                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                       No. 07-18-00265-CR


                         IN RE THE STATE OF TEXAS, RELATOR


                                       Original Proceeding

                                       December 20, 2018

                             CONCURRING AND DISSENTING
                               OPINION ON REHEARING

                      Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       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

Hockley County, filed a petition for writs of mandamus and prohibition in this court. See



       1  See In re Tex., No. 07-18-00265-CV, 2018 Tex. App. LEXIS 6315 (Tex. App.—Amarillo Aug. 10,
2018, orig. proceeding).
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




         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.


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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.


        In 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


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

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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 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)).




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       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

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.


       “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


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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 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




        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).

                                                     6
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 40

(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 of 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-


                                               7
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



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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.




                                                        Patrick A. Pirtle
                                                            Justice


Publish.




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