author: KAREN ANGELINI, Justice.

text:
    The STATE of Texas, Appellant, v. Frank FORD, Appellee.
    Nos. 04-03-00628-CR to 04-03-00632-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 12, 2005.
    Rehearing Overruled Jan. 27, 2005.
    Ronald L. Sutton, Dist. Atty., Junction, Kurtis S. Rudkin, Law Office of Kurtis S. Rudkin, Boerne, for appellant.
    Stanley G. Schneider, Schneider & McKinney, P.C., Houston, David L. Bots-ford, Law Office of David L. Botsford, Austin, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

The State appeals the trial court’s order quashing the indictments against Appellee Frank Ford. Ford filed a motion to dismiss the appeal for lack of jurisdiction. On July 14, 2004, we issued an opinion and order denying Appellee Frank Ford’s motion to dismiss. In his motion to dismiss, Ford argued that we lacked jurisdiction over this appeal because the attorney pro tern did not timely file his oath with the clerk of the court. In our opinion of July 14, 2004, we rejected Ford’s argument and held that the attorney pro tern’s delay in filing the oath with the district clerk was a mere irregularity that did not render his oath invalid. Ford has now filed a motion for rehearing. In his motion for rehearing, Ford, for the first time, points out that the “oath” referred to by all parties in the motion to dismiss and responses thereto (and by us in our opinion) was not the oath required of all appointed state officers under article XVI, section 1, of the Texas Constitution; instead, this “oath” was the anti-bribery statement. Thus, in his motion for rehearing, Ford argues that the attorney pro tern’s failure to take the oath required by the Texas Constitution deprives us of jurisdiction. We disagree and deny Ford’s motion for rehearing. However, we withdraw our opinion and order of July 14, 2004, and issue this opinion and order in their place.

Background

This appeal arises from Tom Newton and Frank Ford’s actions in In re Grand Jury Proceedings, 129 S.W.3d 140 (Tex.App.-San Antonio 2003, pet. denied). In that case, Newton and Ford represented the appellant, Harold Shields. Shields sought disclosure of state grand jury proceedings related to his indictment for aggravated sexual assault. Id. at 141. Specifically, he hoped to use the grand jurors’ deposition testimony as evidence in his federal civil rights and malicious prosecution suit against Donnie Jeanne Coleman and Carol Twiss, the prosecutor and the investigator, respectively, who presented the case against Shields to the grand jury. Id. Coleman, an assistant district attorney, and Twiss, an investigator with the Kerr County Sheriffs Office, allegedly failed to present exculpatory evidence to the grand jury. Id. at 142. The presentation was not recorded or transcribed. Id. After hearing the presentation, the grand jury indicted Shields on three counts of aggravated sexual assault. Id. Later, K.S., the victim, recanted, and the State dismissed its case against Shields. Id.

After the case against him was dismissed, Shields sued Coleman and Twiss in federal court, alleging that their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. Id. As elements of his malicious prosecution claim, Shields sought to prove that (1) the indictment was not supported by probable cause and (2) the presence of actual malice. Id. During discovery, Newton and Ford, Shields’s attorneys, subpoenaed several grand jurors in an attempt to take their videotaped depositions. Id. In response, Coleman and Twiss moved to quash the subpoenas and moved for a protective order preventing Shields from contacting the grand jurors. Id.

Because Newton and Ford allegedly talked to certain members of the grand jury about the grand jury proceedings, they were indicted on February 26, 2008 for “knowingly and with the intent to obtain a benefit, solicit or receive from a public servant, to wit: grand juror ... information that said public servant had access to by means of his/her office, and that said information had not been made public.” Newton and Ford filed a joint motion to quash the indictments. The trial court granted the motion and the State appealed.

Motion to Dismiss

Newton and Ford have filed a joint motion to dismiss the State’s appeal, arguing that we do not have jurisdiction. Specifically, Newton and Ford complain of the “Special Prosecutor,” Kurtis S. Rudkin, having signed the notices of appeal. According to Newton and Ford, to invoke this court’s jurisdiction, Ronald Sutton, the District Attorney, should have signed the notices of appeal. In response, the State contends that with regard to this appeal, Rudkin has the full authority and powers of Sutton’s Office.

Article 44.01(d) of the Texas Code of Criminal Procedure states that “[t]he prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, ór sentence to be appealed is entered by the court.” Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp.2004-05). “Prosecuting attorney” is defined as “the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.” Id. art. 44.01(i). And, according to Texas Rule of Appellate Procedure 25.2(c)(2), a State’s notice of appeal is sufficient if it complies with article 44.01. Tex.R.App. P. 25.2(c)(2).

In State v. Muller, 829 S.W.2d 805, 809 (Tex.Crim.App.1992), an- assistant prosecuting attorney signed the notice of appeal. The court of criminal appeals held that article 44.01(d)’s phrase “ ‘make an appeal’ clearly requires ... the prosecuting attorney to personally supervise and authorize the appeals to be undertaken by his office on behalf of the State.” Id. at 810. And, the court held that pursuant to article 44.01, “prosecuting attorney” clearly does not include an assistant prosecutor or subordinate. Id. at 809. However, the prosecuting attorney need not sign the notice of appeal to “make an appeal”; he must “either physically sign the notice of appeal or personally instruct and authorize a subordinate to sign the specific notice of appeal in question.” Id. at 810. And, “this personal authorization [must] occur prior to the expiration of the fifteen day window of appeal.” Id.

In State v. Rosenbaum, 852 S.W.2d 525, 525-26 (Tex.Crim.App.1993), upon defendant’s motion, the trial court disqualified the district attorney and appointed a special prosecutor to “investigate” and “prosecute” the case. After the trial court quashed the indictment, the special prosecutor timely filed a notice of appeal with the court of appeals. Id. at 526. Relying on Muller, the court of appeals held that it was without jurisdiction to hear the appeal because the requirements of article 44.01(d) had not been met. Id. The court of criminal appeals reversed, noting that Muller did not cover this situation in which the district attorney is altogether removed from a case and a special prosecutor is substituted for that district attorney. Id. at 527. The court noted that when a district attorney is considered disqualified, article 2.07(a) allows the trial court to appoint “any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.” Id. (citing Tex.Code Crim. Proc. Ann. art. 2.07(a)). According to the court, article 2.07(a) “states plainly that the pro tem attorney will perform the duties of the district attorney.” Id. (citing Tex.Code Crim. Proc. Ann. art. 2.07(a)). The court also noted that “over 120 years ago, the Texas Supreme Court (then vested with general authority over criminal matters) held that ‘an attorney pro tem appointed by the court has all the powers and duties of the regular prosecuting attorney.’ ” Id. (quoting State v. Lackey, 35 Tex. 357 (1872)). Thus, the court of criminal appeals concluded that “if a district attorney is disqualified, the court may appoint any competent attorney to assume all the district attorney’s duties and powers during his disqualification.” Id. As such, the court of criminal appeals distinguished Muller:

[A]n attorney pro tem or special prosecutor takes the place of the disqualified district attorney assuming all the district attorney’s powers and duties in the case. Therefore, the special prosecutor is not subject to the direction of the disqualified district attorney as is a subordinate, but, for that case, he is the district attorney. Thus, this case before us is distinguished from Muller because no subordinate to the district attorney is involved, but a substitute who was given the primary responsibility for the case by court order.

Id. at 528 (emphasis in original). Because the special prosecutor was given all the powers of the district attorney, his notice of appeal invoked the jurisdiction of the court of appeals. Id.

The concurrence by Judge Clinton emphasizes the misuse of the terms “special prosecutor” and “attorney pro tem.” 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.” Id. at 529 (Clinton, J., concurring) (emphasis in original). In contrast, 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.” Id. (emphasis in original). Noting the distinctions between these terms, Judge Clinton cautioned his court and other courts in using the terms synonymously. Id. at 530.

According to Newton and Ford, Muller is dispositive, requiring us to dismiss this appeal. Because (1) there is nothing in the record to indicate that Sutton personally authorized Rudkin to make the appeal and (2) Muller does not allow the record to be supplemented to so indicate a personal authorization outside the fifteen-day period for filing the notice of appeal, we must dismiss. However, Newton and Ford’s reasoning only applies if Rudkin is simply an attorney aiding Sutton, i.e. a special prosecutor. If, on the other hand, Rudkin was properly appointed as the attorney pro tem, his notice of appeal would be sufficient pursuant to Rosenbaum. Our issue is, therefore, whether Rudkin was properly appointed as attorney pro tem pursuant to article 2.07.

Article 2.07 provides for the appointment of an attorney pro tem:

Art. 2.07. Attorney pro tem
(a) 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 his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.
(b) Except as otherwise provided by this subsection, if the appointed attorney 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. Nothing herein shall prevent a commissioners court of a county from contracting with another commissioners court to pay expenses and reimburse compensation paid by a county to an attorney for the state who is appointed to perform additional duties.
(b — 1) 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.
(c) If the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court. He shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.
(d) In this article, “attorney for the state” means a county attorney, a district attorney, or a criminal district attorney.
(e) In Subsections (b) and (c) of this article, “attorney for the state” includes an assistant attorney general.
(f) In Subsection (a) of this article, “competent attorney” includes an assistant attorney general.
(g) An attorney appointed under Subsection (a) of this article to perform the duties of the office of an attorney for the state in a justice or municipal court may be paid a reasonable fee for performing those duties.

Tex.Code Crim. Proc. Ann. art. 2.07 (Vernon 1977 & Supp.2004-05).

In its response, the State contends that Rudkin is the attorney pro tem. For support, the State references the Order of Appointment dated November 8, 2002 by the Honorable Stephen B. Abies:

I, Stephen B. Abies, District Judge for the 216th Judicial District of the State of Texas, having full confidence in Kurtis S. Rudkin, of Kendall County, Texas, do hereby with the consent of Kurtis S. Rudkin, and by request of the 198th Judicial District Judge and District Attorney appoint him as Special Prosecutor for the 198th Judicial District of Texas, to act in name, place and stead, to do and perform any and all acts by virtue of said appointment, and hereby ratify and confirm any and all acts lawfully done by virtue hereof

(emphasis added). Indeed, although “special prosecutor” is misused, this language endows Rudkin with all of the district attorney’s powers.

In their reply brief, Newton and Ford contend that the record does not show that the trial court complied with article 2.07. First, they argue that the record does not reflect that Sutton, the district attorney, was disqualified. Newton and Ford were not indicted until February 26, 2003. As such, Rudkin was appointed as special prosecutor before criminal proceedings began. Thus, there is no motion for recusal or disqualification. However, the order of appointment does reference that the trial court was appointing Rudkin on request of the District Attorney. Article 2.07(b-1) provides, “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.” Tex.Code Crim. Proc. Ann. art. 2.07(b-1) (Vernon Supp.2004-05). As such, the order shows that the trial court complied with article 2.07(b-1).

Second, Newton and Ford emphasize that the judge for the 216th Judicial District Court appointed Rudkin to act as attorney pro tem in the 198th Judicial District Court. Article 2.07(a) provides that “the judge of the court in which [the prosecuting attorney] represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.” Id. art. 2.07(a). However, under the exchanges-of-benches doctrine, the 216th District Court had authority to appoint Rudkin. The Texas Constitution states in part that “the district judges may exchange districts, or hold courts for each other when they deem it expedient, and shall do so when required by law.” Tex. Const. art. V, § 11; see Davila v. State, 651 S.W.2d 797, 799 (Tex.Crim.App.1983); Tex. Gov’t Code Ann. § 74.094(a) (Vernon Supp.2004-05) (a district judge may hear and determine a matter pending in any district court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter, and his judgments, orders or actions are valid and binding as if the case were pending in his own court). Furthermore, section 24.303 of the Texas Government Code states that “[i]n any county in which there are two or more district courts, the judges of those courts may, in their discretion, ... exchange benches or districts from time to time.” Tex. Gov’t Code Ann. § 24.303(a) (Vernon 2004). Therefore, the 216th District Court had authority to appoint Rudkin.

Third, Newton and Ford argue that Rudkin is not an attorney pro tem because the record does not reflect that he took the oath required of all appointed officers under the Texas Constitution. Article 2.07(c) provides that “[i]f the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court.” Id. art. 2.07(a). Thus, an attorney pro tem is required to take the oath as required by the constitution. See Rosenbaum, 852 S.W.2d at 529 (Clinton, J., concurring) (“Basically, 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.”) (emphasis in original). In his response to Newton and Ford’s joint motion for rehearing, Rudkin admits that he never took the oath required by article 2.07 and article XVI, section 1(a) of the Texas Constitution. Does Rudkin’s failure to take the oath and file it in compliance with the Texas Constitution and article 2.07 of the Texas Code of Criminal Procedure prevent him from invoking the jurisdiction of this court? Or, does Newton and Ford’s failure to object below make Rudkin a de facto attorney pro tern capable of invoking the jurisdiction of this court?

In 2002, the Waco Court of Appeals held in Marbut v. State, 76 S.W.3d 742 (Tex.App.-Waco 2002, pet. ref'd), that a defendant must object in the trial court to procedural violations in appointing an attorney pro tern or that defendant waives the issue. In Marbut, although there were several procedural violations in appointing the attorney pro tern, the court held that the defendant waived this issue by failing to object in the trial court. Id. at 749; see also Stephens v. State, 978 S.W.2d 728, 730 (Tex.App.-Austin 1998, pet. ref'd) (holding that appellant’s failure to object in trial court to attorney pro tern’s failure to meet the requirements of article 2.07 waived any error). In doing so, the Waco Court of Appeals relied on the court of criminal appeals’s opinion in Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997).

In Marin, the court of criminal appeals recognized that a defendant’s rights arose from distinct rules that generally fall into one of three categories: (1) absolute requirements and prohibitions; (2) rights which must be implemented by the system unless expressly waived; and (3) rights which are implemented only upon request and therefore can be forfeited. Id. The court noted that the third category includes rights that arise from rules that are optional at the request of a defendant. Id. at 278. Texas Rule of Appellate Procedure 33.1 applies only to these rights; the judge must implement them only on request of a party, and they will be forfeited if no complaint is made at trial. Id. at 280. Ordinary objections to evidence and procedural benefits are included in this category. Id.

In finding that rule 33.1 applies to a defendant’s complaint about an attorney pro tem under article 2.07, the Waco Court of Appeals explained:

Article 2.07 does not concern the jurisdiction of the trial court or the constitutionality of a statute. Marin, 851 S.W.2d at 279. Furthermore, a defendant’s right to have a prosecutor qualified under article 2.07 to represent the State is not a right “so fundamental to the proper functioning of our adjudicatory process” that it cannot be forfeited. Id. at 278. Article 2.07 sets out a procedural process for the appointment of an ad hoc district attorney. If those procedures are not properly followed, the defendant should object. Failure to do so, under rule 33.1, forfeits the complaint on appeal.

Marbut, 76 S.W.3d at 750. Thus, the Waco Court of Appeals held that a defendant must object to the attorney pro tern’s failure to comply with article 2.07 in the trial court. Id.

Likewise, courts have held that an appellant cannot object on appeal for the first time to the failure of a trial court judge to meet all the proper requirements. See Wilson v. State, 977 S.W.2d 379, 380-81 (Tex.Crim.App.1998) (holding that appellant may not object for first time on appeal to a procedural irregularity in the assignment of a former judge who is otherwise qualified). ‘When a judge is holding office under the color of law and discharging his duties of office, his acts are conclusive as to all parties and cannot be attacked in an appeal, even though the person acting as judge lacks the necessary qualifications and is incapable of legally holding the office.” Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 651 (Tex.App.-Dallas 2002, pet. denied); see also Espinosa v. State, 115 S.W.3d 64, 66 (Tex.App.-San Antonio 2003, no pet.).

By holding that the defendant must object to preserve error, these cases are, in essence, holding that the actions of the attorney pro tem or the trial court are voidable, not void. Here, if Rudkin’s actions are voidable and the defendant did not object below, was Rudkin a de facto attorney pro tem with the authority to “make an appeal”? We believe so. Newton and Ford’s failure to object below clothed Rudkin with authority to act as attorney pro tem, and as a de facto attorney pro tem, Rudkin’s notice of appeal invokes the jurisdiction of this court.

Conclusion

Although the trial court’s order of appointment used the term “special prosecutor,” Rudkin is, in substance, an attorney pro tem. And, Newton and Ford’s failure to timely object to Rudkin’s qualifications as an attorney pro tem under article 2.07 made Rudkin a de facto attorney pro tem capable of invoking the jurisdiction of this court. Therefore, the notice of appeal signed by Rudkin invoked our jurisdiction over this appeal. We deny Ford and Newton’s joint motion to dismiss the State’s appeal.

      . Appeal Nos. 04-03-00628-CR, 04-03-00629-CR, 04-03-00630-CR, 04-03-00631-CR, and 04-03-00632-CR are consolidated.

      . The State has also appealed the trial court's order quashing the indictments against Tom Newton. The motion to dismiss and the motion for rehearing are joint motions filed by both Tom Newton and Frank Ford. With respect to Tom Newton’s motion to dismiss and motion for rehearing, please see our opinion in consolidated appeal nos. 04-03-00633-CR, 04-03-00634-CR, 04-03-00635-CR, 04-03-00636-CR, and 04-03-00637-CR.

      .Coleman supervised Twiss’s presentation of the evidence regarding Shields to the grand jury. In re Grand Jury Proceedings, 129 S.W.3d at 142.

      . The majority explained in a footnote that it used the term "special prosecutor” "because that is the term used by the parties and the court of appeals.” Rosenbaum, 852 S.W.2d at 526 n. 1. The majority, however, acknowledged "the remarks of [Judge] Clinton in his concurring opinion noting the proper categorization of special prosecutor and district attorney pro tem.” Id.

      . In their original motion to dismiss, Newton and Ford argued that Rudkin was not an attorney pro tem because the record did not reflect that he filed an oath with the clerk of the court as required by article 2.07(c). However, now on rehearing, Newton and Ford have pointed out that the "oath” referred to in the motion to dismiss and responses thereto was not the correct oath, but instead was an anti-bribery statement. Thus, we need no longer address Rudkin's failure to timely file the "oath”; instead, we must address whether Rudkin’s failure to take the oath deprives us of jurisdiction.

      . Article XVI, section 1 of the Texas Constitution provides:
      (a) All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation:
      "I, _, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of_of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”
      (b) All elected or appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement:
      "I, _, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God”.
      (c)Members of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement required by Subsection (b) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Subsection (a) of this section. All other officers shall retain the signed statement required by Subsection (b) of this section with the official records of the office.
      Tex. Const. art. XVI, § 1. Here, Rudkin subscribed to the anti-bribery statement as required by subsection (b). However, Rudkin admits that he never took the oath as required by subsection (a).

      . We note that Newton and Ford rely on Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex.App.-El Paso 1999, pet. ref'd), for their assertion that Rudkin’s actions are void. In doing so, they emphasize Prieto's holding: "Because [the judge] was required to take the constitutional oaths, but did not do so, all judicial actions taken by him in the case below were without authority.” Id. at 321. Prieto, however, is distinguishable. In Prieto, the defendant, Prieto Bail Bonds, raised its challenge to the judge "after the judgment nisi issued but prior to the final forfeiture hearing.” Id. at 318. However, because the judgment nisi was the first notice of forfeiture given to a surety such a Prieto Bail Bonds, the court found that Prieto objected timely. Id. After finding that Prieto had preserved its complaint, the court addressed the merits and determined that because the judge had failed to take the required constitutional oaths, his actions were void. Id. at 321. Here, however, there is no timely objection.


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Tom NEWTON, Appellee.
    Nos. 04-03-00633-CR to 04-03-00637-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 12, 2005.
    Rehearing Overruled Jan. 27, 2005.

      Ronald L. Sutton, Dist. Atty., Junction, Kurtis S. Rudkin, Law Office of Kurtis S. Rudkin, Boerne, for appellant.
    Stanley G. Schneider, Schneider & McKinney, P.C., Houston, David L. Bots-ford, Law Office of David L. Botsford, Austin, for appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

The State appeals the trial court’s order quashing the indictments against Appellee Tom Newton. Newton filed a motion to dismiss the appeal for lack of jurisdiction. On July 14, 2004, we issued an opinion and order denying Appellee Tom Newton’s motion to dismiss. In his motion to dismiss, Newton argued that we lacked jurisdiction over this appeal because the attorney pro tem did not timely file his oath with the clerk of the court. In our opinion of July 14, 2004, we rejected Newton’s argument and held that the attorney pro tern’s delay in filing the oath with the district clerk was a mere irregularity that did not render his oath invalid. Newton has now filed a motion for rehearing. In his motion for rehearing, Newton, for the first time, points out that the “oath” referred to by all parties in the motion to dismiss and responses thereto (and by us in our opinion) was not the oath required of all appointed state officers under article XVI, section 1, of the Texas Constitution; instead, this “oath” was the anti-bribery statement. Thus, in his motion for rehearing, Newton argues that the attorney pro tern’s failure to take the oath required by the Texas Constitution deprives us of jurisdiction. We disagree and deny Newton’s motion for rehearing. However, we withdraw our opinion and order of July 14, 2004, and issue this opinion and order in their place.

BACKGROUND

This appeal arises from Tom Newton and Frank Ford’s actions in In re Grand Jury Proceedings, 129 S.W.3d 140 (Tex.App.-San Antonio 2003, pet. denied). In that case, Newton and Ford represented the appellant, Harold Shields. Shields sought disclosure of state grand jury proceedings related to his indictment for aggravated sexual assault. Id. at 141. Specifically, he hoped to use the grand jurors’ deposition testimony as evidence in his federal civil rights and malicious prosecution suit against Donnie Jeanne Coleman and Carol Twiss, the prosecutor and the investigator, respectively, who presented the case against Shields to the grand jury. Id. Coleman, an assistant district attorney, and Twiss, an investigator with the Kerr County Sheriffs Office, allegedly failed to present exculpatory evidence to the grand jury. Id. at 142. The presentation was not recorded or transcribed. Id. After hearing the presentation, the grand jury indicted Shields on three counts of aggravated sexual assault. Id. Later, K.S., the victim, recanted, and the State dismissed its case against Shields. Id.

After the case against him was dismissed, Shields sued Coleman and Twiss in federal court, alleging that their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. Id. As elements of his malicious prosecution claim, Shields sought to prove that (1) the indictment was not supported by probable cause and (2) the presence of actual malice. Id During discovery, Newton and Ford, Shields’s attorneys, subpoenaed several grand jurors in an attempt to take their videotaped depositions. Id. In response, Coleman and Twiss moved to quash the subpoenas and moved for a protective order preventing Shields from contacting the grand jurors. Id.

Because Newton and Ford allegedly talked to certain members of the grand jury about the grand jury proceedings, they were indicted on February 26, 2003 for “knowingly and with the intent to obtain a benefit, solicit or receive from a public servant, to wit: grand juror ... information that said public servant had access to by means of his/her office, and that said information had not been made public.” Newton and Ford filed a joint motion to quash the indictments. The trial court granted the motion and the State appealed.

Motion to Dismiss

Newton and Ford have filed a joint motion to dismiss the State’s appeal, arguing that we do not have jurisdiction. Specifically, Newton and Ford complain of the “Special Prosecutor,” Kurtis S. Rudkin, having signed the notices of appeal. According to Newton and Ford, to invoke this court’s jurisdiction, Ronald Sutton, the District Attorney, should have signed the notices of appeal. In response, the State contends that with regard to this appeal, Rudkin has the full authority and powers of Sutton’s Office.

Article 44.01(d) of the Texas Code of Criminal Procedure states that “[t]he prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.” Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp.2004-05). “Prosecuting attorney” is defined as “the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.” Id. art. 44.01(i). And, according to Texas Rule of Appellate Procedure 25.2(c)(2), a State’s notice of appeal is sufficient if it complies with article 44.01. Tex.R.App. P. 25.2(c)(2).

In State v. Muller, 829 S.W.2d 805, 809 (Tex.Crim.App.1992), an assistant prosecuting attorney signed the notice of appeal. The court of criminal appeals held that article 44.01(d)’s phrase “ ‘make an appeal’ clearly requires ... the prosecuting attorney to personally supervise and authorize the appeals to be undertaken by his office on behalf of the State.” Id. at 810. And, the court held that pursuant to article 44.01, “prosecuting attorney” clearly does not include an assistant prosecutor or subordinate. Id. at 809. However, the prosecuting attorney need not sign the notice of appeal to “make an appeal”; he must “either physically sign the notice of appeal or personally instruct and authorize a subordinate to sign the specific notice of appeal in question.” Id. at 810. And, “this personal authorization [must] occur prior to the expiration of the fifteen day window of appeal.” Id.

In State v. Rosenbaum, 852 S.W.2d 525, 525-26 (Tex.Crim.App.1993), upon defendant’s motion, the trial court disqualified the district attorney and appointed a special prosecutor to “investigate” and “prosecute” the case. After the trial court quashed the indictment, the special prosecutor timely filed a notice of appeal with the court of appeals. Id. at 526. Relying on Muller, the court of appeals held that it was without jurisdiction to hear the appeal because the requirements of article 44.01(d) had not been met. Id. The court of criminal appeals reversed, noting that Muller did not cover this situation in which the district attorney is altogether removed from a case and a special prosecutor is substituted for that district attorney. Id. at 527. The court noted that when a district attorney is considered disqualified, article 2.07(a) allows the trial court to appoint “any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.” Id. (citing Tex.Code Crim. Proc. Ann. art. 2.07(a)). According to the court, article 2.07(a) “states plainly that the pro tem attorney will perform the duties of the district attorney.” Id. (citing Tex.Code Cmm. Proc. Ann. art. 2.07(a)). The court also noted that “over 120 years ago, the Texas Supreme Court (then vested with general authority over criminal matters) held that ‘an attorney pro tem appointed by the court has all the powers and duties of the regular prosecuting attorney.’ ” Id. (quoting State v. Lackey, 35 Tex. 357 (1872)). Thus, the court of criminal appeals concluded that “if a district attorney is disqualified, the court may appoint any competent attorney to assume all the district attorney’s duties and powers during his disqualification.” Id. As such, the court of criminal appeals distinguished Muller:

[A]n attorney pro tem or special prosecutor takes the place of the disqualified district attorney assuming all the district attorney’s powers and duties in the case. Therefore, the special prosecutor is not subject to the direction of the disqualified district attorney as is a subordinate, but, for that case, he is the district attorney. Thus, this case before us is distinguished from Muller because no subordinate to the district attorney is involved, but a substitute who was given the primary responsibility for the case by court order.

Id. at 528 (emphasis in original). Because the special prosecutor was given all the powers of the district attorney, his notice of appeal invoked the jurisdiction of the court of appeals. Id.

The concurrence by Judge Clinton emphasizes the misuse of the terms “special prosecutor” and “attorney pro tem.” 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.” Id. at 529 (Clinton, J., concurring) (emphasis in original). In contrast, 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.” Id. (emphasis in original). Noting the distinctions between these terms, Judge Clinton cautioned his court and other courts in using the terms synonymously. Id. at 530.

According to Newton and Ford, Muller is dispositive, requiring us to dismiss this appeal. Because (1) there is nothing in the record to indicate that Sutton personally authorized Rudkin to make the appeal and (2) Muller does not allow the record to be supplemented to so indicate a personal authorization outside the fifteen-day period for filing the notice of appeal, we must dismiss. However, Newton and Ford’s reasoning only applies if Rudkin is simply an attorney aiding Sutton, i.e. a special prosecutor. If, on the other hand, Rudkin was properly appointed as the attorney pro tem, his notice of appeal would be sufficient pursuant to Rosenbaum. Our issue is, therefore, whether Rudkin was properly appointed as attorney pro tem pursuant to article 2.07.

Article 2.07 provides for the appointment of an attorney pro tem:

Art. 2.07. Attorney pro tem
(a) 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 his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.
(b) Except as otherwise provided by this subsection, if the appointed attorney 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. Nothing herein shall prevent a commissioners court of a county from contracting with another commissioners court to pay expenses and reimburse compensation paid by a county to an attorney for the state who is appointed to perform additional duties.
(b-1) 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.
(c) If the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court. He shall receive compensation in the same amount and manner as an attorney appointed to represent an indigent person.
(d) In this article, “attorney for the state” means a county attorney, a district attorney, or a criminal district attorney.
(e) In Subsections (b) and (c) of this article, “attorney for the state” includes an assistant attorney general.
(f) In Subsection (a) of this article, “competent attorney” includes an assistant attorney general.
(g) An attorney appointed under Subsection (a) of this article to perform the duties of the office of an attorney for the state in a justice or municipal court may be paid a reasonable fee for performing those duties.

Tex.Code Crim. Proc. Ann. art. 2.07 (Vernon 1977 & Supp.2004-05).

In its response, the State contends that Rudkin is the attorney pro tern. For support, the State references the Order of Appointment dated November 8, 2002 by the Honorable Stephen B. Abies:

I, Stephen B. Abies, District Judge for the 216th Judicial District of the State of Texas, having full confidence in Kurtis S. Rudkin, of Kendall County, Texas, do hereby with the consent of Kurtis S. Rudkin, and by request of the 198th Judicial District Judge and District Attorney appoint him as Special Prosecutor for the 198th Judicial District of Texas, to act in name, place and stead, to do and perform any and all acts by virtue of said appointment, and hereby ratify and confirm any and all acts lawfully done by virtue hereof.

(emphasis added). Indeed, although “special prosecutor” is misused, this language endows Rudkin with all of the district attorney’s powers.

In their reply brief, Newton and Ford contend that the record does not show that the trial court complied with article 2.07. First, they argue that the record does not reflect that Sutton, the district attorney, was disqualified. Newton and Ford were not indicted until February 26, 2003. As such, Rudkin was appointed as special prosecutor before criminal proceedings began. Thus, there is no motion for recusal or disqualification. However, the order of appointment does reference that the tidal court was appointing Rudkin on request of the District Attorney. Article 2.07(b-1) provides, “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.” Tex.Code Crim. Proc. Ann. art. 2.07(b-1) (Vernon Supp.2004-05). As such, the order shows that the trial court complied with article 2.07(b-1).

Second, Newton and Ford emphasize that the judge for the 216th Judicial District Court appointed Rudkin to act as attorney pro tem in the 198th Judicial District Court. Article 2.07(a) provides that “the judge of the court in which [the prosecuting attorney] represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.” Id. art. 2.07(a). However, under the exchanges-of-benches doctrine, the 216th District Court had authority to appoint Rudkin. The Texas Constitution states in part that “the district judges may exchange districts, or hold courts for each other when they deem it expedient, and shall do so when required by law.” Tex. Const. art. V, § 11; see Davila v. State, 651 S.W.2d 797, 799 (Tex.Crim.App.1983); Tex. Gov’t Code Ann. § 74.094(a) (Vernon Supp.2004-05) (a district judge may hear and determine a matter pending in any district court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter, and his judgments, orders or actions are valid and binding as if the case were pending in his own court). Furthermore, section 24.303 of the Texas Government Code states that “[i]n any county in which there are two or more district courts, the judges of those courts may, in their discretion, ... exchange benches or districts from time to time.” Tex. Gov’t Code Ann. § 24.303(a) (Vernon 2004). Therefore, the 216th District Court had authority to appoint Rudkin.

Third, Newton and Ford argue that Rudkin is not an attorney pro tem because the record does not reflect that he took the oath required of all appointed officers under the Texas Constitution. Article 2.07(c) provides that “[i]f the appointed attorney is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court.” Id. art. 2.07(a). Thus, an attorney pro tem is required to take the oath as required by the constitution. See Rosenbaum, 852 S.W.2d at 529 (Clinton, J., concurring) (“Basically, 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.”) (emphasis in original). In his response to Newton and Ford’s joint motion for rehearing, Rudkin admits that he never took the oath required by article 2.07 and article XVI, section 1(a) of the Texas Constitution. Does Rudkin’s failure to take the oath and file it in compliance with the Texas Constitution and article 2.07 of the Texas Code of Criminal Procedure prevent him from invoking the jurisdiction of this court? Or, does Newton and Ford’s failure to object below make Rudkin a de facto attorney pro tern capable of invoking the jurisdiction of this court?

In 2002, the Waco Court of Appeals held in Marbut v. State, 76 S.W.3d 742 (Tex.App.-Waco 2002, pet. refd), that a defendant must object in the trial court to procedural violations in appointing an attorney pro tern or that defendant waives the issue. In Marbut, although there were several procedural violations in appointing the attorney pro tern, the court held that the defendant waived this issue by failing to object in the trial court. Id. at 749; see also Stephens v. State, 978 S.W.2d 728, 780 (Tex.App.-Austin 1998, pet. ref'd) (holding that appellant’s failure to object in trial court to attorney pro tern’s failure to meet the requirements of article 2.07 waived any error). In doing so, the Waco Court of Appeals relied on the court of criminal appeals’s opinion in Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993), overruled, on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997).

In Marin, the court of criminal appeals recognized that a defendant’s rights arose from distinct rules that generally fall into one of three categories: (1) absolute requirements and prohibitions; (2) rights which must be implemented by the .system unless expressly waived; and (3) rights which are implemented only upon request and therefore can be forfeited. Id. The court noted that the third category in-eludes rights that arise from rules that are optional at the request of a defendant. Id. at 278. Texas Rule of Appellate Procedure 33.1 applies only to these rights; the judge must implement them only on request of a party, and they will be forfeited if no complaint is made at trial. Id. at 280. Ordinary objections to evidence and procedural benefits are included in this category. Id.

In finding that rule 33.1 applies to a defendant’s complaint about an attorney pro tern under article 2.07, the Waco Court of Appeals explained:

Article 2.07 does not concern the jurisdiction of the trial court or the constitutionality of a statute. Marin, 851 S.W.2d at 279. Furthermore, a defendant’s right to have a prosecutor qualified under article 2.07 to represent the State is not a right “so fundamental to the proper functioning of our adjudicatory process” that it cannot be forfeited. Id. at 278. Article 2.07 sets out a procedural process for the appointment of an ad hoc district attorney. If those procedures are not properly followed, the defendant should object. Failure to do so, under rule 33.1, forfeits the complaint on appeal.

Marbut, 76 S.W.3d at 750. Thus, the Waco Court of Appeals held that a defendant must object to the attorney pro tern’s failure to comply with article 2.07 in the trial court. Id.

Likewise, courts have held that an appellant cannot object on appeal for the first time to the failure of a trial court judge to meet all the proper requirements. See Wilson v. State, 977 S.W.2d 379, 380-81 (Tex.Crim.App.1998) (holding that appellant may not object for first time on appeal to a procedural irregularity in the assignment of a former judge who is otherwise qualified). “When a judge is holding office under the color of law and discharging his duties of office, his acts are conclusive as to all parties and cannot be attacked in an appeal, even though the person acting as judge lacks the necessary qualifications and is incapable of legally holding the office.” Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 651 (Tex.App.-Dallas 2002, pet. denied); see also Espinosa v. State, 115 S.W.3d 64, 66 (Tex.App.-San Antonio 2003, no pet.).

By holding that the defendant must object to preserve error, these cases are, in essence, holding that the actions of the attorney pro tem or the trial court are voidable, not void. Here, if Rudkin’s actions are voidable and the defendant did not object below, was Rudkin a de facto attorney pro tem with the authority to “make an appeal”? We believe so. Newton and Ford’s failure to object below clothed Rudkin with authority to act as attorney pro tem, and as a de facto attorney pro tem, Rudkin’s notice of appeal invokes the jurisdiction of this court.

Conclusion

Although the trial court’s order of appointment used the term “special prosecutor,” Rudkin is, in substance, an attorney pro tem. And, Newton and Ford’s failure to timely object to Rudkin’s qualifications as an attorney pro tem under article 2.07 made Rudkin a de facto attorney pro tem capable of invoking the jurisdiction of this court. Therefore, the notice of appeal signed by Rudkin invoked our jurisdiction over this appeal. We deny Ford and Newton’s joint motion to dismiss the State’s appeal.

      . Appeal Nos. 04-03-00633-CR, 04-03-00634-CR, 04-03-00635-CR, 04-03-00636-CR, and 04-03-0063 7-CR are consolidated.

      . The State has also appealed the trial court's order quashing the indictments against Frank Ford. The motion to dismiss and the motion for rehearing are joint motions filed by both Tom Newton and Frank Ford. With respect to Frank Ford’s motion to dismiss and motion for rehearing, please see our opinion in consolidated appeal nos. 04-03-00628-CR, 04-03-00629-CR, 04-03-00630-CR, 04-03-00631-CR, and 04-03-00632-CR.

      . Coleman supervised Twiss's presentation of the evidence regarding Shields to the grand jury. In re Grand Jury Proceedings, 129 S.W.3d at 142.

      . The majority explained in a footnote that it used the term "special prosecutor” "because that is the term used by the parties and the court of appeals." Rosenbaum, 852 S.W.2d at 526 n. 1. The majority, however, acknowledged "the remarks of [Judge] Clinton in his concurring opinion noting the proper categorization of special prosecutor and district attorney pro tem.” Id.

      . In their original motion to dismiss, Newton and Ford argued that Rudkin was not an attorney pro tem because the record did not reflect that he filed an oath with the clerk of the court as required by article 2.07(c). However, now on rehearing, Newton and Ford have pointed out that the "oath” referred to in the motion to dismiss and responses thereto was not the correct oath, but instead was an anti-bribery statement. Thus, we need no longer address Rudkin’s failure to timely file the "oath”; instead, we must address whether Rudkin’s failure to take the oath deprives us of jurisdiction.

      . Article XVI, section 1 of the Texas Constitution provides:
      (a)All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation:
      "I,_, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of_of the State of Texas,
      and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”
      (b) All elected or appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement:
      "I, -, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed, or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be, so help me God.”
      (c) Members of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement required by Subsection (b) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Subsection (a) of this section. All other officers shall retain the signed statement required by Subsection (b) of this section with the official records of the office.
      Tex. Const. art. XVI, § 1. Here, Rudkin subscribed to the anti-bribery statement as required by subsection (b). However, Rudkin admits that he never took the oath as required by subsection (a).

      . We note that Newton and Ford rely on Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex.App.-El Paso 1999, pet. ref’d), for their assertion that Rudkin’s actions are void. In doing so, they emphasize Prieto's holding: "Because [the judge] was required to take the constitutional oaths, but did not do so, all judicial actions taken by him in the case below were without authority." Id. at 321. Prieto, however, is distinguishable. In Prieto, the defendant, Prieto Bail Bonds, raised its challenge to the judge "after the judgment nisi issued but prior to the final forfeiture hearing.” Id. at 318. However, because the judgment nisi was the first notice of forfeiture given to a surety such a Prieto Bail Bonds, the court found that Prieto objected timely. Id. After finding that Prieto had preserved its complaint, the court addressed the merits and determined that because the judge had failed to take the required constitutional oaths, his actions were void. Id. at 321. Here, however, there is no timely objection.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    Paul WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 04-03-00395-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 19, 2005.

      Deborah Stanton Burke, Suzanne M. Kramer, San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Criminal Dist. Atty., San Antonio, for ap-pellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   Opinion

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Paul Wright was found guilty of attempted murder by a jury and was sentenced to fifty years imprisonment. The issue on appeal is whether Wright is entitled to seek specific performance of a plea bargain agreement with the State that provided for a maximum sentence of eighteen years imprisonment. We hold that he is, and therefore reverse the trial court’s judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

Factual And Procedural Background

Paul Wright was indicted for the attempted murder of Aaron Engels. Several months later, Wright and the State entered into a plea bargain agreement which provided that Wright would plead no contest to the lesser included’offense of aggravated assault with a deadly weapon and would seek deferred adjudication. In exchange for Wright’s plea, the State would seek a maximum prison sentence of eighteen years and would oppose his application for deferred adjudication. A hearing on Wright’s plea was held on September 11, 2002. The court admonished Wright pursuant to article 26.13 of the Texas Code of Criminal Procedure, and Wright entered a plea of no contest to aggravated assault with a deadly weapon. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp.2004-05). The attorneys for Wright and the State then outlined the plea bargain agreement for the court, whereupon the following exchange occurred:

THE COURT: Okay. Did they explain that plea bargain agreement to you, Mr. Wright?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did you understand it?
THE DEFENDANT: Yes, sir.
THE COURT: And you want the Court to approve it?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Let the record reflect the Court is going to go along with the plea bargain agreement. The Court is also going to accept the Defendant’s plea.

The court proceeded to also accept Wright’s plea on an enhancement count, and then concluded the hearing with a finding that the evidence supported the plea. The court re-set the case for sentencing one month later.

The Honorable Sam Katz presided at the sentencing hearing on October 7, 2002. Judge Katz refused to follow the plea agreement. Instead, Judge Katz announced in open court that the plea bargain was unacceptable and that Wright was sentenced to prison for 99 years. After Wright objected that he “had a plea agreement,” he was allowed to withdraw his plea.

Four months later, the case was set for trial before a third judge, the Honorable Maria Teresa Herr, who was the newly elected judge of the 186th Judicial District Court. In a pretrial hearing, Wright sought specific performance of the plea bargain agreement, arguing that, “[b]ack on September 11, 2002, this same defendant in this same case entered into a plea agreement with the state and entered into that plea orally, in court and on the record ... that plea was accepted by the court.” Wright further argued that Judge Katz had wrongfully refused to follow the plea agreement as the result of an inappropriate ex paHe communication with the victim and his family. Wright presented the testimony of a prosecutor who confirmed that Judge Katz had initiated an ex parte conversation with the victim and the victim’s father in his chambers immediately preceding the October 7, 2002 sentencing hearing. The prosecutor testified that Judge Katz was in an “irate rage” when he entered the courtroom, and spent “twenty or thirty minutes going on and on about how the plea agreement was unacceptable and he was going to sentence him [Wright] to ninety-nine years,” before finally permitting Wright to withdraw his plea. A second prosecutor testified that the State had not made any formal plea offer to Wright since the October 2002 hearing, although they had discussed an offer with a maximum sentence of 30 years. Wright requested specific performance of the original plea agreement with an 18-year maximum sentence. Judge Herr denied the request. The case then proceeded to a jury trial over Wright’s objection that his due process rights had been violated. Wright was found guilty of attempted murder, and punishment was assessed by the court at 50 years imprisonment. This appeal followed.

ANALYSIS

In his first issue, Wright maintains it was improper for Judge Katz to speak to the victim and the victim’s father in his chambers prior to the sentencing hearing, and that he was harmed by such improper conduct because he was denied the benefit of his plea agreement, specifically a maximum prison term of 18 years. The State responds that the plea bargain offer of an eighteen-year sentence was never “approved” by Judge Katz, and thus Wright “is not now entitled to specific performance of that sentence.” We disagree. Based on the record before this court, we conclude that the plea bargain agreement was approved by the first trial judge. Accordingly, Wright was, and is, entitled to seek specific performance of his approved plea bargain agreement.

The Texas Code of Criminal Procedure provides that before the trial court accepts a plea of guilty or no contest from a defendant it shall inquire as to the existence of any plea bargain agreement. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp.2004-05). Article 26.13(a)(2) further mandates that the court “shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea.” Id (emphasis added). Trial judges have wide discretion in determining whether or not to accept a plea bargain agreement. State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 9 (Tex.Crim.App.1983) (en banc). Once expressly approved by the trial court in open court, however, a plea bargain agreement becomes a binding contractual arrangement between the State and the defendant. Ortiz v. State, 933 S.W.2d 102, 104 (Tex.Crim.App.1996) (en banc); see also Bryant v. State, 974 S.W.2d 395, 398 (Tex.App.-San Antonio 1998, pet. ref'd). This means that once approved by the trial court, the defendant may insist on the benefit of his plea agreement with the State. Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim.App.2000) (en banc). If such agreement with the State can be enforced, the defendant is entitled to seek specific performance of the plea agreement; if the agreement cannot be enforced, the defendant is entitled to withdraw his plea. Perkins v. Court of Appeals for the Third Supreme Judicial Dist. of Tex., 738 S.W.2d 276, 283-284 (Tex.Crim.App.1987) (en banc).

In this instance, the record is clear that Wright entered into a plea bargain with the State where he agreed to plead no contest to aggravated assault with a deadly weapon in exchange for the State’s agreement to seek a prison term of no more than eighteen years. Judge Chavarria, the first trial judge, reviewed the details of this plea agreement with both Wright and the State in open court at the September 11, 2002 hearing. The judge then stated, “Let the record reflect the Court is going to go along with the plea bargain agreement.” (emphasis added). This was followed immediately by the statement, “The Court is also going to accept the Defendant’s plea.” (emphasis added). The trial court, as contemplated by article 26.13(a)(2), expressly informed both Wright and the State in open court, before the acceptance of any plea, that it accepted the plea bargain agreement. Tex.Code Crim. Proc. Ann. art. 26.13(a)(2). The court then accepted Wright’s plea, and made a finding that the evidence supported his plea to the lesser offense.

This is not a case where the trial court initially accepts a plea and then expressly reserves ruling on whether it will accept or reject the plea agreement until the sentencing hearing. See Mayfield v. Giblin, 795 S.W.2d 852, 854 (Tex.App.-Beaumont 1990, orig. proceeding) (trial court properly exercised its discretion to reject plea bargain where it had expressly reserved accepting or rejecting plea bargain until after receipt of presentence report); c.f. Ortiz, 933 S.W.2d at 104. Here, Judge Chavarria did not state or indicate in any way on the record that he was reserving approval or rejection of the plea agreement, or that he was only conditionally accepting Wright’s plea. To the contrary, the judge affirmatively approved and accepted the plea bargain before proceeding to accept Wright’s plea. See Tex.Code Crim. Proc. Ann. art. 26.13(a)(2). We hold that the words used by Judge Chavarria, and the sequence of his actions, evidence his express acceptance and approval of the terms of the plea bargain agreement, as weil as the plea. See Perkins, 738 S.W.2d at 279 (holding record clearly reflected that the court accepted plea bargain’s cap of twenty-five years); see also Ortiz, 933 S.W.2d at 104 n. 3 (noting that whether the trial judge accepted the plea agreement when he accepted the plea is largely a matter of factual interpretation of the record, which is predominately the domain of the court of appeals). Therefore, Wright was entitled to insist on the benefit of his plea bargain and to seek specific performance. Perkins, 738 S.W.2d at 284.

Judge Katz did not have the authority to sua sponte rescind the plea agreement between Wright and the State after the agreement had already been accepted by the previous trial judge. See Perkins, 738 S.W.2d at 280-81 (trial court had no authority to refuse to go forward with approved plea agreement and sua sponte withdraw defendant’s plea based on ex parte conversation with prosecutor regarding new information concerning defendant’s culpability). The trial court has a “ministerial, mandatory, and non-discretionary duty” to follow the plea bargain agreement once it has been approved by the court. Perkins, 738 S.W.2d at 285. Judge Katz’s action in refusing to follow the approved plea agreement is equivalent to the granting of a new trial on the court’s own motion, which is a void act. Id. at 280-81; see also In re Davis, 990 S.W.2d 455, 458 (Tex.App.-Waco 1999, orig. proceeding). As in Perkins, once Judge Katz stated he would not follow the plea bargain’s cap of 18 years, Wright was left with no alternative but to withdraw his plea. See Perkins, 738 S.W.2d at 280. Wright was clearly harmed by the court’s refusal to adhere to the agreed upon cap of 18 years imprisonment. The cap offered by the State had increased to 30 years at the next trial setting, and Wright ultimately received a sentence of 50 years after he went to trial. See Tex.R.App. P. 44.2.

The State argues that its plea bargain offer was withdrawn following Judge Katz’s decision to reject the plea agreement, and that Judge Herr had no authority to require the State to re-offer its original plea bargain as a means to remedy the improprieties attributed to Judge Katz. We disagree. The State’s ability to withdraw a plea offer at any time before the defendant enters his plea does not extend to the withdrawal of a plea agreement that has already been accepted by the trial court. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (once the court accepts a plea agreement, the State is bound to carry out its side of the agreement); Perkins, 738 S.W.2d at 283-84. Once expressly approved by the trial court, a plea bargain agreement between the State and the defendant is a binding contract subject to specific performance if the agreement can be enforced. Ortiz, 933 S.W.2d at 104; see also Perkins, 738 S.W.2d at 284. We find nothing in the record to indicate Wright’s plea agreement was not enforceable. See, e.g., Perkins, 738 S.W.2d at 284 (record contained no evidence of fraud by defendant in the inducement of the plea agreement that might estop him from seeking specific performance of plea agreement); see also Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App.1993) (en banc) (plea agreement that calls for illegal punishment is not enforceable by specific performance). The State and Wright had mutually agreed to an eighteen-year maximum sentence based on Wright’s plea to a lesser offense, and the trial court had approved the terms of the agreement. The plea agreement called for a lawful sentence within the range of punishment provided for the offense to which Wright pled. Therefore, Wright was entitled to specific enforcement of his plea bargain agreement. Perkins, 738 S.W.2d at 283; see also Morris v. State, 658 S.W.2d 310, 312 (Tex.App.-Houston [1st Dist.] 1983, no writ) (ordering specific performance of plea agreement after trial court’s void act of setting aside defendant’s guilty plea and assessed punishment).

Accordingly, we reverse the trial court’s judgment, and remand this case to the trial court with instructions to reinstate Wright’s plea of no contest to the offense of aggravated assault with a deadly weapon and re-sentence Wright in accordance with the terms of the original plea agreement. Because we reverse on this basis, we do not address the other issues raised on appeal.

      . The Honorable Phil Chavarria, sitting by assignment, conducted the September 11, 2002 hearing.

      . The Honorable Sam Katz was the presiding judge of the 186th Judicial District Court, Bexar County, Texas, at the time of the October 7, 2002 sentencing hearing.

      . The prosecutor further testified that Judge Katz admitted a day later that he may have acted inappropriately and “tried to recuse himself” by sending the case to the presiding judge of the 379th Judicial District Court in Bexar County.

      . We construe Wright’s statement of his issue on appeal to include every subsidiary question that is fairly included within the issue presented for review including whether Wright was entitled to specific enforcement of his plea bargain agreement without regard to the propriety of Judge Katz’s ex parte communications with the victim and the victim's father. Tex.R.App. P. 38.1(e), 38.9


author: W.G. ARNOT, III, Chief Justice.

text:
    GORE OIL COMPANY d/b/a Crego Exploration et al., Appellants, v. Steve ROOSTH, Trustee; New Horizons Oil & Gas, Ltd.; and John D. Procter, Trustee, Appellees.
    No. 11-03-00167-CV.
    Court of Appeals of Texas, Eastland.
    Jan. 20, 2005.

      John R. Woodward, Woodward & Shaw, Steven C. Haworth, Law Office of Steven C. Haworth, Dallas, for appellants.
    J. Bennett White, Wilson, Sheehy, Knowles, Robertson & Cornelius, Tyler, Donald M. Hunt, Mullin Hoard & Brown, L.L.P., Lubbock, for appellees.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

The issue in this appeal is whether the grantor’s or the grantee’s successors-in-interest should bear the burden of outstanding mineral and nonparticipating royalty interests. Appellees, Steve Roosth, Trustee; New Horizons Oil & Gas, Ltd.; and John D. Procter, Trustee, are sueees-sors-in-interest to the grantor, Peyton McKnight. Appellees brought suit against the leasehold interest owners and others after the leasehold interest owners failed to pay appellees the full amount to which they claimed to be entitled. Appellees sought a declaratory judgment as to their proportionate share of the royalties, sought damages for conversion, and requested attorneys’ fees. Appellees contended that the reservation made by McKnight was in addition to the previous outstanding mineral and royalty interests. The defendant leasehold interest owners contended that the reservation made by McKnight was reduced by the outstanding mineral and royalty interests. The parties entered into a stipulation regarding all of the facts other than attorneys’ fees. The trial court found in favor of appellees; entered judgment against the leasehold interest owners for past royalties in the amount of $271,210.21; awarded prejudgment interest in the amount of $29,838.14; and awarded attorneys’ fees in the amount of $45,180.12, plus $35,000.00 if the judgment is affirmed in the court of appeals, plus another $25,000.00 if the judgment is affirmed in the Texas Supreme Court. The leasehold interest owners appeal. We modify and affirm.

The leasehold interest owners present five issues on appeal. In the first issue, they complain of the trial court’s entry of findings of fact based upon stipulated evidence and of the lack of evidence to support those findings. In the second issue, they contend that the trial court erred in construing the McKnight deed. In the third issue, the leasehold interest owners contend that the trial court erred in finding that they were estopped from denying appellees’ claimed ownership of the royalty interest. In the fourth issue, the leasehold interest owners argue that the trial court erred in attempting to reform the McKnight deed. In their final issue, the leasehold interest owners contend that the trial court erred in awarding prejudgment interest.

Construction of the McKnight Deed

The McKnight deed, a general warranty deed from McKnight to Eagle Investment Company, provided in relevant part as follows:

HAVE GRANTED, SOLD AND CONVEYED, and by these presents do GRANT, SELL AND CONVEY unto the said Grantee all that certain tract or parcel of land situated in Knox County, Texas, described as follows (“Property”), to-wit:
Grantor unto himself, his heirs and assigns, reserves free of all liens a full one-eighth (1/8) non-participating royalty interest in the Property subject to any previously conveyed or reserved mineral interest as may appear of record in Knox County, Texas.
This conveyance is made and accepted subject to all restrictions, reservations, covenants, conditions, rights-of-way and easements now outstanding and of record, if any, in Knox County, Texas, affecting the above described property.

The trial court concluded that the McKnight deed was ambiguous and that the intent of the parties to the deed was for McKnight to reserve a full 1/8 royalty interest in the property undiminished by the outstanding mineral and royalty interests that had previously been conveyed or reserved. The trial court also found that the leasehold interest owners’ predecessors in title had accepted, ratified, and revived appellees’ interpretation of the McKnight reservation because ah affidavit in the chain of title placed others on notice that both the grantor and the grantee in the McKnight deed intended and agreed that the reserved 1/8 royalty be undiminished by the prior reservations and conveyances and because the leasehold interest owners’ predecessors had accepted deeds subject to all of the permitted encumbrances expressly listing both the 1/8 McKnight reservation and the reservations that were already outstanding at the time of the McKnight reservation. The trial court concluded further that the leasehold interest owners are estopped to deny that McKnight reserved an undiminished 1/8 royalty interest.

In order to determine if the trial court erred in its construction of the McKnight deed, we must first determine the appropriate standard of review. The first issue we must address is whether the deed is ambiguous. That question is a question of law for the court and, therefore, will be reviewed de novo. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex.1980); see Barber v. Colorado Independent School District, 901 S.W.2d 447, 450 (Tex.1995). Seldom have courts found deeds to be ambiguous. See, e.g., J. Hiram Moore, Ltd. v. Greer, 2004 WL 3019204, — S.W.3d-,-(December 31, 2004) (holding a deed to be ambiguous where one clause “conveys nothing” and another clause “conveys everything”).

A court’s primary goal when construing a deed is to ascertain the true intention of the parties as expressed within the “four corners” of the instrument. See Luckel v. White, 819 S.W.2d 459, 461 (Tex.1991). The four corners rule requires the court to ascertain the intent of the parties solely from all of the language in the deed. Concord Oil Company v. Pennzoil Exploration and Production Company, 966 S.W.2d 451, 465 (Tex.1998). The intent that governs, however, is not the intent that the parties meant but failed to express but, rather, the intent that is expressed. Harlan v. Vetter, 732 S.W.2d 390, 392 (Tex.App.-Eastland 1987, writ ref'd n.r.e.). If a written instrument, such as a deed, is worded in such a way that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., supra. However, if a written instrument remains reasonably susceptible to more than one meaning after the established rules of interpretation have been applied, then the instrument is ambiguous and extrinsic evidence is admissible to determine the true meaning of the instrument. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., supra; see Sun Oil Company (Delaware) v. Madeley, 626 S.W.2d 726 (Tex.1981); Cherokee Water Company v. Forderhause, 641 S.W.2d 522, 525 (Tex.1982).

The McKnight deed contains two “subject to” clauses. The leasehold owners correctly observe that the term “subject to” is a limiting, qualifying term and that, when used in a mineral deed, means “subordinate to,” “subservient to,” or “limited by.” Petty v. Winn Exploration Co., Inc., 816 S.W.2d 432 (Tex.App.-San Antonio 1991, writ den’d). The first “subject to” clause reads:

Grantor unto himself, his heirs and assigns, reserves free of all liens a full one-eighth (1/8) non-participating royalty interest in the Property subject to any previously conveyed or reserved mineral interest as may appear of record in Knox County, Texas. (Emphasis added).

The leasehold owners argue that the “subject to” limitation is contained in the reservation clause and not the granting clause. The leasehold owners point out that the grant is a general grant of “all that certain tract or parcel of land.” Consequently, the leasehold owners argue it is the reservation that is limited by the prior reservations and not the grant. The “subject to” clause modifies “reserves.”

The leasehold owners would, harmonizing all of the language of the deed and relying on Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940), ascertain that the intent of the parties was that the 1/8 nonparticipating royalty interest reserved by McKnight included all of the other outstanding royalty interests of record.

After applying the Duhig principle to the first “subject to” clause, the leasehold owners address the .second “subject to” clause which reads:

This conveyance is made and accepted subject to all restrictions, reservations, covenants, conditions, rights-of-way and easements now outstanding and of record, if any, in Knox County, Texas, affecting the above described property. (Emphasis added)

The leasehold owners argue that this “subject to” clause makes the grant limited by the- conveyance to all other reservations of record after first deducting the outstanding 1/16 royalty interest from McKnight’s 1/8 royalty interest. The leasehold owners argue that the second clause is a “belt and suspenders” type of language often used by scriveners and should be subjugated to the first clause.

In effect, the leasehold owners argue that the deed is unambiguous, that the grantor reserved a 1/8 royalty interest, and that the outstanding 1/16 royalty interest should be deducted from that 1/8 royalty interest. The deed conveys a 7/8 royalty interest and the remaining mineral interest.

In contrast, appellees argue that one cannot harmonize the two “subject to” clauses under the leasehold owners’ interpretation. Appellees point out that the second “subject to” clause makes the grant subject to “all ... reservations.” Consequently, the first “subject to” clause cannot be read to mean that the 1/8 royalty interest includes the 1/16 royalty interest because the second “subject to” clause clearly reads that the 1/8 royalty interest is in addition to the outstanding 1/16 royalty interest and all other reservations. Appellees find the deed ambiguous.

If not ambiguous, then appellees would have this court find, as a matter of law, by giving effect to all of the language and reading the deed as a whole, that the first “subject to” clause modifies the word “Property,” the closest word to the clause, and not “reserves.” Property is defined in the granting clause as “all that certain tract or parcel of land ... described as follows (‘Property’).” Therefore, property as used in the reservation clause, which uses the same capital P, is the same property as used in the granting clause. McKnight would receive the full 1/8 royalty interest he intended. The second “subject to” clause makes it clear that the parties intended for McKnight to reserve a full 1/8 royalty interest and to ensure that the reservation was not later vulnerable to a Duhig claim.

We hold that the McKnight deed is reasonably susceptible to more than one meaning. The paragraphs quoted above appear to make both the reservation and the conveyance “subject to” the prior outstanding conveyances and reservations. Clearly, it was not the intent of the parties to the McKnight deed for both the grantor and the grantee to bear the full burden of the outstanding 1/16 prior interests.

Since the intent of the parties cannot be determined from the plain language of the four corners, we must determine whether the various canons of construction aid in construing the McKnight deed. However, the canons of construction are not helpful in this case. The canons of construction lead to conflicting results, including the following canons: construe against the grantor and in favor of the grantee, construe against the scrivener (in this case the grantee), and specific clauses control over general clauses. See Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction, 24 TEX. TECH L. REV. 1 (1993). Consequently, we agree with the trial court that the deed is ambiguous.

Estoppel

If the McKnight deed had not stated that the “conveyance is made and accepted subject to all restrictions, reservations, covenants, conditions, rights-of-way and easements now outstanding and of record” but merely conveyed the entire premises less the grantor’s reservation of a full 1/8 nonparticipating royalty interest, we might agree with the leasehold interest owners that Duhig v. Peavy-Moore Lumber Co., supra, and its progeny apply. Under Duhig, a grantor and his successors are estopped from claiming title in a reserved fractional mineral interest when to do so would, in effect, breach the grantor’s warranty as to the title and interest purportedly conveyed to the grantee. See, e.g., Blanton v. Bruce, 688 S.W.2d 908 (Tex.App.-Eastland 1985, writ ref'd n.r.e.); Jackson v. McKenney, 602 S.W.2d 124 (Tex.Civ.App.-Eastland 1980, writ ref'd n.r.e.). The granting clause of the deed in Duhig purported to convey all of the land and minerals, and the reservation clause reserved a 1/2 mineral interest in Duhig, the grantor. However, Duhig did not own all of the minerals. A prior owner had also reserved a 1/2 interest. The supreme court held that, even though it was Duhig’s intent to reserve a 1/2 mineral interest for himself, he was estopped from asserting a claim to that 1/2 mineral interest because of the prior outstanding reservation and the deed’s purported conveyance of all of the minerals less only a 1/2 interest. See Duhig v. Peavy-Moore Lumber Co., supra at 880. In this case, however, the McKnight deed contained an additional limiting clause stating that the conveyance was subject to all outstanding reservations, covenants, and restrictions. Consequently, we hold that Duhig does not apply and that the grantor and his successors in interest are not estopped from claiming title to the full 1/8 royalty.

Having determined that the deed is ambiguous and that appellees are not estopped by Duhig, we must determine whether the trial court erred in its construction of the deed based upon the stipulated evidence. When a written instrument is determined to be ambiguous, extrinsic evidence may be introduced to show the intent of the parties. Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608, 612 (1956). In this case, other than the deed itself, the only evidence regarding the intent of the parties to the McKnight deed was an affidavit that had been filed in the county clerk’s office. The affidavit was made by Thomas E. Morris, the attorney in fact for the grantee partnership in the McKnight deed. Morris filed the affidavit while his partnership still owned the property, which was foreclosed upon shortly thereafter. Morris swore that it was his understanding, both at the time of the deed and the affidavit, that McKnight was to receive a full 1/8 royalty unreduced by the previous reservations. The Morris affidavit was subsequently listed as a prior encumbrance in various deeds in the leasehold interest owners’ chain of title. There is nothing else in the stipulations relating to the intent of the parties to the McKnight deed.

Based upon the stipulations before the trial court, we must uphold the trial court’s findings with respect to the parties’ intent. Consequently, appellees are entitled to their share of the full 1/8 royalty that was intended to be reserved by McKnight. The first and second issues are overruled. We need not reach the third issue, which relates to whether the leasehold interest owners ratified the McKnight reservation or were estopped by the inclusion in their chain of title of deeds in which the Morris affidavit was listed as a prior encumbrance. TEX.R.APP.P. 47.1.

Reformation

In their fourth issue, the leasehold interest owners contend that the trial court erred in re-forming the McKnight deed. Appellees did not request that the deed be reformed. Nothing in the pleadings or other documents filed with the trial court indicated that appellees were attempting to reform any deeds. Furthermore, the parties to the McKnight deed were not parties to this lawsuit, nor were all of the current successors-in-interest. Reformation was, therefore, inappropriate. Consequently, we sustain the fourth issue to the extent that the trial court found and concluded that the deed should be and has been reformed. However, we need not modify or reform the trial court’s judgment in this case because the judgment does not contain any language ordering that the deed be reformed. See In re Marriage of Edwards, 79 S.W.3d 88, 100-01 (Tex.App.-Texarkana 2002, no pet’n).

Prejudgment Interest

The trial court awarded appellees prejudgment interest in the amount of $29,838.14. Pursuant to TEX. NAT. RES. CODE ANN. 91.402(b) (Vernon 2001), prejudgment interest is not recoverable when reasonable doubt exists regarding a title dispute. Concord Oil Company v. Pennzoil Exploration and Production Company, supra at 462-63. In Concord, the court explicitly stated: “The Legislature has indicated very clearly in the Natural Resources Code that prejudgment interest is not due when disputes exist between a ‘payor’ and a ‘payee’ over oil and gas titles.” Concord Oil Company v. Pennzoil Exploration and Production Company, supra at 463. The trial court’s findings and conclusions on this issue are not supported by the record and are in conflict with Section 91.402(b). A title dispute clearly existed in this case, and prejudgment interest was not authorized. Consequently, the fifth issue is sustained, and the judgment of the trial court is modified to delete the award of prejudgment interest.

Conclusion

The judgment of the trial court is modified to delete the award of prejudgment interest; and, as modified, the judgment is affirmed.

      . Appellants are the leasehold interest owners, commonly referred to in the industry as working interest owners. They are Gore Oil Company d/b/a Crego Exploration; Browning Oil Company, Inc.; The Pickens Company, Inc.; W.C. Pickens, Jr.; and Cody Texas, L.P.

      . Appellees also brought suit against other owners of the property, but those defendants settled their disputes with appellees and are not parties to this appeal.

      .This dispute involves a one-eighth (1/8) nonparticipating royalty interest and a fractional interest that is approximately a one-sixteenth (1/16) nonparticipating royalty interest. For the ease of the reader, these interests shall be referred to as a 1/8 and 1/16 royalty interest except in the actual language of the deed which is the subject of this dispute.

      . To apply Duhig to the first “subject to” clause would make the second "subject to” reservation superfluous. It is not clear from the stipulation of evidence presented to the court, but it appears that there were no other outstanding mineral interests at the time of the McKnight deed, other than the 1/16 royalty interest. If this is the case, unless the clause was to guard against any unknown reservations of record, then we would have to disregard the language of the second "subject to” clause as having no effect. In construing a deed, we must assume that all of the words were intended to have meaning. If the clause was to guard against any unknown reservations of record, then a more reasonable reading would be that the parties intended for the Grantor to reserve the full and undiminished 1/8 royalty interest.


text:
    In re Edward B. ELMER, M.D.P.A.
    No. 04-04-00795-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 26, 2005.
    Jeff Small, Law Office of Jeff Small, F. Scott Radke, Radke & Radke, San Antonio, for appellant.
    Tom Joseph, Tom Joseph, P.C., Neil H. Stone, Gendry & Sprague, P.C., San Antonio, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

This is an original mandamus proceeding. The relator, Edward B. Elmer, M.D.P.A., seeks mandamus relief from an order entered pursuant to Rule 621a of the Texas Rules of Civil Procedure compelling the professional association to answer interrogatories in aid of judgment. Tex.R.Civ P. 621a. Santa Fe Properties, Inc. (“Santa Fe”), the real party in interest, sought the interrogatories in aid of judgment after Santa Fe obtained a partial summary judgment against Elmer, M.D.P.A. We hold that the trial court abused its discretion in compelling interrogatories in aid of judgment in the absence of a final judgment. Therefore, we conditionally grant the writ of mandamus.

Factual and Peocedural BACKGROUND

In the underlying lawsuit, Santa Fe sued Atascosa Medical Associates, L.L.P. (“Atascosa Medical”), Verdón J. Peters, D.P.M., and Edward B. Elmer, M.D. for breach of a commercial real estate lease. Later Santa Fe added Verdón J. Peters, D.P.M., P.A. and Edward B. Elmer, M.D. P.A. as partners in the limited liability partnership. Ultimately, Santa Fe obtained a severance and summary judgment against Atascosa Medical, finding that Atascosa Medical had breached the lease and awarding Santa Fe damages in an amount equal to the lease payments due for the entire period remaining on the lease.

Subsequently, on June 1, 2004, Sante Fe obtained a partial summary judgment against Elmer, M.D.P.A. (“Elmer”) holding the professional association liable as a partner in Atascosa Medical for the damages caused by breach of the lease. Thereafter, Santa Fe propounded “Interrogatories in Aid of Judgment” to Elmer. Elmer objected to the interrogatories as premature, arguing that Santa Fe did not have a final judgment to enforce. After a hearing on October 25, 2004, the trial court entered an order compelling Elmer to answer the interrogatories. Elmer now seeks a writ of mandamus directing the trial court to vacate its order compelling Elmer to answer the interrogatories sought in aid of judgment.

Analysis

In considering a petition for mandamus, we adhere to the standard set forth in Walker v. Packer, 827 S.W.2d 833 (Tex.1992). Mandamus is an extraordinary remedy available only when the trial court has clearly abused its discretion and the party has no adequate remedy by appeal. Id. at 839-40. A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 840. Therefore,' 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. Id.

Elmer contends that Santa Fe is not entitled to discovery pursuant to Rule 621a because Santa Fe does not have a “final judgment” to enforce. In addition, Elmer argues that it is in an untenable position because it cannot protect itself. It cannot appeal or suspend the enforcement of the June 1, 2004, partial summary judgment rendered against it because it is just that — partial; it is interlocutory and unap-pealable. Yet, Elmer is subject to sanctions by the trial court if it fails to disclose the requested information about its business practices and assets in response to the interrogatories. Santa Fe responds that the trial court’s discovery order is a correct application of the law because Rule 621a contains no requirement that a judgment be final prior to commencing discovery, only that there has been a “rendition of judgment.” See Tex.R. Civ. P. 621a. We do not find Santa Fe’s argument persuasive.

We begin our analysis by examining the wording of the rule. Rule 621a provides in pertinent part,

At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court ... the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters.

Tex.R. Civ. P. 621a.

As noted by Santa Fe, the rule does not use the words “final judgment.” The rule, however, contemplates that the judgment to be enforced has at least two characteristics. First, the judgment must be of the type that it can be enforced. In order to enforce a judgment, the judgment must be final. See Hood v. Amarillo Nat. Bank, 815 S.W.2d 545, 548 (Tex.1991) (writ of execution will not issue until final and appealable judgment is signed). If a portion of the case remains pending in the trial court, the judgment of the trial court is not final and the prevailing party cannot commence enforcement measures. Id. at 547.

Secondly, Rule 621a contemplates that the judgment at issue must be susceptible to being “suspended by a supersedeas bond.” In order to suspend a judgment by a supersedeas bond, the judgment must also be final and appealable. See Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 487 (Tex.App.-Houston [14th Dist.] 2004, pet. denied); Cudd Pressure Control, Inc. v. Sonat Exploration Co., 74 S.W.3d 185, 189 (Tex.App.-Texarkana 2002, pet. denied). Accordingly, both characteristics inherent in the judgment referred to in Rule 621a necessarily require that the judgment be final.

Finally, there would be no need for Rule 621a unless drafters of the rule intended the judgment referenced in the rule to mean a “final judgment.” The overall purpose of Rule 621a is to expressly make pretrial discovery rules available to aid in the enforcement of a judgment. Tex.R. Crv. P. 621a. Pretrial discovery rules already exist for cases prior to final judgment. See Tex.R. Civ. P. 190-215. Rule 621a further authorizes pretrial discovery proceedings to be maintained “in the same suit” in which the judgment was rendered. Again, the rules of civil procedure already allow discovery proceedings to be maintained in the same suit for cases prior to final judgment. See Tex.R. Civ. P. 191.4. Accordingly, these express authorizations found in Rule 621a would not have been necessary unless the Supreme Court’s intent was that “rendition of judgment” necessarily meant the rendition of a “final judgment.” Under any other interpretation, Rule 621a is superfluous.

We conclude that the trial court abused its discretion in compelling answers to interrogatories in aid of judgment in the absence of a final, appealable judgment. See Walker, 827 S.W.2d at 843. When a discovery order compels production beyond that permitted by the rules of procedure, there is no adequate remedy by appeal and mandamus is appropriate. See Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995). Accordingly, we conditionally grant the writ of mandamus and direct the trial court to vacate its order signed on October 25, 2004, compelling Edward B. Elmer, M.D.P.A., to answer Santa Fe’s interrogatories in aid of judgment. The writ will issue only if the trial court fails to vacate the order within ten days from the date of our opinion and order.

      . As part of the same judgment, the trial court found that Edward B. Elmer, M.D. was not personally liable for the judgment rendered against Atascosa Medical and severed Edward B. Elmer, in his individual capacity, from the lawsuit.

      . The parties agree that summary judgment as to the professional association does not resolve the issue of attorney’s fees.


author: PER CURIAM.

text:
    Ronald Eddie DUNCAN, Appellant, v. The STATE of Texas, Appellee
    No. 10-04-00270-CR.
    Court of Appeals of Texas, Waco.
    Jan. 26, 2005.
    Ronald Eddie Duncan, Conroe, pro se.
    Michael A. McDougal, Montgomery County District Attorney, Conroe, for Ap-pellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

PER CURIAM.

Ronald Duncan has appealed his criminal conviction to the Ninth Court of Appeals which sits in Beaumont. Under a docket equalization order from the Texas Supreme Court, his appeal was transferred to this Court. Subsequently, the trial court held an indigence hearing and determined Duncan not to be indigent. Duncan sent a separate notice of appeal in response to the trial court’s determination to the trial court clerk.

The trial court clerk, uncertain of what to do with the notice, has forwarded it to this Court.

We were advised that the Beaumont Court of Appeals incorporates this type notice into the existing appeal of the underlying case regarding the appeal of the conviction. In Nelson, we adopted a different procedure in which a separately docketed appeal was required when a defendant appealed an adverse indigence determination. Nelson v. State, 6 S.W.3d 722, 726 (Tex.App.-Waco 1999, order). We have also recognized, however, that we did not have jurisdiction over an appeal from an adverse indigence determination when not filed in connection with a timely filed notice of appeal in an underlying conviction. Everett v. State, 91 S.W.3d 386 (Tex.App.-Waco 2002, no pet.); Sossamon v. State, No. 10-03-001-CR, 2003 WL 21100801, *1 (Tex.App.-Waco May 14, 2003, no pet.) (not designated for publication).

We now realize we were incorrect in Nelson when we determined that a separately docketed appeal was necessary. In making our determination in Nelson, we relied on two previous opinions of this Court which required a separately docketed appeal of an order denying bail pending appeal. See Margoitta v. State, 987 S.W.2d 611, 612 (Tex.App.-Waco 1999, order); see also Ex parte Enriquez, 2 S.W.3d 362, 363 (Tex.App.-Waco 1999, no pet.). Our reliance on those cases was misplaced. The Code of Criminal Procedure authorizes a separate appeal of bail pending appeal. TEX. CODE CRIM. PROC. ANN. art. 44.04(g) (Vernon Pamp.2004-2005). The holding in those two cases remain undisturbed by our holding today. But the Code of Criminal Procedure provides no authorization for appeals of adverse indigence determinations to be docketed in the court of appeals separately from the related appeal of the conviction. And because there is no such authorization, we should have looked elsewhere to determine the procedure to follow for docketing a notice of appeal filed when a defendant wants to appeal an adverse indigence determination.

Rule 12.2 provides the answer. “All notices of appeal filed in the same case must be given the same docket number.” TEX. R. APP. P. 12.2(c). Thus, to the extent that Nelson requires a separately docketed appeal in an appeal of an adverse indigence determination, it is overruled. We continue to believe, however, that a separate notice of appeal is required. Nelson, 6 S.W.3d at 726.

Therefore, the Clerk of this Court is ordered to file Duncan’s notice of appeal from the adverse indigence determination in this cause, which was transferred to this Court under the docket equalization order. We will consider the adverse indigence determination, then reset the appellate timetable accordingly. Nelson, 6 S.W.3d at 725.