# Powell v. State

> Court of Criminal Appeals of Texas · April 12, 1995 · 898 S.W.2d 821

URL: https://www.frixlaw.com/law-library/cases/9772047

## Case

- **Full name:** James Rexford POWELL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 12, 1995
- **Citations:** 898 S.W.2d 821; 1994 WL 665578
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Campbell, Clinton, Baird, Overstreet, Meyers, Miller, Maloney
- **Cited by:** 168 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772047

## How later opinions describe it (automated extraction)

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- holding complaint about testimony not preserved for appellate review because defendant failed to renew objection by moving to strike conditionally admitted evidence

## Opinion text

CLINTON, Judge,
concurring.
“... [Tjhere is no way in which [a district or county attorney] can, under our Constitution, hold two offices of profit at one and the same time.”
Eastland County v. Hazel, 288 S.W. 518, at 521 (Tex.Civ.App. — El Paso 1926), writ refused. 1
In my view, just as the district or county attorney who employs one for compensation, an assistant county or district attorney holds and exercises a “civil office of emolument” within contemplation of Article XVI, § 40 and § 38, Constitution of the State of Texas. 2 Thus the assistant district attorney from Jefferson County whom appellant sought to “disqualify” from acting as “special prosecutor” in Newton Court surely held a “civil office of emolument” in Jefferson County.
But the pivotal question is whether as “special prosecutor” the assistant district attorney from Jefferson County would also be holding or exercising a “civil office of emolument” in and for Newton County. In my judgment, the law applicable to record facts dictates the conclusion that he would not.
I
Early on the Court accepted and sanctioned the “settled practice” throughout the country that without the necessity of formal appointment “[c]ounsel other than the regular prosecuting attorney may appear to prosecute or assist in the prosecution of a cause on behalf of the State.” 3 Indeed, the Legislature recognized and acknowledged the *832 practice when it expressly included “special prosecutors” within the ambit of its admonition that “the primary duty of all prosecutors, including any special prosecutors, [shall be] not to convict, but to see that justice is done.” Article 2.01, V.A.C.C.P., as enacted by Acts 1965, 59th Leg. vol. 2, Ch. 722, p. 317. Lopez v. State 628 S.W.2d 77, at 80 (Tex.CrApp.1982) (every special prosecutor is thus enjoined by statute that justice be done).
Furthermore, while in few instances it was mistakenly done, sounder authorities cited at note 3 make clear that the lawyer who appears in a particular case “at the request of the district attorney or ... the complainant’s family,” need not be “appointed” or “employed” for compensation in the sense of being formally designated by an official vested with authority to do so under the statute. Cf. Article 2.07(a), V.A.C.C.P. (appointed attorney pro tern) and §§ 41.102 and 41.106, Government Code (employed assistant district attorney). See, e.g. Ballard v. State, supra. 4
Moreover, as the same authorities and others discussed herein make clear, an attorney assisting an incumbent prosecutor as “special prosecutor” does not become a “public employee” by virtue of agreeing to and actually assisting in the prosecution. By judicial definition through sanctioning our settled practice this Court and others delineated the status and role of “assisting counsel.” If compensated at all, a privately employed “special prosecutor” looks to his client for remuneration; a publicly employed “special prosecutor” who holds “a civil office of emolument” in another jurisdiction should look to *833 its commissioners court for his continuing remuneration. 5
II
A
In the instant cause the matter was verbally raised by appellant at the threshold of what appears to have been the first scheduled pretrial hearing on other motions. No testimony or evidence was tendered; there is only the colloquy summarized in the margin. 6 Subsequently the trial court entered an order denying the motion. 7
In his brief, from other cited parts of the record, appellant informs us (and the fact is undisputed) that the attorney in question was then “the First Assistant District Attorney in charge of criminal law matters to the District Attorney for Jefferson County[.]” Id., at 11-12. He asserts, “In lieu of prosecuting this case himself, [the Newton County district attorney] delegated his prosecutorial responsibilities to [him] ... pursuant to Government Code Section 41.103[.]” Id., at 12-13. 8 Appellant also points out that the delegate “took ‘a large role in the prosecution of this case,’ ” enumerating the witnesses he examined and cross-examined. Id., at 13.
Appellant contends that there is no “statutory authority authorizing [the delegate] to appear in this capacity.” He argues that any prosecution by an assistant district attorney “simultaneously exercising more than one civil office of emolument is void and the judgment cannot stand.” Id., at 14-15. 9
*834 The State takes the position that appellant waived the issue by failing to present supporting evidence. State’s Brief, at 10. Nevertheless, it proceeds to address the merits, and after reviewing several decisions cited in note 3, ante, concludes there is no known case condemning participation of the First Assistant District Attorney for Jefferson County in this trial. Id., at 11.
B
In my opinion, the First Assistant District Attorney of Jefferson County was absolutely correct when he opined that the district attorney of Newton County was empowered to “enlist any help that he wanted, and that the only requirement is that that person, to actually participate in the trial, is licensed to practice law [in the State of Texas],” as he indisputably was. S.F. Motion to Disqualify, at 3.
As “special prosecutor” enlisted by the district attorney of Newton County, that he was not “appointed” by the judge of the court in Newton County is of no legal consequence, and that he was sworn in as Assistant District Attorney for the First Judicial District is but a superfluity. Neither is required by law. Articles 2.01 and 2.07, V.A.C.C.P., are applicable only when the elected district attorney is disqualified to prosecute a particular case et cetera, and the district judge appoints a special prosecutor under those provisions. Ballard v. State, supra, at 428. 10
Therefore, the question still remains whether § 40 precluded the assistant district attorney holding a “civil office of emolument” in Jefferson County from serving as “special prosecutor” in Newton County.
Regarding his taking the oath of office in Newton County as an inadvertent, redundant formality, I believe it may correctly be said he never held or exercised a “civil office of emolument” in and for Newton County. While abstractly the office of assistant district attorney is one of “emolument,” in that obviously “compensation was authorized by law to be paid for services rendered” by an assistant district attorney, there is no evidence in this record that he was to or did receive any such “pecuniary profit, gain or advantage” on account of his service in Newton County. Cf. Irwin v. State, supra, 177 S.W.2d at 973. So far as shown here, as “special prosecutor” he was expected to subsist on compensation from Jefferson County. See note 5 and accompanying text, ante, at 833. In these circumstances I would hold that while serving as “special prosecutor” in this case, the assistant district attorney for Jefferson Court was neither holding nor ex- *835 erasing a “civil office of emolument” in Newton County. 11
Accordingly, for reasons given, I concur in the disposition of points of error five and six; otherwise I join only the judgment of the Court.
MEYERS, J., joins.
. All emphasis throughout this opinion is mine unless otherwise indicated.
. See Article V, § 21, id. (respective duties of prosecuting attorneys representing the State shall be regulated by Legislature); Article 2.01, V.A.C.C.P. (district attorney shall represent the State in all criminal cases in district court); V.T.C.A. Government Code, §§ 41.102, 41.103 and 41.106 (prosecuting attorney may employ such assistant prosecuting attorneys as deemed necessaiy for proper and efficient operation and administration of the office; an assistant prosecuting attorney must be licensed to practice law in Texas and shall take the constitutional oath of office; one may perform all duties imposed by law upon the prosecuting attorney, receiving such compensation fixed by the employing prosecuting attorney subject to approval of affected commissioner courts). One taking the constitutional oath of office must swear inter alia to "faithfully execute the duties of the office of [assistant district attorney of Jefferson County] of the State of Texas[.]" Article XVI, § 1(c).
. The cases are legion. One of the earliest is Burkhard v. The State, 18 Tex.App. 599 (1885) (no statutory prohibition against “practice always in this State” to permit participation of socalled "special counsel,” so not error to overrule objection to allowing district attorney "to avail himself of assisting counsel in the prosecution, both in the conduct and argument of the case” ). Id., at 618-619 .
Since then the term "special prosecutor” has been used loosely to embrace an attorney who is not "appointed” and thus need not take the requisite oath of office, as well as one who is. Compare Ex parte Powers, 487 S.W.2d 101, at 104 (Tex.Cr.App. 1972) (counsel not appointed or sworn, but employed by family of deceased to assist in prosecution with consent of district attorney; issue already decided against applicant in Powers v. Hauck, 399 F.2d 322, at 323-326 (5th Cir.1968)), with Reed v. State, 503 S.W.2d 775 (Tex.Cr.App.1974) (district attorney-elect appointed “special prosecutor” by court at request of outgoing incumbent not "disqualified” to prosecute).
A long line of authorities is to same effect, again without the Court distinguishing public prosecuting attorneys from private counsel. See, e.g., Ballard v. State, 519 S.W.2d 426, at 428 (Tex.Cr.App.1975) (not violative of due process *832 for private "special prosecutor” to assist district attorney where case is tried and also district attorney where offense committed) reversed on rehearing for other ground; Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.1968) (no abuse of discretion to permit same attorney in Ex Parte Powers, supra, to participate as "special prosecutor" with consent of same district attorney; need not take constitutional oath of office as prerequisite to appearing in case); Figueroa v. State, 375 S.W.2d 907 (Tex.Cr.App.1964) (no abuse of discretion in overruling objection to private counsel assisting as "special prosecutor” on ground that he also represented injured party in criminal case arising out of same transaction); Bingham v. State, 163 Tex.Cr.R. 352 , 290 S.W.2d 915, at 918-919 (1956) (under general rule stated ante, no abuse of discretion to overrule motion to preclude district attorney of another judicial district from assisting in prosecution at request of local district attorney); Phillips v. State, 159 Tex. Cr.R. 286, 263 S.W.2d 159, 160 (1953) (allowing over objection “special prosecutor” to participate in trial not error under general rule, citing 15 Tex.Jur. 288, § 5); Davis v. State, 148 Tex.Cr.R. 499 , 188 S.W.2d 397 , at 399^100 (1945) (no statutory inhibition against any lawyer, with consent of district attorney or assistant, from participating in prosecution); Emerson v. State, 54 Tex. Cr.R. 628, 114 S.W. 834, at 835-836 (1908) (attorney assisting counly attorney on account of absence of assistant county attorney not "disqualified" by prior brief casual discussion with accused about fee to represent him). See also Fitzgerald v. State, 722 S.W.2d 817, at 820 (Tex. App. — Tyler 1987), affirmed on other grounds 782 S.W.2d 876 (Tex.Cr.App.1990) (not error for assistant district attorney of Walker County to assist district attorney of Anderson Count at trial).
There is yet another category of putative prosecutors: "volunteer counsel.” That is, one who is not employed or paid a fee for his services, but volunteers his services as counsel to assist the State in the prosecution of a particular case. After cautionary comments the Court ultimately left the matter to the discretion of the trial court. Loshe v. State, 160 Tex.Cr.R. 561 , 272 S.W.2d 517, at 519, 520 (1954); see also Nacol v. State, 590 S.W.2d 481, at 483-484 (Tex.Cr.App.1979).
The Court makes no meaningful distinction between "special prosecutors” and "volunteer counsel” in terms of functions performed in assisting the incumbent prosecutor on behalf of the State. See 31 Tex.Jur.3d §§ 56 and 58, at 641-644, 645-646 (1994); Nacol v. State, supra; see also Exhibit in Powers v. Houck, supra, at 324 (Findings of Fact II) and at 325 (Conclusions of Law (1), (2) and (3)).
. The false notion of "appointment” aside, the cases teach also that the trial judge is not required by law to give prior consent or approval. The rule developed by caselaw is that an incumbent prosecutor may freely consent to participation by a "special prosecutor” (in the true sense of the term). See, e.g., Davis v. State, 148 Tex.Cr.R. 499 , 188 S.W.2d 397, at 399-400 (1945) (no statutory inhibition against any lawyer, with consent and approval of district attorney, or his assistant, from participating in prosecution of any accused). Of course, upon objection or motion from accused the trial court is expected to exercise its judicial discretion to resolve the resultant dispute. See germane cases cited in note 3, ante.
. In what surely must to be in recognition and avoidance of holding dual "civil offices of emolument,” Article 2.07(b) provides where an appointed attorney pro tern is also an attorney for the State, “the duties of the appointed office are additional duties of his present office, and he is not entitled to additional compensation.” Presumably the same policy would be applied to a nonappointive “special prosecutor” similarly situated, as here.
. Appellant objected to the assistant district attorney of Jefferson Court "representing the State in Newton County [because] he doesn't have standing or authority to appear in Newton County as an Assistant District Attorney for Newton County or in any other capacity without ... the duly elected District Attorney disqualifying himself or for some other reason being unable to prosecute this case.” S.F. Motion to Disqualify 1.
The district attorney himself responded that the assistant district attorney "has sworn and taken an oath as Assistant District Attorney for the First Judicial District of Texas — those papers are on file here. That was done prior to any participation in this county in this case ... before it was presented to the Grand Jury.” “Therefore,” he concluded, "he is here properly as an Assistant District Attorney for this district." Id., at 1-2.
Appellant rejoined, “[T]here is no authority providing for an assistant district attorney out of one judicial district to appear as an assistant district attorney in another judicial district. There's no authority for him to act in this district.” Id., at 2.
Later, seizing the moment near the close of the scheduled hearing, the assistant district attorney from Jefferson County ventured his view of the legal situation, viz:
"... [I] believe Aat [Ae District Attorney] could enlist any help Aat he wanted, and Ae only requirement is Aat Aat person, to actually participate in Ae trial, is licensed to practice law [in Texas].”
Counsel for appellant informally stipulated Ae fact Aat Ae assistant district attorney was so licensed, but insisted Aat he still should be disqualified on account of his "unique position as Chief Prosecutor for Ae Jefferson County District Attorney's office,” adding, “He is still drawmg his salary from Jefferson County, and I suppose he is going to Aaw a salary from Newton, if he hasn't already done so.” Id., at 3. It must be observed, however, Aere is no record support for Ae latter supposition.
. The court took Ae matter under advisement and directed appellant to prepare and file a written motion to Aat effect. S.F. id., at 2, 3. Counsel complied and submitted AerewiA a presentation of authorities. Tr. 13 ff. Thereafter Ae court overruled Ae motion wiA written order. Tr. 121. The matter was later alluded to by Ae district attorney during anoAer pretrial hearing; he reiterated Ae essence of his statement at Ae first hearing. S.F. Id., at 6-7.
. See paraphrase of provisions of § 41.103 and related sections, ante, at 824, n. 1.
. Appellant seeks support for his contention and argument from Chambers v. Baldwin, 282 S.W. 793, 795 (Comm.App.1926), and Irwin v. State, 147 Tex.Crim. 6 , 177 S.W.2d 970, at 974 (1944).
While Ae majority pretermits discussion of Chambers v. Baldwin, supra, I am satisfied Aat Ae decision does not bear on Ae issue under consideration for it deals with the constiAtionality of a statute that purported to allow an elected *834 district attorney to exercise his duties in a county that was no longer in the district where he resided. Id., at 795 .
Irwin v. State, supra, did not hold that Houston police officers in question who claimed to be acting as Special Deputy Sheriffs of Harris Court were "simultaneously exercising more than one civil office of emolument,” as appellant would have it in his brief at 14. To the contrary, the Court concluded "that the two named officers were not deputies sheriff de facto, and their purported acts as such were without authority of law.” Irwin, supra, at 974 .
Irwin is of significant interest here, however; the Court was firm in its legal conclusion that each position is a “civil office of emolument” within the meaning of Article XVI, § 40, viz:
"Compensation being authorized by law to be paid for services rendered by policemen and deputies sheriff renders such offices those of emolument, under the provisions of the Constitution mentioned. Hence the named officers could not at the same time be both policemen and deputies sheriff de jure or de facto."
Id., at 973. There is no perceivable distinction between a Houston police officer and a Harris County deputy sheriff, on the one hand, and an assistant district attorney for Jefferson or Newton County, on the other, within contemplation of § 40. Each holds a civil office of emolument. In my view, however, the First Assistant District Attorney for the former never became an assistant district attorney for the latter de jure or de facto. See post at 834.
. It is merely a happy coincidence that presumptively the "special prosecutor" had taken the constitutional oath of office when he became an assistant district attorney for Jefferson County, pursuant to Government Code, § 41.103(a). As an attorney licensed to practice law in this State, he was eligible, qualified and made available to serve as "special prosecutor” in Newton County regardless of his position in Jefferson County, subject, of course, to constrictions of §§ 40 and 33.
. Not raised by either party and apparently generally overlooked is a provision included by amendment to § 40, viz:
"... It is further provided that a nonelective State officer may hold other nonelective offices under the State ..., if the other office is of benefit to the State of Texas ..., and there is no conflict with the original office for which he receives salary or other compensation.”
S J.R. No. 29, Acts 1971, 62nd Leg., p. 4133, also revising § 33.
The Legislature enacted implementing legislation. See now Government Code, Chapter 574, §§ 574.001 and 574.002 of which provide that if a proper finding is made by the appropriate officer, here the criminal district attorney for Jefferson County, that the nonelective officer "satisfied Article XVI, § 40,” he may properly receive compensation for "holding the additional office.”
Because the question is not presented for our decision, I simply note those more recent expressions of public policy concerning the matter here for whatever consideration they are worth in resolving the issue in this cause.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772047. Public record. Not legal advice.