On August 15, 1975, petitioner was convicted in a trial before the court following his plea of guilty of burglary of a building. Punishment was assessed at 10 years, probated. The probation was revoked on July 2, 1980, after the court found that petitioner had violated the conditions of his probation by committing the offenses of driving while intoxicated and public intoxication.

Petitioner maintains he was denied due process of law because the prosecutor who filed the State's motion to revoke probation and who represented the State at the revocation hearing had originally represented petitioner as defense counsel when petitioner pled guilty and was granted probation. The record supports petitioner's factual allegations.

In Ex Parte Spain, 589 S.W.2d 132 (Tex.Cr.App.), this Court granted relief in a factual situation identical to that now presented. There, it was stated:

"When a district attorney prosecutes someone whom he previously represented in the same case, the conflict of interest is obvious and the integrity of the prosecutor's office suffers correspondingly. Moreover, there exists the very real danger that the district attorney would be prosecuting the defendant on the basis of facts acquired by him during the existence of his former professional relationship with the defendant. Use of such confidential knowledge would be a violation of the attorney-client relationship and would be clearly prejudicial to the defendant. See Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963). The prosecutor in this case should never have initiated or participated in the revocation proceedings." (Emphasis in original). Id. at 134.

The relief sought is granted and the order revoking probation in Cause No. 5360 is set aside. Petitioner is ordered released from confinement and returned to probationary status under the jurisdiction of the 118th Judicial District Court of Howard County.

It is so ordered.

Summaries of

Ex Parte Morgan

Court of Criminal Appeals of Texas, En Banc

Jun 3, 1981

616 S.W.2d 625 (Tex. Crim. App. 1981)

following Spain

Summary of this case from Landers v. State

In Morgan and Spain, both supra, we held that probation-revocation proceedings constituted the same cases as the underlying prosecutions that resulted in the probations in the first place.

Summary of this case from Young v. Sixth Jud. District

In Morgan and Spain, like here, the same attorneys who represented the defendants at the time they pled guilty and were placed on community supervision subsequently prosecuted motions to revoke the community supervision in the same case. 616 S.W.2d at 626; 589 S.W.2d at 133-34.

Summary of this case from Simons v. State

In Morgan, Texas' highest criminal court found that an attorney who had formerly represented a defendant at trial (in which the defendant received a probated sentence) was prohibited from subsequently representing the State at a hearing regarding the revocation of that same defendant's probated sentence in the case for which that attorney had represented the defendant.

Summary of this case from Landers v. State

Summary of this case from In re Goodman

In Morgan and Spain — both post-conviction habeas corpus proceedings — the Texas Court of Criminal Appeals held the district attorney violated article 2.01 — and the defendants' right to "due process of law under the Fourteenth Amendment to the Constitution of the United States and Article I, section 19 of the Texas Constitution" — by prosecuting a charge "against a defendant whom he formerly represented as defense counsel in the same case."

Summary of this case from In re Reed

Ex Parte Morgan

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Ex Parte Morgan

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