Opinion
No. 01-18-00898-CV
01-22-2019
In the Matter of B.M.
BRIAN MIDDLETON 268TH Judicial District District Attorney Fort Bend County, Texas 301 Jackson Street, Room 101 Richmond, Texas 77469 (281)341-4460 TBC No. 90001967
Trial Court No. 18-CJV-021629
MOTION FOR DISQUALIFICATION AND APPOINTMENT OF ATTORNEY PRO TEM TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Brian M. Middleton, District Attorney for the 268 Judicial District and attorney representing the State in the above-styled case and moves this court for permission to disqualify himself and his Assistant District Attorneys from said case pursuant to Art. 2.07 (a) of the Texas Code of Criminal Procedure. Movant further petitions the Court for the appointment of a District Attorney Pro Tem pursuant to Article 2.07 (a). As grounds for said motion, Movant would respectfully show as follows:
I.
On October 2, 2018, Appellant juvenile B.M. whom the State alleged had engaged in delinquent conduct, namely aggravated assault with a deadly weapon, appeared at a hearing on the State's motion to certify him to stand trial as an adult. (2RR8-9). On October 3, 2018, following a contested hearing, the juvenile court waived its jurisdiction and ordered the case transferred for criminal proceedings in the district court. (4RR5-6).
On October 3, 2018, Appellant filed notice of appeal of the trial court's waiver of its jurisdiction. (1CR18). On October 4, 2018, the undersigned Brian Middleton, was appointed to represent Appellant on appeal. (1 Supp. CR at 8).
On November 6, 2018, the undersigned counsel, Brian Middleton, was elected as District Attorney for the 268 Judicial District of Fort Bend County, Texas. Counsel's term of office as District Attorney began on January 1, 2019.
On December 12, 2018, the trial court appointed attorney Cary Faden to replace the undersigned as the juvenile's appellate counsel on account of the undersigned's being elected Fort Bend County District Attorney. (1 Supp. CR at 8). Faden filed the juvenile's appellate brief on January 16, 2019. The State's brief is due on February 5, 2019.
District Attorney Brian M. Middleton represented Appellant in this case as counsel on appeal.
Art. 2.07 (a) states as follows:
Whenever an attorney for the state is disqualified to act in any case or proceeding... 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 ...disqualification of the attorney for the state.
Due to election of Brian M. Middleton to the office of the District Attorney of the 268 Judicial District of Fort Bend County, Texas, Brian M. Middleton and his office are disqualified from the prosecution of this case. See Ex parte Spain, 589 S.W. 2d 132,124 (Tex. Crim. App. 1979); Ex parte Morgan, 616 S.W. 2d 625,626 (Tex. Crim. App. 1981).
Further, Brian M. Middleton and his office may be ethically foreclosed from participating in this case. An attorney may not represent the State when the matter being prosecuted is the same matter for which that attorney previously represented the accused. Ex parte Morgan, 616 S.W.2d at 626; In Re Goodman, 210 S.W. 3d (805, 809-16) (Tex.App.-Texarkana 2006, orig. proceeding); See TEX. COMM. ON PROF'L. ETHICS, Op. 538, 64 Tex. B.J. 884, 886 (June 2001)(The opinion acknowledged that, under Rule 1.09, an attorney is prohibited from representing a party adverse to a former client if the matter then being litigated would be considered "substantially related" to the prior representation. Id.).
II.
If the Court finds good cause for the disqualification of the Fort Bend County District Attorney's Office from this case, the immediate appointment of a District Attorney Pro Tem is necessary for the purposes of fulfilling the duties incumbent upon the attorney for the State in this case. In the alternative, the undersigned moves this court to abate this case so that the trial court may entertain the request for disqualification and motion for a District Attorney Pro Tem.
PRAYER
Movant respectfully requests that the Court find that Brian M. Middleton and his Assistant District Attorneys are disqualified from participating in the prosecution in the above case. Movant further requests the Court appoint a District Attorney Pro Tem to investigate and prosecute the factual allegations involved in any pending or future cases submitted to the Fort Bend County District Attorney's Office along with the appeal and any matters related thereto, including cause number 01-18-00898-CV, Trial Court Number 18-CJV-021629, and any other criminal law matters occurring during the pendency of the case enumerated herein involving juvenile respondent B.M.
In the alternative, the undersigned moves this court to abate this case so that the trial court may entertain the request for disqualification and motion for a District Attorney Pro Tem.
/s/_________
BRIAN M. MIDDLETON
/s/ Brian Middleton
BRIAN MIDDLETON
District Attorney
Fort Bend County, Texas
301 Jackson Street, Room 101
Richmond, Texas 77469
(281)341-4460
TBC No. 90001967 ORDER
The Court, having considered the foregoing motion, finds that it should be GRANTED.
IT IS THEREFORE ORDERED that the motion for disqualification of the District Attorney's Office for the 268 Judicial District should and it is hereby GRANTED as to the immediate appointment of a District Attorney Pro Tem is necessary for the purposes of fulfilling the duties incumbent upon the attorney for the State in this case, as set forth in the State's Motion for Disqualification and Appointment of Attorney Pro Tem.
THE COURT FURTHER GRANTS the motion for appointment of a District Attorney Pro Tem and hereby appoints __________ as said District Attorney Pro Tem to represent the State of Texas to investigate and prosecute the factual allegations involved in any pending or future cases submitted to the Fort Bend County District Attorney's Office along with the appeal and any matters related thereto, including cause number 01-18-00898-CV, Trial Court Number 18-CJV-021629, and any other criminal law matters occurring during the pendency of the case enumerated herein involving juvenile respondent B.M. as set forth in the State's Motion for Disqualification and Appointment of Attorney Pro Tem.
This Court further finds that and finds that Brian M. Middleton and his Assistant District Attorneys are disqualified from participating in the prosecution in the above case.
Signed this, the ___ day of __________, 2019.
/s/_________
JUSTICE PRESIDING Office of the Secretary of State
Statutory Document Section
P. O. Box 12887
Austin, Texas 78711 Fax Number: 1-512-463-0873 Attention: Mr. John Reigler: Dear Mr. Reigler:
Enclosed you will find an original Statement of Appointed Officer executed by
__________.
I shall call you at 1-512-463-0872 to confirm your receipt of this document.
Should you require additional information, please let me know.
Sincerely,
/s/_________
Honorable
Justice
Fourteenth Court of Appeals at Houston
__________
Date Enclosure
THE STATE OF TEXAS STATEMENT OF APPOINTED OFFICER
I, __________ do solemnly swear (or affirm), that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment, as a reward to secure my appointment or confirmation, so help me God.
/s/_________
District Attorney Pro Tem
268 Judicial District
Fort Bend County, Texas SWORN TO and subscribed before me by affiant on this the ___ day of __________, 2019.
/s/_________
Signature of Person Administering Oath
/s/_________
Printed Name
/s/_________
Title IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS OATH OF OFFICE I, __________ do solemnly swear (or affirm), that I will faithfully execute the duties of the office of District Attorney Pro Tem for the 268 Judicial District of Fort Bend County, Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.
/s/_________
District Attorney Pro Tem
268 Judicial District
Fort Bend County, Texas SWORN TO and subscribed before me by affiant on this the ___ day of __________, 2019.
/s/_________
Signature of Person Administering Oath
/s/_________
Printed Name
/s/_________
Title