## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00036

- CR

IN RE GREGORY DEWAYNE NEWSON

Original Mandamus Proceeding

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION Gregory Dewayne Newson has petitioned this Court for mandamus relief. News on asks

us to grant a writ of mandamus directing the Honorable LeAnn Rafferty, judge of the 123rd Judicial District Court of Panola County, to rescind her or der de ny ing Newson’s motion to disqualify attorney pro tem April Sikes and to enter an order granting his motion. Because we conclude that Judge Rafferty did not clearly abuse her discretion when she denied Newson’s motion to disqualify , we deny his petit ion fo r a writ of mandamus.
I. Background Law enforcement arrested Newson in Louisiana on December 31, 2019, for the offense of capital murder of a peace officer, which was alleged to have occurred earlier that day in Panola County , Texas

. On January 8 , 2020 , t he tr ial court gra nted Panola County District Attorney Danny Buck Davidson ’s motion to appoint April Sik es as a special prosecutor in Newson’s case.
At th at time, Sikes was employed as the f irst a ssistant d istrict a ttorney for Gregg County. On
F ebruar y 27, Ne wson was extr adited back to Texas , and at the request of the Panola County Sheriff’s Office, he was held in custody in the Gregg County J ail

. On March 2, Davidson filed a motion for recusal and appo intment of attorney pro tem , explaini ng to the t rial c ou rt that there was a “ potential conflict of interest ” that had “ arisen during the investigation of [the] case that would possibly require [Davidson] and [ his ] staff members

. . . to be called as fact wi tnesses in the trial of [ Newson ’s ] case . ” 1 (Em phasis a dded).

1 The investig ation wa s r elated to the forfeiture of $5,500.00, which the State maintained w as held by Newson as illegal c ontraband

. On February 13, the St ate f iled a motion to nonsuit its or iginal notice of seizure and intended3

Davidso n asked the court to “grant [the ] motion and recuse Movant and Movant’s Office . . . .” On March 6, t he trial found that good cause existed to grant Davidson’s motion to “ voluntarily

rec use [ ] , ” a nd the court appointed Gregg County D istric t Attorn ey Tom B. Wat son to a ct as

c ri minal d istrict a ttorney p ro t em in Newson’s case

. The trial court did not refer to Sikes in the order granting Davidson’s motion to recus e . Around th at sam e time , Newson ’ s atto rney notified th e trial court , via email , t hat Newson object ed to Sikes’s continued involv eme nt in his case

. C ounse l continued, “ [T] he law requires that i f Mr. Davidson is disqualified . . . [Dav idson’s] employees and staff, including Ms. Sike s, would also be disqualified from partici pa ti ng in t h e pros ecution(s) pending against
Mr. Newson.” 2
O n July 27 , the trial court , on its own motion, issued an order removing Watson as the district attorney pro tem and disqualifying Sikes from serving as counsel in the case, because
t he y had been rem iss in their obligation s to present Newson’s case to the gran d jury a nd because they h a d not “provide[d] any excuse or reason as to why the grand jury p resentation would not
forfeiture, asking the trial court to di smiss , w i t h out preju dice , the forfeiture proceeding against Newson. T he trial court granted the State’s mo ti on th e same day

.
2 In his email m essage to the court, N ewson ’ s couns el explained, It is our understanding of the law that once the elected Distr ict Atto r n e y is disqualified from participating in a case, that disqualification is imputed down the ranks o f the empl oyees and staff of the District Atto rney’s of fice, to incl ude any assistant district attorney and or special prosecutor employed or otherw ise assi s t i ng the District Attorney. It has also been suggested that if the DA of Panola County is disqua lified, th en the primary emp loyer of Ms. Sikes , the DA of Gregg Coun ty, Tom Watson, could be appointed as the Attorney Pro T em for this case. While the dis q u a lification of Ms. Sikes would not be imputed up to her employer, the elected District Attorney of Gregg Cou nty, Ms. Sikes’ co ntinued participat ion in th e prosecution of this case would, in our view, be prohibited. We take no position on the pro priety o f t he appointment of Mr. Watson as the Attorney Pro Tem in this case, although we see it as potentia lly proble matic.4

occur .” T he c ourt also noted that Sikes had bee n a ppointed as special counsel to the Pa n o la County District Attorney’s office when Davidson volu ntarily recused himself f rom the case but that “[t]he record [ was] unclear as to w hether Sikes sought to withdraw her ap pointment as special counsel ” at th e time Davidson recused. D espite that , the t rial court “removed” Watson as
district at torney pr o te m and ordered that Sikes be “ disqualified to serve as counsel in this
matter

. ” Th e trial court then appointed t h e Texas Attorney General’s Office (AG’s Office) as the d istrict a ttorney p ro t em in Ne w s on’s case.
A round seven days later, o n August 3, Wats on filed a motion for recusal and appointment of attorn ey pro tem. Newso n s tat e s that Watson’s motion for recusal was filed pursuant to an agreement between the parties and the trial court. T he tria l court found that good cause existed to grant Watson’ s recusal motion and disqualified Watson f rom s erv ing as the prosecutor in Newson’s case. 3 O n that same day, the trial court entered a second order referring the case to the AG’s Office to serve a s dis t r ict attorney pr o tem in Newson’s case . The trial court ass igned Newson’s case to Assistant Attorney General Natalie Tise, and the State i n dicted Ne wson for capital murder and aggravated assault on September 28

. A round May 2022, Sikes , who had sin ce le f t her employme nt with the Gregg County
D A’s office, wa s hired by the AG ’s Office and reassigned as the criminal district attorney
pro tem in Newson’s case. On August 1 2, Newson filed a motion to disqualify Sikes as the prosecutor in his case. Fol lo wing a hearing, the trial c ourt den ied Newson’ s motion to disqualify Sikes

. Newson’s petition for a writ of mandamus followed.

3 On August 4 , th e trial cou rt entered a separate ord er to vacate its July 27 “ [ r ] emoval [ o ] rd er . ”5

II. Standard of Review

“ Mandamus is an extraordinary remedy .” In re Good Shepherd Hosp. , Inc. , 572 S.W.3d 315, 319 ( Tex. App.

— T exark a n a 2019, orig

. proce edi n g). The decision t o deny a motion to disqualif y counsel is reviewable on a petition for a writ of mandamus. In re Cox , 481 S.W.3d 289, 295 (Tex. App

. — Fort Worth 2015, orig. proceeding). In a criminal case , “ [ m ] andamus relie f may b e granted if a relator sh ows that: (1) the act sought to be compelled is purel y ministerial, and (2) there is no adequate remedy at law. ” In re McCann , 422 S.W.3d 701, 704 (Tex. Crim. App. 2 013) (orig. proceeding). To meet his bur den to establish enti t l ement to mandamus relief, Newson is required to show that the trial co urt had a ministerial duty to grant his motion to disqualify Sikes

. See In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. C rim. App. 2013) ( orig. p roceeding)). An act is cons idere d ministerial if relator ca n show a clear righ t to the relief sought. B owen v. Carnes , 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) ( orig

. proce eding)

. A clear right to the requested relief is shown when the facts and circumstances
req uire but “ on e ra tiona l decision ‘ under unequivoc al, well

- settled (i .e., from extant statutory , constitutional, or case law sources), and clearly controlling legal principles. ’ ” In re. State ex rel. Weeks , 391 S.W.3d at 122 (quoting Bow en , 343 S.W .3d at 8 10). “ Mandamus i s not a vailable to compel a disc retionary act as di stinguished from a ministe rial act

. ” State ex rel. Holmes v.
Denson , 671 S.W.2d 896, 899 (Tex. Crim. App. 1984) (orig. proceeding)

. III. Discussion
In h is mandamus petition , Newson argues that the trial cour t abused its di scretion when it de nied his motion t o disqualify Sikes because she had “twice before been disqualified.” Newson6

points out that Sikes was initially disqualified as a spe cia l prosecutor for the Panola Co unty District Attor ney’s Office d ue to h er status as a potential witness in the civil for feiture case and that she was disqualified a second time from serving as district attorney pro tem in Gregg County due to her failu re to fulfill her duties. Newson asks this Court to (1) grant his pe tition for a writ

o f mandamus, (2) dir ect the trial court to rescind its order denying Newson’s motion to disqualify Sikes as district attorney pr o tem , and (3) direct the trial court to en ter an order granting Newson’s mo tion to disqualify Sikes. In reg ard to pro s e cutors, recusal and disqua lification are not interchangeable words. In re
Guerra , 235 S.W.3d 392, 410 (Tex. App.

— Corpus Chri sti

– Edinburg 2007, orig. proceeding)

. “L egal disqua lification refer s to t he ineligibility to act as the p rosecutor in a particul a r case . ”
In re L igon , 408 S .W.3d 888, 891 (Tex. App.

— Beaumont 2013, orig. proceeding) (per curiam)

. “There are . . . a few instances in which the district attorney is l egally disqualified fro m acti ng ,” 4
Coleman v. State , 246 S.W

. 3d 76, 81 (Tex . Crim. Ap p . 2008) , and News on fails to allege that any of them a pplied to Sikes

. See T EX
. C ODE C RIM
. P ROC
. A NN . art. 2.0 1 ( “ Each district attorney

4 Article 2.08 of the T exas Cod e of Cri m i n al Procedure , entitled “Disqualified,” states ,

(a) District and county attorneys shall not b e of counsel adversel y to the State in any ca se, in any c ourt, nor shall they, after they cease to be such officers, be of counse l adversely to the Stat e in any c a se in which they have been of counsel for the State

. (b) A judg e of a court in which a dist rict or county attorne y represents the State s hall declare the district or county attorney disqualified for purposes of Article 2 .07 on a showing that th e attorn e y is the subject of a criminal investigation by a law enforcement agency if that investigation is based on credible evidence of criminal mis conduct for an of fense that is within the attorney’s authority to prosecute. A dis qualification under this subsect i o n applies only to the attorney’s access to the crimi nal investiga tion pending against the att orney and to any prose cution of a criminal cha rge resultin g fro m that investigation.
T EX
. C ODE C RIM
. P ROC
. A NN . art. 2.0 8 (a), (b) (Supp .)

.7

shall represent the State in all crim inal cases in the district co urts of his district and in appeals there from, exce p t in cases whe re he has been , bef ore his election , emplo yed adversely.” )

. If there is a basis for legal disq ualification for a district a ttorney, for example, if “an elected prosecuting attorney has previously represented a defendant in a partic ular proce e d ing,”
the dis qua lification “is i mputed to thos e ass istants ‘who serve [ ] at his will and pleasure.’”
Scar b orough v. State , 54 S.W.3d 4 19, 424 (Tex. App.

— Waco 2001, pet. ref’d ) (alteration in origi nal) (quoting State v. May , 270 S.W.2d 682 , 684 (Tex. App.

— S an Antonio 1954, no writ))

. In other words, “ if an elect ed prosecuting attorney ha [ d ] pr eviously represented a defendant in a
par ti cular proceeding, the n artic le 2.01 disqualif i es him from representing the State in the matter and that disquali fication i s imputed to tho se assistants ‘ who serve[ ] at his wi ll and p leasure. ’ ” Id

. (alteration in original). On the other hand, “if an assistant district or county att orney has previously repr esented a defendant in a particular proceeding, then that pa rticular a t t orney is disqual ified from assisting in the prosecution of the ca se, but the elected prosecutor and his other assistants are not. ” Id

. (citing State ex re l. Edison v. Edwar ds , 793 S.W .2d 1, 5

– 6 (Tex. Crim. App. 1990) (orig. proceeding)

. In rel ation to a v oluntary recusal , like the two recusals in this case, “[a] distri ct attorney who is not leg ally disqualified may request that the district court permit hi m to recuse himself in a part icular case for good cause.” Colem an , 246 S.W.3d at 81. Thi s procedur e , which is specif ied in Article 2.07(b

- 1) of the Texas Code of Cri minal Procedure , “al lows the district attorney to avoid conflicts of interest and even the appearance of impr opriety by deciding not to participate in certa in cases.” Id

. “Once the trial c o urt approves his voluntary recusal, the district8

attorn ey is deem ed ‘disqualified .’” Id

. ( citing T EX
. C ODE C RIM
. P ROC
. A NN . art. 2.07(b

- 1) ( Supp.) )

. The d istinction between a legal di squalification and a voluntary recusal is cri tical. Had
Dav idson or W a t son represented Newson previously, the knowledge that either of t hem gained through t hat representation would be imputed to Sikes , and the disqualification would follow her af ter she le ft the DA’s office. But that is not the case here , and New son has ci t e d no legal autho rity showing that a deemed disqualification , foll o wing a voluntary recu sal , would follow Sike s to her future employment

. In fact, “the notion of ‘once deemed di squalified , always disqualified, ’” has been expressly rejected. O’ Neal v. St a t e , No. 07

- 15

- 002 73

- CR , 2016 WL 3136039, at *3 (Tex. App.

— Amarillo May 31, 2016, pet. ref ’d) (mem

. op. , not designated for publication) ( citing Coleman , 246 S. W.3d at 85). Recently, w e a ddressed a similar issue in In re Rider , No. 06

- 22

- 00129

- CR, 2022 W L 7208629 (Tex. Ap p.

— Texarkana Oct. 13, 2022 , orig

. pro ceeding ) (mem . op., not designated for publication)

. In that ca se, Rider filed a petition for a w rit of mandamus asking this Court to order “ the 124th Judicial District Court of Gregg County , T exas , t o enter an order d isqualifying the prosecutor pro tem

. ” Id

. at *1. W e denied Rider’s petit ion for mandamus relief. Rider was indi cted f

or capital murd er, and the trial court appo inted John Moore to represent him. At th at time, Sikes was the fi rst assist a n t to Greg C ounty DA Tom Watson , and she made multiple appe arances on behalf of the State in Rider’s case

. “ On January 21, 2022 , . . . Watson

. . . inform e d the trial cou rt that h e [ would not be ] seeking re

- election ” and that he did
not have su ffic ient t i m e in o ffice to prosecute Rider’s case

. He furt her inform ed the court that9

J ohn Moore would be running f or Greg County DA “ unopposed and would be sworn in as th e

ne xt criminal district attorne y on January 1, 2023. ” Id

. Watson asked the trial court to g r a nt h is motion to voluntarily re cuse his office “ ‘ [a]s a result of the upcoming c hanges in the ’ DA’s Offi ce ” and because “ a conflict ar[ose] in that John Moore w[ ould] not be able to prosecu te the case against the Defendant due to their previous atto rney - c l ient relationship.” Id

. “The re cusa l request expressly contemplated a future c onflict of interest and not one existing at th at time.” Id

. The trial court g ranted Watson’s mot ion on Fe bruary 2 , allowing him to recuse pursuant to Article 2.0 7 (b

- 1) o f t he Texas Code of Criminal Procedur e. The trial court also appointed the
Texas A G’s office to prosecute Rider’s case as DA pro tem

. Five month s later , Sikes le ft the Gregg County DA’s off ice and was employed as an assistant attorney genera l. A t he r ne w
p osition, Sikes was assigned to rep resent the State against Rider. “ Rider moved to disqualify Sikes base d solely on the argument that , because the DA’s O ffice [ previously ] recused , Si kes was disqualified ” from prosecut ing Rider as an AAG

. Id

. The tria l c ourt rejected Rider’s reasoning , found that there was no “evidence of a due proc ess violation or issue,” and denied Rider’s motion. Id

. Rider filed a petition for a writ of mandamus in thi s C ourt , maintaining that the trial
court ’s denial of hi s mo tion t o disqualify Sikes was an abuse of discret ion. Id

. In denying Rider’s petition, w e first noted the differ ence between a legal disqualification and a voluntary recusal and then explaine d , “ H ad Watson previously represented Rider, the knowled ge h e ga ined
t h rough such a representation would be imp uted to Sikes and the disqualification cou ld follow her after she left the DA’s Office. But those are not the facts

. . . . ” Id

. at *3 (e mphasis added)

.10

Newson ma intains that the facts in the present cas e ar e cr i t i call y different from those in Rider

. Newson argues that , in Rider , “neither Ms. Sik es nor her supervisor Mr . Watson (nor anyone else in the Gregg County District Attorney’s Office for that ma tter) ever labored under any kind of conflict in the case . M r . Watson sought voluntary recusal prospectively b ased on the eventual legal disqualifi cation of his successor. ” With respect to this case, Newson contends ,

“ Davidson sou ght a recusal base d on his own existing conflict, then Mr. Wat son was removed and lat e r voluntarily recused based on his failure to fulfill his dutie s as attorney pro tem. In both ci rcumstances, Ms. Sike s w as not simply an unwitting b ystander .” (Emphasis added). He

con tinues, “ [Instea d,] s he was an active participant. And she w as disqu a l i fied based, not only on the imputed taint from her supe rvisors, but also on her own status and c onduct.” We disagree. Similar to what W a tson did in the Rider case, Davidson filed a motion to voluntar ily recuse from Newson’s case based on the po ssibilit y t hat he , or one of his staff members , m ight be a potential witness in a civil forfeiture proceeding against Newson

. The trial cour t had t he discretion to grant or de ny Davidson’s motion

. Not unexpect edly , t he court chose to grant Davidson’s mot ion and a p p ointed Watson as the attorney pro tem

. Regardless, Newson’s forfeiture case , which was the sole basis fo r Watson’s motion to vol untaril y recuse, was dismissed purs uant to the State’s own motion

. Bu t e ven if the forfeiture case were to be refil ed by th e S tate, the trial court would have the discretion to determine whether Sike s had a conflict of interest re garding the forfeitur e proce eding. The fact that the tr ial court ha s the discreti on to determ ine whether Sike s has a conflict of i nterest re futes Ne w s o n’s assertion th at the trial court
h ad a ministerial duty to grant his motion to disqualif y Si kes.11

Newson also argues that Si kes was disqualified from prosecuti ng his case based on
W atson’s and Sike s ’ s prior legal disqualification s . It is tru e that t h e trial court entered an order disqual ifying Watson and Sikes based on their failure to particip ate in grand jury proceedings.
Ho wever, the trial court used its dis cretion when it chos e to vacate its or der disqualifyi ng Watson and Sikes and , then again , w h e n it enter ed its order granting Wats on’s motion to voluntarily

recuse. Neither of those rulin gs were ministerial in nature , and Ne wson has not met his burden of s howing th at the trial court had a mini sterial duty to grant his motion to disquali fy Sikes b a sed

on any of the prior recusal orde rs . IV. Conclusion Because Sike s ’ s appointment as attorne y pro tem was consistent with the Texas C ode of Criminal Procedure, w e canno t say that the trial court’s de cision to allow Sikes to continue to
prosec ute News o n lies outside the zone of reasonable d isagreement. For th is reason, we deny Newson’s petition fo r a writ of mandamus.

Charles va n Cleef Justice Date Submitt ed: A pril 2 0 , 2023 Date Decided: April 2 1 , 2023 Do Not Publish