in Re Thomas Allen Simon ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00090-CV
In re Thomas Allen Simon
ORIGINAL PROCEEDING FROM BURNET COUNTY
MEMORANDUM OPINION
Relator Thomas Allen Simon, who faces pending criminal charges, seeks mandamus
relief to compel disqualification of the entire office of the district attorney who represents the State.
We will deny the petition.
BACKGROUND
Simon has been charged by indictment in Burnet County with the offenses
of sexual assault and aggravated assault. This mandamus proceeding, however, centers instead on
a somewhat unusual series of preliminary procedural events—including an earlier mandamus
proceeding—involving Simon’s appointed trial counsel, Tracy Cluck, and the office of the local
district attorney, Hon. Wiley E. (Sonny) McAfee, District Attorney for the 33rd and 424th Judicial
Districts. This saga began in August 2015, when Mr. Cluck filed a motion seeking the appointment
of a medical expert and additional funds for investigative services.1 An ex parte hearing2 was held
before the regular presiding judge of the 424th District Court, Hon. Evan Stubbs, who for
1
See Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985).
2
See id.; Williams v. State, 958 S.W.2d 186, 193-94 (Tex. Crim. App. 1997).
reasons unclear from the record directed that a court reporter transcribe that proceeding. The hearing
concluded with the district’s court’s removal of Cluck as counsel.3 Simon, acting through Cluck and
additional counsel L.T. “Butch” Bradt, then sought mandamus relief in this Court seeking to compel
Cluck’s reinstatement as counsel.
In support of this earlier mandamus petition, Simon filed the reporter’s
record from the hearing under seal. Simon named the State of Texas—specifically, McAfee,
as District Attorney—as a real party in interest.4 This Court requested responses to the petition,
prompting the State to prepare a response. In the course of preparing a response, the State, through
Assistant District Attorney Gary Bunyard, requested a copy of the record from our Clerk’s office.
After obtaining Bunyard’s signature on a form confidentiality and nondisclosure agreement,
the Clerk’s office complied.5 After the State filed its response, this Court denied relief.6 Simon
3
The court also denied the motion for additional funds but left pending the motion seeking
appointment of a medical expert.
4
See Tex. R. App. P. 52.2. Also named as a real party in interest was an attorney whom the
district court had appointed in Cluck’s stead.
5
Upon learning of this request, Cluck sent an email to Bunyard, copied to the “Records
Request” email address of the Clerk, stating: “Please note that this is a confidential ex parte record
and should not be disclosed to the State without an order from the court of appeals.” This email,
however, was not brought to the Court’s attention because it was not filed in accordance with the
governing rules. See Tex. R. App. P. 9.2(a), (c). The Clerk’s office called Cluck and left a message
informing him that the email was not a proper filing. There was no further communication from
Cluck regarding Bunyard’s request.
6
See In re Simon, No. 03-15-00500-CR, 2015 Tex. App. LEXIS 8845 (Tex. App.—Austin,
Aug. 25, 2015, orig. proceeding) (mem. op., not designated for publication).
2
then filed a similar petition for writ of mandamus with the Court of Criminal Appeals, which
granted relief.7
Following the Court of Criminal Appeals’s ruling, Judge Stubbs recused himself
and the case was reassigned to a visiting judge, Hon. Burt Carnes. Subsequently, Simon moved
to disqualify the entire office of the District Attorney. As relevant here, Simon argued that his due-
process rights had been violated through the access the District Attorney’s office had gained to the
hearing record, which Simon characterized as containing core attorney work product.8 In response,
the State disputed Simon’s characterization of the record and the existence of any grounds for
disqualification.
A hearing was held at which neither side presented evidence, although it appears that
the district court examined the hearing record in camera. Of note, Bunyard acknowledged that both
he and McAfee had personally reviewed the hearing record in connection with the earlier mandamus
proceeding. However, Bunyard added that the office had erected a “Chinese Wall,” keeping the
record confidential as to all other personnel, including the attorney who would be handling the trial,
and excluding Bunyard and McAfee from any further involvement in Simon’s case beyond the
disqualification issue.9
7
See In re Simon, No. WR-83,783-01, 2015 Tex. Crim. App. Unpub. LEXIS 805
(Tex. Crim. App. Nov. 4, 2015) (per curiam) (not designated for publication).
8
Simon also complained that the State’s filings in the earlier proceeding “created a public
perception of unfairness and bias against Mr. Simon.” We do not understand him to be urging that
argument here.
9
A “Chinese wall” refers to “a system of screening procedures that prevents any flow of
confidential information from a disqualified attorney to any other member of his present firm
who arguably may be an adversary of the disqualified attorney’s former client.” David J. Beck,
Legal Malpractice in Texas: Second Edition, 50 Baylor L. Rev. 697, 729 (1998).
3
Following the hearing, the district court took the matter under advisement and
ultimately granted the motion to disqualify. However, no further action was taken at that time,
such as the appointment of an attorney pro tem to prosecute the case.10 Instead, Judge Carnes, citing
health concerns, withdrew from the case. The case was then reassigned to another visiting judge,
Hon. Don Leonard. Following his assignment, Judge Leonard set a hearing to discuss the status of
the case.11 The State, through McAfee and Bunyard, subsequently filed a motion for reconsideration
of the disqualification order, urging that the ruling had been in error. Simon’s defense team did not
file a written response to the motion, but objected at the scheduled hearing to the prosecutors’
“standing” to seek reconsideration, urging that their sole remedy was to seek mandamus relief. The
district court overruled that objection, and proceeded to hear argument on the merits of the motion.
Following argument, which was substantively similar to that from the prior hearing, the district court
set aside the disqualification order.
Simon seeks to challenge this order through the present mandamus petition.
10
See Tex. Code Crim. Proc. art. 2.07(a) (“Whenever an attorney for the state is disqualified
to act in any case or proceeding, is absent from the county or district, or is otherwise unable to
perform the duties of his office, or in any instance where there is no attorney for the state, 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 absence or disqualification of the attorney for the state.”).
11
The hearing notice, transmitted via email from the court coordinator, advised that:
This is a hearing that Judge Leonard indicated he wanted set to discuss discovery
status and any pending motions. He understands that Judge Carnes disqualified the
District Attorney, that no prosecuting attorney has been appointed at this time,
but indicated that he wanted them at the hearing on this date. I am noticing them and
Mr. Cluck as directed by Judge Leonard.
4
ANALYSIS
Simon contends that the district court reversibly erred in two respects: (1) the
district court lacked power to reconsider and vacate the prior order disqualifying the
District Attorney’s office; and (2) even if the district court had power to reconsider the prior order,
disqualification was compelled on the merits.
Standard of review
In criminal cases, “mandamus relief is appropriate only when a relator establishes
(1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks
to compel is a ministerial act, not a discretionary or judicial decision.”12 With respect to the “no
adequate remedy at law” requirement, the Court of Criminal Appeals has explained “that a remedy
at law, though it technically exists, ‘may nevertheless be so uncertain, tedious, burdensome, slow,
inconvenient, inappropriate, or ineffective as to be deemed inadequate.’”13 Under the circumstances
here, we will assume without deciding that Simon would lack an “adequate” remedy at law to redress
any harm from the district court’s order14 and focus instead on the second element, whether he has
12
In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App. 2015) (citing Bowen v. Carnes,
343 S.W.3d 805, 810 (Tex. Crim. App. 2011)).
13
In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (quoting
Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648-49 (Tex. Crim.
App. 2005)).
14
As the State emphasizes, denials of motions to disqualify prosecutors have been addressed
on direct appeal. See, e.g., Landers v. State, 256 S.W.3d 295, 308-10 (Tex. Crim. App. 2008);
Goodman v. State, 302 S.W.3d 462, 466 (Tex. App.—Texarkana 2009, pet. ref’d); Scarborough
v. State, 54 S.W.3d 419, 424-25 (Tex. App.—Waco 2001, pet. ref’d); Zarychta v. State, 44 S.W.3d
155, 160-62 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also State ex rel. Eidson
v. Edwards, 793 S.W.2d 1, 7 (Tex. Crim. App. 1990) (plurality op.) (concluding that remedy for
defendant whose due-process rights are violated as a result of being prosecuted by district attorney
5
demonstrated any failure by the district court to perform a “ministerial” duty. “A relator satisfies the
ministerial-act component when he can show that he has a clear right to the relief sought.”15 “A clear
right to relief is shown when the facts and circumstances dictate but one rational decision ‘under
unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly
controlling legal principles.’”16 “A ministerial act, by its nature, does not involve the use of judicial
discretion; it must be positively commanded and so plainly prescribed under the law as to be
free from doubt.”17 “Stated another way, an act may be regarded as ‘ministerial’ when the facts are
undisputed and, given those undisputed facts, ‘the law clearly spells out the duty to be performed . . .
with such certainty that nothing is left to the exercise of discretion or judgment.’”18
who should have been disqualified is “reversal on appeal”). Disqualification issues have also been
addressed through post-conviction applications for writs of habeas corpus. See, e.g., Ex parte
Morgan, 616 S.W.2d 625, 626 (Tex. Crim. App. 1981); Ex parte Spain, 589 S.W.2d 132, 133-34
(Tex. Crim. App. 1979). And, in some cases, they have been addressed via mandamus, as here. See,
e.g., In re Cox, 481 S.W.3d 289, 295-96 (Tex. App.—Fort Worth 2015, orig. proceeding) (op. on
reh’g); In re Goodman, 210 S.W.3d 805, 813-14 (Tex. App.—Texarkana 2006, orig. proceeding).
Because we ultimately conclude that Simon does not seek to compel a ministerial act, we need not
decide whether Simon has an “adequate” remedy at law here.
15
Allen, 462 S.W.3d at 49 (citing In re Weeks, 391 S.W.3d at 122).
16
Weeks, 391 S.W.3d at 122 (quoting Bowen, 343 S.W.3d at 810).
17
Allen, 462 S.W.3d at 49-50 (citing Banales v. Court of Appeals for the Thirteenth Judicial
Dist., 93 S.W.3d 33, 35 (Tex. Crim. App. 2002); State ex rel. Hill v. Court of Appeals for the Fifth
Dist., 34 S.W.3d 924, 927-28 (Tex. Crim. App. 2001)).
18
State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 n.8
(Tex. Crim. App. 2007) (quoting State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim.
App. 1994)).
6
Reconsideration
We first consider Simon’s assertion that the district court lacked power to revisit
the earlier disqualification order. If valid, a complaint that a trial court lacked authority to act
may demonstrate the requisite “clear right to relief” necessary for mandamus to issue.19 But this is
ultimately not the complaint that Simon makes. Instead, Simon focuses on attacking whether the
District Attorney’s office had “standing” to seek reconsideration of the disqualification order on
behalf of the State. Once the District Attorney’s office was disqualified, in Simon’s view, the office
was relegated to seeking relief solely from this Court, through mandamus, and could not request the
district court to change its mind. Instead, Simon reasons, the office was required to comply with the
disqualification order with respect to all proceedings at the trial level, including even those relating
to the disqualification itself.
As support for this contention, Simon points to language in Maness v. Meyers, a case
in which the United States Supreme Court addressed “[t]he narrow issue . . . [of] whether a lawyer
may be held in contempt for advising his client, during the trial of a civil case, to refuse to produce
material demanded by a subpoena duces tecum when the lawyer believes in good faith the material
may tend to incriminate his client.”20 The Supreme Court held that the lawyer could not be held in
contempt under those circumstances.21 The court’s holdings were preceded by its acknowledgment
19
See, e.g., State v. Patrick, 86 S.W.3d 592, 594-95, 597 (Tex. Crim. App. 2002) (granting
mandamus relief in case where trial court ordered DNA testing after its plenary power had expired);
Stearnes v. Clinton, 780 S.W.2d 216, 225-26 (Tex. Crim. App. 1989) (granting mandamus relief in
case where trial court removed defendant’s appointed counsel without authority to do so).
20
419 U.S. 449, 458 (1975).
21
Id. at 469-70.
7
of “the basic proposition that all orders and judgments of courts must be complied with promptly”
and that “[i]f a person to whom a court directs an order believes that order is incorrect the remedy
is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.”22 “This
does not mean, of course, that every ruling by a presiding judge must be accepted in silence,” the
court emphasized, because “[c]ounsel may object to a ruling . . . [which] alerts opposing counsel
and the court to an issue so that the former may respond and the latter may be fully advised
before ruling.”23 “But,” the Court continued, “once the court has ruled, counsel and others involved
in the action must abide by the ruling and comply with the court’s orders,” and it further cautioned
that “[w]hile claims of error may be preserved in whatever way the applicable rules provide, counsel
should neither engage the court in extended discussion once a ruling is made, nor advise a client
not to comply.”24
It is from this cautionary language that Simon extracts his proposition that the
District Attorney’s office lacked “standing” to request reconsideration of the disqualification order.
To the contrary, nothing in Maness (if even relevant) purports to prohibit a party from requesting
a trial court to reconsider a prior order, let alone one involving the unique context of attorney
disqualification. The Supreme Court’s focus was merely to emphasize the “basic proposition” that
parties should comply with court orders while they remain in effect. To the extent Simon is accusing
the District Attorney’s office of having violated the disqualification order merely by seeking
reconsideration of it, we note that his disqualification motion (and, in turn, the prior order granting
22
Id.
23
Id. at 459.
24
Id.
8
it) was addressed to the office’s “prosecuting [of] the case,” not the district attorney’s efforts to
challenge the order itself.25
But Simon’s argument also fails for a more fundamental reason—even if the
District Attorney’s office lacked “standing” or proper authority to file its motion requesting
reconsideration of the disqualification order, it would remain that the district court possessed plenary
power and discretion to reconsider the order, just as with any interlocutory order, and that authority
does not hinge on the issue being raised through proper motion.26 Consequently, any question
regarding the District Attorney’s authority to request reconsideration is ultimately inapposite.
That different presiding judges issued the district court’s two orders relating to
disqualification does not change the analysis. Once a visiting judge has been assigned to a case, that
judge possesses “all the rights, duties, and powers of the presiding judge.”27 Moreover, to the extent
25
See Eidson, 793 S.W.2d at 3 n.2 (similarly rejecting assertion that disqualified district
attorney “participated in the prosecution” by helping State “prepare for the Motion to Disqualify”;
observing that motion involved “legal issues only” and that State’s response to motion “in no
way contributed to the prosecution of appellant, but only determined who might be prosecuting him
from then on”).
26
See Kirk v. State, 454 S.W.3d 511, 514-15 & n.20 (Tex. Crim. App. 2015); Black v. State,
362 S.W.3d 626, 634-36 & n.39 (Tex. Crim. App. 2012); Rodriguez v. State, 852 S.W.2d 516, 520
(Tex. Crim. App. 1993); State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991); see also
Martinez v. State, 336 S.W.3d 338, 342 (Tex. App.—San Antonio 2010, no pet.) (concluding that
trial court should not be “chained to erroneous rulings until a party urges reconsideration” and
holding that trial court has right to reconsider its rulings sua sponte); Hughen v. State, 265 S.W.3d
473, 479 (Tex. App.—Texarkana 2008), aff’d, 297 S.W.3d 330 (Tex. Crim. App. 2009) (“A
trial court has plenary jurisdiction to reconsider its interlocutory rulings, like that at bar, and retains
that ability until a final judgment or order is entered in the cause and the decree becomes final.”).
27
Tex. Gov’t Code § 74.056(c); see id. § 74.059(a) (“A judge assigned under the provisions
of this chapter has all the powers of the judge of the court to which he is assigned.”); Moore v. State,
999 S.W.2d 385, 400 (Tex. Crim. App. 1999) (holding that visiting judge assigned to case “was
legally entitled to conduct duties that otherwise would have been assigned to” presiding judge);
Alexander v. State, 903 S.W.2d 881, 883 (Tex. App.—Fort Worth 1995, no pet.) (“It is . . .
9
Simon’s complaint is with Judge Leonard’s participation in particular, he has failed to show
harm. When there has been an intervening change in the presiding judge of a court whose order
is challenged by mandamus, we abate the mandamus petition to give the successor judge an
opportunity to rule on the underlying issue.28 Accordingly, if as Simon urges, Judge Leonard had a
ministerial duty to refrain from reconsidering the prior disqualification order signed by Judge Carnes
and thereby relegate the District Attorney to seeking mandamus from the prior order, the issue would
have returned to Judge Leonard for reconsideration anyway.
In sum, Simon has failed to demonstrate that the district court lacked authority
to reconsider its disqualification of the District Attorney. Accordingly, Simon has no clear right to
relief on that basis.
Disqualification
We now consider whether the district court had a ministerial duty in regard to the
merits of the disqualification issue. For the district court to have such a duty here, disqualification
of the entire District Attorney’s office must have been the “one rational decision” that the
well-established that a retired judge sitting by administrative assignment possesses all the powers
of the court to which he is assigned.”); see also Creek v. State, No. 11-13-00009-CR, 2015 Tex. App.
LEXIS 552, at *11 (Tex. App.—Eastland Jan. 22, 2015, pet. ref’d) (mem. op., not designated for
publication) (“Qualified visiting judges possess the same powers as the judge of the court to which
the judge is assigned.”); Anuscewski v. State, No. 03-12-00655-CR, 2013 Tex. App. LEXIS 7621,
at *4 (Tex. App.—Austin June 25, 2013, no pet.) (mem. op., not designated for publication)
(explaining that retired judge who had been assigned to case following trial “had the same authority
to sign the written judgment as would the judge who presided over the trial”).
28
See Tex. R. App. P. 7.2(b).
10
district court could have made “under unequivocal, well-settled (i.e., from extant statutory,
constitutional, or case law sources), and clearly controlling legal principles.”29 For at least the
following reasons, we cannot conclude that disqualification of the entire office was that sort
of decision.
For one, it is not well-settled that the district court had the authority to disqualify
the District Attorney under these circumstances. “A trial court has limited authority to disqualify
an elected district attorney and [his] staff from the prosecution of a criminal case.”30 “The office of
a district attorney is constitutionally created and protected; thus, the district attorney’s authority
‘cannot be abridged or taken away.’”31 Moreover, the Code of Criminal Procedure provides that the
district attorney “shall represent the State in all criminal cases in the district courts of his district and
in appeals therefrom, except in cases where he has been, before his election, employed adversely.”32
Consequently, a trial court’s authority to disqualify a district attorney in a particular case has been
limited to situations in which the district attorney’s prosecution of the defendant would result in
a due-process violation.33 The Court of Criminal Appeals has identified two situations in which a
due-process violation would arise. First, “[i]f a prosecuting attorney has formerly represented the
defendant in the ‘same’ criminal matter as that currently being prosecuted,” he is “automatically
29
Weeks, 391 S.W.3d at 122.
30
Buntion v. State, 482 S.W.3d 58, 76 (Tex. Crim. App. 2016).
31
Id. (quoting Landers, 256 S.W.3d at 303-04).
32
Tex. Code Crim. Proc. art. 2.01.
33
See Landers, 256 S.W.3d at 304 (citing State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927
(Tex. Crim. App. 1994)).
11
disqualified” from prosecuting the defendant, “even without a specific showing of prejudice.”34
Second, if a prosecuting attorney has previously represented the defendant in a different matter,
he is disqualified from prosecuting the defendant “only when the defendant can establish ‘actual
prejudice’ not just the threat of possible prejudice to his rights by virtue of the district attorney’s
prior representation.”35 “Actual prejudice would occur, for example, if: (1) [t]he prosecuting
attorney has previously personally represented the defendant in ‘a substantially related matter’;
and (2) [t]he prosecuting attorney obtained ‘confidential’ information by virtue of that prior
representation which was used to the defendant’s disadvantage.”36 In this context, “confidential
information” refers to “both privileged and unprivileged client information which the prosecutor
learned by virtue of the former attorney-client relationship, but it excludes information that is
generally known.”37
As Simon has acknowledged both here and below, these holdings to date have
not been extended beyond the prior-representation scenario. Consequently, Simon admits, he must
“extrapolate” or analogize this line of cases to the present scenario, which involves prosecutors’
receipt of alleged defense work product from an independent source. Simon urges us to deem
that disclosure the legal equivalent of the District Attorney having formerly served on his defense
34
Id.
35
Id. at 304-05.
36
Id. at 305.
37
Id. at 307-08. As the Court of Criminal Appeals observed, the “exclusion of ‘generally
known’ information makes sense. If the client information is a matter of public record or is already
generally known to other people, then the expectation of harm resulting from the prosecutor’s
subsequent use of the information is small.” Id. at 308.
12
team in this case, a per se ground for disqualification. By definition, such extrapolation falls
short of demonstrating that disqualification of the District Attorney is the “one rational decision” that
the district court could have made “under unequivocal, well-settled (i.e., from extant statutory,
constitutional, or case law sources), and clearly controlling legal principles.”38 Nor has Simon
demonstrated the sort of actual prejudice that would constitute a due-process violation. The evidence
before the district court consisted solely of the reporter’s record from the ex parte hearing before
Judge Stubbs. Without divulging the contents of this record, it is very brief and considerably more
innocuous than Simon suggests. On this limited record, we cannot conclude that the district court
could only rationally have found a due-process violation at this juncture.
Moreover, even if the district court had the mandatory duty to disqualify the
District Attorney or Mr. Bunyard under these circumstances, it is not well-settled that the
district court would also be required to disqualify all other personnel in the office. In State ex rel.
Eidson v. Edwards, a plurality of the Court of Criminal Appeals concluded that trial courts had
“no authority” to enforce violations of disciplinary rules “by disqualifying an entire prosecutorial
office.”39 Although the Court of Criminal Appeals has since clarified that disqualification is required
when a defendant’s due-process rights have been violated,40 the Court of Criminal Appeals has
38
See Young, 236 S.W.3d at 211-13 (concluding that appellate court’s grant of mandamus
relief ordering disqualification of prosecutor was inappropriate in case where appellate court was
“unable to identify any definitive, well-settled, and unequivocal legal authority . . . that indisputably
governs the instant factual scenario”; observing that although appellate court’s analysis regarding
disqualification “may well ultimately prove the appropriate rule of law in criminal cases, it [was] not
the only rational alternative” that trial court could have chosen).
39
793 S.W.2d 1, 6-7 (Tex. Crim. App. 1990).
40
See Pirtle, 887 S.W.2d at 927 (“A trial court may not disqualify a district attorney or his
staff on the basis of a conflict of interest that does not rise to the level of a due process violation.”).
13
never held that an entire district attorney’s office must be disqualified under those circumstances.
Although some of our sister courts have held or presumed that a disqualification ground applicable
to a district attorney can or must be imputed to his or her office,41 this Court has never done so.
More important, “clear, binding precedent” from the Court of Criminal Appeals remains lacking.42
In the absence of such authority, Simon has not shown himself entitled to mandamus relief.
41
See, e.g., In re Ligon, 408 S.W.3d 888, 896 (Tex. App.—Beaumont 2013,
orig. proceeding); Marbut v. State, 76 S.W.3d 742, 748-49 (Tex. App.—Waco 2002, pet. ref’d);
State ex rel. Sherrod v. Carey, 790 S.W.2d 705, 708 (Tex. App.—Amarillo 1990, orig. proceeding).
These cases all rely on an older case, State v. May, 270 S.W.2d 682 (Tex. Civ. App.—San Antonio
1954, no writ) (per curiam), in which the San Antonio Court of Appeals held that the trial court
did not abuse its discretion in disqualifying an assistant district attorney when the District Attorney
had been disqualified. Id. at 684. The court reasoned that “it would seem that if the District
Attorney was disqualified, his assistant, who was appointed by him and who serves at his will
and pleasure, would also be disqualified.” Id. at 684. Accordingly, the court concluded that “the
District Judge in the exercise of his discretion could properly reject the services of an appointee of
the disqualified District Attorney.” Id. at 684 (emphasis added). Thus, May appears to stand for the
proposition that the district court has discretion to disqualify an assistant district attorney if the
District Attorney has been disqualified, but not that the district court must do so.
42
In Eidson, a plurality of the Court of Criminal Appeals noted that “when the individual
attorney is separated from any participation on matters affecting his former client, ‘vicarious
disqualification of a government department is not necessary or wise.’” 793 S.W.2d at 6 n.6 (quoting
The American Bar Association’s Committee of Professional Ethics, Formal Opinion No. 342,
62 A.B.A.J. 517 (1976)). However, the plurality appeared to be referring to a situation in which an
assistant district attorney, rather than the District Attorney himself, has been disqualified. The
dissenting opinion in Eidson expressed skepticism that a Chinese Wall could be successfully erected
in a District Attorney’s Office. See id. at 14 (Teague, J., dissenting). But the dissent decided to
“save writing on ‘The Chinese Wall Defense’ in a case until the defense was established on the
record and the record also showed that the defense had been fully complied with,” concluding
that “[w]e have neither in the record of this cause.” Id. In no case since Eidson has the Court of
Criminal Appeals addressed this issue.
14
CONCLUSION
Because Simon has failed to demonstrate a clear right to relief from the
district court’s order, we deny the petition for writ of mandamus.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Rose, Justices Pemberton and Bourland
Filed: June 22, 2016
15