Order entered January 19, 2017




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-16-01160-CR

                              THE STATE OF TEXAS, Appellant

                                                V.

                         DOUGLAS ALLEN MACHUTTA, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F15-23625-Y
                                            ORDER
                 Before Chief Justice Wright, Justice Myers, and Justice Brown

       The Court has before it appellee’s December 22, 2016 motion to dismiss the appeal and

the State’s December 30, 2016 response.       A review of this case shows appellee was charged

with continuous sexual abuse of a child. Following a five-day trial, the jury was instructed on

continuous sexual abuse of a child or, alternatively, three counts of the lesser-included offense of

aggravated sexual assault of a child. The jury found appellant guilty of the three lesser-included

offenses, and the trial court sentenced appellee to twenty-five years in prison for each count, to

be served consecutively. Appellee filed a motion for new trial, which the trial court granted to

the extent the judgment was reformed to show only one conviction for aggravated sexual assault

of a child with a sentence of twenty-five years in prison.
       On September 6, 2016, the elected Dallas County District Attorney resigned from office.

Sixteen days later, the State filed this appeal. Appellee then filed a motion to dismiss, asserting

the State’s notice of appeal failed to invoke this Court’s jurisdiction. Specifically, appellee

contends we lack jurisdiction because the notice of appeal is signed by the “First Assistant

District Attorney,” and not the District Attorney as required by article 44.01 of the code of

criminal procedure. In support of his contentions, he relies primarily on State v. Muller, 829

S.W.2d 805 (Tex. Crim. App. 1992).

       Article 44.01 provides that the “prosecuting attorney” may file a State’s appeal under

certain circumstances. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)−(c) (West Supp. 2016).

“Prosecuting attorney” is defined as “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.” Id. art. 44.01(i). In Muller, the court of

criminal appeals considered whether a notice of appeal that was signed by the first assistant to

the district attorney (who was out of town at the time the notice of appeal was filed) met the

requirements of article 44.01. Muller, 829 S.W.2d at 806. The court of criminal appeals

concluded it did not and that the court of appeals lacked jurisdiction over the appeal. Id. at 813.

       In the next legislative session after the Muller opinion issued, the Legislature enacted

section 601.002 of the government code which provides that “the first assistant or chief deputy of

a public office in which a physical vacancy occurs shall conduct the affairs of the office until a

successor is qualified for the office.” Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993

Tex. Gen. Laws 583, 647, amended by Act of March 15, 1999, 76th Leg., R.S., ch. 62, § 8.14,

1999 Tex. Gen. Laws 127, 311 (current version at TEX. GOV’T CODE ANN. § 601.002(a) (West

2012)). The clear implication of section 601.002 is to ensure the orderly continuation of the
operations of an office in the event of a vacancy created by the death or resignation of a district

attorney. See LaSalle v. State, 923 S.W.2d 819, 827 (Tex. App.—Amarillo 1996, pet. ref’d).

       Here, elected Dallas County District Attorney Susan Hawk resigned from office effective

September 6, 2016. Under section 601.002, the First Assistant Criminal District Attorney of

Dallas was authorized to conduct the affairs of the district attorney’s office. Those “affairs of

office” necessarily included filing the State’s appeal in this case, and we reject any argument to

the contrary.

       We DENY appellee’s motion to dismiss.



                                                     /s/    CAROLYN WRIGHT
                                                            CHIEF JUSTICE
