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Ex parte Walsh

Court of Appeals of Texas, Second District, Fort Worth

August 31, 2017

EX PARTE DANIEL CHRISTOPHER WALSH

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY TRIAL COURT NOS. 53173-A, 53174-A, 53175-A

          PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

          OPINION

          TERRIE LIVINGSTON, CHIEF JUSTICE

         This is an interlocutory appeal from the trial court's denial of relief on a pretrial application for writ of habeas corpus. Appellant Daniel Christopher Walsh filed the application based on the State's alleged violations of constitutional and statutory provisions by appointing attorneys from the Texas State Securities Board (TSSB) to prosecute him for theft, for securing the execution of documents by deception, and for money laundering. See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2016), §§ 32.46(a)(1), 34.02(a)(1) (West 2016). Appellant contended that the Wichita County District Attorney's appointment and deputation of TSSB's attorneys to prosecute those offenses against him was an ultra vires act that violated his due process rights and separation of powers principles. He urged the trial court to disqualify TSSB's attorneys and to dismiss his indictments. Because we conclude that appellant's legal contentions, even if valid, cannot entitle him to habeas corpus relief, we affirm the trial court's order denying relief.

         Background Facts

         In April 2013, a Wichita County grand jury, through separate indictments, charged appellant with theft, with securing execution of documents by deception, and with money laundering. Each indictment stated that TSSB was the filing agency and designated Mogey Lovelle, a TSSB attorney, as the complainant. The Wichita County District Attorney, Maureen Shelton, had deputized Lovelle in January 2013. Shelton signed a deputation form that stated that she, having full confidence in Lovelle, "nominate[d] and appoint[ed] [Lovelle as Shelton's] true and lawful deputy . . . to do and perform any and all acts . . . pertaining [to] the incident involving [appellant]." The deputation forms also stated that Shelton ratified and confirmed "any and all such acts and things lawfully done in the premises of virtue [thereof]."

         Years later, in November 2016, appellant, who was awaiting trial but was free on bond, filed an application for writ of habeas corpus in each case. Among other arguments, he contended that Lovelle and other TSSB attorneys working on his cases were acting ultra vires (beyond their statutory and constitutional authority) and that their prosecution of him violated due process and separation of powers principles. He argued that Texas law restricted TSSB attorneys to pursue only violations of Texas securities laws and that those attorneys had abused their official capacity. Thus, he argued that his indictments, which had been procured by Lovelle, were void, and he asked the trial court to disqualify TSSB's attorneys and to dismiss his indictments as the "only means of adequately protecting [his] constitutional rights."

         In response, the State argued that appellant's constitutional and statutory complaints were not cognizable in a pretrial habeas corpus application and that the trial court should therefore not reach the merits of the complaints. Alternatively, the State contended that Shelton had constitutional and statutory authority to deputize TSSB's attorneys to prosecute appellant and that the deputations did not violate separation of powers principles.

         The trial court held a hearing on the writ application. At the hearing, appellant contended that attorneys from the TSSB, part of the executive branch of state government, were violating separation of powers principles by prosecuting under the authority of a district attorney, who is part of the judicial branch. At one point in the hearing, appellant, through counsel, argued for the dismissal of his indictments by stating,

[I]f we're correct, and I believe we are, that the executive branch appointed as special prosecutors -- and we know that they were the ones who presented this -- these facts to the grand jury -- if those were -- if they were illegally appointed and they were not allowed to be there to present these facts, then the indictments have to be dismissed. And that's the right at stake which would be undermined if we do not resolve this through the writ of habeas corpus pretrial. [Emphasis added.]

         Counsel recognized, however, that the presence of TSSB's attorneys before the grand jury was not necessary for appellant's indictments, stating, "[The] [g]rand jury acting by itself is certainly permitted to indict with nobody present. It can indict on paper."

         At the end of the hearing, the trial court declined to consider the writ application as such; instead, the court considered the application as a pretrial motion and denied the motion. Appellant stated that he would likely file a mandamus relating to the trial court's ruling on the motion.

         Instead of filing a mandamus petition, however, appellant filed an amended application for writ of habeas corpus. He again contended that TSSB's attorneys had no constitutional or statutory authority to prosecute him and that their prosecution was vindictive. He argued that when "the Wichita County Criminal District Attorney gave up control of her office[, ] . . . she allowed the TSSB to obtain indictments which do not include an allegation of a securities violation, " which constituted an ultra vires act. Appellant again argued that the indictments were void based on the TSSB attorneys' appearance before the grand jury, that his right of due process and separation of powers principles had been violated, and that "dismissal of the indictments [was] the only means of adequately protecting [his] constitutional rights." Appellant asserted,

The indictments are void because by law, the grand jury cannot be considered to have been presented with evidence, when the TSSB's presentations were illegal nullities. As a result, this Court has no ...

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