Chief Justice Gray, Justice Davis, and Justice Scoggins.
petition for writ of mandamus is denied.
GRAY Chief Justice.
concur in the denial of the petition for a writ of mandamus
but write separately to explain why.
Clendennen seeks to recuse the McLennan County District
Attorney and thereby prevent the elected district attorney,
and all employees of that office, from further participation
in the preparation for and trial of Clendennen. The motion,
filed and heard in the district court, was denied. Clendennen
now seeks review of that ruling by a petition for writ of
mandamus asking this appellate court to compel the trial
court to set aside its order denying the recusal motion and
to issue a writ of mandamus which compels the trial court to
order the district attorney's recusal from the
prosecution of Clendennen.
is an extraordinary remedy. It is to be utilized only when
other legal remedies are inadequate. Thus, if there is
another legal remedy available to Clendennen, a petition for
writ of mandamus should be denied. An appeal is normally an
adequate legal remedy for trial court errors. In this
instance, Clendennen contends that he should not be compelled
to suffer through a criminal trial by a district attorney who
should be recused only to have to present the issue on appeal
and then suffer the vagaries of a subsequent review and
analysis, and possibly retrial, by an attorney pro tem
assigned to prosecute the case against him. The district
attorney is obviously aware of the risk of such an outcome
and the attendant cost of the discovery, trial, and appeals
that result would entail, and much of that work could not be
used by the attorney pro tem; if it gets to that.
contends that recusal is appropriate for two independent
reasons. The first reason is that the district attorney, or
members of his staff, will be called as witnesses at the
trial of Clendennen. The second reason is that because the
district attorney has been sued in Federal Court by
Clendennen, and others, that the district attorney has a
personal financial interest adverse to his duties as the
elected criminal district attorney.
believe denial of the petition for a writ of mandamus is
proper for procedural reasons. It is premature for two
separate reasons, one being applicable to each of the
separate grounds upon which Clendennen asserts he is entitled
to the relief.
first argument in support of recusal is dependent upon the
need to have no one other than the district attorney himself
testify on matters on which there is a material factual
dispute. If this is required/allowed during trial, the
district attorney, or his staff, would have to argue his own
credibility. If it comes to that, the district attorney is
subject to forced recusal. Testimony of this nature provided
by an assistant district attorney or staff member would
ordinarily cause the recusal of only that employee of the
district attorney's office but not the elected district
record currently before the court in this proceeding,
Clendennen has not established that the district attorney is
the only potential source of such testimony. Moreover, it
appears that the testimony of the district attorney, sought
by Clendennen, is based on the premise that evidence was
obtained based on an arrest warrant that itself was obtained
in violation of law. Clendennen's argument is that
Clendennen must be allowed to challenge the admissibility of
that evidence, and show it should be suppressed. This issue
can be addressed by a pretrial motion to suppress; another
potential legal remedy that would prevent the need to force
the district attorney's testimony in front of the jury,
and thus the recusal of the elected district attorney. And if
the evidence at the hearing on the motion to suppress reveals
there is conflicting evidence on a material fact, such that
the issue of suppression/disregarding the evidence was going
to have to ...