State v. Rosenbaum

• Decision Date: 05 May 1993
• Docket Number: No. 865-92,865-92
• Citation: 852 S.W.2d 525
• Parties: The STATE of Texas, Appellant, v. Billy ROSENBAUM, Appellee.
• Court: Texas Court of Criminal Appeals

Page 525

852 S.W.2d 525

The STATE of Texas, Appellant, v. Billy ROSENBAUM, Appellee.

No. 865-92.

Court of Criminal Appeals of Texas En Banc.

May 5, 1993.

Dick DeGuerin, Houston, for appellee.

Jim James, Special Prosecutor, Bryan, Robert Huttash, State's Atty., and Carl E.F. Dally, First Asst. State's Atty., Austin, for appellant.

Before the court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellee was indicted for perjury and aggravated perjury. Because the District Attorney could be called to testify, the district attorney moved that he and his staff be disqualified. The district judge granted the motion and disqualified the District Attorney and his staff from prosecuting the case. By court order, the district judge appointed a special prosecutor ¹ to "investigate" and "prosecute" the case. Subsequently, the trial court quashed the indictment of appellee for aggravated perjury. The State appealed the court order to quash as authorized by Article 44.01(a)(1), Vernon's Annotated Code of Criminal Procedure. Moreno v. State, 807 S.W.2d 327 (Tex.Crim.App.1991); Garrett v. State, 824 S.W.2d 181 (Tex.Crim.App.1992). The special prosecutor timely filed notice of appeal with the Fourteenth Court of Appeals.

The Court of Appeals relied on State v. Muller, 829 S.W.2d 805 (Tex.Crim.App.1992), and held that it was without jurisdiction to consider the merits of the appeal because the requirements of Art. 44.01(d), V.A.C.C.P., had not been met. The court of appeals held that the requirements were not met because no express or specific authorization ² to make the appeal was given to the special prosecutor by the District Attorney. State v. Rosenbaum, 830 S.W.2d 793 (Tex.App.--Houston 1992).

We granted review of the State's petitions for discretionary review to determine if a proper appeal may be made by a special prosecutor, appointed by court order to replace a disqualified district attorney, without authorization from that district attorney. We will reverse the court of appeals and remand for consideration of the merits of the State's appeal.

In State v. Muller, 829 S.W.2d at 809, this Court held "prosecuting attorney" as used in 44.01(d) means "the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney." Muller, 829 S.W.2d at 809. In Muller, an assistant prosecuting attorney filed an appeal. This Court held that Art. 44.01 did not allow the elected district attorney's subordinate to make an appeal. We held that Art. 44.01(d) plainly on its face did not include an assistant prosecutor or other subordinate. Id. We also held that this interpretation of Article 44.01(d) applied to all parts of Article 44.01. Ibid. at 810.

Because of 44.01(d) we held that "the phrase 'make an appeal' clearly requires ... the prosecuting attorney to personally supervise and authorize the appeals to be undertaken by his office on behalf of the State." Id. However, we also pointed out that the appeal does not necessarily need to carry the prosecuting attorney's signature. This just requires the prosecuting attorney to " 'make an appeal' by personally authorizing--in some fashion--the specific notice of appeal in question. More specifically ... he must either physically sign the notice of appeal or personally instruct and authorize a subordinate to sign the specific notice of appeal in question." Id.

In the instant case the Honorable John L. Placke disqualified the District Attorney, Charles J. Sebesta, Jr., and his staff by granting the State's Motion for Appointment of Special Prosecutor. The district attorney's office was disqualified because the DA could be called to testify in appellee's trial for perjury. Judge Placke then appointed special prosecutor, Jim W. James, by a court order to "investigate" and "prosecute" the case. ³

At a pretrial hearing after the appointment of James, the Honorable Larry Gist quashed a portion of the indictment for lack of materiality. James gave timely notice of appeal of the order to quash which he signed and filed in the Fourteenth Court of Appeals. The elected District Attorney did not sign the notice of appeal as prior to the filing of the notice of the appeal, the disqualified district attorney made motion to the court that he not be required to sign the appeal.

The State agrees with Judge Ellis' dissenting opinion in the Court of Appeals and contends that the special prosecutor is authorized to perform all duties of the district attorney and has all the powers of the district attorney; thus, the special prosecutor "steps into the shoes" of the district attorney. The State alleges that the power to make an appeal is included in the powers of the district attorney; therefore, the State claims the appellate court had jurisdiction to consider the merits of its appeal.

Appellee counters that the requirements for a proper appeal by the state in Art. 44.01(d) were not met. Appellee claims that the special prosecutor was without authority to make the appeal under Article 44.01(d); and, therefore, notice of appeal was never properly given by the State. Appellee asserts that since notice was not properly given, the appellate court was without jurisdiction to consider the appeal.

The result reached by the Court of Appeals is reasonably understood from our language in Muller, 829 S.W.2d 805, where we stated that Article 44.01 requires the elected "prosecuting attorney" (and not his assistant) to "make" the State's "notice of appeal ...", and that the prosecuting attorney "must physically sign it [the notice of appeal], or personally instruct and authorize a subordinate to sign the specific notice of appeal in question." However, we agree with the State that the case before us is distinguishable, on its facts, from State v. Muller, 829 S.W.2d 805.

According to Muller, 829 S.W.2d at 809, this Court interpreted Article 44.01 to mean that only the actual prosecuting attorney, not a subordinate to the prosecuting attorney, may make an appeal for the state. However, Muller did not cover the situation presented in this case where the district attorney is altogether removed from a case and a special prosecutor is substituted for that district attorney.

Article 2.07(b-1), V.A.C.C.P., allows the district attorney to recuse himself from a case if necessary. Upon approval of the recusal request by the judge, the district attorney is considered disqualified. Art. 2.07(b-1), V.A.C.C.P. Article 2.07(a) provides that if the attorney for the state ⁴ is disqualified ⁵, a judge "may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state." V.A.C.C.P. 2.07(b-1). Article 2.07(a) states plainly that the pro tem attorney will perform the duties of the district attorney. ⁶

In addition, over 120 years ago the Texas Supreme Court (then vested with general authority over criminal matters) held that "an attorney pro tem appointed by the court has all the powers and duties of the regular prosecuting attorney." State v. Lackey, 35 Tex. 357 (1872). Thus, if a district attorney is disqualified, the court may appoint any competent attorney to assume all the district attorney's duties and powers during his disqualification.

In this case the trial judge followed Article 2.07 by appointing James to perform the duties of Charles J. Sebesta, Jr., the disqualified district attorney. By his request to be disqualified the district attorney manifested his intention to give his full power and authority to the special prosecutor in the case. In addition, his request not to sign the appeal shows he still believed that the special prosecutor had full power and control over the case. ⁷

As previously discussed, an attorney pro tem or special prosecutor takes the place of the disqualified district attorney assuming all the district attorney's powers and duties in the case. Therefore, the special prosecutor is not subject to the direction of the disqualified district attorney as is a subordinate, but, for that case, he is the district attorney. Thus, this case before us is distinguished from Muller because no subordinate to the district attorney is involved, but a substitute who was given the primary responsibility for the case by court order.

We find that the special prosecutor was given all the powers and duties of the district attorney by the court order to "investigate" and "prosecute" the case; thus, the special prosecutor had, included in the powers of the district attorney, the authority to make the appeal of the district court's order. We hold that upon the timely filing of the notice of appeal, the Court of Appeals had jurisdiction. The State's ground for review is sustained.

Accordingly, the judgment of the Court of Appeals is reversed and we remand this cause to the Court of Appeals for consideration of the merits of the State's appeal.

CLINTON, Judge, concur.

The Constitution of the State of Texas contemplates "the election of District Attorneys in such districts, as may be necessary." Article V, § 21; Interpretive Commentary. Accordingly, the Legislature has mandated that voters of Washington and Burleson counties elect a district attorney to represent the State in the district court for the 21st Judicial District. V.T.C.A. Government Code, § 43.108. Agreeing with the result reached by the court, nevertheless I believe this cause presents a question of constitutional dimension that must be examined and considered with more care.

I

Ever since at least 1858 the Legislature has assigned to district attorneys a basic duty of office relative to criminal prosecutions, viz:

"It is the duty of each District Attorney to represent the State in all criminal cases in the District Courts of his District, except in cases where he has been, before his election, employed...