New Willacy County DA seeks opinion of attorney general

RAYMONDVILLE - A Texas attorney general's opinion has been requested by Bernard Ammerman, who will take over as Willacy County district attorney in January, on whether an assistant district attorney can work as a defense attorney in criminal cases in other counties.

Ammerman, who is now an assistant DA in Cameron County, defeated Willacy DA Juan Angel Guerra in the March Democratic Party primary and there was no Republican candidate in the Nov. 4 election.

The purpose of the request is to find out if an assistant DA can supplement his county salary as a defense attorney, Ammerman said.

"It's not very clear, whether they can or they can't," Ammerman said. "I called the Attorney General's Office. They didn't know. I called the State Bar (of Texas) and they didn't know," he said. "So I want to find out if it's legal or ethical."

Ammerman will begin his duties in January as a one-man DA's office. That office should have at least three prosecutors, he said.

Guerra has had an assistant DA at times, but he has not recently been able to get authorization from either county commissioners or state District Judge Migdalia Lopez to pay an assistant DA, he said.

Ammerman said he will face a huge backlog of criminal cases that await prosecution when he takes office.

It would be difficult for him to hire an assistant DA if he can only pay them 30 percent less than what prosecutors would earn in Cameron or Hidalgo Counties, Ammerman said.

"That office should have at least three prosecutors," he said of Willacy County.

The Texas Code of Criminal Procedure Article 2.08 states that "district and county attorneys shall not be of counsel adversely to the state in any case in any court," Ammerman said.

"Does that mean elected county and district attorneys, or does that mean all prosecutors?" he said. "Does that include assistants, too? (The legislature doesn't) make it very clear."

"Most DA's offices, I think, have a policy that you can't, as a condition of employment, do any outside work, period. There are some counties that allow outside civil work," Ammerman said referring to lawsuits and other non-criminal matters.

Outgoing Willacy County DA Juan Angel Guerra said he has always told assistants they could do all the civil cases they want in other counties, on their own time, but no criminal defense work in any county, he said.

"As long as it's a civil case, (it's OK)," Guerra said. "I remember that from law school, that you can't take any case that's opposed to the state."

In a hearing about eight indictments issued last week by a Willacy County grand jury, Guerra argued he should not be replaced as prosecutor in those cases because the law allows him to testify as a witness and also be the victim named in the indictments, as long as an assistant handles the prosecution.

But Lopez, the district judge in the county, and county commissioners have not allowed him funding to pay an assistant DA, he said.

"There are plenty of grants out there," Guerra said of special funding that could be used to pay for an assistant DA.

Ammerman said an AG's opinion probably wouldn't be issued until at least February.

First Chief Assistant Cameron County DA Charles Mattingly said there are questions about whether Guerra can be removed as prosecutor.

"There are very limited circumstances in which a DA can be removed from a case," Mattingly said. "Years of case law in our courts support this position."

A Bexar County judge, Michael Peden, has been appointed to hold that hearing Dec. 1 in Raymondville.

J. Manuel Bañales of Corpus Christi, the presiding judge of the Fifth Judicial Region, had already appointed himself to sit in for Judge Migdalia Lopez, who normally presides in Willacy County.

Since Guerra's motion for recusal is directed at him, Bañales cannot appoint his own replacement, the judge said last week.

Mattingly said using grant funding to pay assistant DA salaries would be difficult.

"Grants for ADAs do exist, but are very difficult to obtain, due to a lack of funding by both the state and federal governments," Mattingly said.

"Drug forfeiture funds are a source for funding of any needs for a DA's office, including personnel," he said. "However, we are not aware of the balance or activity in Willacy County's drug forfeiture fund."