State v. Honorable Daniel Robles, Sitting as Judge of County Court at Law No. One of Hidalgo of Hidalgo County ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,059

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STATE EX REL. RENE GUERRA, HIDALGO COUNTY CRIMINAL DISTRICT ATTORNEY, RELATOR

v.

THE HONORABLE DANIEL ROBLES, SITTING AS JUDGE OF COUNTY COURT AT LAW NO. ONE OF HIDALGO COUNTY, RESPONDENT

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ON APPLICATION FOR WRIT OF MANDAMUS FROM HIDALGO COUNTY

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Per Curiam. OPINION

   This is a petition for writ of mandamus asking this Court to order Respondent to vacate an order removing Relator from his duties as the elected Criminal District Attorney of Hidalgo County in a case where an elected district judge of Hidalgo County is charged with Driving While Intoxicated.

The real party in interest moved to disqualify Relator because he intended to call several of Relator's assistants as witnesses in the case. Respondent, ruling that there was a conflict of interest, granted the motion, removed Relator from his position as the elected Criminal District Attorney in this case, and appointed two special prosecutors for the case. Relator petitioned the 13^th Court of

Appeals; that court found Relator was not entitled to relief. In re Guerra, No. 13-04-316-CR (Tex.App. -- Corpus Christi August 19, 2004) (not published).

In State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Crim.App. 1990), we held that a trial court judge could not prevent the elected district attorney and his staff from participating in the prosecution of any case properly brought in that jurisdiction. The attempt to prevent the district attorney from prosecuting the case constructively removes the district attorney from his elected office in violation of statutes forbidding such removal except in certain circumstances, not applicable to this case, after a trial by jury. Tex.Gov't Code, § 41.102, Tex.Local Gov't Code §§ 87.013, 87.018(a). A trial court judge is without legal authority to remove a district attorney and his entire staff from a case, and any order attempting to do so is void. Eidson, 793 S.W.2d at 5.

If there is a conflict of interest on the part of the district attorney or his staff, the responsibility to recuse themselves is theirs and not that of the trial court judge. Eidson, 793 S.W.2d at 6. If there is a conflict of interest and the district attorney or his staff do not recuse themselves, the real party in interest is not without recourse through appeal. Eidson, 793 S.W.2d at 6-7.

In the case before us, the trial court judge has for all practical purposes removed the Hidalgo County Criminal District Attorney from his constitutionally protected office regarding the prosecution of this case. We hold the trial court judge erred in entering this order. The writ of mandamus is conditionally granted. We assume that the Respondent will immediately withdraw the order disqualifying the district attorney in this case. The writ of mandamus will issue only if he refuses to do so.

DO NOT PUBLISH

DELIVERED DECEMBER 15, 2004.