“Did you call each other up to coordinate what you were wearing?”
It’s a common joke—meant to save face—when two people walk into the same room unintentionally wearing the same outfits. Sadly, when it comes to criminal prosecution, failing to get on the phone and check with prosecutors in other counties is no joking matter.
In a recent decision by the Court of Criminal Appeals in Ex parte Doan, the court held that prosecutors in one county are the same party as prosecutors in another county for purposes of issue preclusion. As such, a prosecutor in one county may be bound by a prosecutor’s failure to carry her burden in another county at a hearing on a motion to revoke probation. So, going forward, it may now be necessary for prosecutors across the state to coordinate with each other before proceeding in a revocation proceeding, lest the State be barred by res judicata from proceeding on a criminal law violation it never had a full opportunity to prosecute. Because no one wants to be caught wearing collateral estoppel.1
There’s an MRP hearing today?!
Dustin Doan was placed on community supervision in Brazos County. While he was on probation, he was charged with misdemeanor theft in Travis County. The Brazos County Attorney2 moved to revoke Doan’s probation based on many things, including the Travis County theft allegation. But at the hearing on the motion to revoke, the prosecutor called the probation officer only to prove up the new theft charge. Doan objected based on hearsay, and the trial court sustained the objection. The prosecutor made no further attempts to prove up the theft, and the trial court denied the motion to revoke in Brazos County.
Subsequently, the Travis County Attorney sought to prosecute Doan on the theft he had allegedly committed in that county. Doan filed a pre-trial application for writ of habeas corpus based upon res judicata. According to Doan, the adverse ruling in the hearing on the motion to revoke under a lower burden of proof barred the prosecutor in Travis County from proceeding upon the misdemeanor theft under the higher burden of proof. The trial court initially granted relief, but when the Travis County prosecutor moved for reconsideration on the ground that the Brazos County judge’s ruling was too vague to constitute a final adjudication of a specific fact question, the trial court entered an order denying relief. For its part, the court of appeals affirmed on the ground that the Brazos County Attorney and the Travis County Attorney were not the same parties for the purpose of issue preclusion. Thus, according to the court of appeals, there was no need to determine whether there must be a specific finding of “not true” to an allegation in a motion to revoke before the doctrine of issue preclusion can be invoked.
The Court of Criminal Appeals reversed, holding only that the Brazos County Attorney who had brought the motion to revoke probation and the Travis County Attorney who was prosecuting Doan for a new theft allegation were the same party for purposes of res judicata.3 Writing for the majority, Judge Womack acknowledged that the Brazos and Travis County Attorneys’ lack of control over each other’s decision-making process may very well mean that they do not have the “authority” to represent each other in court. But, on a more fundamental level, both criminal actions are styled the same, with “the State” as the same party in each case, regardless of which prosecuting authority is present.4
Now I know what you’re thinking: Didn’t the court already decide this with those administrative license cases? Well, not according to the court. In Reynolds v. State, the court had acknowledged that the Texas Department of Public Safety and a district attorney both represent the citizens of the State, but the court held they were not the same parties because the citizens of the State had no power, like a private litigant, to control the course of the litigation by the lawyers representing the separate governmental entities.5 According to Judge Womack, this rule was too broad and would effectively make any government action immune from claims of res judicata because the citizenry would never directly control any government attorney. The more proper test comes from Judge Womack’s concurring opinion in Brabson v. State,6 namely whether in the earlier litigation the government’s representative had authority to represent its interests in a final adjudication on the merits.
The court went on to explain how a hearing on a motion to revoke probation is not an administrative hearing. While the court had previously characterized probation revocation as administrative, that was due to a need to describe quickly the idea that a defendant at a revocation hearing did not have the same procedural rights as a defendant in a criminal trial. But according to the court, just because a revocation hearing is not a trial does not mean it is an administrative hearing. Moreover, the court’s holding in Hill v. State, that a probation revocation hearing is “administrative in nature,” was based upon cases interpreting parole revocation hearings. Unlike parole revocation hearings, probation revocation hearings are not before an administrative board; they are in front of a judge with both sides represented by counsel. Additionally, the rules of evidence apply, and a defendant has the right to appeal. So, aside from the burden of proof, the court noted few procedural differences between a Texas criminal trial and a Texas community-supervision revocation proceeding. Given the similarities between probation revocation proceedings and a criminal trial, the court held that the Brazos County Attorney in the probation revocation hearing was the same party as the Travis County Attorney seeking to try Doan in a criminal trial.
Notably, however, three judges concurred to suggest a limit to the majority’s holding that the two different county attorneys were the same party. Judge Johnson, joined by Judges Cochran and Alcala, explained how Articles 32A.02 and 28.061 of the Texas Code of Criminal Procedure suggest that prosecutors in municipal, county, and district courts belong to separate classes of parties. Prior to 1987 the effect of these two statutes was to bar felony prosecution if a lower court failed to try the accused on a lesser accusation from the same criminal transaction within the statutory time period. But the legislature amended Article 28.061 to add the words “other than an offense of a higher grade that the attorney representing the State and prosecuting the offense that was discharged does not have the primary duty to prosecute.” Thus, according to Judge Johnson, the legislature appeared to regard felony prosecutors across the state as the same party as other felony prosecutors, but not the same party as a misdemeanor prosecutor in the same or different county. In this case, a misdemeanor prosecutor in one county was the same party as a misdemeanor prosecutor in another county because they each belonged to the same class, but had the criminal allegation been a felony, the misdemeanor prosecutor would not have been the same party. This distinction may be key because without the three votes in this concurring opinion, Judge Womack’s opinion loses its majority status.
So does collateral estoppel apply?
Notably, the court had previously held in Ex parte Tarver that a finding in a probation revocation hearing that a defendant had not committed an assault precluded a subsequent prosecution for the same assault based upon collateral estoppel.7 In reaching that decision, the court specifically stated that double-jeopardy principles were not implicated by revocation hearings before holding that collateral estoppel could bar subsequent prosecution where the revocation court makes an adverse finding on an elemental fact necessary to the subsequent criminal prosecution.
But the court hastened to add in Tarver that the mere overruling of a State’s motion to revoke probation is not a fact-finding that will bar subsequent prosecution for the same alleged offense because a trial court has wide discretion to modify, revoke, or continue probation even if the trial court believes the allegations in the motion to revoke the probation are true. Judge Womack in Doan doesn’t seem to retreat from this position, noting that the court’s holding that the Brazos County Attorney was the same party as the Travis County Attorney as a matter of state law. According to Judge Womack, the Travis County Attorney sought to prove theft to criminally punish Doan for theft while the Brazos County Attorney sought to prove theft to have the criminal punishment from a prior case altered to his detriment; this difference was sufficient to allow the case “to escape the narrow grasp of the Double Jeopardy clause.”
But the dissent seized upon this aspect of the holding to say, essentially, that if the double jeopardy clause does not apply, then neither should collateral estoppel, which the United States Supreme Court recognized as stemming from the double jeopardy clause in Ashe v. Swenson. Presiding Judge Keller, joined by Judges Hervey and Keasler, argued that the court had implicitly overruled Tarver because Tarver was based upon Ashe which was based upon the double jeopardy clause by conducting a collateral estoppel analysis based upon state law. Moreover, the dissent repeatedly pointed out that the majority never really provided any explanation for its conclusion that the Travis County Attorney and the Brazos County Attorney were the same party. Even assuming that collateral estoppel applied to probation revocation hearings, the Travis County Attorney had no authority or control over the proceedings in Brazos County, so estoppel would apply only if the Travis County Attorney had prosecuted both proceedings.8
The majority’s response? In a footnote, Judge Womack explained that Tarver was not actually concerned with collateral estoppel that sprang from the federal constitution, but whether res judicata applied to “administrative hearings.” Sure, Tarver cited some federal Supreme Court cases, but it was not obvious whether the holding was based in constitutional law or common law. And, given that there were no prior cases from the court applying collateral estoppel, it is possible to read Tarver as using the federal cases only as explanation of common-law doctrine.9 So according to the majority, Tarver was actually an “administrative collateral estoppel” case because there were no prior cases discussing common-law collateral estoppel.10 Those federal cases (to which the court cited and that were based upon collateral estoppel as a subset of the double jeopardy clause) were apparently there just to explain the court’s reasoning like some form of legal garnish. The majority did not present anything more to explain how the Brazos County Attorney and Travis County Attorney were the same party.
But potentially overlooked in this case is the court’s remand to the lower court to reconsider the merits of Doan’s argument that a specific finding of “not true” to the criminal violation was unnecessary to invoke issue preclusion. The majority, having found that the Brazos County Attorney and the Travis County Attorney were the same party, did not actually hold that prosecution in Travis County was barred by virtue of the trial court’s denial of the Brazos County Attorney’s motion to revoke probation. Having grafted Tarver into a res judicata case rather than collateral estoppel, the majority essentially called it a day. If Tarver is still good law, the Austin Court of Appeals should hold that Travis County would not be precluded from subsequently prosecuting Doan for theft because, as the court noted in Tarver, the mere overruling of a State’s motion to revoke is not a fact-finding that would bar subsequent prosecution. But as the above discussion demonstrates, Tarver’s holding is now far from clear even if it hasn’t been implicitly overruled.
Going forward, cautious prosecutors should make every effort to coordinate with other Texas prosecutors when proceeding upon a motion to revoke probation based upon a law violation in another county. And while felony prosecutors may not be in the same “class” as misdemeanor prosecutors in another county, remember that that argument comes from a concurring opinion, so a majority of the court has yet to adopt it. A prosecutor might be able to rely upon it in a pinch, but still the better practice would be to find a way to work with folks in the other county before proceeding. After all, the last thing anyone wants is to be the butt of the joke.
1 A faux pas regardless of whether it’s before or after Labor Day.
2 Please note that the court’s opinion speaks in terms of the Brazos County Attorney and the Travis County Attorney without clarifying whether it was the actual elected officials doing all the heavy lifting or merely their dedicated employees. I do the same throughout this article because the court seems focused on the offices rather the actual people.
3 Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. June 20, 2012)(6:3:3).
4 But really, what’s in a name? That which we call a rose by any other name would smell as sweet. Romeo and Juliet (Act II, Scene ii, lines 1-2).
5 Reynolds v. State, 4 S.W.3d 13 (Tex. Crim. App 1999).
6 Brabson v. State, 976 S.W.2d 182, 188 (Tex. Crim. App. 1998)(Womack, J. concurring). Who says concurring opinions aren’t important?
7 Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986).
8 That was the situation in Tarver, by the way.
9 All the court’s citations to Ashe v. Swenson, 397 U.S 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469, 475 (1970) in Tarver to the contrary. See e.g. Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986)(“To allow such a second attempt [at litigation of an adversely determined fact] would be to allow one of the risks the Double Jeopardy clauses protects against”).
10 Um … what?