State ex rel. Hill v. Pirtle

• Decision Date: 14 September 1994
• Docket Number: No. 71,596,71,596
• Citation: 887 S.W.2d 921
• Parties: STATE of Texas, ex rel., Danny E. HILL, District Attorney Relator, v. Honorable Patrick A. PIRTLE, Judge, Respondent, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 921

887 S.W.2d 921

STATE of Texas, ex rel., Danny E. HILL, District Attorney Relator, v. Honorable Patrick A. PIRTLE, Judge, Respondent, v. The STATE of Texas, Appellee.

No. 71,596.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1994.

Danny E. Hill, Dist. Atty., Amarillo, Charles Palmer, Asst. Atty. Gen., Austin, for relator.

Don Dean, Amarillo, Edwin J. Tomko, Dallas, John W. Sweeney, Ft. Worth, Charles Blau, Kerry Fitzgerald, Dallas, Selden B. Hale, III, Mallory Halloway, Nancy Stone, Amarillo, Tim Evans, Fort Worth, Charles Rittenberry, Warren Clark, Patrick E. Pirtle, Judge Amarillo, for respondent.

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

OPINION

WHITE, Judge.

Relator Danny E. Hill, district attorney of the 47th Judicial District, seeks a writ of mandamus from this Court directing respondent Patrick A. Pirtle, Judge of the 251st District Court of Potter County, to vacate an order prohibiting two assistant attorneys general from serving as assistant district attorneys in certain pending criminal prosecutions. We will conditionally grant the writ.

On October 16, 1991, the Attorney General of Texas, acting on behalf of the State, filed a civil action against Texas Health Enterprises, Inc. (T.H.E.) in the 47th District Court of Potter County. The lawsuit, which was pending at the time this cause was filed and set for submission, sought civil penalties and injunctive relief under state law for alleged unlawful treatment of residents of a T.H.E. nursing home in Potter County. See TEX.HEALTH & SAFETY CODE ANN. § 242.001 et seq. That lawsuit was litigated by the Attorney General's Consumer Protection Division.

On March 27, 1992, the Potter County grand jury returned indictments in the 251st District Court charging T.H.E. and several of its officers and employees (real parties in interest here) with injury to an elderly individual, injury to an invalid, tampering with government records, and misapplication of fiduciary property. See TEX.PENAL CODE ANN. §§ 22.04, 32.45, and 37.10. The criminal charges involve allegations similar, or identical, to those that were the basis of the civil lawsuit.

On November 20, 1992, relator signed a written deputation which appointed assistant attorneys general Jack Else and Rodney Boyles to be relator's "lawful Assistant District Attorneys." That deputation empowered Else and Boyles "to do and perform any and all acts and things pertaining to the Office of said District Attorney in and for the 251st Judicial District." On December 7, 1992, both Else and Boyles signed a sworn affirmation of the oath of office of Assistant District Attorney. In their oaths, Else and Boyles each swore to "faithfully execute the duties of the office of Assistant District Attorney."

Near the time relator signed the deputation, T.H.E. and another of the criminal defendants filed motions in the 251st District Court to prohibit Else and Boyles from serving as Assistant District Attorneys. The motions advanced a variety of legal theories supporting the requested prohibition.

On January 11, 1993, respondent convened an evidentiary hearing on the motions to prohibit. The undisputed evidence at the hearing established that relator retains ultimate supervising authority over the criminal prosecutions; that he may, at his pleasure, dismiss Else and Boyles from their positions as assistant district attorneys; that the assistant district attorney positions occupied by Else and Boyles are unpaid positions; that Else and Boyles serve in the Attorney General's Medicaid Fraud Control Unit, which is organizationally separate from the Consumer Protection Division; that they are paid by the Attorney General's Office; and that they have no connection with the civil litigation against T.H.E. There was also evidence that the Medicaid Fraud Control Unit shared with the Consumer Protection Division some documents relating to the criminal prosecutions, but there was no evidence as to the number or nature of the documents shared.

Relator also proved at the hearing that he and the permanent members of his staff were involved in conducting the prosecutions. Evidence at the hearing showed that relator had not turned these criminal prosecutions over to Else and Boyles, and then walked away.

It became apparent at the hearing that relator and permanent members of his staff (Mike Meredith and Randy Sims) were going to be involved with Else and Boyles in the business of conducting these criminal prosecutions. At the hearing on the motion to prohibit, Meredith was present with Else and Boyles. During the hearing, Boyles explained to the trial court that Meredith and Sims were present during the grand jury hearings which produced the indictments returned in the 251st District Court, with Meredith being "present during all the grand jury presentations" and having a "fair decision making role." Boyles stated that Meredith made the "arrangements for these hearings to be set this month."

When a proponent began to discuss his motion to prohibit, Meredith stood to inform the trial court of the extent of the actions taken by relator's office on that motion. During the hearing, the proponent called Boyles to the witness stand. Under oath, Boyles testified that he had "discussed many practical and legal problems with the case--with both Hill (relator) and Meredith and I think we had a few discussions with Sims." Boyles explained that relator wanted him and Else to try the case. Later, Boyles testified to explain the control relator had over these criminal prosecutions:

Q (Mr. Fitzgerald): "Why? You can just show up. You have got a law license. You work for the Attorney General's Office. Why do it with a deputation?"

A (Mr. Boyles): "No, I do not believe we can do that. I believe we have to have some showing that we are acting at the request and at the desire of the local prosecutor. I don't believe we have any independent prosecutor authority. I don't think we have that."

Boyles also testified that if relator told him he and Else were going to have to try the case, they would try the case, and if relator told them they would have to leave town and never come back, they "were going to leave town and never come back." From this it can be seen that relator appointed Else and Boyles to assist him in the prosecution of these cases, perhaps even to take the lead in the trial of these cases, but not to completely take over these prosecutions from relator.

At the conclusion of the hearing, respondent orally granted the motions to prohibit on grounds argued by the proponents of the motions. Respondent gave the following justification for his ruling:

"Whenever the Attorney General's Office is involved in civil litigation ... and attempts to involve itself in a criminal prosecution, I find great question with that responsibility.

"... I'm going to rule that the Attorney General has no prosecutorial authority, that the attorneys Else and Boyles are, in fact, Attorneys General. They are not Assistant District Attorneys. Therefore, attorneys Else and Boyles have no prosecutorial authority by virtue of their status as Attorney General.

"The Court further finds that their deputation order is void, it is unconstitutional. It is improperly stated. It is ineffective in that it recites an improper district. There's no authorization from the Potter County commissioners or any other authority and the deputation order is therefore, in the opinion of this Court, void ab initio.

"Because Attorneys Else and Boyles have no prosecutorial authority by virtue of their status as Attorney Generals and because they have no prosecutorial authority by virtue of their deputation, the Court does hereby rule that they shall have no further involvement in this case.

"The Court further finds by way of admonishment to all Counsel, that there are significant conflicts of interest that present significant questions of disciplinary conduct and that counsel should be aware of those in future dealings with regard to this matter."

Respondent issued these findings in a January 28, 1993, written order granting the motion to prohibit.

On January 29, 1993, relator asked this Court for a stay of all proceedings in the criminal prosecutions and a writ of mandamus ordering respondent to vacate his order granting the motions to prohibit. See TEX.R.APP.PROC. 211. On February 5, 1993, this Court stayed the proceedings in the trial court and ordered this case filed and set for submission.

In his application for mandamus relief, relator contends that respondent clearly abused his discretion and acted without legal authority in granting the motions to prohibit, and that relator has a clear legal right to have that order vacated. Relator asserts that (1) he has the right under existing case law to appoint any competent attorney to serve as special prosecutor ¹ in a criminal case unless the defendant can show resulting prejudice, and the defendants in the instant criminal prosecution have not shown resulting prejudice; (2) his appointment of Else and Boyles to serve as assistant district attorneys did not violate our state constitution's separation of powers provisions because relator retained plenary authority over the criminal prosecutions; (3) any conflict of interest arising from the appointment of Else and Boyles is a matter solely for relator, and not respondent, to determine; and (4) the written deputation was unnecessary and, therefore, any defects in it are legally irrelevant. Relator argues that he has no other adequate legal remedy because "if respondent's order ... is not withdrawn, relator will be forced to prosecute the criminal cases without the assistance of the assistant attorneys general," who "possess particular expertise in the legal issues involved."

Respondent adopted the answer and brief in opposition to the petition for writ of mandamus that was filed by the real parties in interest. He asserts that his conclusions of law...