concurring.
The instant cause arises from the ruling of a trial judge (Respondent) sustaining the motion of a criminal defendant to prohibit two assistant attorneys general (AGs) from serving as district attorneys in the criminal prosecution against him. The district attorney of Potter County (Relator), who solicited the assistance of these AGs, now asks this Court to force Respondent to withdraw his order, and we are prepared to do so if he does not relent voluntarily.
The plurality opinion announcing the judgment of this Court holds that Respondent “lacked the authority to grant the motions to prohibit.” Op. at 932. But it is clear from the text of this opinion that the plurality judges do not mean Respondent would really have been without lawful authority to bar the AGs from serving as prosecutors had the evidence shown a conflict of interest rising to the level of a due process violation, Op. at 928, or an assignment of prosecutorial responsibility to persons over whom the district attorney did not retain ultimate supervisory authority, Op. at 928, or an invalid deputation order appointing the AGs to serve as assistant district attorneys, Op. at 929. These are precisely the grounds upon which Respondent claims he prohibited the assistant AGs from acting as prosecutors. But rather than demonstrate that Respondent had no authority to remove the AGs at all, the Court spends most of its time arguing that none of the grounds for removal were proven. Thus, the plurality judges merely believe that Respondent erred to grant the motion because the evidence was not sufficient to establish a lawful basis for removal of the AGs. With all due respect to my colleagues, this is not at all the same thing as a lack of authority to rule upon the motion, which is what would be required for mandamus relief under our traditional rules.
What the Court should have emphasized instead is that our traditional rules simply do not apply any longer. Those rules have lately undergone a profound change which now makes the key inquiry in mandamus cases *934whether Relator has “a clear right to relief,” not whether Respondent has “a ministerial duty” or “lacks legal authority.” Although I opposed this new formulation, the rule of law obliges me to support it as precedential in succeeding cases, at least pending deliberate reexamination by the Court. And I am happy to do so. The only difficulty is that the Court has not yet made a very clear or definitive statement of the changes it has wrought, nor does it observe the rhetorical distinctions necessary to communicate those changes clearly to the bench and bar.
In past years, the term “ministerial duty” identified a fundamental prerequisite to the issuance of mandamus writs. Under the traditional view, a writ of mandamus might issue to compel the discharge of a public function only if the law clearly imposed a duty, the performance of which did not call for the exercise of any discretion or judgment. State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Crim.App.1987) (opinion on rehearing). This included the duty of a public official to withdraw any order or judgment which he was without legal authority to make.
Recently, in Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994), this Court expanded its understanding of “ministerial” violations to include judicial conduct “that ignores clear, binding precedent from a court of superior jurisdiction” or that is “clearly contrary to well-settled law.” One necessary effect of this expansion is that a judge’s authority to act no longer bars this Court from reviewing the propriety of his actions in a mandamus proceeding.
In the instant cause the plurality opinion begins by expressing the controlling rule of law in its new incarnation as follows.
[Mandamus] is available only when the relator can establish that he has no other adequate legal remedy and that, under the relevant law and facts, he has a clear legal right to the relief sought. Furthermore, ... a relator may be able to demonstrate a clear legal right to relief if the respondent’s nominally discretionary act actually constituted an abuse of discretion.
Op. at 926 (citations omitted). I am satisfied that this expression of the rule is consistent with the Court’s recent decision in Healey v. McMeans. See also Buntion v. Harmon, 827 S.W.2d 945 (Tex.Crim.App.1992); Curry v. Wilson, 853 S.W.2d 40, 43 (Tex.Crim.App.1993). The issue in this case, therefore, devolves into the question whether Respondent erred to prohibit the appearance of assistant AGs in his courtroom as prosecutors, not whether he had the authority to do so.
I agree that Respondent erred in this respect, substantially for the same reasons given in the plurality opinion, and therefore concur in the result it reaches. But the multiplicity of separate views held by judges on this Court still prevents the kind of harmonious mandamus jurisprudence which practitioners of the criminal law have a right to expect. I have elsewhere argued that the phrase “ministerial duty,” which identified the first prong of traditional mandamus analysis, and “clear right to relief,” with which it has lately been replaced, do not really mean the same thing, either in theory or in practice. Healey v. McMeans (Meyers, J., dissenting). But mine is not an opinion shared by most of my colleagues, whose writings evince a preference to resolve mandamus issues by fictionalizing a one-to-one relationship between the authority to act and the correctness of action taken. This fiction would pose no serious inconsistency in the law were it not that the two phrases mean such different things in plain English and have, therefore, promoted diametrically opposite understandings of the same rule by different judges on this Court. Thus, Judge Baird evidently believes that “clear right to relief’ is just another way of expressing “ministerial duty” while Judge Campbell seems to think that “ministerial duty” is another way of expressing “clear right to relief.” Not surprisingly, they reach completely different conclusions in this ease, even *935though they purport to rely upon the same criterion.* •
The Court’s vagueness on this matter only promises to exacerbate the difficulty for litigants, who may never be able to predict in advance whether an application for extraordinary relief actually states a cognizable claim. On balance, I cannot say myself that the rule is really any clearer now than it was few months ago. But, if you have a question of criminal law, and you’re thinking about filing an application for writ of mandamus with this Court, just remember. The judges up here might continue to use old-fashioned phrases like “ministerial duty,” “discretionary act,” and “lack of authority” when it suits their purposes. But they probably don’t mean what you think.
Because I understand the holding in Hea-ley v. McMeans to authorize review by mandamus of discretionary decisions by trial court judges, and because I am persuaded that Respondent erred, under the circumstances of this case, to prohibit the assistant AGs from serving as prosecutors in his court, I concur in the judgment to grant relief.
If there are some conditions under which the trial judge is permitted by law to remove a prosecuting attorney, and if he has the authority to decide whether those conditions exist, his duty is not ministerial, regardless of whether he makes the right decision. This is the traditional view of mandamus to which I subscribed before Healey. I have since acquiesced to a contrary proposition only in obedience to the rule of stare decisis, weE-described by Judge Baird's dissenting opinion in the section immediately foEowing his criticism of me. I think it plain from a reading of the Court's opinion in Healey that Judge Baird is mistaken to insist in the instant cause that the traditional view of mandamus was not altered. In Healey, the Court did not hold that the trial judge was entirely without authority to decide whether a constitutional privilege existed. Rather, the Court merely held that the trial judge clearly erred to enforce such a privEege in that case. However much Judge Baird may assert that our law of mandamus was not altered by this holding, it remains clear to me that it was. And, although the. Court does not cite Healey in the instant cause, it is manifest that the traditional law of mandamus is not in control here either.