Opinion
No. 10-16-00427-CR
07-05-2017
IN RE MATTHEW ALAN CLENDENNEN
Original Proceeding
CONCURRING MEMORANDUM OPINION
I concur in the denial of the petition for a writ of mandamus but write separately to explain why.
Fundamentally, Clendennen seeks to recuse the McLennan County District Attorney and thereby prevent the elected district attorney, and all employees of that office, from further participation in the preparation for and trial of Clendennen. The motion, filed and heard in the district court, was denied. Clendennen now seeks review of that ruling by a petition for writ of mandamus asking this appellate court to compel the trial court to set aside its order denying the recusal motion and to issue a writ of mandamus which compels the trial court to order the district attorney's recusal from the prosecution of Clendennen.
Mandamus is an extraordinary remedy. It is to be utilized only when other legal remedies are inadequate. Thus, if there is another legal remedy available to Clendennen, a petition for writ of mandamus should be denied. An appeal is normally an adequate legal remedy for trial court errors. In this instance, Clendennen contends that he should not be compelled to suffer through a criminal trial by a district attorney who should be recused only to have to present the issue on appeal and then suffer the vagaries of a subsequent review and analysis, and possibly retrial, by an attorney pro tem assigned to prosecute the case against him. The district attorney is obviously aware of the risk of such an outcome and the attendant cost of the discovery, trial, and appeals that result would entail, and much of that work could not be used by the attorney pro tem; if it gets to that.
Clendennen contends that recusal is appropriate for two independent reasons. The first reason is that the district attorney, or members of his staff, will be called as witnesses at the trial of Clendennen. The second reason is that because the district attorney has been sued in Federal Court by Clendennen, and others, that the district attorney has a personal financial interest adverse to his duties as the elected criminal district attorney.
I believe denial of the petition for a writ of mandamus is proper for procedural reasons. It is premature for two separate reasons, one being applicable to each of the separate grounds upon which Clendennen asserts he is entitled to the relief.
Clendennen's first argument in support of recusal is dependent upon the need to have no one other than the district attorney himself testify on matters on which there is a material factual dispute. If this is required/allowed during trial, the district attorney, or his staff, would have to argue his own credibility. If it comes to that, the district attorney is subject to forced recusal. Testimony of this nature provided by an assistant district attorney or staff member would ordinarily cause the recusal of only that employee of the district attorney's office but not the elected district attorney.
On the record currently before the court in this proceeding, Clendennen has not established that the district attorney is the only potential source of such testimony. Moreover, it appears that the testimony of the district attorney, sought by Clendennen, is based on the premise that evidence was obtained based on an arrest warrant that itself was obtained in violation of law. Clendennen's argument is that Clendennen must be allowed to challenge the admissibility of that evidence, and show it should be suppressed. This issue can be addressed by a pretrial motion to suppress; another potential legal remedy that would prevent the need to force the district attorney's testimony in front of the jury, and thus the recusal of the elected district attorney. And if the evidence at the hearing on the motion to suppress reveals there is conflicting evidence on a material fact, such that the issue of suppression/disregarding the evidence was going to have to be tried before the jury with an Article 38.23 instruction to disregard the evidence if the jury determined that it was illegally obtained, then we might need to revisit whether an appeal is an adequate remedy. But we are not there yet, not on this record.
Finally, there is no question that Clendennen has presented some evidence of a disputed fact. There are unresolved fact questions about how the arrest warrant affidavit was prepared, its review, and the source of the information contained therein, some of which is demonstrably inaccurate. It has not, however, been determined if this factual dispute is material to the case and whether the district attorney is the only source of testimony to create or resolve that disputed issue. This is not enough to obtain a writ of mandamus compelling the trial court to recuse the district attorney at this juncture of the proceeding.
Accordingly, I concur with the denial of the petition for writ of mandamus on the first ground; that the district attorney, or members of his office, will necessarily be called as witnesses at trial on a material disputed question of fact.
I will now discuss the procedural reason that the petition for writ of mandamus on the second ground, the adverse financial interest of the district attorney, that Clendennen contends should mandate recusal of the district attorney at this time.
According to the petition for writ of mandamus and the record filed in this proceeding, Clendennen and a number of other individuals have sued the elected district attorney. These suits allege that the district attorney is personally liable for his actions in causing Clendennen to be falsely arrested. I note that there is a lot of conditional language in this section of Clendennen's petition like, "it is expected," "might have a conflict," "in the event there were convictions," "in the event a federal judge ...concluded," a "new trial would have to be ordered," and "it is anticipated that [the district attorney] will ultimately be held ... liable." Such conditional language evidences a realization that it is a long and arduous road to establish the district attorney's personal liability. Even Clendennen's unsupported assertion that "no right minded prosecutor would have sought an indictment against" Clendennen does not rise to the level of a basis for the district attorney's personal liability.
At the root of the adverse-personal-financial-interest ground for recusal is the argument that the elected district attorney, acting outside the proper scope of his duties, caused the false arrest of Clendennen. This ground ultimately rests on the same factual issues discussed above that are unresolved. We do not resolve factual issues in deciding a petition for a writ of mandamus. Thus, the allegations of millions of dollars of damages for a wrongful arrest, remain just that, allegations. Thus, until a record is presented that establishes with more certainty the potential for personal liability of the elected district attorney and the probability and extent of the damages than what is currently before us in this record, we have no alternative other than to deny the petition for writ of mandamus on this basis as well.
Accordingly, I concur with the denial of the petition for writ of mandamus on the ground that the district attorney has a personal financial interest in obtaining Clendennen's conviction.
For the reasons expressed herein, I respectfully concur in the denial of the petition for writ of mandamus, but without prejudice to a subsequent petition based on a more developed record and exhaustion of all other adequate legal remedies, some of which are discussed above.
TOM GRAY
Chief Justice Concurring memorandum opinion issued and filed July 5, 2017