Petition for Writ of Mandamus Conditionally Granted and Opinion filed
January 29, 2013.




                                                In The

                          Fourteenth Court of Appeals

                                        NO. 14-12-00975-CR
                                        NO. 14-12-00976-CR
                                        NO. 14-12-00977-CR



    IN RE THE STATE OF TEXAS, EX REL., MIKE ANDERSON, DISTRICT
                         ATTORNEY, Relator


                            ORIGINAL PROCEEDING
                             WRIT OF MANDAMUS
                               180th District Court
                              Harris County, Texas
               Trial Court Cause Nos. 1280439, 1335474, and 1337903

                                          OPINION

        Relator, The State of Texas, acting by and through the Harris County
District Attorney, filed a petition for writ of mandamus in this court.1 See Tex.


1
 At the time of the filing of this petition, on October 26, 2012, the Harris County District Attorney was
Patricia R. Lykos; that position is now held by Mike Anderson.
Gov’t Code Ann. §22.221 (Vernon 2004); see also Tex. R. App. P. 52. In the
petition, relator asks this court to compel the Honorable Marc Brown, presiding
judge of the 180th District Court of Harris County to vacate his order signed
October 16, 2012, disqualifying the Harris County District Attorney’s office from
representing the State of Texas in trial court cause numbers 1280439, 1335474,
and 1337903.

       In a plurality opinion in State ex rel. Eidson v. Edwards, four judges on the
Court of Criminal Appeals of Texas concluded that a trial court has no authority to
disqualify the elected district attorney and his staff from participating in the
prosecution of any case properly brought in that jurisdiction and that any order by
a court attempting to do so is void. See 793 S.W.2d 1, 4–5 (Tex. Crim. App. 1990)
(plurality op.).    According to the Eidson plurality, a district attorney may be
removed from office but only on the grounds stated in section 87.013(a) of the
Local Government Code and only after a trial by jury. See Tex. Local Gov’t Code
§§ 87.013(a), 87.018 (West 2013); Eidson, 790 S.W.2d at 5. The Eidson plurality
noted that there may be instances in which a prosecutor must recuse himself from
the prosecution of an individual; however, the plurality concluded that the
responsibility of recusal rests upon the prosecutor to voluntarily recuse himself.
See Tex. Code Crim. Proc. Ann. art. 2.07 (b-1) (West 2013) (providing procedure
for an attorney for the state to “request the court to permit him to recuse himself in
a case for good cause”); Eidson, 790 S.W.2d at 5.2                     The Eidson plurality


2
 Some statutes use the term “disqualification” when addressing an attorney for the state’s
inability to act in a criminal proceeding. See Tex. Code Crim. Proc. Ann. arts. 2.07(a), 2.08. On
the other hand, under article 2.07(b-1) of the Texas Code of Criminal Procedure, an attorney for
the state who is not disqualified to act may request the trial court to permit him to “recuse”
                                               2
determined that the trial court has no authority to force a prosecutor to recuse
himself or to disqualify a prosecutor. See Eidson, 790 S.W.2d at 5–6. According
to the plurality, if a prosecutor’s failure to recuse himself violates the defendant’s
constitutional rights, then the defendant’s conviction may be reversed on appeal.
See id. at 6–7.

       The plurality opinion in Eidson is not a precedent binding on this court. See
Chavez v. State, 9 S.W.3d 817, 833 (Tex. Crim. App. 2000). But, since Eidson, the
Court of Criminal Appeals has issued various opinions containing judicial dicta
that are binding on this court. See McLendon v. State, 167 S.W.3d 503, 507–08
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (following statement of law in
prior Court of Criminal Appeals case under doctrine of judicial dictum). For
example, in Coleman v. State, the Court of Criminal Appeals stated as follows:

       A district attorney who is not legally disqualified may request that the
       district court permit him to recuse himself in a particular case for good
       cause. This procedure allows the district attorney to avoid conflicts of
       interest and even the appearance of impropriety by deciding not to
       participate in certain cases. Once the trial court approves his
       voluntary recusal, the district attorney is deemed “disqualified.” The
       responsibility for making the decision to recuse himself is on the
       district attorney himself; the trial court cannot require his recusal.
246 S.W.3d 76, 81 (Tex. Crim. App. 2008) (footnotes omitted). In another case,
the Court of Criminal Appeals, in a majority opinion, quoted with approval the
following statement from the plurality opinion in Eidson: “[a] trial court judge is
without legal authority to remove a District Attorney from a case and, as such, any

himself in a case for good cause, and once the trial court approves such a request, the attorney for
the state is deemed “disqualified.” Tex. Code Crim. Proc. Ann art. 2.07 (b-1).


                                                 3
order attempting to do so is void.” Ex parte Seidel, 39 S.W.3d 221, 225 (Tex.
Crim. App. 2001) (quotations omitted, quoting plurality opinion in Eidson). In still
another case, the Court of Criminal Appeals affirmed that “[a] prosecutor’s refusal
to recuse himself from the case cannot be corrected because the trial court has no
authority to force a recusal.” Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim.
App. 2005). In 2011, the Texas Legislature added a provision that appears to
authorize a trial court to order a district attorney disqualified if the district attorney
is the subject of a criminal investigation by a law enforcement agency and if that
investigation is based on credible evidence of criminal misconduct for an offense
that is within the attorney’s authority to prosecute. See Tex. Code Crim. Proc. Ann
art. 2.08(b) (West 2013) (stating that “[a] judge of a court in which a district or
county attorney represents the State shall declare the district or county attorney
disqualified for purposes of Article 2.07 on a showing that the attorney is the
subject of a criminal investigation by a law enforcement agency if that
investigation is based on credible evidence of criminal misconduct for an offense
that is within the attorney’s authority to prosecute”). But, none of the underlying
cases fall within the scope of this new statute.

       Under binding judicial dicta from the Court of Criminal Appeals, we
conclude that the trial court had no authority to order the disqualification of the
Harris County District Attorney’s office and therefore the trial court abused its
discretion in issuing this order.3 See Coleman, 246 S.W.3d at 81; Ex parte Seidel,

3
  The trial court did not find any ground that would support the removal of the Harris County
District Attorney from office, nor did the trial court follow the procedures, including trial by
jury, for removing the Harris County District Attorney from office. See Tex. Local Gov’t Code
§§ 87.013(a), 87.015–.019.
                                               4
39 S.W.3d at 225; Johnson, 169 S.W.3d at 229. Accordingly, we conditionally
grant relator’s petition for writ of mandamus and direct the trial court to vacate the
order signed October 16, 2012, disqualifying the Harris County District Attorney’s
office from representing the State of Texas in trial court cause numbers 1280439,
1335474, and 1337903. The writ of mandamus will issue only if the trial court
fails to comply.




                                       /s/       Kem Thompson Frost
                                                 Justice



Panel consists of Justices Frost, Christopher, and Jamison.
Publish — Tex. R. App. P. 47.2(b).




                                             5
