Appellant’s Motion for En Banc Reconsideration Denied and Concurring
Opinion on Denial of Motion for En Banc Reconsideration filed March 14,
2019.




                                             In the

                        Fourteenth Court of Appeals

                                   NO. 14-17-00966-CR

                               LUIS LIMONES, Appellant
                                               v.

                          THE STATE OF TEXAS, Appellee

            On Appeal from the County Criminal Court at Law No. 2
                            Harris County, Texas
                        Trial Court Cause No. 2110250

                  CONCURRING OPINION ON DENIAL OF
                 MOTION FOR EN BANC RECONSIDERATION
       I join in the denial of the motion for en banc reconsideration, but in the spirit
of Texas Rule of Appellate Procedure 47.1, I concur to address appellant’s
contention that this court should have granted his motion to strike the State’s brief.1

1
 “The court of appeals must hand down a written opinion that is as brief as necessary but that
addresses every issue raised and necessary to final disposition of the appeal.” Tex. R. App. 47.1.
       The relevant portions of appellant’s motion to strike follow, with text
originally in footnotes shown in brackets:

              Only one statute authorizes the Harris County District Attorney
       to represent the State in an appeal in an intermediate court of appeals.
       That statute is Article 2.01 of the Code of Criminal Procedure. [Tex.
       Code Crim. Proc. Ann. art. 2.01.] Article 2.01 only authorizes the
       district attorney to represent the State in an intermediate appellate
       court if the appeal comes from a district court. The statute reads, in
       pertinent part, as follows:
              Each 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.
              The Harris County District Attorney is not statutorily
       empowered to represent the State in all cases in the intermediate
       courts of appeals. The district attorney is not legally authorized to
       represent the State of Texas in appeals from county-level courts,
       justice courts, or municipal courts. The only authority authorizing the
       district attorney to represent the State in an appeal in an intermediate
       court of appeals is Article 2.01. And this statute only permits the
       district attorney to represent the State in an intermediate appellate
       court if the appeal comes from a district court. [Section 43.180 of the
       Government Code describes the duties of the Harris County District
       Attorney. See Tex. Gov’t Code Ann. § 43.180. None of the provisions
       in this statute discuss the district attorney’s power to handle appeals.]
             This gives rise to a question. If the Harris County District
       Attorney cannot represent the State in appeals such as the current one,
       then who can? Under Texas law, the only entity capable of
       representing the State of Texas in an appeal such as this one is the
       State Prosecuting Attorney. The legal basis for the State Prosecuting
       Attorney to do so is a specific grant of power in Section 42.001(a) of
       the Texas Government Code. That provision reads as follows:
              The court of criminal appeals shall appoint a state
              prosecuting attorney to represent the state in all

Rule 47.1 does not apply to issues raised in motions, so the court properly denied the motion
without opinion. Appellant raises the issue again in the motion for en banc reconsideration.

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      proceedings before the court. The         state prosecuting
      attorney may also represent the state     in any stage of a
      criminal case before a state court        of appeals if he
      considers it necessary for the interest   of the state. [Tex.
      Gov’t Code Ann. § 42.001(a).]
        As the reader can see, the State Prosecuting Attorney is not
required to represent the State in cases like the current one. But the
State Prosecuting Attorney “can” do so “if he [or she] considers it
necessary for the interest of the State.” Accordingly, the State
Prosecuting Attorney has the option to represent the State in this case
if she chooses to do so. But the Harris County District Attorney has no
power to represent the State in this appeal. The Harris County District
Attorney is wholly without legal authority to represent the State and
file a brief responding to the Appellant’s brief.
      Before closing, two other points warrant discussion.
       First, a statute permits the State Prosecuting Attorney to assist a
district attorney in representing the state before a court of appeals
upon request. [See Tex. Gov’t Code Ann. § 42.005(a).] Does this
statute – in some sort of backhanded way – empower the district
attorney to handle appeals from county-level courts in the
intermediate appellate courts? The answer is no. The statute merely
permits the State Prosecuting Attorney to assist the district attorney
with appeals the district attorney is already authorized to handle.
       Second, could the Harris County Attorney possibly handle
appeals from the county-level courts? Again, the answer is no. Article
2.02 of the Code of Criminal Procedure announces that a county
attorney “shall represent the State in cases he has prosecuted which
are appealed. [Tex. Code Crim. Proc. Ann. art. 2.01 (emphasis
added).] As this language shows, the county attorney’s power to
handle appeals is limited to cases he or she has handled. In many
counties, the county attorney prosecutes misdemeanor cases in the
county-level cases. Such is not the case in Harris County. “The Harris
County district attorney serves as prosecutor for the county criminal
courts at law as provided by Section 43.180.” [Tex. Gov’t Code Ann.
§ 25.1033(k). Section 43.180 discusses the powers and responsibilities
of the Harris County District Attorney. See Tex. Gov’t Code Ann.
§ 43.180.] Thus, the Harris County Attorney is not legally authorized
to represent the State of Texas in cases appealed from Harris County’s

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      county-level courts.

We denied appellant’s motion to strike without opinion, and appellant did not raise
this argument as an issue in his appellate brief.

      Appellant has raised this issue again in his motion for en banc
reconsideration, and the court requested a response. The State argues that taken
together, Government Code sections 25.1033(k) (“The Harris County district
attorney serves as prosecutor for the county criminal courts at law as provided by
Section 43.180.”) and 43.180(c) (“[T]he [Harris County] district attorney has all
the powers, duties, and privileges in Harris County relating to criminal matters for
and in behalf of the state that are conferred on district attorneys in the various
counties and districts.”) authorize the district attorney to represent the State on
appeal. Tex. Gov’t Code Ann. §§ 25.1033(k), 43.180(c). The State also cites to
Code of Criminal Procedure article 2.01 (“Each district attorney shall represent the
State in all criminal cases in the district courts of his district and in appeals
therefrom . . . .”). Tex. Code Crim. Proc. Ann. art. 2.01.

      I concur in denying the motion for en banc reconsideration without reaching
the merits of this issue because, as the State points out, even if the Harris County
District Attorney were not authorized to represent the State in appellant’s appeal,
this court’s opinion would not be rendered invalid given that the court was free to
receive the State’s brief as an amicus curiae brief. See Ex parte Taylor, 36 S.W.3d
883, 887 (Tex. Crim. App. 2001) (court treated petition for discretionary review
filed by district attorney’s office as amicus curiae brief when district attorney had
no authority to file petition). Appellant has suffered no harm.




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                                            /s/   Charles A. Spain
                                                  Justice

The En Banc Court consists of Chief Justice Frost and Justices Christopher, Wise,
Jewell, Bourliot, Zimmerer, Spain, Hassan, and Poissant.

Do Not Publish — TEX. R. APP. P. 47.2(b).




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