in Re: Juan Angel Guerra, District and County Attorney for Willacy County, State of Texas

NUMBER 13-07-165-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: JUAN ANGEL GUERRA, DISTRICT AND COUNTY

ATTORNEY FOR WILLACY COUNTY, STATE OF TEXAS On Petition for Writ of Mandamus DISSENTING OPINION

Before Justice Yañez, Benavides, and Vela Dissenting Opinion by Justice Benavides

I. Introduction

For the most part, the majority has crafted an eloquent opinion that is thoroughly researched and painstakingly explained. Reading Parts I-XIV, and noting its delicate and careful consideration of all relevant law, including out-of-state law, one would assume that the majority would continue its deliberate and solidly supported analysis through to the end. Surprisingly, and to my great disappointment, the sturdy foundation on which the majority opinion stands collapses at Part IX, subparts 2.c, 2.d, and 2.e of the opinion, in which the majority ultimately finds Garza disqualified to serve as attorney pro tem. In doing so, the majority glosses over the Court's lack of jurisdiction, ignores the deficiencies in the record, and fails to adhere to its own previous analysis.

I join Parts I-VIII; Part IX subparts 1, 2.a, and 2.b; and Part X subparts 1 and 2 because those sections correctly state the applicable law and properly apply that law. However, I disagree with the majority's decision to conditionally grant mandamus relief and to assess costs against Garza. I would deny the petition for writ of mandamus and assess all costs against Guerra. Accordingly, and as set out fully below, I respectfully dissent.   

II. Discussion

The majority grants relief on two grounds, both apparently arising from Garza's status as Guerra's former political opponent. Garza was a candidate who ran for election against Guerra in 2004. This was the same election referred to in the January 17 order issued by Judge Lopez, which stated, "The Grand Jury was aware of voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004."

The majority first finds that Garza's appointment violates Guerra's due process rights because Garza has an allegedly impermissible conflict of interest. Second, the majority grants relief because it finds that Garza could be a material fact witness. I disagree with both holdings.

A. These issues are now moot.

Guerra was never indicted for a criminal offense arising out of his participation in the March 2004 election. With the grand jury's term now expired, Garza can no longer assist in the investigation or prosecution of Guerra's election conduct. Thus, while purporting to conditionally grant mandamus relief, the majority's opinion is a dog without a bite--the issues on which the majority grants relief are no longer part of the proceedings below. ⁽¹⁾ Garza has no "interest" in the outcome of a voter fraud prosecution because there is no longer a voter fraud prosecution. Furthermore, and obviously, Garza cannot be called to testify because no prosecution for voter fraud can proceed under the January 17 order.

Although the majority briefly describes this Court's constitutionally mandated jurisdictional requirements, ⁽²⁾ the opinion fails to explain how the order granting relief will have any discernible effect on the prosecution below. ⁽³⁾ Presumably, the majority essentially ignores this defect in the opinion because it recognizes that we cannot "go behind the indictment" to determine whether Garza's status as Guerra's former election opponent somehow tainted the indictments that were actually returned. ⁽⁴⁾ Moreover, on this record, we cannot make such an assumption because, as the majority repeatedly points out, the grand jury approached Judge Lopez with its concerns about election fraud before Garza was involved, and notwithstanding its investigation, the grand jury failed to return an indictment on that issue.

The majority concedes that these issues are moot, but in a footnote without any explanation, the majority asserts two exceptions to the mootness doctrine. ⁽⁵⁾ The majority asserts that the "public interest" exception to mootness applies because the appointment of Garza to investigate voter fraud is "an issue of considerable public importance and the issue is capable of repetition between either the same parties or other members of the public." ⁽⁶⁾ Additionally, the majority claims that Garza's appointment to investigate and prosecute allegations of voter fraud is "capable of repetition but evading review." ⁽⁷⁾ I cannot join either holding.

First, I note that the Texas Supreme Court has not yet recognized the "public interest" exception to the mootness doctrine. ⁽⁸⁾ The Houston Court of Appeals declined to adopt this exception, holding that in the absence of direction from the highest court in our State, it is improper to expand our constitutionally limited jurisdiction. ⁽⁹⁾ Notably, none of the cases cited by the majority, nor any other Texas case for that matter, has ever applied this exception in a mandamus proceeding. I would refrain from applying this exception at all, and its application is particularly inappropriate in a mandamus proceeding.

The "public interest" exception has been held by this Court to apply when an issue of "considerable public importance" is "capable of repetition between either the same parties or other members of the public, but for some reason evades appellate review." ⁽¹⁰⁾ What constitutes a "matter of significant public importance" is not specifically defined in the case law, and the lack of any definition or discernible boundaries creates the potential for abuse. It brings to mind the wise words of caution written by Henry Home and reiterated by the Texas Supreme Court regarding the boundaries of equity and the need for discernible rules:

If an equity court's jurisdiction was limited only by its reach, experience demonstrated that the arbitrary exercise of that power was certain to result. And if we endeavored: "To determine every particular case according to what is just, equal, and salutary, taking in all circumstances [it] is undoubtedly the idea of a court of equity in its perfection; and had we angels for judges such would be their method of proceeding without regarding any rules: but men [and women] are liable to prejudice and error, and for that reason, cannot safely be trusted with unlimited powers. Hence the necessity of establishing rules, to preserve uniformity of judgment in matters of equity as well as of common law: the necessity is perhaps greater in the former, because of the variety and intricacy of equitable circumstances. Thus though a particular case may require the interposition of equity to correct a wrong or supply a defect; yet the judge ought not to interpose, unless he can found his decree upon some rule that is equally applicable to all circumstances of the kind. If he be under no limitation, his decrees will appear arbitrary, though substantially just--and, which is worse, will often be arbitrary, and substantially unjust; for such, too frequently, are human proceeding when subjected to no control. General rules, it is true, must often produce decrees that are materially unjust; for no rule can be equally just in its application to a whole class of cases that are far from being the same in every circumstance--but this inconvenience must be tolerated, to avoid a greater, that of making judges arbitrary. A court of equity is a happy invention to remedy the errors of common law: but this remedy must stop some where; for courts cannot be established without end, to be checks one upon another. And hence, it is, that, in the nature of things, there cannot be any other check upon a court of equity but general rules." ⁽¹¹⁾

Because we should reserve our extraordinary writ power for circumstances where our decision has an effect on the proceedings below, ⁽¹²⁾ and an amorphous exception to the mootness doctrine would engage this Court in an impermissible extension of our limited mandamus jurisdiction, I would hold that Guerra's issue is now moot.

Second, the majority does not explain why Garza's appointment to investigate and prosecute Guerra, who in this context wears the hat of a criminal defendant and not the hat of a district attorney, is a matter of such importance that the constitutional limitations on our jurisdiction can be discarded. The majority takes great pains to distinguish between Guerra's status as a district attorney, and his claims made in that regard, and his status as an ordinary criminal defendant. ⁽¹³⁾ Nevertheless, the majority ignores the fact that Guerra wears the hat of an ordinary criminal defendant with regard to his challenges to Garza's qualifications. I fail to see why this prosecution is of any greater public interest than any other prosecution.

Third, the majority does not explain that the "public interest" exception overlaps to some extent with the "capable of repetition yet evading review" exception--both exceptions only apply to issues that are not capable of being reviewed by the normal appellate process. ⁽¹⁴⁾ This Court has refused to apply the "public interest" exception to cases where the issue has been reviewed on the merits by other courts of appeals; logically, if other courts have reached the issue, it has not escaped review. ⁽¹⁵⁾ In fact, this Court was reversed by the Texas Supreme Court when it erroneously applied the "public interest" exception to an issue that had been addressed by numerous appellate decisions. ⁽¹⁶⁾ The majority claims that the issues of Garza's conflict of interest and status as a potential witness evades review, as they must to fit within the exceptions to mootness; the majority, however, ignores the numerous appellate decisions that have addressed the merits of these same issues, some of which the majority relies on in reaching their decision. ⁽¹⁷⁾ Thus, it is clear that neither the purported "public interest" nor the recognized "capable of repetition but evading review" exceptions apply.

Nevertheless, the majority claims that the duration of a pro tem appointment is short, rendering conflicts of interest unreviewable. That simply is not true. A pro tem appointment can last as long as any other prosecution, and pro tem and special prosecutor appointments are frequently reviewed on appeal. ⁽¹⁸⁾ Accordingly, I disagree that this case meets the criteria of either the "public interest" or "capable of repetition but evading review" exceptions.

Finally, although it is possible that a second grand jury could investigate Guerra for election fraud violations, ⁽¹⁹⁾ there is no evidence to suggest that such will be the case. Moreover, even if that were to happen--a truly speculative proposition--and a grand jury indicted Guerra on voter fraud allegations, it is even more speculative to assume that Garza would again be appointed as attorney pro tem. In fact, it is highly unlikely that Judge Lopez (or any other judge for that matter) would appoint Garza, given the upheaval this case has generated. ⁽²⁰⁾ And in any event, Guerra could obtain review through the ordinary process applicable to criminal defendants. ⁽²¹⁾ He could file a motion to disqualify Garza and present evidence, if any, that would support disqualification, which could be reviewed on appeal. If, however, a second grand jury no-billed Guerra again, he would, again, have nothing to complain about.

B. Hat of a criminal defendant--Guerra has an adequate remedy by appeal.

As noted above, Guerra's argument that Garza is disqualified to serve as attorney pro tem can only be raised when Guerra wears the hat of a criminal defendant. Like any other criminal defendant (if he ever becomes a defendant), Guerra can address this matter at the pretrial stage of his prosecution. Nevertheless, the majority provides no reason for their departure from the lengthy discussion in Part IV about the necessity for an inadequate remedy by appeal.

Wearing the district attorney hat, for which the majority has determined an adequate remedy does not exist, Guerra would not have standing to raise these issues. For instance, if a third party was at risk of being prosecuted by Garza, and Garza was poised to serve as a witness in the course of prosecution, Guerra would have no standing to raise a complaint on behalf of the third party. Likewise, I find no reason why Guerra has standing to raise a complaint on his own behalf at this time merely because he happens to also be the elected district attorney.

Accordingly, I would hold that Guerra has an adequate remedy below, and he must pursue that course before seeking this Court's intervention. Nevertheless, I would find that he is not entitled to relief for the following reasons.

C. Garza as a potential witness--the majority creates a new exception to Eidson without any explanation by granting relief without requiring proof of a due process violation.

The majority recognizes that a prosecutor may be disqualified by a trial court only in certain, limited circumstances. ⁽²²⁾ Specifically, the majority recognizes the general rule that "[i]f there is a conflict of interests on the part of the district attorney or his assistants . . . the responsibility of recusal lies with them, not with the trial court judge." ⁽²³⁾ The majority then sets out the two recognized exceptions to this rule, which are (1) when the prosecutor is disqualified to act based on a conflict of interest that rises to the level of a due process violation, and (2) when the prosecutor has, before his election, been employed adversely. ⁽²⁴⁾ I agree with the majority's conclusion in Part VI that a further exception should be recognized in this case, where the district attorney is the subject of a grand jury's investigation. I agree that Guerra cannot properly participate in an investigation into his own alleged criminal conduct. Furthermore, allowing Guerra alone to decide whether he is disqualified would, as Judge Teague put it, leave "the wolf to guard the henhouse, in order to protect the chickens from the wolf." ⁽²⁵⁾

Nevertheless, I disagree with the majority's position to grant relief on the ground that Garza may testify against Guerra because I believe that the majority has created yet another exception to Eidson--one which is not required. The disconnect in the majority's grant of relief and the rest of its opinion, I believe, arises in the discussion in Part VI subpart 5, where the opinion distinguishes Eidson on the grounds that the Eidson plurality had the benefit of state and federal constitutional protections--"safeguards that are not as readily available in this case." ⁽²⁶⁾ For this reason, along with others, the majority creates an exception and allows the trial court to disqualify a prosecutor under the circumstances of this case.

The majority, however, does not explain why Guerra's status as a defendant prosecuted by someone who might be called to testify in the case against him makes him any different than any other criminal defendant subject to the same possibility, nor does the majority explain why Guerra would not benefit from state and constitutional protections he could raise in the trial court and on appeal. Courts have recognized that due process protects a defendant's right to a fair trial, which may be jeopardized if a prosecutor testifies as a material witness on an element of the crime charged and later argues his own credibility to the jury. ⁽²⁷⁾ Yet the majority inexplicably does not require Guerra to prove a due process violation with regard to Garza's potential testimony, which admittedly, Guerra did not even attempt to prove. ⁽²⁸⁾ The majority recognizes the general rule that a trial court may disqualify a prosecutor only if the allegations rise to a due process violation but does not explain why Guerra is exempt from this rule. Because the majority purports to grant relief based on Garza's potential testimony, but does not require Guerra to demonstrate that this possibility rises to the level of a due process violation, I dissent.

D. The mere possibility of Garza testifying does not automatically warrant disqualification or constitute error, and no evidence supports the majority's conclusion.

The court of criminal appeals has held that a party seeking disqualification "cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness." ⁽²⁹⁾ Furthermore, the court has seemingly distinguished between situations in which counsel's testimony is critical to the issue of innocence and situations where the testimony is "merely tangential to the case or to defendant's guilt," finding that only the former scenario requires disqualification. ⁽³⁰⁾ Therefore, the mere fact that Guerra may elect to call Garza as a witness, or the fact that Garza may be called to testify on tangential matters (e.g., to simply testify that he was a candidate in the election at issue), does not create a basis for affording Guerra relief.

Guerra has not presented this Court with any explanation for Garza's allegedly "required" testimony, nor can I fathom any. ⁽³¹⁾ In Gonzalez v. State, the court of criminal appeals stated that when the record supports a court's conclusion that counsel will be called to testify, "neither the trial court nor the court of appeals is under any obligation to explain why it would be necessary for the State to call counsel as a witness or what essential fact defense counsel's testimony would establish." ⁽³²⁾ While a court can speculate on these matters, this speculation "cannot be unsupported or dubious." ⁽³³⁾ The majority opinion recognizes as much.

However, the majority ignores the record in this case, which does not support the conclusion that Garza would be called to testify. The only evidence before this Court that addresses the possibility of Garza being called as a witness in Guerra's prosecution comes from testimony Garza provided at the show cause hearing before this Court. In his testimony, Garza negates the idea that he would have to serve as a witness:

Q [Guerra's counsel]: And when you were appointed by Judge Lopez and you found out to be one of the concerns, and you knew that you were in the middle of that election where my client was alleged to have committed election fraud, why isn't it that you didn't tell the judge, "Look, I'm a witness here. I was involved in this election. If there was any election fraud, I might know about it and I might have to be the person that gets up on that witness stand and testify about that"?

. . . .

A [Garza]: First of all, [counsel], when the judge pulled me out and when the judge had an officer go and pull me out of the office of Juan Angel Guerra, whom I was working a plea bargain with, to go into the grand jury and introduce me and if I would accept the appointment, I did not know that. That had not been mentioned. That had been made part of the record but I was not privy to that record. I had no way of knowing, okay?

Secondly, when I drafted the order, he [sic] noticed the order was signed on the 17th. The meeting and the acceptance of the appointment was on the 11th. I had already said I would. Judge Lopez had already introduced me to the grand jury.

That concern never occurred to me that involved me because I never brought any issues of fraud against Juan Angel Guerra in any of the elections.

Q: You knew?

A: No, sir. Don't tell me what I say [sic]. I never brought any issues of voter fraud against Juan Angel Guerra in any of the elections. I had no way to say I was a witness. Of course I was not a witness.

There is no evidence before us indicating that Garza has any knowledge relating to whether Guerra committed an illegal act in the March 2004 election, nor is there evidence indicating that Garza anticipates being a witness. His testimony suggests the contrary, that he has no knowledge of any material, disputed facts regarding the alleged election fraud. In fact, because Guerra was not indicted for election fraud, it is impossible that Garza will testify against Guerra. Without any evidence to support its conclusion, this Court is burdened by an obligation it cannot fulfill--i.e., to explain either why it would be necessary for the State or Guerra to call Garza as a witness or what essential fact his testimony would establish. This the majority does not do.

I further note that, even if Garza were to somehow testify in the non-existent prosecution for election fraud, reversible error would not result based solely on Garza's potential violation of a disciplinary rule of professional conduct. In Brown v. State, the court of criminal appeals found that the court of appeals erred in reversing a defendant's conviction. ⁽³⁴⁾ The Fort Worth Court of Appeals had reversed the conviction after finding that the trial court erred in permitting the prosecutor to continue prosecuting the case after she testified as a witness in the case. ⁽³⁵⁾ The court of criminal appeals, in a plurality opinion, noted "that Section 2.5(c), Texas Prosecutor Standards and Guidelines, provides that a prosecutor shall not be disqualified from testifying as a witness 'when the need of the testimony arises during a proceeding.'" ⁽³⁶⁾ The plurality contended that both the defendant's brief and the court of appeals relied solely on a disciplinary rule violation as a basis for reversing the conviction. ⁽³⁷⁾ The plurality then held:

[T]he applicable rule here is that violation of a disciplinary rule does not require a reversal unless a defendant can show the disciplinary rule violation affected his substantial rights or deprived him of a fair trial. The Court of Appeals erred to rely solely on a disciplinary rule violation to reverse the conviction. On this record, appellant's remedy is to file a complaint with the State Bar. ⁽³⁸⁾

This holding was later reaffirmed in House v. State. ⁽³⁹⁾ In House, the appellant, who had been convicted of voluntary manslaughter, argued that his conviction should be reversed because the trial court erred in allowing two assistant district attorneys to testify, which was allegedly prohibited by the Texas Disciplinary Rules of Professional Conduct. ⁽⁴⁰⁾ The court of criminal appeals held that it was "unnecessary in cases like this to decide whether the State violated [a rule of professional conduct]. This is because if a defendant cannot show actual prejudice from an alleged disciplinary rule violation by the State, then he will not be entitled to relief on appeal." ⁽⁴¹⁾ In the instant case, Guerra has presented this Court with no evidence or argument to indicate that Garza acting as a witness would affect Guerra's substantial rights or deprive Guerra of a fair trial. With respect to the resolution of factual issues, such as the factual issue being dealt with here, Guerra must establish that the trial court could have reasonably reached only one decision. ⁽⁴²⁾ Even if this Court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. ⁽⁴³⁾ On this record, particularly given that Guerra did not ever raise this issue with the trial court, I cannot say that Judge Lopez abused her discretion. Moreover, Guerra has not been indicted for election fraud--there is no possibility Garza will testify against him. Even assuming that the prosecution was ongoing and that the issue had been properly raised below, because Garza's testimony is only a hypothetical possibility, the trial court could have reasonably concluded that this was a matter that could be addressed at the trial of the case ⁽⁴⁴⁾ and, if necessary, on appeal. ⁽⁴⁵⁾ Accordingly, I would deny relief.

E. Garza's "interest" in the prosecution.

The majority takes issue with Garza's alleged history with Guerra, manufacturing what they deem an intolerable conflict of interest and ultimately finding that this alleged conflict constitutes a due process violation. The majority cites three reasons for Garza's lack of independence: (1) Garza is Guerra's long-time political opponent and was a candidate in the 2004 election, (2) Garza harbors animosity against Guerra that resulted in a physical altercation, (3) Garza has a personal and financial interest in the outcome of the proceeding. Although the majority recognizes that "Texas case law clearly shows that a mere potential or perceived conflict of interest is not sufficient to warrant disqualification," ⁽⁴⁶⁾ they determine that relief should be granted because "there is a potential conflict between Garza's direct personal interest in the results of the criminal investigation of these charges and Garza's duty to see that justice is done." ⁽⁴⁷⁾ In finding this alleged "conflict," the majority strains to the point of absurdity, in the absence of any law or an evidentiary record to support its holding.   

First, as stated earlier, the majority completely ignores the fact that the grand jury did not indict Guerra for election fraud. Thus, I fail to grasp how Garza's alleged "interest" can affect the underlying proceedings. I have already addressed this issue in depth and will not repeat it here.

Second, the "conflicts" on which the majority relies are not supported by the record. Although the majority points out the fact that Guerra and Garza were both candidates in the 2004 election, the majority is careful to note that mere political ambitions or a political axe to grind is not enough to warrant a disqualification. ⁽⁴⁸⁾ Although it is not entirely clear, I do not construe the majority's opinion as granting relief on this fact alone--which would certainly be an insufficient basis for relief in this case.

The "evidence" in the record of an altercation between Guerra and Garza is a complaint signed by Eutimio Gutierrez, acknowledged by Guerra himself, in support of an information that Guerra filed attempting to prosecute Garza. ⁽⁴⁹⁾ This is merely an accusation by Gutierrez and Guerra--it is not a finding or proof that the altercation actually occurred. ⁽⁵⁰⁾ The fact that a person has been accused of a crime does not give rise to an inference that the person is guilty. ⁽⁵¹⁾ Yet that is what the majority apparently infers from Guerra's accusation against Garza.

In fact, the accusation by Gutierrez is not even in a form that this Court can recognize as competent evidence. "In mandamus actions greater certainty of the pleadings and the facts to be established by modes appropriate in appellate courts are required." ⁽⁵²⁾ The reason for this requirement, as this Court has stated, is that courts of appeals are not equipped to find facts in the first instance--we must rely on the truth of the record as it is presented to the Court. ⁽⁵³⁾ Thus, our rules require that the facts in a mandamus petition be supported by an affidavit made on personal knowledge, a certified transcription of testimony in the underlying proceeding, or a certified or sworn copy of a document filed in the underlying proceeding. ⁽⁵⁴⁾ Gutierrez's statement meets none of these basic requirements. It is not based on Gutierrez's personal knowledge--the statement says that Gutierrez "has good reason to believe and does believe and charge" that Garza assaulted Guerra, which is insufficient. ⁽⁵⁵⁾ Moreover, the document is not a certified copy and is not even sworn as a true and correct copy by Guerra. ⁽⁵⁶⁾ At most, the majority can only speculate as to whether an altercation ever occurred, and this speculation is certainly insufficient to support a finding of a due process violation. ⁽⁵⁷⁾

Additionally, on this record, I fail to see what personal or financial interest Garza has in the outcome of the proceeding. Assuming that Guerra was convicted and removed from office, Garza would not necessarily become the sitting district attorney. The Texas Constitution provides that "[a]ll vacancies in State or district offices, except members of the Legislature, shall be filled unless otherwise provided by law by the appointment of the Governor." ⁽⁵⁸⁾ Garza would have to apply, just as any other citizen interested in higher public office, to receive the appointment from the Governor. As the majority recognized, "a prosecutor's political ambitions alone are not enough to support a finding that a prosecutor is not sufficiently disinterested." ⁽⁵⁹⁾

Moreover, at the show cause hearing, Garza testified that he currently lives in Cameron County and that he does not own property in Willacy County. Therefore, the evidence before this Court indicates that it is impossible for Garza to even be considered as a nominee to replace Guerra in the event of his removal; this is because the law precludes Garza from assuming the office of Willacy County District Attorney when he does not live in that county. ⁽⁶⁰⁾

Finally, the majority makes reference to a possible "financial stake" in the outcome of the proceedings, without explicitly holding that Garza has such a financial interest. The majority cites two cases in which a political candidate recovered damages for campaign finance disclosure law violations. ⁽⁶¹⁾ These cases rely on Texas Election Code section 253.131, which provides a civil action for damages against a campaign contributor or candidate who makes an expenditure of money in violation of the Election Code. ⁽⁶²⁾ But the Election Code provides for criminal sanctions for all sorts of conduct unrelated to financial expenditures, and these criminal violations do not give rise to civil liability to an opposing candidate. ⁽⁶³⁾ The truth of the matter is that this Court has no idea what allegations of voter or election fraud were brought before the grand jury. In short, the majority stretches to create an "interest" in the outcome of the prosecution that is not supported by the record and uses this purported interest as support for its determination to afford Guerra relief.

III. Conclusion

For all the foregoing reasons, I respectfully dissent. I would deny all requested relief and assess all costs of this proceeding against Guerra.

__________________________

GINA M. BENAVIDES

Justice

Dissenting Opinion delivered and filed

this the 21st day of September, 2007.

1. See Davis v. State, 463 S.W.2d 434, 436 (Tex. Crim. App. 1971) (rejecting as moot challenge to second paragraph of indictment where State did not present that paragraph to the jury); Rojas v. State, 662 S.W.2d 466, 467 (Tex. App.-Corpus Christi 1983, pet. ref'd) (holding defendant's challenge to State's indictment as alleging multiple felonies was moot, given that only one count was presented to jury).

2. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998) ("The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine.").

3. See majority opinion note 198 (citing Tex. Dep't of Public Safety v. LaFleur, 32 S.W.3d 911, 913-14 (Tex. App.-Texarkana 2000, no pet.)).

4. See Dean v. State, 749 S.W.2d 80, 82 (Tex. Crim. App. 1998); DeBlanc v. State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990); Mattney v. State, 99 S.W.3d 626, 629 (Tex. App.-Houston [1st Dist.] 2002, no pet.); McCoy v. State, 773 S.W.2d 777, 779 (Tex. App.-Corpus Christi 1989, pet. ref'd). It has long been the law that an indictment may not be quashed or set aside because the "person who acted as district attorney was not empowered by law to do so. The indictment was the act of the grand jury." State v. Gonzalez, 26 Tex. 197, 198, 1862 Tex. LEXIS 6, at *3-4 (Tex. 1862). Furthermore, the January 17 order directed Garza to investigate several concerns that were unrelated to allegations of voter fraud, and the appointment as to these matters is not rendered invalid by a determination that Garza may be disqualified from acting as attorney pro tem for the purpose of investigating possible voter fraud. See Kubena v. Hatch, 193 S.W.2d 175, 177 (Tex. 1946) ("Contrary to the common law rule that a judgment is considered as an entirety and must be vacated as a whole, it is well settled in this state that a judgment may be void in part and valid in part provided the valid portion is not so dependent on the invalid as to fall with it."). The majority concedes as much by refusing to invalidate the entire January 17 order, even though it finds that the order included civil matters that the grand jury could not properly investigate. See majority opinion, Part VI subpart 8.

5. See majority opinion note 198.

6. See id.

7. Id.

8. See FDIC v. Nueces County, 886 S.W.2d 776, 767 (Tex. 1994).

9. Houston Chronicle Publ'g Co. v. Thomas, 196 S.W.3d 396, 400 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("The Texas Supreme Court has not yet recognized the public interest exception to the mootness doctrine and judicial restraint compels us to wait until that court decides to resolve the split in authority in the intermediate appellate courts.").

10. See Ngo v. Ngo, 133 S.W.3d 688, 692 (Tex. App.-Corpus Christi 2003, no pet.); Nueces County v. Whitley Trucks, Inc., 865 S.W.2d 124, 126 (Tex. App.-Corpus Christi 1993), writ dism'd w.o.j., F.D.I.C. v. Nueces County, 886 S.W.2d 766 (Tex. 1994) (refusing to recognize public interest exception, determining that exception as recognized by court of appeals did not apply, and dismissing case as moot).

11. State v. Morales, 869 S.W.2d 941, 944 (Tex. 1994) (refusing to expand equity jurisdiction) (quoting Henry Home, Principles of Equity 46 (2d ed. 1767)).

12. Minton v. Perez, 841 S.W.2d 854, 855 (Tex. 1992) (dismissing mandamus petition, holding that relator's challenge to order removing him from office after criminal conviction was moot because relator obtained reversal of conviction on appeal); Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1990) ("Avoiding interlocutory appellate review of errors that, in the final analysis, will prove to be harmless, is one of the principal reasons that mandamus should be restricted."); In re State ex rel. Rodriguez, 196 S.W.3d 454, 459-60 (Tex. App.-El Paso 2006, orig. proceeding) (dismissing as moot mandamus petition seeking relief from denial of motion to strike intervention, where intervening party was severed into separate suit); Cappadonna Elec. Mgm't v. Cameron County, 180 S.W.3d 364, 375 (Tex. App.-Corpus Christi 2005, orig. proceeding) ("When there has ceased to be an active controversy, 'the decision of an appellate court would be a mere academic exercise.'") (quoting Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex. App.-El Paso 1994, no writ)).

13. See majority opinion Part IV.

14. Ngo, 133 S.W.3d at 693.

15. Id.

16. See Nueces County, 886 S.W.2d at 767.

17. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 943 (Tex. Crim. App. 1994) (Baird, J., dissenting) (noting that a defendant's conviction could be reversed on appeal if prosecutor's conduct rose to a due process violation); State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex. Crim. App. 1990) ("Perhaps even more importantly, as mentioned above, [a prosecutor's] violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to the defendant."). Many courts have reviewed on appeal a defendant's claim that the prosecutor had an impermissible conflict of interest. See Munguia v. State, 603 S.W.2d 876, 878-79 (Tex. Crim. App. 1980) (reviewing on appeal defendant's complaint that county attorney had impermissible conflict of interest); Reed v. State, 503 S.W.2d 775, 776 (Tex. Crim. App. 1974) (reviewing on appeal defendant's complaint that special prosecutor had impermissible conflict of interest); Donald v. State, 453 S.W.2d 825, 827 (Tex. Crim. App. 1969) (reviewing on appeal claim that prosecutor had improper financial interest in prosecution); Canady v. State, 100 S.W.3d 28, 31-32 (Tex. App.-Waco 2002, no pet.) (reviewing alleged conflict of interest on appeal); Hanley v. State, 921 S.W.2d 904, 909-10 (Tex. App.-Waco 1996, pet. ref'd) (reviewing on appeal allegation of prosecutor's bias and prejudice as a due process violation); Offerman v. State, 742 S.W.2d 875, 876 (Tex. App.-San Antonio 1987, no writ) (reviewing on appeal defendant's claim that prosecutor was disqualified because he harbored a personal grudge). Furthermore, courts have reviewed on appeal a defendant's complaint that the prosecutor improperly testified at the defendant's trial. See Ramon v. State, 159 S.W.3d 927, 930-32 (Tex. Crim. App. 2004) (reviewing on appeal trial court's refusal to grant mistrial after allowing prosecutor to testify, and affirming conviction because testimony was not on a central issue in the case, trial court instructed jury to disregard testimony, and other evidence of guilt was strong); House v. State, 947 S.W.2d 251, 252-53 (Tex. Crim. App. 1997) (reviewing on appeal defendant's claim that trial court impermissibly allowed two prosecutors to testify); Brown v. State, 921 S.W.2d 227, 229-30 (Tex. Crim. App. 1996) (same).

18. See Reed, 503 S.W.2d at 776 (reviewing on appeal defendant's complaint that special prosecutor had impermissible conflict of interest); Delapaz v. State, 228 S.W.3d 183, 195-97 & n.20 (Tex. App.-Dallas 2007, no pet. h.); Mai v. State, 189 S.W.3d 316, 318-20 (Tex. App.-Fort Worth 2006, pet. ref'd); Coleman v. State, No. 07-05-0042-CR, 2006 Tex. App. LEXIS 10155, at *2-4 (Tex. App.-Amarillo Nov. 27, 2006, pet. granted); Shea v. State, 167 S.W.3d 98, 101-02 (Tex. App.-Waco 2005, pet. ref'd); Modica v. State, 151 S.W.3d 716, 720-21 (Tex. App.-Beaumont 2004, pet. ref'd); Marbut v. State, 76 S.W.2d 742, 748-50 (Tex. App.-Waco 2002, pet. ref'd); Scarborough v. State, 54 S.W.2d 419, 420-25 (Tex. App.-Waco 2001, pet. ref'd) (reviewing on appeal whether attorney pro tem had impermissible conflict of interest); Stephens v. State, 978 S.W.2d 728, 730-31(Tex. App.-Austin 1998, pet. ref'd); Rogers v. State, 956 S.W.2d 624, 625-27 (Tex. App.-Texarkana 1997, pet. ref'd); Gaitan v. State, 905 S.W.2d 703, 707-08 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd); Mejia v. State, 807 S.W.2d 354, 355 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd); Evans v. State, 769 S.W.2d 319, 322-23 (Tex. App.-Dallas 1989, no pet.).

19. Shumake v. State, 502 S.W.2d 758, 760 (Tex. Crim. App. 1973) (holding that former grand jury proceeding resulting in a no-bill does not implicate double jeopardy or collateral estoppel).

20. In fact, Garza stated that there was "no way" he would accept another appointment to prosecute Guerra.

21. See majority opinion Part IV (stressing that Guerra has an adequate remedy by appeal when he wears the hat of a criminal defendant by turning to the remedies available through the criminal justice system).

22. See majority opinion Part VI.4.

23. See id. & note 72 (citing Eidson, 793 S.W.2d at 6).

24. See id. Part VI.4 and notes 75-78 (citing Pirtle, 887 S.W.2d at 927 and Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005)).

25. Eidson, 793 S.W.2d at 12 (Teague, J., dissenting).

26. See majority opinion Part VI.5.

27. Brown, 921 S.W.2d at 231 (Keller, J., concurring).

28. Justice Rose Vela recently issued an opinion placing the burden squarely on a defendant to prove that a district attorney is disqualified in a case where a conflict of interest was alleged. See Cavazos v. State, No. 13-05-00482-CR, 2007 Tex. App. LEXIS 2049, at *12 (Tex. App.-Corpus Christi Mar. 15, 2007, no pet.) (mem. op.) (not designated for publication). I would do the same here and hold that Guerra failed to meet his burden.

29. Gonzalez v. State, 117 S.W.3d 831, 838 (Tex. Crim. App. 2003).

30. See id. at 842; see also Ramon, 159 S.W.3d at 931-32. In fact, rule 3.08 of the Texas Disciplinary Rules of Professional Conduct contemplates that a lawyer should terminate representation if he may be a witness to an "essential fact," but the rule's exceptions provide that an attorney is not required to discontinue representation if "(1) the testimony relates to an uncontested issue;" or "(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony." Tex. Disciplinary R. Prof'l Conduct 3.08(a) (1989), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1988) (Tex. State Bar R. art. X, § 9).

31. Specifically, it is hard to imagine that Garza would have stood by idly, with knowledge of election fraud, and allowed Guerra to win the election without a contest. Garza testified before this Court during the contempt hearing that he did not challenge the election for precisely this reason--he had no grounds to suspect election fraud. Obviously, the grand jury agreed that there was no evidence, which most would find telling. Compare United State v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir. 2005) (discussing public perception that grand jury is a rubber stamp for prosecutors and noting sarcasm by prominent judge that a grand jury would "indict a ham sandwich"), with United State v. Williams, 504 U.S. 6, 47 (1995) (defending grand jury's position as a buffer between the government and the people).

32. Gonzalez, 117 S.W.3d at 843.

33. Id. at 844.

34. Brown, 921 S.W.2d at 230.

35. Id. at 229.

36. Id. at 229 n.2.

37. Id. at 229-30.

38. Id. at 230 (citations omitted).

39. House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997).

40. Id. at 252.

41. Id. at 253.

42. Walker, 827 S.W.2d at 839.

43. Id.

44. The principal concern with a prosecutor testifying as a witness is that the trier of fact may be confused by the prosecutor's dual roles. Tex. Disciplinary R. Prof'l Conduct 3.08(a). The problem may be cured at trial by having another prosecutor actually try the case, if the need for the prosecutor's testimony cannot be avoided. See In re Bahn, 13 S.W.3d 865, 873 (Tex. App.-Fort Worth 2000, orig. proceeding) (holding that trial court abused its discretion in disqualifying attorney from assisting in pretrial matters because the rationale of Rule 3.08 does not apply when the lawyer is merely performing out-of-court functions).

45. See Eidson, 793 S.W.2d at 7 (stating that violation of due process caused by prosecutor's failure to recuse requires reversal on appeal).

46. See Hanley, 921 S.W.2d at 909-10 (holding that the defendant could not disqualify the district attorney on the grounds that the prosecutor had a "prejudice" and "predisposition" against him without proving that his allegations rose to the level of a due process violation); Offermann, 742 S.W.2d at 876 (holding that defendant could not disqualify the district attorney on the grounds that the prosecutor harbored a "personal grudge" against him because defendant failed to establish any harm as a result of the alleged "grudge").

47. See majority opinion Part IX.2.c.

48. See majority opinion notes 181-82 and accompanying text.

49. It is almost comical that Guerra attempted to prosecute Garza for an act with respect to which Guerra was the alleged victim and complainant, and yet now, Guerra is attempting to disqualify Garza because he is a potential witness.

50. Tex. Const. art. V, § 12 ("An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense."); Tex. Code Crim. Proc. Ann. art. 21.20 (Vernon 1989); id. art. 38.03 ("The fact that [an accused] has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial."); Ex Parte Garcia, 547 S.W.2d 271, 271-75 (Tex. Crim. App. 1977) (holding that complaint and information were insufficient to justify continued detention of accused, as the complaint and information did not constitute evidence of guilt).

51. Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon 2006).

52. Wright v. Valderas, 575 S.W.2d 405, 406 (Tex. Civ. App.-Dallas 1978, orig. proceeding).

53. Chapa v. Whittle, 536 S.W.2d 681, 683 (Tex. App.-Corpus Christi 1976, orig. proceeding); Elliott v. Hamilton, 512 S.W.2d 824, 825 (Tex. Civ. App.-Corpus Christi 1974, orig. proceeding).

54. Tex. R. App. P. 52.3, 52.7(a); see Johnson v. Huges, 663 S.W.2d 11, 12 (Tex. App.-Houston [1st Dist.] 1983, orig. proceeding); Wright, 575 S.W.2d at 406.

55. Cantrell v. Carlson, 313 S.W.2d 624, 626 (Tex. Civ. App.-Dallas 1958, orig. proceeding) (verification of mandamus petition based on belief is insufficient).

56. Tex. R. App. P. 52.6.

57. Hanley, 921 S.W.2d at 909-10.

58. Tex. Const. art. IV, § 12.

59. See majority opinion Part IX.2.c and note 182.

60. Tex. Const. art. XVI, § 14; Tex. Elec. Code Ann. § 141.001(a)(5)(A) (Vernon 2003); see State v. Fischer, 769 S.W.2d 619, 624 (Tex. App.-Corpus Christi 1989, no writ) (holding that appellee was ineligible to serve as Willacy County Attorney because he failed to continuously reside in Willacy County for six months immediately preceding the filing deadline for a place on the primary election ballot).

61. See majority opinion note 188 and accompanying text (citing Osterberg v. Peca, 12 S.W.3d 31, 36 (Tex. 2000) and Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 84 (Tex. App.-Dallas), aff'd in part & rev'd in part on other grounds, 801 S.W.2d 880 (Tex. 1990)).

62. Tex. Elec. Code Ann. § 253.131 (Vernon 2003). Section 254.231 also provides for civil damages when a candidate or campaign treasurer fails to report a campaign contribution or campaign expenditure. Id. § 254.231 (Vernon 2003).

63. See, e.g., Tex. Elec. Code Ann. §§ 2.054 (coercion against candidacy), 13.007 (false statement on application), 15.085 (unlawful use of information on suspense lists), 18.009 (unlawful use of information on registration list), 18.012 (unlawful computer service contracts), 18.067 (unlawful use of master file information), 33.061 (unlawful obstruction of watchers), 44.033 (unlawful consideration for use of public building), 51.010 (failure to deliver or distribute supplies), 51.011 (obstructing delivery of supplies), 52.004 (failure to place candidate's name on ballot), 52.063 (unlawful preparation of ballots), 61.001 (unlawful presence of candidate at polling place), 61.003 (unlawful electioneering and loitering near polling place), 61.004 (unlawful operation of sound amplification device or sound truck), 61.006 (unlawfully divulging vote), 61.008 (unlawfully influencing voter), 61.010 (unlawfully wearing name tag or badge in polling place), 62.013 (unlawful posting of signs), 62.012 (unlawfully accepting or refusing to accept voter), 64.010 (unlawfully permitting or preventing deposit of ballot), 64.011 (unlawfully depositing ballot), 64.012 (illegal voting), 64.036 (unlawful assistance), 84.003 (early voting violations), 84.004 (same), 84.041 (false information on early voting application), 85.036 (electioneering), 86.051 (carrier envelope action by person other than voter), 86.006 (unlawful method of returning marked ballot), 86.010 (assisting voter), 276.001 (retaliation against voter), 276.003 (unlawful removal from ballot box), 276.004 (unlawfully prohibiting employee from voting), 276.010 (unlawful buying or selling of balloting materials), 501.029 (misrepresentation of petition) (Vernon 2003 & Supp. 2006).