Opinion
Nos. 04-03-00628-CR, 04-03-00629-CR, 04-03-00630-CR, 04-03-00631-CR, 04-03-00632-CR
Delivered and Filed: July 14, 2004.
Appeal from the 198th Judicial District Court, Kerr County, Texas, Trial Court Nos. B03-63, B03-64, B03-65, B03-66, B03-67, Honorable John DeLaney, Judge Presiding.
Motion to Dismiss Appeal Denied.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
OPINION
The State appeals the trial court's order quashing the indictments against Appellee Frank Ford. Ford has filed a motion to dismiss this appeal, arguing that because the district attorney did not sign the notices of appeal, the State failed to invoke the jurisdiction of our court. We disagree and deny the motion to dismiss.
Appeal Nos. 04-03-00628-CR, 04-03-00629-CR, 04-03-00630-CR, 04-03-00631-CR, and 04-03-00632-CR are consolidated.
Background
This appeal arises from Tom Newton and Frank Ford's actions in In re Grand Jury Proceedings, 129 S.W.3d 140 (Tex. App.-San Antonio, pet. denied). In that case, Newton and Ford represented the appellant, Harold Shields. Shields sought disclosure of state grand jury proceedings related to his indictment for aggravated sexual assault. Id. at 141. Specifically, he hoped to use the grand jurors' deposition testimony as evidence in his federal civil rights and malicious prosecution suit against Donnie Jeanne Coleman and Carol Twiss, the prosecutor and the investigator, respectively, who presented the case against Shields to the grand jury. Id. Coleman, an assistant district attorney, and Twiss, an investigator with the Kerr County Sheriff's Office, allegedly failed to present exculpatory evidence to the grand jury. Id. at 142. The presentation was not recorded or transcribed. Id. After hearing the presentation, the grand jury indicted Shields on three counts of aggravated sexual assault. Id. Later, K.S., the victim, recanted and the State dismissed its case against Shields. Id.
Coleman supervised Twiss's presentation of the evidence regarding Shields to the grand jury. In re Grand Jury Proceedings, 129 S.W.3d at 142.
After the case against him was dismissed, Shields sued Coleman and Twiss in federal court, alleging that their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. Id. As elements of his malicious prosecution claim, Shields sought to prove (1) the indictment was not supported by probable cause and (2) the presence of actual malice. Id. During discovery, Newton and Ford, Shields's attorneys, subpoenaed several grand jurors in an attempt to take their videotaped depositions. Id. In response, Coleman and Twiss moved to quash the subpoenas and moved for a protective order preventing Shields from contacting the grand jurors. Id.
Because Newton and Ford allegedly talked to certain members of the grand jury about the grand jury proceedings, they were indicted on February 26, 2003 for "knowingly and with the intent to obtain a benefit, solicit or receive from a public servant, to wit: grand juror . . . information that said public servant had access to by means of his/her office, and that said information had not been made public." Newton and Ford filed a joint motion to quash the indictments. The trial court granted the motion and the State appealed.
Motion to Dismiss
Newton and Ford have filed a joint motion to dismiss the State's appeal, arguing that we do not have jurisdiction. Specifically, Newton and Ford complain of the "Special Prosecutor," Kurtis S. Rudkin, having signed the notices of appeal. According to Newton and Ford, to invoke this court's jurisdiction, Ronald Sutton, the District Attorney, should have signed the notices of appeal. In response, the State contends that with regard to this appeal, Rudkin has the full authority and powers of Sutton's Office.
Article 44.01(d) of the Texas Code of Criminal Procedure states that "[t]he prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day on which the order, ruling, or sentence to be appealed is entered by the court." Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp. 2004). "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). And, according to Texas Rule of Appellate Procedure 25.2(c)(2), a State's notice of appeal is sufficient if it complies with article 44.01. Tex.R.App.P. 25.2(c)(2).
In State v. Muller, 829 S.W.2d 805, 809 (Tex.Crim.App. 1992), an assistant prosecuting attorney signed the notice of appeal. The court of criminal appeals held that article 44.01(d)'s phrase "`make an appeal' clearly requires . . . the prosecuting attorney to personally supervise and authorize the appeals to be undertaken by his office on behalf of the State." Id. at 810. And, the court held that pursuant to article 44.01, "prosecuting attorney" does not include an assistant prosecutor or subordinate. Id. at 809. However, the prosecuting attorney need not sign the notice of appeal to "make an appeal"; he must "either physically sign the notice of appeal or personally instruct and authorize a subordinate to sign the specific notice of appeal in question." Id. at 810. And, "this personal authorization [must] occur prior to the expiration of the fifteen day window of appeal." Id.
In State v. Rosenbaum, 852 S.W.2d 525, 825-26 (Tex.Crim. App. 1993), upon defendant's motion, the trial court disqualified the district attorney and appointed a special prosecutor to "investigate" and "prosecute" the case. After the trial court quashed the indictment, the special prosecutor timely filed a notice of appeal with the court of appeals. Id. at 826. Relying on Muller, the court of appeals held that it was without jurisdiction to hear the appeal because the requirements of article 44.01(d) had not been met. Id. The court of criminal appeals reversed, noting that Muller did not cover this situation in which the district attorney is altogether removed from a case and a special prosecutor is substituted for that district attorney. Id. at 527. The court noted that when a district attorney is considered disqualified, article 2.07(a) allows the trial court to appoint "any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state." Id. (citing Tex. Code Crim. Proc. Ann. art. 2.07(a) (Vernon Supp. 2004)). According to the court, article 2.07(a) "states plainly that the pro tem attorney will perform the duties of the district attorney." Id. (citing Tex. Code Crim. Proc. Ann. art. 2.07(a)). The court also noted that "over 120 years ago, the Texas Supreme Court (then vested with general authority over criminal matters) held that `an attorney pro tem appointed by the court has all the powers and duties of the regular prosecuting attorney.'" Id. (quoting State v. Lackey, 35 Tex. 357 (1872)). Thus, the court of criminal appeals concluded that "if a district attorney is disqualified, the court may appoint any competent attorney to assume all the district attorney's duties and powers during his disqualification." Id. As such, the court of criminal appeals distinguished Muller:
[A]n attorney pro tem or special prosecutor takes the place of the disqualified district attorney assuming all the district attorney's powers and duties in the case. Therefore, the special prosecutor is not subject to the direction of the disqualified district attorney as is a subordinate, but, for that case, he is the district attorney. Thus, this case before us is distinguished from Muller because no subordinate to the district attorney is involved, but a substitute who was given the primary responsibility for the case by court order.
Id. at 528 (emphasis in original). Because the special prosecutor was given all the powers of the district attorney, his notice of appeal invoked the jurisdiction of the court of appeals. Id.
The concurrence by Judge Clinton emphasizes the misuse of the terms "special prosecutor" and "attorney pro tem." A district attorney "pro tem" is " appointed by the district court, and after taking the oath of office assumes the duties of the elected district attorney and in effect replaces the latter in performing germane functions of office for purposes contemplated by the appointment." Id. at 529 (Clinton, J., concurring) (emphasis in original). In contrast, a "special prosecutor" is " permitted by the elected district attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office." Id. (emphasis in original). Noting the distinctions between these terms, Judge Clinton cautioned his court and other courts in using the terms synonymously. Id. at 530.
According to Newton and Ford, Muller is dispositive, requiring us to dismiss this appeal. They argue that because (1) there is nothing in the record to indicate that Sutton personally authorized Rudkin to make the appeal and (2) Muller does not allow the record to be supplemented to so indicate a personal authorization outside the fifteen-day period for filing the notice of appeal, we must dismiss. However, Newton and Ford's reasoning only applies if Rudkin is simply an attorney aiding Sutton, i.e. a special prosecutor. If, on the other hand, Rudkin was properly appointed as the attorney pro tem, his notice of appeal would be sufficient pursuant to Rosenbaum. Our issue is, therefore, whether Rudkin was properly appointed as attorney pro tem pursuant to article 2.07. Article 2.07 provides for the appointment of an attorney pro tem:
Art. 2.07. Attorney pro tem
(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, 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 attorney for the state.
(b) Except as otherwise provided by this subsection, if the appointed attorney is also an attorney for the state, the duties of the appointed office are additional duties of his present office, and he is not entitled to additional compensation. Nothing herein shall prevent a commissioners court of a county from contracting with another commissioners court to pay expenses and reimburse compensation paid by a county to an attorney for the state who is appointed to perform additional duties.
(b-1) An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified.
(c) If the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court. He shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.
(d) In this article, "attorney for the state" means a county attorney, a district attorney, or a criminal district attorney.
(e) In Subsections (b) and (c) of this article, "attorney for the state" includes an assistant attorney general.
(f) In Subsection (a) of this article, "competent attorney" includes an assistant attorney general.
(g) An attorney appointed under Subsection (a) of this article to perform the duties of the office of an attorney for the state in a justice or municipal court may be paid a reasonable fee for performing those duties.
Tex. Code Crim. Proc. Ann. art. 2.07 (Vernon Supp. 2004).
In its response, the State contends that Rudkin is the attorney pro tem. For support, the State references the Order of Appointment dated November 8, 2002 by the Honorable Stephen B. Ables:
I, Stephen B. Ables, District Judge for the 216th Judicial District of the State of Texas, having full confidence in Kurtis S. Rudkin, of Kendall County, Texas, do hereby with the consent of Kurtis S. Rudkin, and by request of the 198th Judicial District Judge and District Attorney appoint him as Special Prosecutor for the 198th Judicial District of Texas, to act in name, place and stead, to do and perform any and all acts by virtue of said appointment, and hereby ratify and confirm any and all acts lawfully done by virtue hereof.
(emphasis added). Indeed, although "special prosecutor" is misused, this language endows Rudkin with all of the district attorney's powers.
In their reply brief, Newton and Ford contend that the record does not show that the trial court complied with article 2.07. First, they argue that the record does not reflect that Sutton, the district attorney, was disqualified. Newton and Ford were not indicted until February 26, 2003. As such, Rudkin was appointed as special prosecutor before criminal proceedings began. Thus, there is no motion for recusal or disqualification. However, the order of appointment does reference that the trial court was appointing Rudkin on request of the District Attorney. Article 2.07 (b-1) provides, "An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified." Tex. Code Crim. Proc. Ann. art. 2.07 (b-1) (Vernon Supp. 2004). As such, the order shows that the trial court complied with article 2.07 (b-1).
Second, Newton and Ford emphasize that the judge for the 216th Judicial District Court appointed Rudkin to act as attorney pro tem in the 198th Judicial District Court. Article 2.07(a) provides that "the judge of the court in which [the prosecuting attorney] represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state." Id. art. 2.07(a). However, under the exchanges-of-benches doctrine, the 216th District Court had authority to appoint Rudkin. The Texas Constitution states in part that "the district judges may exchange districts, or hold courts for each other when they deem it expedient, and shall do so when required by law." Tex. Const. art. V, § 11; see Davila v. State, 651 S.W.2d 797, 799 (Tex.Crim. App. 1983); Tex. Gov't Code Ann. § 74.094 (Vernon Supp. 2004) (a district judge may hear and determine matters pending in any district court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter, and his judgments, orders or actions are valid and binding as if the case were pending in his own court). Furthermore, section 24.303 of the Texas Government Code states that "[i]n any county in which there are two or more district courts, the judges of those courts may . . . in their discretion, exchange benches or districts from time to time." Tex. Gov't Code Ann. § 24.303(a) (Vernon 2004). Therefore, the 216th District Court had authority to appoint Rudkin.
As a third point, Newton and Ford argue that Rudkin is not an attorney pro tem because the record does not reflect that he filed an oath with the clerk of the court. Article 2.07(c) provides that "[i]f the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court." Tex. Code Crim. Proc. Ann. art. 2.07(a) (Vernon Supp. 2004) (emphasis added). On February 27, 2004, Rudkin filed the oath with the trial court clerk. On March 1, 2004, the trial court clerk filed a supplemental clerk's record containing the oath. The supplemental record shows that the 216th District Court Judge, Steve Ables, administered the oath to Rudkin on November 25, 2002. Thus, although the trial court administered the oath and Rudkin signed the oath on November 25, 2002, Rudkin did not file the oath with the trial court clerk until February 27, 2004. Thus, we must determine whether Rudkin's failure to timely file the oath deprived him of being attorney pro tem.
Judge Ables appointed Rudkin on November 8, 2002. Newton and Ford were indicted on February 26, 2003.
In Rogers v. State, 956 S.W.2d 624, 625 (Tex. App.-Texarkana 1997, pet. ref'd), the county attorney recused himself from the case because Rogers had filed an official complaint against him with the Texas Rangers. The trial court appointed Bradley Lollar as attorney pro tem. Id. On April 15, 1996, Lollar took the oath as required by the Texas Constitution and article 2.07. Id. The oath was in writing, was sworn to before a notary public, and was sent to the Secretary of State for filing. Id. On April 29, 1996, Rogers was indicted by a grand jury, at which time Lollar was present and represented the State. Id. at 625-26. Lollar did not file his oath with the clerk of the trial court until September 16, 1996. Id. at 626. On appeal, Rogers contended that Lollar was not qualified to act as attorney pro tem because he did not file his oath with the district court until after the grand jury handed down the indictment. Id. The Texarkana court of appeals held that Lollar properly made and filed his oath:
He signed and swore to the oath on April 16, 1996, and mailed it the same day to the Secretary of State. Thus, he took the oath and filed it with the Secretary of State before he appeared before the grand jury in connection with Rogers' indictment, before the indictment was issued, and long before the trial was conducted on September 17, 1996. Lollar refiled the oath in the district clerk's office on September 16, 1996, before the trial began.
Article 2.07 requires that the attorney pro tem file his oath with the clerk of the court. Lollar did that on September 16, 1996. We hold that the delay in filing the oath with the district clerk was a mere irregularity that did not deprive Lollar of the authority to act as attorney pro tem.
Id. at 627. Rogers supports the State's position that Rudkin's delay in filing the oath with the trial court clerk was a mere irregularity that did not deprive Rudkin of his authority to act as attorney pro tem.
Cases in which trial judges fail to timely file their anti-bribery statement support this view. Article XVI, section one of the Texas Constitution requires all elected and appointed officers (1) to take an oath of office before entering upon the duties of their offices, (2) to subscribe to an anti-bribery statement before taking the oath of office, and (3) to file the signed anti-bribery statement with the Secretary of State before taking the oath of office. Tex. Const. art. XVI, § 1. In In re General Electric Capital Corporation, 63 S.W.3d 568, 571 (Tex. App.-El Paso 2001, orig. proceeding [leave denied]), the relator argued that the trial judge did not have authority because he did not properly file his anti-bribery oath. The court of appeals held that "the fact that the anti-bribery oath was not filed is not sufficient to render Judge Ferguson's oaths void." Id. In so holding, the court relied on Soderman v. State, 915 S.W.2d 605 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). In that case, the appellant argued that his arrest and its authorizing warrant were void because they were made without authority. Id. at 611. The appellant based his argument on the fact that the judge who had signed the warrant had failed to file the anti-bribery oath before taking his oath of office. Id. The court of appeals, however, held that the this failure by the trial court was not sufficient to void the trial court's actions:
Importantly, however, appellant does not contend that [the justice of the peace and the police officer who arrested appellant] failed to take an oath of office, but rather that their oaths were invalid because the anti-bribery statements were filed late or not filed at all. Thus, the foregoing cases cited by appellant are inapplicable. As appellant has cited no other authority to support his position, and we have found none, we have no basis to conclude that the mere failure to submit these written statements, when the oaths themselves have been taken, renders the oaths invalid.
Id. at 612 (emphasis added).
Similarly, here, the supplemental clerk's record shows that Rudkin took the oath of office. What he failed to do was file the oath with the district court immediately after taking the oath. We hold that Rudkin's delay in filing the oath was a mere irregularity that does not render his oath invalid.
Conclusion
Although the trial court's order of appointment used the term "special prosecutor," Rudkin is, in substance, an attorney pro tem. And, Rudkin's delay in filing his oath is a mere irregularity. Thus, Rudkin had authority to sign the notices of appeal, and by doing so, invoked our jurisdiction. We deny Ford and Newton's joint motion to dismiss the State's appeal.