clayton until January, 1988. During Adair's tenure as Clayton's attorney, he interviewed Clayton and several possible witnesses, receiving confidential information. He had numerous discussions concerning trial and pre-trial strategy with his client and co-counsel. He acted as lead counsel at Clayton's examining trial. His tenure as a defense attorney in the case came to an end when Adair was appointed as Judge of the County Court at Law Number 2 for Taylor County in January, 1988.

Adair served as a judge until shortly after the primary election for the judgeship, about three months after his appointment to the bench. At that time, Adair resigned his position and approached Relator about employment on Relator's staff as an assistant prosecutor. Adair soon joined the staff, but at no time did he discuss the Clayton case with anyone in Relator's office. Several weeks before the motion to disqualify was filed, and after Relator remembered that Adair had previously represented Clayton, Relator gave Adair explicit instructions neither to discuss the case with anyone in the District Attorney's office, nor to allow anyone to discuss it in his presence. Adair did not participate in the prosecution of the case in any way, except for helping Relator brief the law on prosecutorial office disqualification when Clayton's attorneys filed the Motion to Disqualify the District Attorney as Prosecuting Attorney. ²

Respondent, Hon. Billy Edwards, Presiding Judge of the 104th District Court of Taylor County, Texas, found that Adair had complied with Relator's instructions and that Adair had in no way revealed confidences to his associates in the District Attorney's office or participated in the prosecution in any improper way by helping to prepare for the disqualification hearing. Although Adair and Relator promised to continue Adair's disassociation with the prosecution, Respondent disqualified the entire District Attorney's office "to avoid the appearance of impropriety."

The first question we must decide is whether the mandamus application has become moot since special prosecutors have already been appointed and have prosecuted the murder indictment to a successful conviction in the trial court. On original submission, we found that the application was moot because the disqualification order encompassed only "the prosecution" of the [trial court cause numbers]. However, appellate review of a capital case is automatic and a very important phase of the prosecution. The appeal of a conviction is a duty which falls directly upon the District Attorney's office. Respondent has effectively continued Relator's disqualification into the appellate stage by appointing a special prosecutor to represent the State on appeal. Also, Clayton stands charged with two other offenses which the District Attorney may wish to prosecute were the entire office not disqualified. Because Relator's office is currently precluded from pursuing its normal duties with respect to the capital murder appeal and the two other indictments against Clayton, we find that the mandamus action is not moot and turn to an examination of its merits.

In pertinent part, Article V, Section 21 of the Texas Constitution reads:

The County Attorneys shall represent the State in all cases in the District and inferior courts of their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature. The Legislature may provide for the election of District Attorneys in such districts, as may be deemed necessary, and make provision for the compensation of District Attorneys and County Attorneys. District Attorneys shall hold office for four years, and until their successors have qualified.

Relying on Tex. Const. Article V, Section 21, Texas courts have uniformly declared that the offices of county and district attorneys are constitutionally created and therefore constitutionally protected. See State v. Moore, 57 Tex. 307, 315 (1882). See also Hill County v. Sheppard, 142 Tex. 358, 178 S.W.2d 261, 264 (1944); Maud v. Terrell, 109 Tex. 97, 200 S.W. 375, 376 (1918); Shepperd v. Alaniz, 303 S.W.2d 846, 850 (Tex.Civ.App.--San Antonio 1957, no writ); Neal v. Sheppard, 209 S.W.2d 388, 390-391 (Tex.Civ.App.--Texarkana 1948, writ ref'd.); State Board of Dental Examiners v. Bickham, 203 S.W.2d 563, 566 (Tex.Civ.App.--Dallas 1947, no writ); State ex rel. Hancock v. Ennis, 195 S.W.2d 151, 152-153 (Tex.Civ.App.--San Antonio 1946, writ ref'd. n.r.e.).

The authority of county and district attorneys "cannot be abridged or taken away." Bickham, 203 S.W.2d at 566. See also Moore, 57 Tex. at 315; Maud, 200 S.W. at 376; Adamson v. Connally, 112 S.W.2d 287, 290 (Tex.Civ.App.--Eastland 1937, no writ); American Liberty Pipe Co. v. Agey, 167 S.W.2d 580, 583 (Tex.Civ.App.--Austin, 1942) aff'd., 141 Tex. 379, 172 S.W.2d 972 (1943). "Nor may the State be represented in district or inferior courts by any person other than the county or district attorney, unless such officer joins them." Bickham, 203 S.W.2d at 566, citing Allen v. Fisher, 118 Tex. 38, 9 S.W.2d 731 (1928) and State ex rel. Downs v. Harney, 164 S.W.2d 55 (Tex.Civ.App.--San Antonio 1942, writ ref'd. w.o.m.).

The Legislature, in creating the Taylor County Criminal District Attorney's Office, has mandated that "the Criminal District Attorney of Taylor County shall perform all the duties in Taylor County required of District Attorneys by general law." Tex.Gov't.Code Ann., Sec. 44.321 (emphasis added). The Code of Criminal Procedure sets forth that "[e]ach 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." Article 2.01, V.A.C.C.P. (emphasis added).

By preventing the Taylor County District Attorney and his entire staff from participating in the Clayton prosecution, the trial court has constructively removed the District Attorney from his elected office with respect to that case. The Texas and this State's laws forbid trial court removal of District Attorneys, except under statutorily defined circumstances after a trial by jury. ³

The Texas Local Government Code provides for District Court removal of county officials, including District Attorneys, for three causes: (1) incompetency; (2) official misconduct; or (3) intoxication. V.T.C.A., Local Gov't.Code Sec. 87.013. The District Judge may not remove the official merely by his order, as was done in the instant case; a trial by jury must be held before removal. V.T.C.A., Local Gov't.Code Sec. 87.018(a). Where power is granted by statute or constitution to remove a public officer for certain specified causes, the power of removal is limited to the causes specified. Ridgeway v. City of Fort Worth, 243 S.W. 740 (Tex.Civ.App.--Ft. Worth 1922, writ dism'd.). We therefore conclude that a trial court can remove a District Attorney only for one of the three causes enumerated in Sec. 87.013 and only after the trial by jury mandated in Sec. 87.018(a). ⁴ Therefore, it is more than evident that when the trial court judge disqualified the Taylor County Criminal District Attorney from prosecuting this case, he did so without authority or jurisdiction.

Generally the extraordinary relief of mandamus will not issue unless the result sought by the aggrieved party is manifestly "ministerial" in nature, as opposed to being "judicial" or "discretionary." State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex.Cr.App.1985). Cf. Texas Department of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Cr.App.1981). However, a writ of mandamus will also issue to nullify a void order. State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 482 (Tex.Cr.App.1985); State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex.Cr.App.1984). As this Court stated in Millsap, "[b]eing without jurisdiction, the order entered after [a] hearing is void and a writ of mandamus will issue to compel vacation of the order." 692 S.W.2d at 482.

In Terrell v. Greene, 88 Tex. 539, 31 S.W. 631 (1895), the Supreme Court, in restoring a county attorney to his elected office after a trial court refused the attorney permission to appear before that court, ruled:

"In the case of public officers, the general rule is that, where a person holds an uncontested title to an office,...