                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00242-CR
                           ____________________

                           IN RE BRETT W. LIGON
_______________________________________________________         ______________

                              Original Proceeding
________________________________________________________         _____________

                                   OPINION

      The Montgomery County District Attorney, Brett W. Ligon, seeks

mandamus relief from orders in misdemeanor prosecutions recognizing his

disqualification and appointing a prosecutor pro tem. He is the complaining

witness named in the charging instruments.

      The trial court could reasonably conclude under the circumstances that the

orders were required by due process of law. Because relator has not established a

clear and indisputable right to the relief sought, we decline to issue a writ of

mandamus compelling the trial court to vacate the orders.

                                   THE CASES

      Real parties in interest Joseph Michael Leners and Robert Tyler Anderson

                                        1
were arrested on warrants and charged by complaint and information with trespass.

See Tex. Penal Code Ann. § 30.05(a) (West Supp. 2012); see Tex. R. App. P. 52.2.

Leners was also charged by complaint and information with burglary of a vehicle.1

See Tex. Penal Code Ann. § 30.04(a) (West 2011). The entry on the property and

the breaking in or entry in the vehicle are alleged by the State to be without the

effective consent of the owner, Brett W. Ligon.

      Leners and Anderson filed motions to disqualify the District Attorney due to

his dual status in the cases. They supplemented the motions to specify that a failure

to disqualify the District Attorney and his staff would violate due process. They

asserted that the District Attorney is personally interested in the cases as a private

citizen. The trial court signed orders granting the motions to disqualify and

appointing a special prosecutor.

      A trial court may appoint an attorney to represent the State “[w]henever an

attorney for the state is disqualified to act[.]” Tex. Code Crim. Proc. Ann. art.

2.07(a) (West 2005). Relator contends the trial court may exercise this authority

only when a district attorney voluntarily recuses himself. See Tex. Code Crim.

Proc. Ann. art. 2.07(b-1) (West 2005); see also Tex. Code Crim. Proc. Ann. art.

      1
      Anderson was indicted for burglary of a vehicle as a repeat offender. See
Tex. Pen. Code Ann. § 30.04(d)(2) (West 2011). That case is not at issue in this
mandamus proceeding.
                                          2
2.08 (West Supp. 2012). Relator has not recused.

      Relator does not distinguish recusal from disqualification. He asserts

“[r]ecusal or disqualification is within the sole discretion of the elected district or

county attorney, although the consequences of the exercise of that discretion are

subject to review on appeal.” He contends a defendant’s only remedy for a due

process violation is to seek reversal on appeal of the conviction.

                               A WRIT OF MANDAMUS

      Relator argues he has no adequate remedy by appeal. See State ex rel.

Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990) (plurality opinion). He

argues that a writ of mandamus is his appropriate remedy. See Tex. R. App. P. 52.

The real parties in interest argue the trial court’s decision was a judicial one

concerning a matter on which the law is unclear, and a writ of mandamus is not

appropriate in these circumstances. See Bowen v. Carnes, 343 S.W.3d 805, 810 &

n.6 (Tex. Crim. App. 2011) (Relief may be granted when only one rational

decision could be made under unequivocal, well-settled, clearly controlling

principles.).

      The Court of Criminal Appeals has explained that, to be entitled to a writ of

mandamus from an appellate court, “the State must demonstrate that: (1) there is

no other adequate legal remedy, and (2) there is a clear and indisputable right to

                                          3
the relief sought.” State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002).

When a trial court’s ruling is a rational one supported by the law, and so does not

represent a clear abuse of discretion, a writ of mandamus will not issue to compel a

different ruling. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n.3 (Tex.

Crim. App. 2003). But a trial court has no discretion to rule on a matter when the

court lacks authority to rule, or to decide a matter contrary to the law established

by statute, rule, or a superior court. See id.

      If the trial court clearly abused its discretion in ordering disqualification, a

writ of mandamus will issue to require the trial court to vacate the order, assuming

there is no other adequate legal remedy. See Patrick, 86 S.W.3d at 594. The real

parties in interest do not dispute the relator’s contention that he has no remedy by

appeal. They contest only whether relator has shown a clear and indisputable right

to mandamus relief.

      “The standard of review for disqualification of the prosecutor by the trial

court is whether the court abused its discretion.” Landers v. State, 256 S.W.3d 295,

303 (Tex. Crim. App. 2008). In ruling on the disqualification issue, “[t]he trial

court abuses its discretion only when the decision lies ‘outside the zone of

reasonable disagreement.’” Id. The trial court’s application of law is reviewed de

novo. Id. This is an original proceeding not an appeal, but we consider a

                                            4
disqualification order for which there is no adequate remedy by appeal, and so we

apply the appellate review standard in determining whether relator has shown a

clear and indisputable right to a writ of mandamus.

                                 DISQUALIFICATION

      As applied to prosecutors in Texas, disqualification and recusal are not

interchangeable words. See In re Guerra, 235 S.W.3d 392, 410 (Tex. App.—

Corpus Christi 2007, orig. proceeding [mand. denied]). Legal disqualification

refers to the ineligibility to act as the prosecutor in a particular case. See Coleman

v. State, 246 S.W.3d 76, 81 (Tex. Crim. App. 2008) (“There are, however, a few

instances in which the district attorney is legally disqualified from acting.)”

Recusal refers to the voluntary removal of oneself as a prosecutor because of a

conflict of interest or for other good cause. See Tex. Code Crim. Proc. Ann. art.

2.07(b-1); Coleman, 246 S.W.3d at 81. The trial court cannot require a

prosecutor’s recusal. Coleman, 246 S.W.3d at 81.

      Instances of legal disqualification are few. Id. The constitutional authority of

a district attorney cannot be abridged or taken away. See Eidson, 793 S.W.2d at 4.

Yet the State may not deprive a defendant of his liberty without due process of

law. U.S. Const. amend. XIV. The trial court has the constitutional authority to

decide questions of law in the case. See Tex. Const. art. II, § 1, art. V, § 1; Tex.

                                          5
Gov’t Code Ann. § 21.001(b) (West 2004); Armadillo Bail Bonds v. State, 802

S.W.2d 237, 239-40 (Tex. Crim. App. 1990); Lytle v. Halff, 75 Tex. 128, 12 S.W.

610 (1889). Consequently, “[a] district attorney may be disqualified only for a

violation of the defendant’s due-process rights[.]” Landers, 256 S.W.3d at 310.

      Legal disqualification may arise when the prosecuting attorney has dual

roles in a criminal matter. See In re Guerra, 235 S.W.3d at 415-16 (A district

attorney cannot assist a grand jury’s criminal investigation of himself.). When

Guerra was decided, article 2.08 had not yet been amended to provide that a trial

court may appoint an attorney pro tem to assist a grand jury in a criminal

investigation of the district attorney. See Act of May 27, 1965, 59th Leg., R.S., ch.

722, § 2.08, 1965 Tex. Gen. Laws 317, 326 (amended by Act of May 27, 2011,

82nd Leg., R.S., ch. 977, § 2.08, 2011 Tex. Gen. Laws 2436, 2437 (West Supp.

2011)) (current version at Tex. Code Crim. Proc. Ann. art. 2.08(b) (West Supp.

2012)). The court in Guerra held nevertheless that article 2.07 authorized the trial

court to appoint a prosecutor pro tem to investigate the elected district attorney.

235 S.W.3d at 414-15; see Tex. Code Crim. Proc. Ann. art. 2.07 (“[w]henever an

attorney for the state is disqualified to act in any case or proceeding, . . . the judge

of the court in which he represents the state may appoint any competent attorney to

perform the duties of the office during the absence or disqualification of the

                                           6
attorney for the state.”).

       Additionally, in Guerra the court found the trial court’s appointment of a

prosecutor pro tem “was implicitly authorized by a court’s inherent power.” In re

Guerra, 235 S.W.3d at 415. By denying the district attorney the opportunity to

participate in the grand jury’s investigation into his own conduct, the appointment

served to preserve the integrity of the court and aid in the administration of justice.

Id.

       In a separate issue in Guerra, the relator also challenged the particular

prosecutor appointed, noting one of the allegations against relator involved election

fraud, and the prosecutor pro tem was relator’s opponent in the election. Id. at 428-

29. The court decided under the circumstances of that case that the prosecutor pro

tem was disqualified due to a conflict of interest that rose to the level of a due

process violation. Id. at 431. The appellate court reasoned that a due process

violation occurs where the prosecutor’s personal interest generates a structural

conflict that presents a potential for misconduct deemed intolerable. Id. at 430. The

court also noted that under the circumstances the prosecutor pro tem “could be a

material fact witness,” and that if he testified “the confusion that would most likely

result” from the “muliple roles as prosecutor, witness, and interested party would

substantially affect the jury’s verdict.” Id. at 432.

                                            7
      The Court of Criminal Appeals cited Guerra and article 2.08 as “instances in

which the district attorney is legally disqualified from acting.” Coleman, 246

S.W.3d at 81 & n.12 (citing In re Guerra, 235 S.W.3d at 420-24). The Court

distinguished recusal from legal disqualification. See id. at 81. The recusal

procedure “allows the district attorney to avoid conflicts of interest and even the

appearance of impropriety by deciding not to participate in certain cases.” Id. “The

responsibility for making the decision to recuse himself is on the district attorney

himself; the trial court cannot require his recusal.” Id. But if a prosecutor is legally

disqualified from prosecuting a case -- if he is ineligible to act -- the trial court is

not powerless to protect the due process rights of the defendant. See id.; Landers,

256 S.W.3d at 305, 310.

      The briefs of the relator and the real parties in interest include citations to

Eidson and State ex rel. Hill v. Pirtle to support the parties’ respective positions.

See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 932 (Tex. Crim. App. 1994)

(plurality opinion); Eidson, 793 S.W.2d at 1; see also generally State v. Hardy, 963

S.W.2d 516, 519 (Tex. Crim. App. 1997) (discussing a plurality opinion’s

persuasive-versus-binding precedential effect). In Eidson, the trial court signed an

order which “disqualified” the district attorney and his staff from a particular

prosecution because an assistant district attorney had previously served in the case

                                           8
as counsel for the defendant. 793 S.W.2d at 3. In granting mandamus relief, the

Court of Criminal Appeals noted that the office of district attorney being

“constitutionally created and therefore constitutionally protected” cannot be

abridged, and that the responsibility of recusal lies with the district attorney. Id. at

4, 6; see also Tex. Const. art. V, § 21.

      In Pirtle, the Court of Criminal Appeals held that the trial court lacked

authority to remove assistant attorneys general who were assisting the elected

district attorney in a prosecution. 887 S.W.2d at 932. “[N]either an elected

prosecuting attorney, nor his assistants, can be disqualified or prevented by a trial

court from carrying out their duties to prosecute criminal cases.” Id. The Court

noted that “[i]n the instant case, the real parties in interest have not claimed their

rights to due process were violated[.]” Id. at 927. And a concurring judge

explained that “it is clear from the text of this opinion that the plurality judges do

not mean [the trial court] would really have been without lawful authority to bar

the AGs from serving as prosecutors had the evidence shown a conflict of interest

rising to the level of a due process violation[.]” Id. at 933 (Meyers, J., concurring);

but see In re State ex. rel. Anderson, 396 S.W.3d 653, 655 (Tex. App.—Houston

14th Dist.] 2013, orig. proceeding) (“[T]he trial court had no authority to order the

disqualification of the Harris County District Attorney’s office[.]”).

                                           9
      In Coleman, the Court noted that Eidson had “discuss[ed] the distinction

between legal disqualification and voluntary recusal[.]” See Coleman, 246 S.W.3d

at 81 n.14. And both Pirtle and Eidson describe the constitutional limitation on the

holdings in those cases: the prosecutorial power granted to prosecuting attorneys is

constrained by due process of law. See Pirtle, 887 S.W.2d at 927-28 (“A trial court

may not disqualify a district attorney or his staff on the basis of a conflict of

interest that does not rise to the level of a due process violation.”); Eidson, 793

S.W.2d at 6 (“We do not wish to imply that a defendant would be left without

recourse if the prosecution’s failure to recuse itself violated his due process

rights.”); see also U.S. Const. amend. XIV.

      Few cases in any jurisdiction present situations where the prosecuting

attorney is the alleged victim in the charged offense, or has a personal interest in

the prosecution. We consider federal and state cases in other jurisdictions, not

because of an interest in comparing the law of those jurisdictions, but because the

guarantee of due process of law under the Constitution of the United States applies

throughout the country. Although from other jurisdictions, court opinions

addressing similar circumstances may identify uniform principles to be considered

in addressing the due process guarantee.

      In People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705

                                           10
(1980), the district attorney was also the corporate counsel and a stockholder of the

corporation alleged to be the victim of the crimes. The court noted the broad

discretion a prosecutor has “to investigate, initiate, prosecute and discontinue[,]”

and observed “that, overall, more control over individuals’ liberty and reputation

may thus be vested than in perhaps any other public official[.]” Id. at 208.

             Even our thumbnail description of prosecutorial power is
      enough to indicate that resulting prejudice can at least as easily flow
      from an act of omission as from one of commission, from discretion
      withheld as from discretion exercised. In this context, whether abuse
      is express or implied may be difficult to determine. . . .
             Thus, the practical impossibility of establishing that the conflict
      has worked to defendant’s disadvantage dictates the adoption of
      standards under which a reasonable potential for prejudice will
      suffice[.]
      ...
             Assuming he intended to be as fair and objective as fair could
      be, in presenting this evidence where did his role as partisan corporate
      attorney end and where did that of nonpartisan District Attorney
      begin? At what point was he serving which of his two masters? To put
      the questions is to state the problem, a problem instinct with due
      process implications.

Id. at 208-09. In dismissing the indictment, the court emphasized that the

responsibilities carried out in the name of the state must be conducted in a manner

that “fostered rather than discouraged public confidence in our government” and in

the rule of law. Id. at 208; see also People v. Adams, 20 N.Y.3d 608, 613, 964

N.Y.S.2d 495, 987 N.E.2d 272 (2013).

       The Kentucky court in May v. Commonwealth considered the issue in an
                                         11
appeal from a conviction of a justice of the peace for assault and battery on a

prosecutor. 285 S.W.2d 160, 162 (Ky. 1955). The trial court had overruled the

defendant’s motion to remove the prosecutor. Id. The appellate court did not hold

that the dual capacity was absolutely impermissible, but suggested that “looking at

the whole proceeding objectively, we have a strong feeling that another attorney

should have tried the action, in order to remove the self-interest factor and thereby

reduce to a minimum the display of passion and prejudice that can scarcely be kept

in abeyance where, as here, the same person was the victim of the offense and the

prosecutor.” Id. The appellate court reversed the conviction for improper argument

by the prosecutor. Id. at 163-64. The decision arguably supports relator’s position

that a court should wait until specific identifiable prejudice develops. But the

opinion also demonstrates some of the troubles inevitably presented when the

alleged victim prosecutes the case.

      In an appeal from a trade secrets prosecution in California, the court

considered the due process concerns that arise where the victim of the alleged

crime contributes financially to the costs of the district attorney’s investigation. See

People v. Eubanks, 927 P.2d 310, 312 (Cal. 1996). The court reasoned that

financial assistance to the prosecutor’s office may disqualify the prosecutor if the

assistance is of a character and magnitude as to render it unlikely that the

                                          12
defendant will receive fair treatment during all portions of the criminal

proceedings. Id. California law disallows private prosecutions; all criminal

prosecutions are conducted in the name of the People and by their authority. Id.

The court explained that “a public prosecutor must be free of special interests that

might compete with the obligation to seek justice in an impartial manner[.]” Id. at

314-315.

            The importance, to the public as well as to individuals
      suspected or accused of crimes, that these discretionary functions be
      exercised “with the highest degree of integrity and impartiality, and
      with the appearance thereof” (People v. Superior Court (Greer),
      supra, 19 Cal. 3d at p. 267) cannot easily be overstated. The public
      prosecutor “‘is the representative not of any ordinary party to a
      controversy, but of a sovereignty whose obligation to govern
      impartially is as compelling as its obligation to govern at all; and
      whose interest, therefore, in a criminal prosecution is not that it shall
      win a case, but that justice shall be done. As such, he is in a peculiar
      and very definite sense the servant of the law, the twofold aim of
      which is that guilt shall not escape or innocence suffer.’” (Id. at p.
      266, quoting Berger v. United States (1935) 295 U.S. 78, 88 [79 L.
      Ed. 1314, 1321, 55 S. Ct. 629].)

Id. at 315. The court emphasized that the prosecutor represents the interest of the

state in his role as prosecutor, and the interest is not that a case be won, but that

justice be done. See id.

      In Kansas, a defendant accused of planning to detonate an explosive device

at the courthouse moved to disqualify the district attorney’s office on the ground

that the office was a crime victim. State v. Cope, 30 Kan.App.2d 893, 50 P.3d 513,
                                         13
515 (Kan. Ct. App. 2002). The court reasoned that a disqualifying conflict of

interest affecting the defendant’s due process rights occurs when the conflict is “so

grave as to render it unlikely that the defendant will receive fair treatment during

all portions of the criminal proceedings.” Id. at 515-16. The court held, however,

that the defendant’s due process rights were not violated in that case because the

defendant never directly threatened the district attorney’s office. Id. at 516. Despite

the distinction drawn by the court between the levels of threat to the prosecutor, the

reasoning cautions that a prosecutor’s status as a direct crime victim poses a due

process problem.

      In a domestic assault case, a federal habeas court found a due process

violation occurred where the prosecuting attorney was also representing the victim

in the parties’ divorce. See Ganger v. Peyton, 379 F.2d 709, 713 (4th Cir. 1967).

The court reasoned that “the conduct of this prosecuting attorney in attempting at

once to serve two masters, the people of the Commonwealth and the wife of

Ganger, violates the requirement of fundamental fairness assured by the Due

Process Clause of the Fourteenth Amendment.” Id. at 714; see also generally

Wright v. United States, 732 F.2d 1048, 1056 (2nd Cir. 1984) (A prosecutor “is not

disinterested if he has, or is under the influence of others who have, an axe to grind

against the defendant[.]”).

                                          14
       Although relying on “supervisory authority to avoid the necessity of

reaching any constitutional issues[,]” the United States Supreme Court in Young v.

United States ex rel. Vuitton et Fils. S.A., 481 U.S. 787, 809 n.21, 107 S.Ct. 2124,

95 L.Ed.2d 740 (1987), showed the obstacle to fundamental fairness presented

when a prosecutor has a private interest in the case.

              A prosecutor exercises considerable discretion in matters such
       as the determination of which persons should be targets of
       investigation, what methods of investigation should be used, what
       information will be sought as evidence, which persons should be
       charged with what offenses, which persons should be utilized as
       witnesses, whether to enter into plea bargains and the terms on which
       they will be established, and whether any individuals should be
       granted immunity.

Id. at 807. Injecting a personal interest into the enforcement process may bring

irrelevant or impermissible factors into the exercise of that discretion. Id. at 808.

The problem is structural. Id. at 807. “It is a fundamental premise of our society

that the state wield its formidable criminal enforcement powers in a rigorously

disinterested fashion, for liberty itself may be at stake in such matters.” Id. at 810.

And when the prosecutor has a personal interest in the case, the circumstance

“diminishes faith in the fairness of the criminal justice system in general.” Id. at

811.

                                    CONCLUSION

       The United States Supreme Court has held that, although prosecutors “are
                                          15
necessarily permitted to be zealous in their enforcement of the law[,]” due process

imposes limits. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 248-50, 100 S.Ct.

1610, 64 L.Ed.2d 182 (1980) (administrative prosecution); Berger v. United States,

295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). This Court presumes no

misconduct in these cases. But that does not eliminate the structural conflict and

the obstacle to due process. The constitutional guarantee of due process preserves

the appearance and the reality of fundamental fairness. See Marshall, 446 U.S. at

242, 248-250. In rare instances, when a structural conflict is actual and obvious

and the “potential for misconduct is deemed intolerable” so as to constitute a due

process violation, no showing of a specific prejudice is necessary to require

disqualification. See Young, 481 U.S. at 807 n.18; see also Marshall, 446 U.S. at

248-50; Landers, 256 S.W.3d at 304; Ex parte Spain, 589 S.W.2d 132, 134 (Tex.

Crim. App. 1979).

      The indisputable facts of these cases are that the district attorney, in whose

office is solely vested the State’s power to prosecute offenses of this level in

Montgomery County, is the victim alleged in the charging instruments. See Tex.

Gov’t Code Ann. § 43.105(b) (West 2004). In signing the orders, the trial court

implicitly recognized the discretionary powers of a prosecutor and the importance

of the appearance of “fairness of the criminal justice system in general” identified

                                        16
in Young. 481 U.S. at 807, 811. But more specifically, from the facts before the

court in these cases when the orders were signed, the trial court could reasonably

find that relator would not recognize the legal disqualification, that relator had a

personal interest in the prosecution, that jeopardy would attach with relator acting

in dual roles as the district attorney responsible for the prosecutions and as the

alleged victim, and that relator would be a trial witness. The trial court could, on

these findings, rationally conclude that relator’s competing roles, as both district

attorney and complainant, present an “intolerable” potential to compromise the

fundamental fairness guaranteed defendants by the due process clause. See Young,

481 U.S. at 807 n.18 (“deemed intolerable”); Marshall, 446 U.S. at 248-50;

Ganger, 379 F.2d at 713; U.S. Const. amend. XIV. In these circumstances, the trial

court could reasonably conclude that the actual and obvious structural conflict

amounted to a denial of due process and a legal disqualification. See Young, 481

U.S. at 807-08; Landers, 256 S.W.3d at 304.

      Relator appoints the assistant district attorneys who carry out the duties of

his office. See Tex. Gov’t Code Ann. § 43.105(c) (West 2004). Following uniform

case-law, the trial court could reasonably rule that because the District Attorney is

disqualified, all Assistant District Attorneys in the district are also disqualified. See

Marbut v. State, 76 S.W.3d 742, 748-49 (Tex. App.—Waco 2002, pet. ref’d);

                                           17
Scarborough v. State, 54 S.W.3d 419, 424 (Tex. App.—Waco 2001, no pet.); State

v. May, 270 S.W.2d 682, 684 (Tex. Civ. App.—San Antonio 1954, no writ). See

also generally, Edwards, 793 S.W.2d 1, 5-6 n.5 (“May, however, stands only for

the proposition that if an elected district attorney has been lawfully disqualified

from prosecution of certain causes, so have his assistants who serve at his will and

pleasure.”). A trial court may appoint a prosecutor pro tem if a district attorney is

legally disqualified. Tex. Code Crim. Proc. Ann. art. 2.07.

      To obtain a writ of mandamus from an appellate court requiring a trial court

to withdraw an order, the relator must demonstrate not only that there is no

adequate legal remedy, but also that there is a clear and indisputable right to the

relief. Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d

645, 648 (Tex. Crim. App. 2005). We cannot say the trial court’s disqualification

decision “lies ‘outside the zone of reasonable disagreement.’” See Landers, 256

S.W.3d at 303. On the mandamus record presented, relator has failed to show a

clear and indisputable right to the relief sought. See Patrick, 86 S.W.3d at 594. The

petition for writ of mandamus is therefore denied.




                                         18
      PETITION DENIED.

                                                   PER CURIAM

Submitted on June 20, 2013
Opinion Delivered August 14, 2013
Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




                                      19
