Opinion
No. WR-65,537-01
Filed August 30, 2006. DO NOT PUBLISH.
On Applications for Writs of Habeas Corpus and Prohibition from Bexar County.
The petition for writs of habeas corpus and prohibition asks the Court to overrule State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Cr.App. 1990), and to "affirm that trial courts do have authority to disqualify prosecutors." As I read Eidson, it did not hold that a district court lacked authority to disqualify prosecutors. The reading of Eidson is made difficult by this Court's failure to specify whether any opinion represented the view of the Court. (Since 1997 we have instituted internal procedures to identify clearly whether an opinion is for the Court or otherwise.) There were three opinions in Eidson. The first one said, "We hold that the trial judge erred in entering this order" that disqualified a district attorney and his staff from prosecuting certain cases. That opinion was joined by four Members of the Court. Its reasoning was that the district court's disqualification of the district attorney from those cases "for all practical purposes removed [him] from his constitutionally protected office," and that a district court lacked general authority to remove a district attorney from office except for the causes, and by the procedures, in the Local Government Code. The second opinion also was joined by four Members of the Court. It "agree[d] with the ultimate conclusion" of the first opinion, but it said that the reasoning of that opinion was "premised on [a] fundamental misconception" because "[r]emoving a District Attorney's Office from a particular case . . . is clearly distinct from an attempt to remove an official from his or her elected office" through the Local Government Code. The third opinion was that of a single judge, whose view was that the district court had the authority to remove the district attorney and his staff, and had correctly used it. Therefore, it seems to me, the majority of the Court in Eidson was of the opinion that the district court had the authority to remove the district attorney for grounds other than those in the Local Government Code. Accordingly, I see no reason to overrule Eidson. I agree with the decisions of the Court to deny Garza's motion for temporary relief and to deny leave to file the petition for writs of habeas corpus and prohibition, which I think is correct for reasons that have nothing to do with Eidson.
Pet. at 16.
Id. at 17.
See Ex parte Smith, 977 S.W.2d 610, 611 n. 4 (Tex.Cr.App. 1998).
Eidson, 795 S.W.2d, at 7 (opinion of White, J., in which McCormick, P.J., and Davis and Campbell, JJ., joined).
Ibid.
Id., at 5.
Id., at 7 (opinion of Berchelmann, J., in which Clinton, Miller, and Sturns, JJ., joined).
Id., at 7 (opinion of Teague, J.).
DISSENTING STATEMENT
As lawyers, we are admonished to avoid not only impropriety, but also the appearance of impropriety. We are also responsible for the actions of persons who, while not attorneys themselves, act as our agents. We are so instructed because even the appearance of impropriety creates doubt about the integrity of the justice system and decreases public confidence in the courts. I believe that this is a case in which there is the appearance of impropriety by both an attorney and agents of that attorney: A prosecutor who, as a district judge, presided at a past proceeding in this case, and investigators whose unfortunate remarks, which appear to reveal an intention to reach a predetermined conclusion in the renewed investigation, became public. It may be argued that this is an investigation into whether there is a murderer who has not been prosecuted, not an investigation into whether the case against Ruben Cantú can withstand scrutiny in light of the recent recantations, and that therefore there is no impropriety. However, Garza testified against Cantú, saying that Cantú was the person who went into a house and shot two persons, killing one. Garza was convicted of robbery in that case, after claiming that he did not enter the house and did not know that anyone would be harmed. Given that testimony, any inquiry into whether there is a murderer who has not been prosecuted necessarily implicates the case against Ruben Cantú. Because of that unavoidable implication, I believe that the refusal of the elected district attorney to recuse herself and the investigators creates the appearance of impropriety. Both the elected district attorney and the investigators should be barred from any contact with the current investigation. Requiring that a special prosecutor and different investigators, preferably ones who were not involved in the prior investigation, be assigned to the investigation would go a long way to removing any appearance of impropriety and, perhaps, increasing public confidence in the courts. While the immediate issue is the incarceration of Garza under an order of civil contempt for failure to testify to the grand jury while under subpoena, the matter could, presumably, be resolved if the elected district attorney recused herself and arranged for the assignment of different investigators or if this Court ordered the recusal of the elected district attorney and the investigators. Because the elected district attorney has refused to recuse herself and the investigators and the Court has failed to require such recusals, I respectfully dissent.