holding the trial court erred in entering an order disqualifying the Taylor County Criminal District Attorney (and his entire staff) when it disqualified one prosecutor who had previously represented a defendant in the same criminal matter
How later courts described this case
- holding the trial court erred in entering an order disqualifying the Taylor County Criminal District Attorney (and his entire staff) when it disqualified one prosecutor who had previously represented a defendant in the same criminal matter
- concluding error occurred where the trial judge’s order disqualified the district attorney because prior defense counsel became an assistant prosecutor and the trial court sought to avoid the appearance of impropriety
- stating that "[a] trial court judge is without legal authority to remove a District Attorney from a case and, as such, any order attempting to do so is void."
- discussing the distinction between legal disqualification and voluntary recusal for a possible conflict of interest to avoid the appearance of impropriety
Written by the judges who cited it.
The opinion
BERCHELMANN, Judge,
concurring.
Although I agree with the ultimate conclusion reached by the majority’s opinion, I write this brief concurring opinion to express my concerns with the unnecessarily broad language employed therein. I do not agree that a trial court’s removal of a District Attorney’s Office on a particular case is tantamount to removing the District Attorney from his elected office. “Removing” a county official from office is a term of art, and this drastic action is limited to the three narrow situations involving a county official’s incompetence, official misconduct or intoxication. V.T.C.A., Local Gov’t.Code Sec. 87.018(a).
Removing a District Attorney’s Office from a particular case, however, is clearly distinct from an attempt to remove an official from his or her elected office. Because the majority’s opinion on motion for rehearing is premised on that fundamental misconception, I concur only in the result reached.
CLINTON, MILLER and STURNS, JJ., join this opinion.