Ex Parte: Seth Andrew Sutton v. the State of Texas

NO. 12-24-00162-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EX PARTE: § APPEAL FROM THE 19TH

SETH ANDREW SUTTON, § JUDICIAL DISTRICT COURT

APPELLANT § MCLENNAN COUNTY, TEXAS

MEMORANDUM OPINION

Seth Andrew Sutton appeals the denial of his application for writ of habeas corpus. 1 In
one issue, Appellant argues the trial court erred by denying his application, in which he
contended the statute authorizing the Texas Attorney General’s office to serve as attorney pro tem
is facially unconstitutional. We affirm.

BACKGROUND
Appellant was charged by indictment with solicitation of capital murder in August 2020.
On July 25, 2022, the McLennan County District Attorney filed a motion to recuse and appoint
attorney pro tem. In its motion, the District Attorney stated, “[d]ue to Audrey Robertson’s 2
employment at the same law firm with [Appellant] prior to his employment by the office of
McLennan County Criminal District Attorney, there may exist an appearance of impropriety
should the District Attorney’s Office remain the prosecutor” over Appellant’s case. It further
stated that the recusal extended to the entire McLennan County District Attorney’s Office. On
July 27, the trial court granted the motion and appointed “an assistant attorney general” to
attorney pro tem.

1
This case was transferred to this Court from the Tenth Court of Appeals in Waco, Texas, pursuant to a
docket equalization order. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
2
An assistant district attorney in the McLennan County District Attorney’s Office.
Two assistant attorney generals represented the State in Appellant’s jury trial in August
2023, which resulted in a mistrial. In September 2023, Mathew Shawhan, an assistant attorney
general, filed a statement of elected or appointed official, indicating he would be serving as
District Attorney Pro Tem. Shawhan presented the case against Appellant to a McLennan
County grand jury, which indicted Appellant on one count of criminal solicitation and one count
of criminal conspiracy in February 2024. In March, Appellant filed his application for writ of
habeas corpus asserting that the statute allowing the assistant attorney generals to serve as
attorney pro tem, Article 2.07 of the Texas Code of Criminal Procedure, is facially
unconstitutional. After a hearing, the trial court denied the application. This appeal followed.

AVAILABILITY OF HABEAS CORPUS RELIEF
We first address the State’s argument that Appellant’s claim is not cognizable in a pretrial
habeas corpus proceeding. See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)
(whether a claim is cognizable on pretrial habeas is a threshold issue that should be addressed
prior to resolution of the merits).
Entitlement to Habeas Corpus Relief
An applicant may seek pretrial habeas corpus relief “only in very limited circumstances.”
Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). The purpose of an application
for writ of habeas corpus is to remove an illegal restraint on an applicant’s liberty. See TEX.
CODE CRIM. PROC. ANN. art. 11.01 (West 2015). Thus, pretrial habeas relief—“an extraordinary
remedy”—is reserved for cases in which resolution of a legal issue in the applicant’s favor must
result in the applicant’s immediate release. Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim.
App. 2017); Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016); Ex parte Flores, 483
S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“A claim is cognizable in a
pretrial writ of habeas corpus if, resolved in the defendant’s favor, it would deprive the trial court
of the power to proceed and result in the appellant’s immediate release.”); Green v. State, 999
S.W.2d 474, 477 (Tex. App.—Fort Worth 1999, pet. ref’d) (“[T]he purpose of a pretrial habeas
corpus application is not to facilitate trial, but to stop trial and secure immediate release from
confinement.”); see also Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)
(explaining, for example, that pretrial habeas relief is unavailable for asserting the constitutional
right to a speedy trial or, generally, to test the sufficiency of a charging instrument); Smith, 178

2
S.W.3d at 801 (explaining that a pretrial habeas applicant may challenge the State’s power to
restrain him at all; the manner of his pretrial restraint, such as challenging conditions attached to
bail; or other issues which, if meritorious, would bar prosecution or conviction). Due process
claims are not generally cognizable for pretrial habeas relief. In re Shaw, 204 S.W.3d 9, 16
(Tex. App.—Texarkana 2006, pet. ref’d).
We review a trial court’s denial of habeas corpus relief for an abuse of discretion. Ex
parte Shires, 508 S.W.3d 856, 860 (Tex. App.—Fort Worth 2016, no pet.). We will uphold the
trial court’s judgment if it is correct on any theory of law applicable to the case. Ex parte Evans,
410 S.W.3d 481, 484 (Tex. App.—Fort Worth 2013, pet. ref’d). If we conclude the grounds
asserted in the application for writ of habeas corpus are not cognizable, we must affirm the trial
court’s denial of relief. Ex parte Schoolcraft, 107 S.W.3d 674, 676 (Tex. App.—San Antonio
2003, no pet.).
Application
Appellant did not challenge the constitutionality of the statutes by which he is charged.
He challenged the statute allowing the trial court to appoint an assistant attorney general as
attorney pro tem. An indictment is not rendered void or subject to dismissal merely because an
improper, disqualified, or conflicted prosecutor presents a case to a grand jury or could represent
the State at trial. See Miller v. State, No. 11-07-00369-CR, 2008 WL 616121, at *1-2 (Tex.
App.—Eastland Mar. 6, 2008, no pet.) (mem. op., not designated for publication); Beavers v.
State, No. 02-05-00448-CR, 2006 WL 3247887, at *6-7 (Tex. App.—Fort Worth Nov. 9, 2006,
pet. ref’d) (mem. op., not designated for publication); Walter v. State, 209 S.W.3d 722, 737,
739-40 (Tex. App.—Texarkana 2006), rev’d on other grounds, 267 S.W.3d 883 (Tex. Crim.
App. 2008); Phillips v. State, No. 08-00-00211-CR, 2002 WL 2001218. At *1-2 (Tex. App.—El
Paso Aug. 30, 2002, no pet.) (op., not designated for publication).
Appellant’s separation of powers claim does not challenge the constitutionality of the
charges against him and does not challenge the “prosecution itself.” See Ex parte Walsh, 530
S.W.3d 774, 781 (Tex. App.—Fort Worth 2017, no pet.). He does not argue that he cannot be
constitutionally prosecuted for solicitation of capital murder; he argues only that he cannot be
constitutionally prosecuted for the offense by an assistant attorney general. Whether the
assigned prosecutor is the correct prosecutor does not affect Appellant’s eligibility to be charged
and tried. Ex parte Cooper, No. 04-20-00038-CR, 2020 WL 2736459, at *3 (Tex. App.—San

3
Antonio May 27, 2020, pet. ref’d) (mem. op., not designated for publication). Therefore, such a
claim, even if meritorious, would not result in Appellant’s immediate release from prosecution
and is not a cognizable claim for pretrial habeas corpus.
CONSTITUTIONALITY OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 2.07
Even if Appellant’s claim is appropriate for pretrial habeas corpus, we are not persuaded
by Appellant’s argument.
In his first issue, Appellant argues that Article 2.07 is facially unconstitutional and
violates the separation of powers requirement of the Texas Constitution. Article 2.07 states, in
pertinent part, as follows:

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 the attorney's office, or in any
instance where there is no attorney for the state, the judge of the court in which the attorney
represents the state may appoint, from any county or district, an attorney for the state or may
appoint an assistant attorney general to perform the duties of the office during the absence or
disqualification of the attorney for the state.

TEX. CODE CRIM. PROC. ANN. art. 2.07(a) (West Supp. 2023).
Standard of Review and Applicable Law
We review a trial court’s decision to grant or deny an application for writ of habeas
corpus under an abuse of discretion standard. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.
Crim. App. 2006); Ex parte Thompson, 414 S.W.3d 872, 875 (Tex. App.—San Antonio 2013),
aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014). However, when the trial court’s ruling and
determination of the ultimate issue turns on the application of the law, such as the
constitutionality of a statute, we review the trial court’s ruling de novo. Ex parte Peterson, 117
S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis,
219 S.W.3d 335, 371 (Tex. Crim. App. 2007); see Thompson, 414 S.W.3d at 875–76.
We review de novo a challenge to the constitutionality of a statute. Salinas v. State, 464
S.W.3d 363, 366 (Tex. Crim. App. 2015). We afford great deference to the Legislature and
presume that the statute is constitutional, and that the Legislature has not acted unreasonably or
arbitrarily. Ex parte Lo, 424 S.W.3d 10, 14–15 (Tex. Crim. App. 2013). The party challenging
the statute normally bears the burden of establishing its unconstitutionality. Ex parte Granviel,
561 S.W.2d 503, 511 (Tex. Crim. App. 1978).

4
The Constitution of 1876, which our state still operates under, expressly divides the
powers of government into three distinct departments—legislative, executive, and judicial—and
prohibits the exercise of any power “properly attached to either of the others,” unless that power
is grounded in a constitutional provision. TEX. CONST. art. II, § 1; see also Ex parte Giles, 502
S.W.2d 774, 780 (Tex. Crim. App. 1973). “This separation of powers provision reflects a belief
on the part of those who drafted and adopted our state constitution that one of the greatest threats
to liberty is the accumulation of excessive power in a single branch of government.” Armadillo
Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). It has the incidental effect of
“promoting effective government by assigning functions to the branches that are best suited to
discharge them.” Id.
The separation of powers doctrine requires that “any attempt by one department of
government to interfere with the powers of another is null and void.” Meshell v. State, 739
S.W.2d 246, 252 (Tex. Crim. App. 1987). Although one department occasionally exercised a
power that would otherwise seem to fit within the power of another department, courts approved
those actions only when authorized by an express provision of the constitution. Id. “Exceptions
to the constitutionally mandated separation of powers are never to be implied in the least; they
must be ‘expressly permitted’ by the Constitution itself.” Fin. Comm’n of Tex. v. Norwood, 418
S.W.3d 566, 570 (Tex. 2014) (quoting TEX. CONST. art. II, § 1).
The separation of powers provision may be violated in one of two ways. First, it is
violated when one branch of government assumes, or is delegated, to whatever degree, a power
that is more “properly attached” to another branch. Armadillo Bail Bonds, 802 S.W.2d at 239.
Second, it is violated when one branch unduly interferes with another branch so that the other
branch cannot effectively exercise its constitutionally assigned powers. Id. at 239 (citing Rose v.
State, 752 S.W.2d 529, 535 (Tex. Crim. App. 1987)).
Analysis
Appellant urges that the Court of Criminal Appeals’ decision in State v. Stephens 3
requires us to find that Article 2.07 is unconstitutional for violating separation of powers. In
Stephens, the Court of Criminal Appeals, in determining that Section 273.021 of the Texas
Election Code is unconstitutional, held that the Attorney General could not unilaterally exercise a

3
663 S.W.3d 45 (Tex. Crim. App. 2021).

5
prosecution power that was assigned to the judicial department. State v. Stephens, 663 S.W.3d
45, 47 (Tex. Crim. App. 2021). It explained that the power to prosecute was constitutionally
conferred within the judicial department to district and county attorneys. Id. at 50. And it
further explained that the Attorney General can participate in criminal litigation if the relevant
district or county attorney consents. Id. at 55-57.
We are guided by the Court of Criminal Appeals’ decision in Wood v. State, No. AP-
77,107, 2024 WL 2306277 (Tex. Crim. App. May 22, 2024). Wood concerned a direct appeal
from a denial of a motion for forensic DNA testing. Id. at *1. However, in one of his issues, the
appellant asked the Court to remove the assistant attorney general as the attorney pro tem
representing the State in his case. Id. at *10. He, like Appellant, urged that Article 2.07 violates
the separation of powers under Stephens. Id. at *11. The Court of Criminal Appeals ultimately
determined that the appellant’s complaint was not preserved, but it also addressed the merits of
his argument. 4 Id. at *12-13. The Court recognized the differences between the situation in
Stephens and a recused district attorney’s office. 5 Id. at *13. Key to the Court’s analysis was
that the district attorney sought to recuse himself and have an attorney pro tem appointed, which
meant he consented to someone other than the elected district attorney or his subordinates to try
the case, including an assistant attorney general. Id. Furthermore, “any attorney who acts as an
attorney pro tem stands in the shoes of the” district attorney being replaced and does not act with
any authority of his original appointment. Id. Instead, he uses the elected district attorney’s
authority conferred by the appointment. Id.
The same situation occurred here. The McLennan County District Attorney recused
himself and his office and requested an attorney pro tem be appointed in their stead. As such, he
consented to someone else prosecuting the case. In fact, the motion in this case specifically
stated that he already contacted the Attorney General’s office to confirm that assistant attorney
generals were available to “perform the constitutional duties of the District Attorney’s Office.”
And the assistant attorney generals are not acting under the authority of the Attorney General’s
office when acting as attorney pro tem; they are acting under the District Attorney’s authority.

4
The constitutional complaint was not raised until March 2022 when an assistant attorney general had been
representing the State as attorney pro tem since 2010. Wood v. State, No. AP-77,107, 2024 WL 2306277, at *12
(Tex. Crim. App. May 22, 2024). It was also not raised until after the trial court denied his motion for testing. Id.
Therefore, the Court held his claim was not preserved. Id.
5
The Court of Criminal Appeals addressed a prior version of Article 2.07; however, the logic applies to the
current statute as well.

6
As such, the Attorney General is not executing judicial branch authority in its own right, and
Article 2.07 does not violate the separation of powers. We overrule Appellant’s sole issue.

DISPOSITION
Having determined that Appellant’s claim is not cognizable for habeas corpus relief and
having overruled Appellant’s sole issue, we affirm the trial court’s order. We further overrule
any and all pending motions as moot.

JAMES T. WORTHEN
Chief Justice

Opinion delivered July 24, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

7
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 24, 2024

NO. 12-24-00162-CR

EX PARTE: SETH ANDREW SUTTON,
Appellant

Appeal from the 19th District Court
of McLennan County, Texas (Tr.Ct.No. 2020-1290-C1)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, and that this decision be certified to the
court below for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.