Opinion
No. 11-07-00369-CR
Opinion filed March 6, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(B).
On Appeal from the 91st District Court, Eastland County, Texas, Trial Court Cause No. CR-05-20840.
Panel consists of: McCALL, J., and STRANGE, J. WRIGHT, C.J., not participating.
MEMORANDUM OPINION
This is an appeal from the denial of an application for preconviction writ of habeas corpus filed pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.08 (Vernon 2007). Christopher Andrew Miller has been charged with theft of over $200,000, a first degree felony. Miller filed the application for habeas relief based upon his contention that the Eastland County District Attorney's Office is disqualified from prosecuting the theft case based upon a conflict of interest. In the application, Miller asserted that the district attorney while in private practice had previously represented Miller in a number of matters, including a civil matter related to the clips that are the subject of the current criminal charges against Miller. Miller claimed that the district attorney learned facts and information of a confidential nature that could be used in prosecuting Miller. After a hearing, the trial court denied Miller's application for writ of habeas corpus. Miller appeals. We affirm. Miller presents one issue in which he contends that the trial court erred in refusing to disqualify the district attorney and his office. A district attorney "shall represent the State in all criminal cases . . . except in cases where he has been, before his election, employed adversely." TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005). Miller filed a motion to disqualify the district attorney's office and subsequently filed the application for writ of habeas corpus. A trial court's authority to order an elected district attorney to disqualify himself is unclear. State ex rel. Young v. Sixth Jud. Dist.Ct.App. at Texarkana, 236 S.W.3d 207, 211 n. 15 (Tex.Crim.App. 2007). However, a district attorney's representation of the State in a case against a former client in violation of that client's right to due process may result in a reversal of the conviction. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 7 (Tex.Crim.App. 1990); Ex parte Spain, 589 S.W.2d 132 (Tex.Crim.App. 1979). In this case, we do not decide whether the trial court erred in denying the motion to disqualify or whether Miller's due process rights will be violated. Those matters are not yet ripe for review. See Young, 236 S.W.3d at 209-13 ; see also Eidson, 793 S.W.2d at 4-6; Spain, 589 S.W.2d 132. This is an appeal from the denial of Miller's pretrial application for writ of habeas corpus; therefore, the only issue in this appeal is the propriety of that denial. Habeas corpus relief is an extraordinary remedy. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App. 2001). To be entitled to relief, the applicant must be illegally restrained. Id. Generally, a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the applicant's favor, it would deprive the trial court of the power to proceed and result in the applicant's immediate release. Ex parte Smith, 185 S.W.3d 887, 892 (Tex.Crim.App. 2006). As stated in Weise, "a pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release." 55 S.W.3d at 619. In this case, resolution in Miller's favor would not result in his immediate release. Consequently, we must hold that Miller's claim of prosecutorial disqualification is not cognizable in a pretrial writ of habeas corpus. The trial court properly denied Miller's pretrial application for writ of habeas corpus. The order of the trial court is affirmed.
We note that the Court of Criminal Appeals determined in Young that mandamus was not an appropriate remedy to disqualify the prosecutor from prosecuting a former client even though the prosecutor had represented that client in a prior DWI case and was using that prior DWI conviction as an enhancement in a subsequent DWI case against that client. 236 S.W.3d 207. The client asserted that, during the prior representation, the prosecutor had learned such things as "how many beers I drink a day." Id. at 209.