IN RE the STATE of Texas, Relator

No. 07-18-00265-CR

Court of Appeals of Texas, Amarillo.

December 20, 2018

**OPINION ON REHEARING**

Judy C. Parker, Justice

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 *267the 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.

Background

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to disqualify the 286th District Attorney's Office in each of the cases in which the plea offers were potentially withdrawn.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.

Law and Analysis

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 *268elected 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

*269*In re Simon* , 2016 WL 3517889, at *7, 2016 Tex. App. LEXIS 6562, at *17 ; *see**Buntion* , 482 S.W.3d at 77 ("Appellant has not alleged, and we have not found, that any actual conflict existed. District Attorney Lykos did not previously represent appellant, nor did any of her staff. Thus, appellant fails to show any conflict which this Court has previously found as grounds for disqualification."). 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 *270withdrawal 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 offers coupled with some alleged ill-will between the district attorney and defense counsel constitutes a conflict of interest that rises to the level of a due process violation. But, such a position is inconsistent with the case law addressing disqualification of the district attorney based on claims of personal animus. *See**In re**State ex rel. Warren* , 2017 Tex. App. LEXIS 8663, at *5-6 (Tex. App.-Fort Worth Sept. 12, 2017, orig. proceeding) (mem. op.) (no conflict of interest rising to level of due process violation when DA threatened defendant's wife that, if defendant does not accept fifteen-year offer, he would seek fifty-year sentence at trial); *Fluellen v. State* , 104 S.W.3d 152, 161 (Tex. App.-Texarkana 2003, no pet.) (DA and defendant that had been involved in an altercation where words were exchanged at the time defendant was arrested for the charged offense is not a conflict of interest rising to the level of a due process violation); *Hanley v. State* , 921 S.W.2d 904, 909-10 (Tex. App.-Waco 1996, pet. ref'd) (defendant that had filed grievances against ADA prosecuting his case insufficient to prove conflict of interest rising to level of due process violation); *State ex rel. Hilbig v. McDonald* , 877 S.W.2d 469, 471-72 (Tex. App.-San Antonio 1994, orig. proceeding) (mere allegations of wrongdoing by the DA insufficient to justify disqualification). To conclude that Dennis has a conflict of interest that rises to the level of a due process violation requires this Court to speculate about actions Dennis might have taken but that were not proven, such as the permanent withdrawal of all plea offers to clients of Duffy. *See**Ex parte Reposa* , No. AP-75,965, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *32 (Tex. Crim. App. 2009) (orig. proceeding) ("None of the anecdotal evidence the applicant has presented establishes bias that rises to the level of a due-process violation."). If this Court is willing to speculate as to evidence that was not presented as justifying the trial court's disqualification of an elected district attorney from prosecuting a defendant, we will thrust trial courts into the position of being arbiters of whether district attorneys have taken any adverse action in cases on the basis of every personal conflict, whether substantial or petty, that may arise between these adversaries. This, we are unwilling to do.

The nature of plea bargains is such that we do not conclude that Dennis violated these defendants' due process rights by either withdrawing or failing to make plea bargain offers. A defendant has no right to demand the State offer or enter into a plea bargain agreement.

*271*Stamper v. State* , Nos. 05-92-02253-CR, 05-92-02254-CR, 1995 WL 633702, at *1, 1995 Tex. App. LEXIS 2621 at *3 (Tex. App.-Dallas Oct. 30, 1995, no writ) (citing *Thompson v. State* , 691 S.W.2d 627, 635-36 (Tex. Crim. App. 1984), and *DeRusse v. State* , 579 S.W.2d 224, 236 (Tex. Crim. App. 1979) ). Because Dennis was under no obligation to make plea bargain offers to any of the defendants represented by Duffy, we cannot conclude that the temporary withdrawal of plea bargain offers occurring in this case constitutes a due process violation that would justify disqualification of Dennis and the 286th District Attorney's Office.

In addition, Duffy cites an ex parte e-mail sent by Dennis to the trial court and alleged misrepresentations made by Dennis to the trial court and this Court as evidence of unethical behavior that should serve to disqualify Dennis from prosecuting these defendants. While these actions may constitute violations of the rules of professional conduct, they are not sufficient to establish a proper basis for disqualification of the elected district attorney. *Landers* , 256 S.W.3d at 306 & n.35 (citing *Eidson v. Edwards* , 793 S.W.2d 1, 6-7 (Tex. Crim. App. 1990) (orig. proceeding) (op. on rehearing), and *State ex rel. Young v. Sixth Judicial Dist. Court of Appeals* , 236 S.W.3d 207, 213 (Tex. Crim. App. 2007) (orig. proceeding)). Such violations of disciplinary rules do not disqualify the district attorney and are properly dealt with by the State Bar or through subsequent elections. *Id.* at 306 n.35.

Conclusion

The office of district attorney is constitutionally created and protected, and its authority cannot be abridged or taken away absent statutory or judicial authority to do so. By removing Dennis, the elected district attorney, and the entire 286th District Attorney's Office on a basis not authorized by law, Judge Phelan violated clearly controlling legal principles. Accordingly, we conditionally grant mandamus relief and direct Judge Phelan to vacate his July 2 and August 15 orders granting defendants' motions to disqualify Dennis and the 286th District Attorney's Office and appointing the Hockley County Attorney as special prosecutor. *See* TEX. R. APP. P. 52.8(c). Being confident that, in the face of this opinion, the trial court will not disqualify Dennis or the 286th District Attorney's Office from prosecuting future cases without good cause having been shown, we deny Dennis's petition for writ of prohibition. *See**id.* at 52.8(a). Our writ of mandamus will issue only if the respondent fails to comply with the directive of this Court.

1

On December 6, 2018, the Court ordered that this case be reclassified as a criminal case and changed the cause number accordingly.

2

In his petition for writs of mandamus and prohibition, Dennis sought mandamus relief relating to the seven cases on which the trial court disqualified the District Attorney's Office by its July 2 order, and prohibition to prevent the trial court from disqualifying the District Attorney's Office from the six cases that remained pending. Soon after this Court issued its denial of Dennis's petition, the trial court issued its August 15 order disqualifying the District Attorney's Office from those remaining six cases. By his motion for rehearing, Dennis prays that this Court issue writ of mandamus ordering the trial court to withdraw its July 2 and August 15 orders disqualifying the District Attorney's Office from prosecuting all thirteen causes, and a writ of prohibition preventing the trial court from disqualifying the District Attorney's Office in the future absent good cause shown. Because Dennis's petition addressed the possibility that the trial court would disqualify the District Attorney's Office in the six cases that were then pending and because Dennis's motion for rehearing requests mandamus relief as to orders in all thirteen cases, we will deem the petition to request mandamus relief as to all thirteen cases addressed in the petition in which Dennis and the District Attorney's Office have been disqualified.

3

We do note that district attorneys are statutorily disqualified from representation that is adverse to the State and where the district attorney is the subject of a criminal investigation by a law enforcement agency that is based on credible evidence of criminal misconduct that is within the attorney's authority to prosecute. *See* Tex. Code Crim. Proc. Ann . art. 2.08 (West Supp. 2018). Neither of these exceptions apply in the present case.

4

We note that Woods advanced an argument at the August 15 hearing on the motions to disqualify Dennis that his actions have made him a witness in these cases. However, no further explanation of that contention was provided. We fail to see how any of Dennis's actions relating to the withdrawal of plea offers would make him a material fact witness in any of the cases for which his disqualification is sought.

5

We acknowledge that this Court held, in *State ex rel. Sherrod v. Carey* , 790 S.W.2d 705, 709 (Tex. App.-Amarillo 1990, orig. proceeding), that disqualification of a district attorney's office and appointment of a special prosecutor are matters within the discretion of the trial court and, therefore, not appropriate for mandamus relief. However, *Carey* involved an attorney that had represented the juvenile defendant in the same case prior to being hired as a prosecutor. *Id.* at 707. As such, the *Carey* case involved the trial court's discretionary decision regarding whether the prosecutor's prior adverse employment was sufficient to disqualify the district attorney's office. By contrast, there is no discretion in the present case since the law does not authorize the trial court to disqualify a prosecutor on a basis other than prior representation or other specific bases not applicable here. *In re Simon* , 2016 WL 3517889, at *7, 2016 Tex. App. LEXIS 6562, at *17 ; *In re Ligon* , 408 S.W.3d at 896.

6

Dennis acknowledged at the July 2 hearing on Duffy's motions to disqualify that some offers were withdrawn in cases "in which offers have been pending for months and not taken." While this is some proof that there were offers withdrawn by Dennis's text, it does not show how many offers were withdrawn nor which defendants were adversely affected.

7

Duffy acknowledged, under oath, that "in at least one of my cases, Amethyst Snead's case, that [Dennis] made a plea offer to her on July 24th...." Duffy's use of the words "at least" implies that Dennis may have made subsequent plea bargain offers in other cases for which disqualification has been sought.

Quinn, C.J., concurring.

Pirtle, J., concurring and dissenting.

**CONCURRING OPINION ON REHEARING**

Brian Quinn, Chief Justice

Before us is a motion for rehearing in this cause. I vote to grant it. I also concur in the decision to conditionally issue mandamus directing the Honorable Pat Phelan, of the 286th Judicial District, to vacate his July 2, 2018 and August 15, 2018 orders granting the motions to disqualify Christopher Dennis and the 286th District Attorney's Office from prosecuting cause nos. 14-12-8123, 16-02-8667, 16-09-8879, 16-09-8894, 17-06-9051, 17-06-9074, 17-06-9081, 17-07-9112, 17-07-9113, 17-07-9122, 17-09-9133, 17-11-9197, and 17-11-9211. My reasons for so concluding follow.

When can a trial court disqualify a district attorney? That is the issue here. The State argues that the authority is limited to situations involving prior representation by the prosecutor. No doubt, precedent has held that a district attorney may be disqualified for engaging in a conflict of *272interest. The conflicts alluded to normally encompass those arising when the prosecutor previously represented the accused in the same matter. *See**Landers v. State* , 256 S.W.3d 295, 304 (Tex. Crim. App. 2008). Prior representation of the accused in a different matter may also be a conflict of interest warranting disqualification if the circumstance denies the accused due process. *Id.* at 304-05.

But, the Court of Criminal Appeals left open the likelihood of disqualification in at least one other scenario. It too implicates a conflict of interest, one not founded upon prior representation but, rather, personal bias or grudge. *See**Ex parte Reposa* , AP-75,965, 2009 Tex. Crim. App. Unpub. LEXIS 725, at *32-33 (Tex. Crim. App. Oct. 28, 2009) (not designated for publication).1 Admittedly, claims of this ilk do not merit automatic disqualification. *Id.* at *32. Quite the contrary, the party seeking disqualification must show that the conflict, i.e., personal bias or grudge, prejudiced the accused "in such a manner as to rise to the level of a due process violation." *Id.*

Prosecutors are like everyone else. They too have their biases and need not be entirely neutral and detached. *Marshall v. Jerrico, Inc.* , 446 U.S. 238, 248-49, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) ; *see**Buntion* , 482 S.W.3d at 77 (Tex. Crim. App. 2016) (observing that a prosecutor need not be a neutral party in criminal litigation). They may also be quite zealous in their advocacy. *See**Buntion* , 482 S.W.3d at 77 ; *Ex parte**Reposa* , 2009 Tex. Crim. App. Unpub. LEXIS 725, at *33. Nevertheless, they are public officials bound to serve the public interest, *Marshall* , 446 U.S. at 249-50, 100 S.Ct. 1610, not their own. While they are free to exercise much discretion, that discretion does not insulate them from judicial scrutiny when their decisions are motivated by improper factors. *Id.* So, the Due Process Clause of the 14th Amendment of the United States Constitution does impose limits. *Id.* ; *Ex parte**Reposa,* 2009 Tex. Crim. App. Unpub. LEXIS 725, at *33. Interjecting "a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions." *Marshall* , 446 U.S. at 249-50, 100 S.Ct. 1610. As observed in *Ex parte Reposa,* the United States Supreme Court in *Marshall* "left open the possibility that 'different considerations might be held to apply if the alleged biasing influence contributed to prosecutions ***against particular persons, rather than to a general zealousness******in the enforcement process*** .' " *Ex parte**Reposa* , 2009 Tex. Crim. App. Unpub. LEXIS 725, at *33 (emphasis added). The step from acceptable zeal to prohibited bias comes when the prosecutor has "an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice." *See**id.* at *36. The record at bar contains evidence upon *273which the trial court could have found that pivotal "axe to grind."

The trial court disqualified the prosecutor, Christopher Dennis and the 286th District Attorney's office, from prosecuting the actions wherein Christina Woods Duffy represented the accused upon finding that Dennis had a conflict of interest that rose to the level of a due process violation. The conflict was personal and found its genesis, according to the trial court, when Duffy successfully urged a motion to exclude a State's expert witness on behalf of one of her clients. That led the district attorney to text Duffy via cell phone that "any pending cases ***you*** have with offers outstanding ... those offers are revoked, expired, and null. Effective immediately." (Emphasis added). The prosecutor followed this announcement with at least two other writings wherein he again told Duffy that "there would be no offer at this time." When asked by the trial court whether he was retaliating against Duffy because she succeeded in having an expert excluded, the district attorney described his decision "as a strategy." He also told the trial court that what he did "as a matter of strategy, ***as a reaction to something that another counsel does*** , is well within, not just my right as prosecutor, but is within my responsibility as prosecutor." (Emphasis added). He continued as follows:

> If I have 20 lawyers opposing me, and 19 of them behave in a certain fashion, and we get along in a certain way, and things go swimmingly, shall we say, and I treat them one way; but, one acts differently and things go differently, and things work differently, it is not prosecutorial [vindictiveness] for me to change my strategy in dealing with the one.

Based on Duffy successfully urging a motion to exclude on behalf of her client, the prosecutor thought a change of strategy was needed. So, he "appraised what happened in that hearing, and ... decided that the best thing for ***my office*** to do at that moment was to halt proceedings in those cases," "those cases" being "every case that [he] had with [Duffy]." (Emphasis added).

The district attorney also informed the trial court that he had used this strategy with two other defense attorneys. Subsequent evidence obtained via affidavit and hearings led the trial court to conclude that Dennis's utterance about using the strategy before was a "misrepresentation." So too did it deem the prosecutor's action to be a violation of the constitutional right to equal protection enjoyed by both Duffy and her clients, which violation arose from Duffy "exercising protected legal rights of" her clients.

This is not a plea bargain case or one purporting to recognize a right to a plea bargain.2 A defendant has no right to demand that the State offer him such an agreement. *Thompson v. State* , 691 S.W.2d 627, 635-36 (Tex. Crim. App. 1984) (en banc); *accord**Hallmark v. State* , 541 S.W.3d 167, 181 (Tex. Crim. App. 2017) (observing that the State "is not required to enter into plea bargain agreements"). Moreover, a prosecutor generally has the authority to withdraw a plea offer at any time before both the defendant accepts, and the trial court approves of it. *Becerra v. State* , No. 07-17-00169-CR, 2018 WL 5289713, 2018 Tex. App. LEXIS 8696 (Tex. App.-Amarillo Oct. 24, 2018, pet. filed) (mem. op., not designated for publication).

*274Nor is this a case wherein effort is made to control the prosecutor's abundant discretion in choosing how to perform his duties. He is elected by the people and charged with the task of enforcing our criminal laws.

Rather, the case at hand concerns whether a prosecutor may remain prosecutor in cases wherein he denied the defendants certain privileges merely because their attorney zealously and successfully represents them. The adverse implications to a defendant's Sixth Amendment right to counsel posed by such a scenario cannot be denied. *See* U.S. CONST. amend. VI (stating "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence"). That amendment, as made applicable to all states via the Due Process Clause of the Fourteenth Amendment, *see**Gideon v. Wainwright,*372 U.S. 335, 341-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), accords a defendant the right to reasonably effective assistance of counsel. *See**Strickland v. Washington* , 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The prosecutor's policy of withholding plea offers to those represented by Duffy left Duffy with little choice. She could 1) withdraw with the hope that Dennis then would deign to treat her ex-clients in the same manner he treated defendants in general, 2) remain counsel with the understanding that the district attorney intended to treat her clients differently because she represented them, or 3) remain counsel and opt to give her clients a level of representation deemed acceptable to the prosecutor.

As the district attorney said, "If I have 20 lawyers opposing me, and 19 of them behave in a certain fashion, and we get along in a certain way, and things go swimmingly ... and I treat them one way; but, one acts differently and things go differently, and things work differently." This comment suggests a general mode of practice focused not necessarily on justice and the purportedly criminal acts of the accused and their impact on the victims and society. Rather, it connotes a focus on the identities of defense counsel, the manner in which defense counsel chose to fulfill their duties to their clients, and their relationships with the prosecutor. If the prosecutor finds the relationships acceptable, their clients receive one measure of treatment, such as a plea offer. If the prosecutor dislikes the relationships with other counsel, their clients receive different treatment, such as no plea offer. This runs contrary to the prosecutor's obligation to do justice. *See* TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005) (stating, among other things, that "[i]t shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done").

Indeed, implicit in the presumption that prosecutors undertake a criminal prosecution in good faith and in a non-discriminatory fashion, *see**Gawlik v. State,*608 S.W.2d 671, 673 (Tex. Crim. App. [Panel Op.] 1980) (noting the presumption that prosecutors undertake their duty in a good faith and a non-discriminatory fashion), is the obligation to act in good faith and in a non-discriminatory fashion. Conduct dictated by impermissible considerations, such as race, religion, or a desire to interfere with the accused's constitutional rights, evinces prohibited discrimination and bad faith. *Malouff v. State* , No. 03-13-00723-CR, 2015 WL 5919944, 2015 Tex. App. LEXIS 10338 (Tex. App.-Austin Oct. 7, 2015, no pet.) (mem. op., not designated for publication). And, while it may be that a prosecutor has great discretion in deciding to whom to offer a plea bargain, I found no authority permitting that discretion to be exercised based upon defense *275counsel's desire to effectively represent his or her clients as mandated by the United States Constitution. Nor did the State cite me to any such authority.

Nor did the State cite me to authority insinuating that the extension of plea bargains may lawfully be founded upon whether the prosecutor deems personally acceptable an opposing counsel's successful advocacy of a legal position on behalf of her client. Again, the dispute between the district attorney and Duffy arose from the latter's winning effort to exclude the testimony of a State's expert witness. He simply found her successful advocacy for her client's interests unpalatable. So, an obviously intentional decision was made to strike at her through all her clients by withdrawing all plea offers previously extended to them. This evinces a mode of discriminatory prosecution dictated by personal grudge. It illustrates nothing short of retaliation based upon the defendant obtaining a favorable legal ruling, and authority certainly tells us that due process forbids the State from retaliating for a defendant's exercise of a constitutional right, such as the right to reasonably effective counsel. *See**Neal v. State,*150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (stating that "a decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant's exercise of his legal rights").

The evidence before the trial court illustrated that the district attorney had "an axe to grind" against Duffy and those defendants who turned to her to further their Sixth Amendment constitutional rights. He ground that axe in a retaliatory way which transgressed due process, in my opinion. The circumstances remind me of a tenet learned years ago and involving this State's concept of employment at will: an employer can generally terminate an employee with reason or for no reason, but he cannot do so for an impermissible reason. The district attorney was free to extend and withdraw plea bargains at his discretion, but he must be prohibited from doing so for impermissible reasons. So, the trial court correctly determined that the district attorney at bar operated under a conflict of interest implicating due process when it came to withdrawing plea offers from Duffy's clients.

Yet, I am left concerned by the evidence, or lack thereof, indicating prejudice. *Ex parte Reposa* and its predecessors link due process and prejudice together. As the *Ex parte Reposa* court said, the party seeking to disqualify the prosecutor "must demonstrate that an actual conflict of interest existed ***which prejudiced*** [the applicant] in such a manner as to rise to the level of a due-process violation." *Ex parte**Reposa* , 2009 Tex. Crim. App. Unpub. LEXIS 725, at *32. Maybe the court is saying that, without prejudice, there is no due process violation. Maybe it is saying that the due process violation (e.g., prosecutorial retaliation for exercising constitutional rights) must be prejudicial. Yet, under either interpretation, the existence of prejudice is necessary. If the defendant is not prejudiced by the circumstances, then the prosecutor cannot be disqualified.

Here, evidence illustrates that the district attorney withdrew outstanding plea offers to all of Duffy's clients. And, though there exists evidence that there may have been more than one offer outstanding at the time, the record fails to show to whom they were extended or how many defendants were extended an offer. Nor does it show that the defendant being prosecuted in the case that instigated the row between Dennis and Duffy had been offered a plea bargain. To that I add evidence illustrating the prosecutor quickly changed the tone of his prior text message about plea offers. He did that through a letter sent on the *276same day wherein he told Duffy that offers would not be forthcoming "at this time." So too did he later extend an offer to at least one of her clients. Whether there were more, we do not know. Whether that offer was extended to a defendant who had previously been extended an offer, we do not know. Nevertheless, evidence filling those gaps was undoubtedly available to Duffy since the offer or offers were undoubtedly extended to her clients through her, and it was her burden, as representative of her clients, to proffer it.

Simply put, the evidentiary scenario brings to mind the adage "actions speak louder than words." Dennis intended to retaliate when initially texting Duffy about withdrawing plea offers. Nonetheless, his actions illustrate backpedaling from that intent. He apparently opened the door to plea negotiations and even extended an offer to a client of Duffy. This uncontradicted evidence leads me to conclude that the prejudice needed to allow disqualification presents itself as a possibility as opposed to an actuality. So, to the extent precedent requires evidence of actual prejudice, I cannot say Duffy satisfied the burden.

Consequently, I concur with Justice Pirtle to the extent he concluded there existed a conflict of interest.3 I concur with Justice Parker to the extent she concluded the evidence of actual prejudice was deficient. Thus, I would reverse the trial court's order disqualifying Christopher Dennis from prosecuting the proceedings listed in the opening paragraph of this opinion. Yet, I do so with the caveat that anger and impulse runs among us all; to control them is not easy but necessary to effectively serve the elected office.

**CONCURRING AND DISSENTING OPINION ON REHEARING**

Patrick A. Pirtle, Justice

I heretofore joined both Chief Justice Quinn and Justice Parker in their decision to grant Relator's motion for rehearing and, to that extent, I join in their decision to withdraw our opinion of August 10, 2018.1 I do, however, respectfully dissent from the substitute opinions of my learned colleagues to the extent that they agree to grant mandamus relief based upon the conclusion that proof of actual prejudice was deficient.

Relator, Christopher Dennis, District Attorney for the 286th Judicial District of *277Hockley 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 that petition, Dennis asked 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 Hockley County District Attorney's Office from prosecuting thirteen cases,2 and a writ of prohibition preventing the trial court from disqualifying that office in the future absent good cause shown. Because I would deny Dennis's petition seeking mandamus relief, as well as his petition for writ of prohibition, I respectfully dissent.

BACKGROUND

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. After the trial court ruled in favor of Duffy's client, thereby excluding Dennis's expert witnesses, 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.3 By letters of the same date, Dennis further notified Duffy that "[t]here will be no offer at this time" apparently as to each of her pending cases, regardless of whether there had been a prior plea bargain offer.

Duffy subsequently filed a motion to disqualify Dennis in those cases in which she was attorney of record. As a basis for the requested disqualification, Duffy alleged the policy adopted by Dennis violated her client's federal and Texas constitutional rights of due process, effective assistance of counsel, and equal protection. She further alleged that the policy amounted to prosecutorial vindictiveness as to any person represented by her. By her prayer, Duffy sought dismissal of the prosecution or, in the alternative, the disqualification of the 286th District Attorney's Office.

Shortly after holding a hearing on Duffy's motion to disqualify, on July 2, 2018, Judge Phelan issued an order declaring the District Attorney's Office disqualified and appointing a special prosecutor in the original seven cases. Judge Phelan did not rule on the remaining motions to disqualify.

*278In response to the seven original disqualification orders, Dennis filed his petition seeking the issuance of 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 of showing 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 Tex. App. LEXIS 6315 (Tex. App.-Amarillo Aug. 10, 2018, orig. proceeding). On August 15, Judge Phelan heard argument in the remaining six cases and, thereafter, granted those motions. On August 25, Dennis filed the instant motion for rehearing, which, when coupled with the original petition, complies with the procedural requirements applicable to his requests for mandamus and prohibition relief. At that time, we requested a response from Duffy, which she filed on September 6. We also requested oral arguments to flesh out the respective positions of the parties. Duffy appeared in person and presented her arguments. Dennis sent an assistant district attorney to present his position.

LEGAL STANDARDS AND ANALYSIS

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, I agree with the opinions of my colleagues and 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. *See**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 was required to 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 to deny the motion for disqualification of Dennis and the 286th District Attorney's Office, such a decision 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 *3, 2016 Tex. App. LEXIS 6562 at *15 (Tex. App.-Austin June 22, 2016, orig. proceeding) (quoting *In re State ex rel. Weeks* , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding) ). Contrary to my colleagues' opinions, I believe denial of the disqualification motions was not the "one rational decision" the trial court could have made. Because there are well-settled principles upon which a district attorney might be disqualified under certain circumstances, and because I believe the pending criminal cases at hand fall within the parameter of those circumstances, I conclude Judge Phelan was acting within his authority and the denial of Duffy's motion to disqualify was *not* the one rational option available to him. As such, Judge Phelan did not abuse his discretion in granting the motion to disqualify.

*279"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) (trial court's decision to deny motion to disqualify affirmed). "The office of a district attorney is constitutionally created and protected; thus, the district attorney's authority 'cannot be abridged or taken away' " lightly. *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 in light of this limited statutory 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).

As Chief Justice Quinn and Justice Parker have emphasized in their respective opinions, 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.4*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 instances have also 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). There is, however, no bright line rule for determining whether a conflict arises to the level of a due process violation and each case must be analyzed on its own set of facts. In ascertaining whether a conflict of interest rises to that level, the United States Supreme Court has said:

> due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise [that] must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.

*Lassiter v. Dep't. of Social Services* , 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quoting *Cafeteria Workers v. McElroy* , 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) ).

It is the "primary duty" of a prosecutor "not to convict, but to see that justice is done." TEX. CODE CRIM. PROC. ANN . art. 2.01 (West 2005). In that regard, a personal interest that is inconsistent with that duty to see that justice is done is a conflict that could potentially violate a defendant's fundamental due process rights. In the context *280of the criminal cases impacted by Dennis's mandate, it is not the deprivation of a plea bargain that is of constitutional dimension-for a defendant has no constitutional right to a plea bargain. Instead, it is the systematic and intentional discrimination against a particular attorney that effectively deprives an accused person represented by that particular attorney of his constitutional right to the effective assistance of counsel.

In the cases at issue, it is clear that Dennis has a "conflict of interest"-and it is personal. Dennis has unequivocally established that he has a personal vendetta against Duffy and his dislike of her is going to be taken out against her clients. Because Duffy stands *in pari locus* to her client and because she is for all intents and purposes the stand-in or representative of the defendant, vindictive acts directed at Duffy are acts directed at her clients. By striking at Duffy, Dennis was simultaneously striking at her clients and I find that conflict of interest rises to the level of a due process violation because it effectively denies each of Duffy's clients the right to effective assistance of counsel and due process of law. *See**In re Ligon,*408 S.W.3d at 892 (holding that a "due process violation occurs where the prosecutor's personal interest generates a structural conflict that presents a potential for misconduct deemed intolerable"). *See also**In re Guerra,*235 S.W.3d 392, 415 (Tex. App.-Corpus Christi 2007, orig. proceeding) (holding that a trial court has "inherent judicial power, which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity" in disqualifying a district attorney for a personal conflict of interest not arising from any prior representation). "The absence of an impartial and disinterested prosecutor has been held to violate a criminal defendant's due process right to a fundamentally fair trial." *Id.* at 429. Here, faced with such a blatant degree of prosecutorial vindictiveness, directly impacting the constitutional rights of the accused, Judge Phelan reached the conclusion that the potential for prosecutorial misconduct was "intolerable." *Id.* at 415. Justice Parker holds the trial court had but "one rational decision" and that decision was to allow Dennis to continue his vindictive ways. I passionately disagree. Chief Justice Quinn, while condemning Dennis's conduct, nevertheless concludes that the trial court erred in granting Duffy's motion to disqualify because she failed to meet her burden of showing that her clients were actually prejudiced by his actions. In response, I can only say that Duffy did establish an abridgement of her clients' constitutional due process rights and that is enough. Proof of harm-proof of how that abridgement actually affected the ultimate outcome of any individual case is something akin to the thought experiment known as "Schrodinger's cat," where the result of an experiment cannot be known until the experiment itself has been conducted-an unfortunate result that might be too late if one is the object of that experiment.

As such, I would conclude that (1) a conflict of interest exists between Dennis and the defendants seeking his disqualification, (2) which conflict rises to the level of a due process violation, and that (3) it is the very existence of that conflict which prejudices those defendants. Consequently, I would find that Judge Phelan's order of disqualification does not violate well-settled legal principles, and Dennis has not shown a clear right to mandamus relief. Accordingly, the relief requested should be denied.

1

I am aware of the directive that unpublished opinions of the Court of Criminal Appeals should not be cited as precedent. Tex. R. App. P. 77.3. I am also aware of the fact that the Court of Criminal Appeals has cited its own unpublished opinions in their own subsequent published opinions. *See**Buntion v. State,*482 S.W.3d 58, 77 (Tex. Crim. App. 2016) (citing *Ex parte**Reposa,* 2009 Tex. Crim. App. Unpub. LEXIS 725, at *36). Because that Court cites its own unpublished opinions, there is little reason why I should ignore such valued writing. Indeed, it would be unfair to suggest that unpublished opinions should not be used as authority since they represent a special outcome in a special case. Irrespective of the case, an appellate court is bound to abide by the law irrespective of whether its decision is published or unpublished, and I have no reason to think that the Court of Criminal Appeals failed to do that in *Ex parte Reposa.*

2

The prosecutor represented that he had outstanding plea offers when he decided to revoke them.

3

Regarding Justice Pirtle's reference to "Schrodinger's Cat," one can find an explanation of the principle at 2:55 into the YouTube video located on the internet at https://youtu.be/3DjfZpwdN-o. Sheldon's monologue on the subject is insightful. Truly, just as one may not know if the box hides a living or dead cat until the box is opened (assuming of course it is not shaken first), one cannot know if he has encountered harm until that harm is experienced. Nonetheless, our jurisprudence seems to have little use for Schrodinger or his cat given that prejudice and harm are elemental to many legal concepts. For instance, without prejudice, counsel's ineffectiveness is irrelevant. *See**Prine v. State* , 537 S.W.3d 113, 116 (Tex. Crim. App. 2017) (requiring evidence of prejudice). Without prejudice, most errors do not result in reversal. *See* Tex. R. App. P. 44.2 (requiring harm as a prerequisite to reversal). As Sheldon concludes, "it is only by opening the box, you'll find out which it is"; only by waiting to the end to assess the act's effect do we generally discover if corrective action is needed. Working in the past tense may not be the most effective or efficient way to work, but our body of law tends to require as much from us. And, that leaves me to question whether we should normally wait until the end to correct the wrong. Sadly, the answer comes not from me but from minds higher up the judicial ladder.

1

*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).

2

In his original petition for writs of mandamus and prohibition, Dennis sought mandamus relief relating to the seven cases on which the trial court disqualified the District Attorney's Office by its July 2 order, and prohibition to prevent the trial court from disqualifying the District Attorney's Office from the six cases that remained pending. Soon after this court issued its denial of Dennis's petition, the trial court issued its August 15 order disqualifying the District Attorney's Office from those remaining six cases. By his motion for rehearing, Dennis prays that this court issue a writ of mandamus ordering the trial court to withdraw its July 2 and August 15 orders disqualifying the District Attorney's Office from prosecuting all thirteen cases, and a writ of prohibition preventing the trial court from disqualifying the District Attorney's Office in the future absent good cause shown. Because Dennis's petition addressed the possibility that the trial court would disqualify the District Attorney's Office in the six cases that were then pending and because Dennis's motion for rehearing requests mandamus relief as to orders in all thirteen cases, we will deem the petition to request mandamus relief as to all thirteen cases addressed in the petition in which Dennis and the District Attorney's Office have been disqualified.

3

The text read, "[a]ny pending cases you have with offers outstanding ... those offers are revoked, expired, and null. Effective immediately."

4

We do note that district attorneys are statutorily disqualified from representation that is adverse to the State and where the district attorney is the subject of a criminal investigation by a law enforcement agency that is based on credible evidence of criminal misconduct that is within the attorney's authority to prosecute. *See* Tex. Code Crim. Proc. Ann . art. 2.08 (West Supp. 2018).