Full opinion text
OPINION Opinion by Justice YÁÑEZ. This is an original application for writ of mandamus by which the District Attorney of Willacy County, as relator, seeks to have an order entered by respondent trial judge set aside. Relator, Juan Angel Guerra, alleges respondent, Judge Migdalia Lopez of the 197th District Court of Cameron County, exceeded her authority as a magistrate by entering an order appointing Gustavo Garza as attorney pro tem. The parties have filed motions for contempt and sanctions. We conditionally grant the writ and deny the motions for contempt and sanctions. I. Background On January 11, 2007, the 197th Judicial District Grand Jury for Willacy County, July Term, asked to meet with respondent, Judge Lopez. In that private meeting, the grand jury expressed concerns that relator had abused his office in several respects and requested that an attorney pro tem be appointed to assist in the grand jury's investigation of those concerns. In response to that request, respondent issued an order on January 17, appointing Gustavo Garza as attorney pro tem. Respondent had previously appointed Garza as attorney pro tem on August 2, 2006, after respondent approved relator’s request to be recused in the investigation of State of Texas v. Eliseo Barnhart and State of Texas v. Andrea Espinosa, two cases pending in the Willacy County District Attorney’s Office. The January 17 order, which was drafted by Garza after reviewing the reporter’s record of the meeting between the grand jury and respondent, provides as follows: On January 11, 2007, in Willacy County, Texas, the Grand Jury for the 197th District Court, whose term was extended met in open court with District Judge Migdalia Lopez. On the record the Willacy County Grand Jury addressed various concerns regarding the District Attorney, Juan Angel Guerra and his conduct as District Attorney. I. The Grand Jury expressed concern that the District Attorney, Juan A. Guerra was abusing his office and abusing his power. II. The Grand Jury was concerned with the request by the District Attorney to investigate and indict several Willacy County elected officials. III. The District Attorney requested the Grand Jury to subpoena the District Judge. IV. District Attorney, Juan A. Guerra requested indictments from this Grand Jury without presenting any evidence. V. The District Attorney ordered the Grand Jury to create a five member committee and the District Attorney named two of the committee members. This Grand Jury committee was to investigate and recommend indictment for neglect of office against the District Clerk, County Clerk, County Sheriff and other bail bond board members. This matter was a civil matter. VI. The District Attorney demanded $10,000.00 from a bail bond company. The Grand Jury suspected that a person was indicted for a sex offense in retaliation for nonpayment of the $10,000.00 demanded. VII. The District Attorney requested the Grand Jury to ‘true bill’ a case that the Grand Jury was in favor of a ‘no bill’ by stating that the suspect was going to be arrested anyway. VIII. The Grand Jury expressed concern that the District Attorney, Juan Angel Guerra uses the grand jury process to intimidate individuals or get even. IX. The Grand Jury was aware of voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004. Because of these concerns, the Grand Jury requested the 197th District Court meet with the Grand Jury and requested that a special prosecutor be appointed to assist and guide the Grand Jury in investigating the aforementioned areas of concern and any other wrong doing involving the Willacy County District Attorney, Juan Angel Guerra. Order Pursuant to the request by the Willa-cy County Grand Jury, on this the 11th day of January, 2007, IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor to investigate and prosecute these matters referenced above and any other criminal activity connected or arising out of these allegations; the Attorney Pro Tem will be able to obtain assistance of co-counsel. Considering the fact that the Court has appointed Gustavo Ch. Garza as attorney pro tem on August 2, 2006, this Court by this Order is extending the assignment of August 2, 2006, and the Oath of Office filed with the County Clerk shall continue in full force and effect until the completion of these matters. On February 10, Daniel Cavazos, Jr., a special investigator with the Raymondville Police Department, alleged in an affidavit that he had probable cause to believe that relator had committed certain criminal acts. In his affidavit, Cavazos requested a search warrant to investigate those acts. Garza then presented the affidavit to Judge Janet L. Leal of the 103rd District Court of Cameron County, whereupon Judge Leal issued the warrant, authorizing the search and seizure of various items within the Willacy County District Attorney’s Office. On February 11, Cavazos drafted an “affidavit for warrant of arrest” under Garza’s supervision, which led to the issuance of three arrest warrants against relator. The warrants accused relator of two counts of theft by public servant and one count of attempted theft by public servant. Later that day, police officers with the Raymondville Police Department, acting under Garza’s direction, executed a search of the district attorney’s office and seized a number of items. Relator was also arrested in the process for interfering with the search. On February 28, the complaints against relator — three felony counts of theft by public servant and the later added charge of interfering with public duties — were dismissed by Raymond-ville Municipal Judge Hector Huerta. On March 14, relator filed with this Court a “Petition for Writ of Injunction (Temporary Restraining Order)” and “Motion for Stay of Execution of Order” of the 197th District Court. This Court granted relator’s stay motion on March 15, ordering the trial court’s order of January 17 stayed and setting the matter for oral argument on April 4. On March 21, the aforementioned grand jury met and issued a subpoena directed to Garza; the subpoena requested the draft indictments against relator that Garza had previously prepared. Garza provided the grand jury with those indictments and the grand jury issued the indictments that same day. As a result, relator was once again arrested. On March 22, relator filed a motion for contempt, contending that respondent and Garza had violated this Court’s stay order. Respondent and Garza individually filed a motion to dismiss relator’s motion for contempt, and subject thereto, a response and counter-motion for sanctions. Accordingly, this Court issued an order setting the motion for an evidentiary hearing. Respondent and Garza were ordered to appear before this Court on April 4 to respond to relator’s motion and show cause why they should not be held in contempt of court and punished for their alleged failure to comply with this Court’s March 15 order. On March 31, while a decision on relator’s petition was pending before this Court, relator’s motion to recuse respondent in the pending criminal matters against relator was granted by Judge J. Manuel Báñales, the presiding judge of the Fifth Administrative Judicial Region. In connection with that recusal, Judge Ba-bales appointed himself to preside over this matter. Two days prior to this, relator filed an amended petition asking that this Court (1) command respondent (who, pursuant to Judge Bañales’s order is no longer the presiding judge) to vacate her January 17 order, and (2) remove Garza as attorney pro tem. II. The Issues In his petition, relator asserts the following six issues: (1) this Court has jurisdiction to grant relator’s writ of mandamus; (2) the trial court abused its discretion by not initially seeking to have relator temporarily removed from office through the procedures prescribed in chapter 87 of the Texas Local Government Code; (3) the trial court abused its discretion by appointing an attorney pro tem without relator’s consent; (4) the trial court abused its discretion by failing to provide relator with notice and a hearing prior to the appointment; (5) the trial court abused its discretion by taking an act that caused the district attorney’s office to cease all operations; and (6) the trial court abused its discretion by appointing an individual who was not a “competent attorney” because of, inter alia, bias and conflicts of interest. In response, respondent contends that (1) relator has adequate remedies at law, (2) she acted within her legal capacity in appointing an attorney pro tem, and (3) she has taken no action which has caused the district attorney’s office to cease all operations. III. Mootness and Abatement Before discussing the merits of relator’s issues on appeal, we must comment on whether this case has become moot or should be abated. A case is determined to be “moot” if the issues presented in the case are no longer “live” or if the parties lack a legally cognizable interest in the outcome. An entire appeal does not become moot, however, simply because one issue in the case becomes moot. If a case becomes moot on appeal, the appellate court must set aside all previous orders and judgments; both the appeal and the underlying cause must be dismissed. The January 17 order appointed Garza to “investigate” matters concerning relator, which gave way to Garza’s involvement with the July Term grand jury. While relator’s appeal was pending, the grand jury’s term expired; as a result, this portion of the order has been rendered moot. The order, however, also appointed Garza to “prosecute” certain matters— matters for which relator has been indicted. This issue is still alive. Accordingly, relator’s original proceeding is not moot. As to the matter of abatement, this Court has considered whether, in light of respondent’s recusal and the subsequent appointment of Judge Banales, this proceeding should be abated pursuant to rule of appellate procedure 7.2(b). Rule 7.2(b) states: If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party’s decision. In all other cases, the suit will not abate, and the successor will be bound by the appellate court’s judgment or order as if the successor were the original party. A “successor” in the context of rule 7.2, however, is an individual who succeeds a public officer who has ceased to hold office. In the instant case, respondent has not ceased to hold office; she has simply been recused from this proceeding. Additionally, we have found no case law applying rule 7.2(b) in response to a recusal that occurred pending an original proceeding or appeal. Because we are not persuaded that the rule is applicable to this proceeding, we decline to abate. IV. Issue One: Jurisdiction Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy. If the trial court’s order is one within its discretionary powers, the relator must show that it is a “clear abuse of discretion.” A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error. With respect to resolution of factual issues or matters committed to the trial court’s discretion, for example, the reviewing court may not substitute its judgment for that of the trial court. The relator must establish that the trial court could reasonably have reached only one decision. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. On the other hand, review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Even when a trial court is confronted with an issue of first impression in Texas, the court still has no “discretion” in determining what the law is or applying the law to the facts. “Consequently, the trial court’s erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion.” A writ will not issue to correct a trial court’s abuse of discretion if relator fails to demonstrate that he has no adequate remedy by appeal. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. “The requirement that persons seeking mandamus relief establish the lack of an adequate appellate remedy is a ‘fundamental tenet’ of mandamus practice.” An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. In her response to relator’s petition, respondent contends that relator has adequate remedies “afforded to him through the criminal justice system” for the purpose of responding “to the appointment and any other issues that relate to that appointment.” Respondent explains that “[sjince the filing of these original proceedings, Relator has been indicted by a Willa-cy County Grand Jury. Therefore, Relator can avail himself of the criminal justice system as any accused can and address his concerns in that forum.” We agree with respondent’s contention to a limited extent. What makes this case particularly tricky is that relator comes before us wearing two different hats: the hat of a district attorney and the hat of a criminal defendant. Each hat affords relator the ability to air certain grievances — grievances that, at times, can only be properly raised under the auspices of one of the hats. The challenge before this Court is to identify which hat relator is wearing when he raises a specific argument. If we come across an argument that can only be raised under the hat of a criminal defendant, then it is incumbent upon this Court to dismiss that argument because all appropriate remedies can be obtained through the criminal justice system at this time. It is equally incumbent upon this Court, however, to address and provide appropriate relief when relator raises grievances while wearing the hat of a district attorney. At the time relator filed his original petition with this Court, there were no outstanding indictments against him. Relator was solely before us in his capacity as District Attorney of Willacy County — an elected official whose office is “constitutionally created and therefore constitutionally protected.” Relator has raised some complaints on appeal that are not characteristic of the typical criminal defendant; rather, these complaints are those of an elected official who contends that his statutorily provided powers have been unlawfully usurped by respondent’s appointment of an attorney pro tern. Guided by this framework, we find that relator does not have an adequate remedy by appeal. Accordingly, we must now assess relator’s remaining issues to determine whether respondent’s January 17 order constitutes a clear abuse of discretion, thus entitling relator to mandamus relief. Y. Issue Two: Chapter 87 of the Texas Local Government Code 1. Removal Proceedings under Chapter 87 According to the Texas Constitution, “The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution.” County officers are subject to this constitutional provision. Accordingly, the Legislature has enacted the rules governing the trial and removal of a district attorney. These rules are promulgated in chapter 87 of the Texas Local Government Code. Under chapter 87, a district judge may remove a county officer (e.g., a district attorney) from office for incompetency, official misconduct, or intoxication. A removal proceeding begins by filing a written petition in a district court of (1) the county in which the officer resides, or (2) the county where the alleged cause of removal occurred, if that county is in the officer’s judicial district. This petition may be filed by any resident of this state who has lived for at least six months in the county in which the petition is to be filed and who is not currently under indictment in the county. The petition must (1) be addressed to the district judge of the court in which it is filed, (2) set forth the grounds alleged for the removal of the officer in plain and intelligible language, and (3) cite the time and place of the occurrence of each act alleged as a ground for removal with as much certainty as the nature of the case permits. After a petition for removal is filed, the person filing the petition must apply to the district judge in writing for an order requiring that the officer be served with citation and the petition. If the judge refuses to issue the order for citation, the petition will be dismissed, and no appeal or writ of error can be taken from the judge’s decision. If the judge grants the order for citation, the clerk will then issue the citation with a certified copy of the petition. The citation will order the officer to appear and answer the petition. After the issuance of the order requiring citation of the officer, the district judge may temporarily suspend the officer and may appoint another person to perform his duties. An officer may be removed only following a trial by jury. In a proceeding to remove the district attorney from office, the county attorney from an adjoining county, as selected by the commissioners court of the county in which the proceeding is pending, shall represent the State. 2. Relator’s Claim Relator asserts that when the grand jury initially notified respondent of its desire to criminally investigate relator, respondent had the option to direct the grand jurors to file a petition in a manner prescribed by chapter 87, instead of immediately appointing an attorney pro tem. If a grand juror had filed the appropriate petition, respondent could have granted the order for citation, thus allowing respondent to temporarily suspend relator and appoint an attorney pro tem in his place for the purpose of assuming all of relator’s official duties. Relator contends that had respondent acted in this fashion, the Willacy County District Attorney’s Office would not currently be enmeshed in the ongoing power struggle between relator and Garza. Furthermore, relator argues that respondent clearly abused her discretion in appointing an attorney pro tem without first suspending or removing relator from office under chapter 87, because the law allegedly requires that relator be removed or suspended from office prior to being indicted. 3. Discussion We begin by recognizing that nothing on the face of the January 17 order indicates that respondent is attempting to formally remove relator from office. Though the order may pave the way for relator’s future removal, the order itself simply appoints Garza as attorney pro tem for the purpose of investigating and prosecuting relator for alleged criminal activity. With regard to relator’s claim that he must be removed from office prior to indictment, we find that chapter 87 clearly shows otherwise. Section 87.031 of the local government code states: “The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as an immediate removal from office of that officer.” This section reveals that conviction can precede, or occur simultaneously with, removal. It thus stands to reason that an indictment, which is a preliminary necessity for pursuing a conviction, can and logically, would also precede removal. Furthermore, the Texas Supreme Court has held that a county “officer may be prosecuted crimmally ... either before or after the removal proceedings.” The code of criminal procedure clearly reflects the idea that a grand jury needs, and under the law, has the right to rely on, an “attorney representing the State” (e.g., a district attorney) who will assist the grand jury in fulfilling its duties. A grand jury that must seek the advice and assistance of a district attorney who is the subject of the jury’s investigation is a recipe for disaster, because the rules place the district attorney in the best position for obstructing the investigation. The code of criminal procedure “clearly envisions that both [the district attorney and grand jury] will work together to resolve particular matters at issue,” and this vision can only be safeguarded, in the sort of situation discussed herein, through the appointment of an attorney pro tem. We believe the law affords a grand jury the automatic right to have a district attorney it can work with appropriately, but this right ceases to become automatic if grand jurors are required to file a petition under chapter 87 for the purpose of acquiring an attorney pro tern’s assistance. If a grand juror were to file a petition, the district attorney would not automatically be placed on temporary suspension with an attorney pro tem appointed in his place. The grand juror’s petition would first have to be approved by a district judge, and if the judge refuses to issue citation pursuant to the petition, the grand juror would have no remedy by appeal. This would seemingly run afoul of a great deal of case law, because “Texas courts have long described the grand jury as a separate tribunal, independent of the conti'ol of judges and prosecutors.” Requiring a grand juror to file a petition would also place an evidentiary burden upon a grand jury — the likes of which have never been recognized in this state. If a grand juror is required to file a petition under chapter 87, the juror would have to “set forth the grounds alleged for the removal of the officer in plain and intelligible language,” as well as “cite the time and place of the occurrence of each act alleged as a ground for removal.” Placing this evidentiary burden on a grand jury that simply wishes to acquire competent legal assistance is utterly nonsensical, especially because no such burden is ever placed on a grand jury when it decides to initiate an inquiry. Accordingly, we find that respondent did not commit a clear abuse of discretion by failing to temporarily suspend relator under chapter 87 prior to appointing an attorney pro tem. VI. Issue Three: Appointment of Attorney Pro Tem Without Relator’s Consent 1. Relator’s Grand Jury Concerns In his petition, relator initiates discussion of this issue by asserting that respondent committed acts that violate various articles under chapter 20 of the code of criminal procedure. These acts include (1) being present in the grand jury room while the grand jury is conducting proceedings, (2) addressing the grand jury about a matter before the grand jury, (3) communicating with the grand jury in a manner that is not statutorily prescribed, and (4) failing to preserve the secrecy of the grand jury proceedings. Relator also asserts that respondent erred by allowing the grand jury to initiate a criminal investigation against him during the extended portion of its term. We believe that relator has the capacity to assert these grievances under both hats, because this alleged judicial behavior— even when taken outside the context of this case — should give both criminal defendants and district attorneys everywhere cause for concern. Nevertheless, we also believe that these grievances, even if supported by fact and law, do not relate to the single question relator has presented for our consideration: Did respondent commit a clear abuse of discretion by issuing the January 17 order? As a result, no matter what hat relator wears, his grand jury concerns are not properly before us, and any relief sought on this basis is denied. In denying these claims, however, we note that we have not left relator without recourse. As a criminal defendant, relator may seek relief through the criminal justice system, where he could file motions to quash and set aside his indictments. As a district attorney, relator may seek to remedy his grievances by directing them to either the Texas State Commission on Judicial Conduct or the Texas Commission for Lawyer Discipline. 2. Distinction Between Attorney Pro Tem and Special Prosecutor In returning our focus to the January 17 order, we take time to note the order’s language: “IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor....” Though the order treats the terms “attorney pro tem” and “special prosecutor” as if they were interchangeable, the terms are far from synonymous. A “district attorney pro tem” is appointed by the district court, and after taking the oath of office, assumes the duties of the elected district attorney and, in effect, replaces the latter in performing germane functions of office for purposes contemplated by the appointment. On the other hand, a “special prosecutor” is permitted by the elected district attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office. Though respondent’s order used the terms interchangeably, it is clear that she sought to appoint an attorney pro tem under article 2.07, and the parties do not contend otherwise. 3. Relator’s Claim Relator correctly asserts that a judge may only appoint an attorney pro tem when one of four circumstances exist: (1) there is no attorney for the State; (2) the district attorney is absent from the county or district; (3) the district attorney is unable to perform the duties of his office; or (4) the district attorney is disqualified to act in any case or proceeding. Though the January 17 order does not tell us which circumstance the judge relied on, the factual nature of this case and the arguments of the parties direct our attention to the issue of disqualification from a case or proceeding. Relator contends that under article 2.07, a district attorney can only be disqualified when the attorney requests to be disqualified and a court approves that request. Relator seemingly relies on subsection (b-1) of article 2.07, which states, “An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified.” If relator’s interpretation of subsection (b — 1) is correct, the initial language of the subsection — “[a]n attorney for the state who is not disqualified to act” — is rendered meaningless. This language clearly envisions the possibility that a district attorney may be disqualified prior to any request for recusal. With that said, we must now determine the circumstances by which such a “possibility” is created. 4. Existing Limitations on Disqualification In Eidson v. Edwards, the court of criminal appeals held, “[i]f there is a conflict of interests on the part of the district attorney or his assistants ... the responsibility of recusal lies with them, not with the trial court judge.” Though Eidson is of questionable precedential value, its “holding” was later adopted by the court of criminal appeals in a majority opinion. To date, there are only two recognized exceptions to this holding. The first is derived from the court of criminal appeals’ plurality opinion in Hill v. Pirtle; the second comes from article 2.01 of the code of criminal procedure. According to Hill, “A trial court ... may disqualify a district attorney or his staff on the basis of a conflict of interest that ... rises to the level of a due process violation.” Under the code of criminal procedure, a district attorney is disqualified from representing the State “in cases where he has been, before his election, employed adversely.” The nature of the due process concerns raised in Hill are inapplicable to the instant case, as is the limitation imposed by article 2.01. Nevertheless, it would be inappropriate to limit ourselves to these exceptions as we are confronted with a case of first impression in the State of Texas. We have found no Texas case law factually similar to the case at hand, nor have we found any case law that addresses the legal question now before us: Can a judge appoint an attorney pro tern to assist a grand jury in investigating a district attorney’s conduct when the district attorney has not sought recusal? 5. Eidson’s Inapplicability Though we previously quoted the Eid-son “holding,” it is worth taking a broader look at the its contextual language at this time. The Eidson opinion reads, There may be instances when a prosecutor must recuse himself from the prosecution of an individual. If there is a conflict of interests on the part of the district attorney or his assistants, however, the responsibility of recusal lies with them, not with the trial court judge. We do not wish to imply that a defendant would be left without recourse if the prosecution’s failure to recuse itself violated his due process rights. If, for example, a prosecutor who had previously represented a defendant later personally prosecuted the defendant in the same matter, the defendant’s conviction would violate the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. This language demonstrates the inapplicability of Eidson to the case at hand. First, the Eidson plurality was focused on instances whereby a prosecutor must decide whether to recuse himself from the prosecution of an individual; it was not focused on the circumstances in which a prosecutor must decide whether to recuse himself from the prosecution of himself. Second, the Eidson plurality identified federal and state constitutional protections — safeguards that are not as readily available in this case. The plurality further argued that, “even more importantly,” a district attorney’s “violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant.” The safeguards espoused by the Eidson plurality provide no protection at all in the instant case. The remedy of seeking a reversal on appeal is wholly inapplicable to circumstances in which a grand jury’s investigation may be thwarted or obstructed by the very individual it is investigating. For these reasons, we conclude that Eidson is inapplicable to the case at hand and, accordingly, does not control our disposition of the instant case. Absent controlling Texas case law, we now look to case law in other states for guidance. 6. Outside Treatment In Northcutt v. Howard, a Kentucky appeals court dealt with a case similar to the one before us. In Northcutt, a judge instructed a grand jury to investigate the commonwealth attorney and other elected officials and promptly appointed an attorney pro tern to assist this investigation. The commonwealth attorney contested this act, requiring the judge to seek a declaration of his rights before the appeals court regarding the appointment. In the course of assessing the propriety of the judge’s action, the appeals court stated: There can be no doubt that if the commonwealth attorney was under indictment he would be disqualified from prosecuting the case against himself, and the circuit court in such case has the right to appoint a commonwealth attorney pro tern to conduct the trial of a felony charge against the commonwealth attorney. This being true, it follows as a matter of course that when the grand jury is actually investigating such a charge against the commonwealth attorney, he is thereby automatically disqualified from assisting the grand jury in such investigation, In Commonwealth v. McHale, the Pennsylvania Supreme Court upheld a trial judge’s appointment of a “special district attorney.” In McHale, the regular district attorney had refused to sign and send indictments to a grand jury because he claimed the indictments contained factual errors. These indictments addressed an allegation of electoral fraud — fraud that, if true, would have increased the district attorney’s vote in an earlier election. The trial judge provided the district attorney an opportunity to sign the indictments or to present alternative indictments, but the district attorney failed to do so. The judge then appointed an attorney to assist the grand jury. On appeal to the supreme court, it was argued that the indictments should be quashed because they were not signed by the district attorney. The court rejected this argument, stating: The appointment ... was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. In Lattimore v. Vernor a county attorney sought a writ of prohibition after a district judge appointed an attorney pro tern to assist a grand jury that was investigating whether the county attorney had committed any criminal acts. The Oklahoma Supreme Court held: A county attorney is disqualified to appear before a grand jury when said grand jury is investigating the conduct of said county attorney, and the district court has authority, under section 5745, C.O.S. 1921, to declare the disqualification of the county attorney, in so far as he is disqualified, and to appoint a special or substituted county attorney to conduct such inquiry, in so far as the county attorney is disqualified, subject to a superintending control by the Supreme Court. An Oklahoma state statute authorized a district court to appoint an attorney pro tem when the county attorney was “disqualified to act.” The supreme court noted, however, that even if the statute did not have the “disqualified to act” language, the district court could have utilized its “inherent power” to make the appointment. In addition to the Oklahoma Supreme Court, the assertion that a court has the inherent power to appoint an attorney pro tem when the county elected attorney is under grand jury investigation has been embraced by the Arkansas Supreme Court, Ohio Supreme Court, Colorado Supreme Court, Indiana Supreme Court, and a California court of appeals. 7. This Court’s Holding In an opinion authored over 140 years ago, the Texas Supreme Court held: It is a part of the duty of the district attorney to prepare judgments under the direction of the grand jury; but the powers and duties of the grand jury do not cease because there may happen to be no district attorney. In case of a vacancy in the office of district attorney, or in case of the district attorney’s temporary disability to act, or in any particular case where there might exist special reasons why he should not act, any other competent person might act in the preparation of indictments, by the authorization of the court. We are currently confronted with a case in which there undoubtedly exist special reasons why relator should not act and why he is disqualified to act. Accordingly, respondent was authorized to appoint a competent person to act in relator’s place, and we find that this authorization is explicitly derived from article 2.07 of the code of criminal procedure. A judge has the authority, as well as an obligation, to appoint an attorney pro tem to assist a grand jury that intends to criminally investigate the district attorney. In such a situation, the district attorney is deemed “disqualified to act” for purposes of article 2.07(a) of the code of criminal procedure, and disqualification need not solely arise from the attorney’s own motion to recuse under subsection (b-1) While we find that respondent’s appointment of an attorney pro tern was explicitly authorized by article 2.07, we further find that such appointment was implicitly authorized by a court’s inherent power. In State v. Johnson, the Texas Court of Criminal Appeals held: In addition to specific power to act conferred by constitutional provision, statute, or common law, all courts have inherent authority to take certain actions. In Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex.1979), our sister court noted that in addition to express grants of power, a court has inherent judicial power, which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity. Courts may also have implied authority to act, arising from specific grants of power. In sum, a court may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or the power to take the action arises from an inherent or implied power. Through the appointment of an attorney pro tern, respondent denied relator the opportunity to participate in the grand jury’s investigation into his conduct. In doing so, the appointment served to preserve the integrity of the court and aid in the administration of justice. We thus hold that respondent did not commit a clear abuse of discretion by disqualifying relator without his consent. 8. The Limitations of this Court’s Holding We must make a few essential observations concerning this Court’s holding. We begin by observing that, from the record before us, it appears that the grand jurors collectively approached respondent with a desire to investigate relator. The record does not reflect that respondent disqualified relator upon receiving notice that only one or a few grand jury members wanted to investigate relator. We also observe that the grand jury apparently investigated relator on its own initiative; the record does not reflect that respondent directed or prompted the commencement of the investigation. If the record regarding these circumstances reflected otherwise, we cannot say that our opinion would remain the same. Lastly, we held that respondent had the authority to disqualify relator because the grand jury wished to investigate relator for possible criminal conduct (e.g., “voter fraud”). When a grand jury wishes to investigate the district attorney for possible criminal wrongdoing, we have found that a judge is legally authorized to appoint an attorney pro tern to assist with the investigation because doing so is necessary to ensure that the grand jury is able to properly perform its duties. An appointment cannot be similarly justified, however, when the appointment is made to assist a grand jury in investigating a district attorney for non-criminal matters because the grand jury would be acting outside of its legally prescribed duties. It is evident under the law of Texas that a grand jury has no authority to investigate civil matters or to make any investigation into circumstances where no criminal offense is suspected or alleged. Aceord-ingly, a judge should be inclined to restrain, rather than assist, a grand jury that is investigating a matter outside the scope of its authority. In the instant case, respondent wrongfully assisted the grand jury in commencing an investigation into several noncriminal matters by appointing an attorney pro tem to aid in investigating said matters. These matters related to whether relator requested the grand jury to (1) investigate civil matters, (2) subpoena the District Judge, (3) investigate and indict several Willacy County elected officials, (4) present indictments without being shown supporting evidence, and (5) “true bill” a case even though the grand jury was in favor of a “no bill.” These concerns fail to suggest any intelligible indicia of any criminal offense that may have been committed. While we find all this to be problematic, we do not believe that the January 17 order should be deemed voidable as a result. The order did, nonetheless, evidence the jury’s desire to acquire the assistance of an attorney pro tem to investigate relator for possible criminal wrongdoing — theft, attempted theft, tampering with records, perjury, abuse of office, and voter fraud — a fact that is essential to this Court’s holding. VII. Issue Four: Right to Notice and a Hearing Relator asserts that even if respondent had the power to disqualify him and to appoint an attorney pro tem, he should have been afforded notice and a hearing prior to the appointment. While this is not explicitly required by article 2.07, relator contends the law implicitly requires that notice and a hearing be afforded when a district attorney has not elected to voluntarily disqualify himself. Relator states that “[a] finding of disqualification would require that the Court conduct a hearing, allow for the presentation of evidence of disqualification, and allow the duly elected District Attorney the opportunity to present evidence and authorities showing that disqualification was not proper.” Relator does not cite any law to support his assertion, and our own efforts to find law on point has again led us to look toward case law from other states. 1. Outside Treatment Only a handful of courts have addressed the very contention relator asserts herein. Among these courts, we find the treatment provided by the West Virginia Supreme Court to be of great guidance. a. West Virginia In State ex rel. Matko v. Ziegler, the West Virginia Supreme Court addressed a case that is nearly factually identical to the one now before us. The facts in Matko are as follows: On November 12, 1970, after the grand jury had returned several indictments, the foreman of the grand jury informed the special judge that some members of the grand jury desired to investigate other matters, and one grand juror, in the presence of the [elected prosecutor], stated that the matters in question related to bribery concerning [the prosecutor].... [T]he court advised the jury that it could investigate the matters and in the presence of the grand jury informed [the prosecutor] that he would appoint a special prosecuting attorney to conduct the investigation as the court was of the opinion that [the prosecutor] and his assistants were disqualified from acting in the matters. The court then excused the grand jury until November 18. The grand jury reconvened on November 18, and on November 23, returned [an] indictment against [the prosecutor]. Before the adjournment of the, grand jury, [the prosecutor] ... filed his petition in which he prayed that the grand jury be discharged and dismissed; ... that the special prosecuting attorney be discharged and the order appointing him rescinded; ... [and] that, if the grand jury were not discharged, ... that [the prosecutor] be permitted to appear before the grand jury and give such testimony as he might desire.... [T]he grand jurors informed the court that they were unwilling to hear any testimony by [the prosecutor], and ... the court refused to grant [the prosecutor’s] prayer.... The supreme court first ruled that the judge had authority to make the appointment under West Virginia Code § 7-7-8, which provided that “if in any case the prosecuting attorney and his assistant be unable to act, or if in the opinion of the court it would be improper for him or his assistant to act, the court shall appoint some competent practicing attorney to act in such case.” The court then went on to reject the prosecutor’s claim that he should have been afforded notice and a hearing, stating: The statute clearly contemplates summary action by the trial court, in which a proceeding is pending, and makes no provision for notice to the prosecuting attorney or for a hearing concerning his disqualification to act in the particular circumstances. Any provision for notice and hearing would result in delay and operate to defeat the purpose of the statute. Furthermore, notice and hearing are generally unnecessary for, as here, there is no dispute in the material facts and the court and the prosecuting attorney were entirely and equally familiar with the situation which disqualified the petitioner from acting as the prosecuting attorney in connection with the proceedings relating to his indictment and prosecution. The West Virginia Supreme Court revisited Matko eight years later in State ex rel. Preissler v. Dostert. In Preissler, a judge removed the elected prosecutor from a case and appointed an attorney to act in his place. The judge never received a formal request to remove the prosecutor; rather, the judge predicated removal upon his belief that the prosecutor had made statements about the case that (1) violated the code of professional responsibility and (2) evidenced an intent not to prosecute. The supreme court, recognizing that the judge had disqualified the prosecutor without any formal request to do so, held that the judge “was not empowered to enter the order on his own motion.” The court then proceeded to address the question of whether a judge had the power “to discharge summarily a publicly elected prosecutor from the performance of his duty.” In addressing this question, the court compared Preissler and Matko, noting the factual distinctions that led to each elected prosecutor’s disqualification: We note, however, that Matko involved a proceeding in the circuit court wherein the elected prosecuting attorney had been indicted by the grand jury upon a felony charge. The disqualification of the prosecutor to act resulted from his status as a criminal defendant, obvious on the face of the indictment. There was no need for a hearing since his status inherently rendered his prosecution of the case improper. Here, however, the determination of impropriety to act is not based on the status of the prosecutor but rather on the issue of the prosecutor’s refusal to prosecute. Not only does the question require presentation of facts in order to enable the judge to reach an opinion on the matter, but it also requires a charge that the prosecutor is avoiding or sidestepping the duties imposed on him by the Constitution and by his office. In such a situation the circuit court judge cannot summarily override the Constitutional mandate that the prosecuting attorney perform the duties of his office without first conducting a full and proper hearing. Consequently, we would limit the holding in Matko, on this issue, to the facts in that case, and we would hold that where recusal of a prosecuting attorney from the prosecution of the criminal case under W. Va.Code § 7-7-8 is sought on the basis of his failure to perform his official duties, the circuit court judge cannot summarily recuse the prosecutor but must afford the opportunity to have a hearing on the matter.... Preissler thus established that, as a general rule, an elected prosecutor is entitled to notice and a hearing prior to a judicial determination that he is disqualified to act in a case or proceeding; meanwhile, Mat-ko’s holding — bound by the unique factual situation from which it was derived — was left as an exception to this rule. Preissler went on to hold that, before a prosecutor may be disqualified from acting in a particular case, “the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard.” b. Other Courts In State ex rel. Ilvedson v. District Court, the North Dakota Supreme Court confronted a case that was factually similar to Preissler. In Ilvedson, a group of individuals presented the elected prosecutor with a petition, requesting that he take action against the county commissioners to recover a debt owed to the county. When the prosecutor failed to take an action that satisfied the petition’s endorsers, they requested the assistance of the district judge. In response, the judge disqualified the prosecutor from undertaking any further action against the commissioners, and assigned the responsibility for all future action to an appointed attorney. The judge derived his appointment authority from a statute that allowed a judge to appoint an attorney when the prosecutor failed or neglected to prosecute a case that the judge believed should be prosecuted. Though the statute did not explicitly afford the'prosecutor a right to notice and a hearing prior to a finding of disqualification, the prosecutor argued he was entitled to as much. The supreme court agreed with the prosecutor, stating: Assuming, without deciding, that the legislature may provide for a partial or limited removal of the state’s attorney— removal in so far as the institution and prosecution of one particular action is concerned — clearly it may not authorize such removal except after notice and hearing. Hence, if the legislature intended to confer upon the district judge power to determine whether the state’s attorney has refused or neglected to perform his duty, and to order that the state’s attorney be deprived of all power and duty as such in connection with the institution and prosecution of a certain action, all without notice to the state’s attorney, or opportunity to be heard on the question whether he has refused or neglected to perform his duty, then the statute is manifestly unconstitutional. But, it will not be presumed that the legislature had any such intention, unless it has clearly expressed such intention in the law itself. The presumption is that the legislature intended that the removal proceeding which it prescribed should be in accordance with the principle of due process of law. In Lattimore v. Vernor and State ex rel. Thomas v. Henderson, the Oklahoma Supreme Court and the Ohio Supreme Court, respectively, held that an elected prosecutor was entitled to notice and a hearing prior to being involuntarily disqualified and having an attorney pro tern subsequently appointed in his place. Both courts so held in response to a trial judge who had appointed an attorney to assist a grand jury in criminally investigating the prosecutor. In both cases, the judge, on his own initiative, empaneled the grand jury and directed the jury to investigate the prosecutor, c. Contrasting Matko Of the five cases just discussed, only Matko held that the elected prosecutor was not entitled to notice and a hearing prior to his disqualification. While Matko may appear to be inconsistent with the other cases’ holdings, there are two critical facts in Matko that make its holding distinguishable, thus obviating any conflict with the other cases. Matko, like Lattimore and Vernor, involved a prosecutor who was disqualified as a result of being the subject of a grand jury investigation. Preissler and Ilvedson each involved a prosecutor who was disqualified for allegedly failing to perform the duties of his office (i.e., refusing to prosecute a case). The difference between these two grounds for disqualification, as we previously noted from Preis-sler, is that the question of whether a prosecutor should be disqualified for refusing to prosecute requires not only the “presentation of facts in order to enable the judge to reach an opinion on the matter, but it also requires a charge that the prosecutor is avoiding or sidestepping the duties imposed on him by the Constitution and by his office.” The question of whether a prosecutor should be disqualified when he is the subject of a grand jury investigation, on the other hand, does not necessitate the “presentation of facts ... to enable the judge to reach an opinion,” nor does it require a finding that the prosecutor is “sidestepping the duties imposed on him.” The reasoning behind this position — as viewed through the law of our state — is that even if the judge believed that the prosecutor had not committed wrongdoing, the judge’s opinion would have no practical relevance because it does not provide a legally authorized basis for prohibiting the grand jury from investigating the prosecutor. Additionally, the presentation of facts relating to whether the prosecutor actually committed wrongdoing is unnecessary because no evidentiary bar needs to be satisfied in order for a grand jury investigation to commence. Lastly, as noted in Preissler, there is “no need for a hearing since [the prosecutor’s status as a criminal defendant] inherently renders his prosecution of the case improper.” The second key factual distinction in Matko, which is not present in any of the other cases, is that in Matko: [I]t was members of the grand jury who approached the criminal court judge to request permission to investigate the elected prosecutor. Thus in Matko, the criminal court judge in no way initiated the proceedings, nor did he aid, abet, or encourage any activities against the prosecutor that were not forced upon him by the entreaties of third parties. In Preissler and Ilvedson, the judge was not forced by the entreaties of third parties to disqualify the prosecutor. Furthermore, in Lattimore and Thomas, the judge was responsible for initiating the grand jury investigation against the prosecutor, thus singlehandedly creating the need and the basis for the prosecutor’s disqualification. This is problematic because, as articulated in Preissler, “[t]o permit a judge to invoke the jurisdiction of his court sua sponte would place him in a position of a complainant deciding the merits of his own complaint in violation of the ancient homily of the law that no man may be a judge in his own case.” 2. Right to Notice and a Hearing Under Article 2.07 We hold that article 2.07 implicitly affords a district attorney the right to notice and a hearing before he is deemed disqualified to act in any case or proceeding. We further hold, however, that this right ceases to exist in situations like the one now before us, where: (1) a grand jury, on its own initiative, sought to investigate the district attorney for possible criminal wrongdoing; (2) the judge, upon being confronted with the grand jury’s desire to investigate the district attorney, disqualified the district attorney from participating in the grand jury’s investigation; and (3) the judge subsequently appointed an attorney pro tern to assist the grand jury with its investigation. While our holdings are undeniably influenced by the out-of-state case law discussed herein, they are primarily predicated upon our observations of the law in this state. While there are various means by which a district attorney may be lawfully restricted from performing, in whole or in part, the duties of his office, these means typically afford him with notice and a hearing. For instance, under our state constitution, a district judge cannot remove the district attorney for incompetency, official misconduct, or other causes defined by law, without the attorney being found guilty of the charges against him at the conclusion of a jury hearing. Additionally, in cases where a criminal defendant files a pretrial motion to disqualify the district attorney from prosecuting a case against him, the motion may not be granted without the defendant proving at a hearing that there is a conflict of interest that rises to the level of a due process violation. Even in instances in which the district attorney wishes to voluntarily recuse himself, article 2.07 demands that the district attorney seek approval from the judge by showing good cause for his recusal — a requirement that necessitates some basic level of communication and interaction between the judge and district attorney prior to disqualification. In light of all this, our conclusion that article 2.07 implicitly requires notice and a hearing is consistent with Texas law. This Court’s decision to not extend the right to notice and a hearing to the instant case also finds support in the law of this state. The Texas Supreme Court has recognized that an elected county official is not always entitled to notice and a hearing prior to being restricted in the performance of his duties. In Griner v. Thomas, Thomas, a district judge, signed an order temporarily suspending Griner, a county judge, from office. The temporary suspension was made pending the hearing of a petition for the removal of Griner from office. On appeal, Griner complained that if Thomas had the power to temporarily suspend him, he could not have done so without first affording him notice and a hearing, which were not provided. The supreme court rejected this complaint, stating: [I]t is argued that ... notice and a hearing should be required before a suspension is made. It is conceded that the statute does not, in terms, require notice, but it is insisted that it is essential to that due process of law without which no one may be deprived of his property, and that the requirement of it should therefore be read into the law. But such a requirement would be inconsistent with the terms of the statute, which prescribes the only notice to be given, that of the final hearing, and authorizes the suspension at any time after the order therefor has been made. To hold that notice and a hearing were necessary before suspension would render the power futile. To the contention that suspension without notice is a deprivation of property without due process, the answer is that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination, and, hence, the application of remedies so provided for does not unduly deprive him of any property. The petition for removal in Griner does not appear to operate any differently than the modern-day petition that is filed in accordance with chapter 87 of the local government code. Chapter 87 states that pending a county officer’s trial, a “district judge may temporarily suspend the officer and may appoint another person to perform the duties of the office.” While a judge may suspend an officer, he may not do so until (1) “[ajfter the issuance of the order requiring citation of the officer,” and (2) after “the person appointed to serve executes a bond, with at least two good sufficient sureties, in an amount fixed by the judge and conditioned as required by the judge.” It is conceivable that both of these requirements can be fulfilled prior to the officer acquiring notice through his receipt of the citation and petition; therefore, chapter 87 does not appear to guarantee that the officer will receive notice prior to his suspension. Lastly, chapter 87 clearly does not guarantee the right to a hearing prior to suspension, for it contains no statute prescribing such a requirement. One final notable aspect of Griner is the supreme court’s response to “the contention that suspension without notice is a deprivation of property without due process.” The supreme court’s answer — “that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination” — reflects the idea that an individual who accepts public office takes it cum onere, that is, the