dissenting on Relator’s Application for Writ of Mandamus.
We ordered this application filed and set for submission to determine whether mandamus would lie to compel a trial judge to assent to the appointment of an independent prosecutor by a district attorney. Today, nineteen months after oral argument, we resolve that issue with three separate opinions, none of which gamer a majority of the Court. I respectfully dissent because none of the opinions can withstand careful scrutiny in light of the record, the applicable statutes and the relevant decisional authority.
I.
THE FACTS
On October 16, 1991, the Attorney General’s Office filed a civil action in the 47th District Court of Potter County alleging that Texas Health Enterprises, Inc., as owner, operator and/or manager of a nursing home in Potter County, violated provisions of the Nursing Home Act and regulations promulgated by the Texas Department of Health.1 Approximately five months later, on March 27, 1992, the Potter County Grand Jury returned indictments against Texas Health Enterprises and several of its officers and employees (hereafter real parties in interest) on allegations similar or identical to those in the civil action.2 The indictments were based upon evidence obtained by and presented to the Potter County Grand Jury by members of the Attorney General’s office.3
On November 20, 1992, after the real parties in interest questioned the participation of *936the Attorney General’s office, relator executed a document “deputizing” Rod Boyles and Jack Else, Assistant Attorneys General, to act on behalf of the Potter County Criminal District Attorney in each of the criminal prosecutions against the real parties in interest.4 The real parties in interest filed a motion to prohibit Boyles and Else from acting as prosecutors.5 At the hearing on this motion, Boyles and Else represented the State.6
The real parties in interest presented numerous documents, including the court files from the civil action, see n. 1, supra, and documents from the Attorney General’s office demonstrating the participation of the Office of the Attorney General in both the civil and criminal actions. The real parties in interest further presented testimony from South Texas College of Law Professor Neil McCabe and Dain Whitworth, attorney at law, in support of the contention that relator violated the “separation of powers” provision of the Texas Constitution. Additionally, Boyles and Juan Flores, an investigator employed by the Office of the Attorney General, testified as to the investigation underlying the criminal actions.7
In ruling on the motion, respondent stated:
Counsel, I’d like to say that notwithstanding the great number of attorneys that have been involved in this case, it gives it the appearance of a civil case. We must always be mindful that this is above and foremost a criminal action. And it’s the right of a criminal action that is at issue here.
The challenges being made by the Defense challenge the right of the prosecution. Those challenges go to the very nature of the system.
Respondent granted the motion and ordered that Boyles and Else “not be involved in any of the functions or decisions that constitute prosecutorial decisions,” but specifically allowed “future involvement of the Attorney General’s office ... by way of investigations and assistance_” Relator seeks mandamus relief to set aside respondent’s order.
II.
Will mandamus lie?
A.
Traditional Analysis
Our authority to issue a writ of mandamus is derived from Tex. Const, art. V, § 5, which provides “... the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition and certiorari.” See also, Tex.Code Crim.Proc.Ann. art. 4.04, § 1. Traditionally, to be entitled to a writ of man*937damus, relator must demonstrate: 1) the act sought to be compelled is purely ministerial (as opposed to discretionary); and, 2) the relator has no other adequate remedy. State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389, 392 (Tex.Cr.App.1994); Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991); State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1990); Collins v. Regans, 802 S.W.2d 702 (Tex.Cr.App.1991); and, Stearnes v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989).
As we stated in State ex rel. Curry v. Gray, 726 S.W.2d 125,128 (Tex.Cr.App.1987), an act is ministerial if it constitutes a duty, clearly fixed and required by law. The duty to act must be unequivocal, unconditional and present:
... a “ministerial act” is one which is accomplished without the exercise of discretion or judgment. If there is any discretion or judicial determination attendant to the act, it is not ministerial in nature. Nor is a ministerial act implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution.
Id. 8
B.
The Plurality Opinion
Today, the plurality departs from our traditional approach and expands mandamus relief to cover discretionary acts:
... [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.
Plurality op., 887 S.W.2d 921, 926 (Tex.Cr.App. No. 71,596, decided this date). The majority cites no authority, nor can I find any to support such an expansion of mandamus. We have never held mandamus will lie for a “nominally discretionary act.”
In several recent opinions, our focus on the ministerial nature of respondent’s act changed slightly and we asked whether relator held a “clear right” to the relief sought. However, this change in focus was not intended to effect a material change in our traditional approach to mandamus applications. In Buntion v. Harmon, 827 S.W.2d 945 (Tex.Cr.App.1992), we explained:
Historically, this Court has stated that to be entitled to the extraordinary relief of mandamus, the relator must establish ... (1) that the act sought to be compelled is purely ministerial, as opposed to discretionary or judicial in nature....
* * * ⅜ * *
... A “ministerial” act is one which is clearly compelled by the facts and legal authority extant in a given situation.... Thus, a theoretically discretionary act may nonetheless be “ministerial” in application if the facts and circumstances of a given case lead to but one rational course of action.
Id., 827 S.W.2d at 947, n. 2 (citations and quotations omitted) (emphasis in original). See also, Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Cr.App.1994). Further,
... [W]e have repeatedly held that [mandamus] is available only when the relator can establish two things: first, that under the relevant law and facts, he has a clear right to the relief sought, i.e., the act he seeks to compel is “ministerial”....
State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992).
Therefore, whether our focus is on relator’s “clear right” to relief or respondent’s “ministerial act,” the result should be the same. Mandamus does not lie when the act sought to be compelled is discretionary. Id.
C.
Judge Meyers’ View
Judge Meyers argues that our focus on relator’s “clear right” to relief was a “pro*938found change” in our “traditional rules.” Concurring op. 887 S.W.2d at 933 (Meyers, J., concurring). Judge Meyers recently professed to subscribe to “the traditional and conservative view of mandamus.” McMeans, 884 S.W.2d at 776 (Meyers, J., dissenting).
In McMeans, the State issued subpoenas compelling four newsmen to appear and present evidence relevant to a pending criminal case. Judge McMeans quashed the subpoenas finding the newsmen held a journalistic privilege, under the First Amendment and Tex. Const, art. I, § 8, not to testify or produce evidence in a criminal trial. McMeans, 884 S.W.2d at 773-774. The State sought mandamus relief contending Judge McMeans had no discretion to quash the subpoenas because Texas did not recognize a journalistic privilege. Id. Noting first that the Texas Rules of Criminal Evidence did not provide a journalistic privilege, and that we expressly rejected the existence of such a privilege in Ex parte Grothe, 687 S.W.2d 736 (Tex.Cr.App.1984), we held:
... [Rjelator has demonstrated that respondent has a ministerial duty to vacate the orders granting the motions to quash. This is so because the recognition of a “newsman’s privilege” is clearly contrary to well-settled law.
McMeans, 884 S.W.2d at 774. Judge Meyers strongly objected to the Court’s determination that a trial judge’s act is ministerial “when there is but one proper order to be entered.” McMeans, 884 S.W.2d at 778 (Meyers, J., dissenting) (quoting Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991)). However, Judge Meyers did not address Grothe ⅛ rejection of the journalistic privilege.
Today, in an abrupt change of position, Judge Meyers concurs in the result reached by the plurality. To justify his sudden change, Judge Meyers argues that our grant of relief in McMeans expanded our traditional mandamus authority, citing Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987) (Opinion on rehearing). Concurring op., 887 S.W.2d at 933 (Meyers, J., concurring). However, McMeans did not expand our mandamus authority. In Texas Dept. of Corrections, Etc. v. Dalehite, 623 S.W.2d 420 (Tex.Cr.App.1981), we stated:
... An act is said to be ministerial where the law clearly spells out the duty to be performed ... and does so with such certainty that nothing is left to the exercise of discretion or judgment.
Id., 623 S.W.2d at 424 (citing Forbes v. City of Houston, 356 S.W.2d 709 (Tex.Civ.App.1962). Clearly, McMeans was nothing more than an application of our traditional mandamus authority, not an expansion of it.
Judge Meyers apparently believes that we no longer require that the act sought to be compelled be ministerial. Instead, in the instant case we must now determine “whether Respondent erred to prohibit the appearance of assistant AGs in his courtroom as prosecutors, not whether he had the authority to do so.” Concurring op., 887 S.W.2d at 994 (Meyers, J., concurring). Of course, if Judge Meyers’ reading of McMeans were correct, the plurality could simply cite McMeans, dispense with its discussion of “nominal discretion,” and directly review respondent’s order. However, the plurality does not even mention, much less rely on, McMeans.
For these reasons, Judge Meyers’ reliance on McMeans is misplaced. Today, Judge Meyers, unable to maintain the position he stated just five months ago, facilitates the very harm he predicted. Because of Judge Meyers’ concurrence, we “are left with ... a system perilously close to full appellate supervision of lower court decision-making by means of mandamus and prohibition.” McMeans, 884 S.W.2d at 780 (Meyers, J., dissenting).
D.
The plurality should not so easily discard our traditional approach to mandamus.
One of the principles of our legal system is that when a point of law has been settled *939by decision of the highest court of the state, the decision becomes the law of the state and forms a precedent that is not afterward to be departed from. This is known as the doctrine of stare decisis. This doctrine is ... based upon public policy and sound judicial administration, which require that the courts observe a proper respect for the prior decisions of the highest court.
16 Tex.Jur.Bd Courts, 451-452, § 119. The doctrine of stare decisis requires that we demonstrate “the reluctance with which one in a judicial position should approach a line of decisions of long standing with the purpose of setting aside the doctrines therein laid down, some grey with antiquity, and the doctrine of stare decisis should bear heavily on retaining the integrity of such decisions.” Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274, 281 (App.1944) (opinion on rehearing). See also, Ex parte Porter, 827 S.W.2d 324, 328-329 (Tex.Cr.App.1992) (Baird, J., dissenting).
The plurality should explicitly recognize our previous mandamus decisions and provide an in-depth analysis and a justification for departing from those decisions. If our mandamus jurisprudence is unsettled and lacks “a clear or definitive statement” regarding our authority to grant relief, concurring op. 887 S.W.2d at 934 (Meyers, J., concurring), the plurality opinion fails to provide such a statement. I can only conclude the plurality’s failure to recognize and discuss the profound changes they have wrought upon our settled mandamus decisions arises from its sympathy with the prosecutors in this case. While I share their sympathy, we should not let emotion override stare decisis and decades of considered jurisprudence.
Because a majority of this Court does not overrule our precedent, today’s plurality decision has little or no precedential value and I believe our traditional mandamus authority remains intact. Therefore, to be entitled to mandamus relief, we must determine whether the act sought to be compelled is ministerial. State ex rel. Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex.Cr.App.1994).
III.
To determine whether the act is ministerial, one must first determine what position Boyles and Else hold in the prosecution of the instant case. My review of the applicable statutes and the relevant decisional authority reveals the three possible categories of appointed prosecutors.
A.
Attorney Pro Tem/Special Prosecutor
Tex.Code Crim.Proc.Ann. art. 2.07(a) provides for the appointment of an attorney pro tem/special prosecutor:
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.
However, the district attorney must initiate his own recusal under art. 2.07:
Article 2.07, V.A.C.C.P., provides for court appointment of an “attorney pro tern,” a.k.a. a “special prosecutor,” 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.” Art. 2.07(a) ... Nowhere do these statutes give trial courts any authority to remove prosecutors from cases for any of these reasons, including “disqualification”; responsibility for recu-sal is left with the prosecutor.
*940State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 fn. 4 (Tex.Cr.App.1990) (plurality opinion).9
Relying on Eidson, 793 S.W.2d at 6, relator contends, “... whether a special prosecutor may represent the state in a given case is wholly within the authority of the district attorney.” Relator’s Brief pg. 5. Relator’s contention is without merit for at least two reasons. First, this is not an art. 2.07 case. The record is clear that relator is not disqualified, absent or unable to perform the duties of his office nor has relator initiated his own recusal.10 Second, Eidson concerned the removal of an elected district attorney. Eidson is inapposite because respondent’s order does not limit relator’s participation. Instead the order limits the participation of the Attorney General’s Office.
For these reasons, art. 2.07 is inapplicable to the instant case and Boyles and Else are not acting as attorneys pro tem or special prosecutors.11
B.
Assistant Prosecuting Attorney
Tex.Gov’t Code Ann. § 41.102 provides for the employment of assistant prosecutors:
A prosecuting attorney may employ the assistant prosecuting attorneys, investigators, secretaries, and other office personnel that in his judgment are required for the proper and efficient operation and administration of the office.
The plurality concludes relator “employed” Boyles and Else as assistant prosecuting attorneys under § 41.102.12 However, the record indicates otherwise.
An employee is defined as:
A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. One who works for an employer; a person working for salary or wages.
Generally, when person for whom services are performed has right to control and direct individual who performs services not only as to result to be accomplished by work but also as details and means by which result is accomplished, individual subject to direction is an “employee”.
Black’s Law Dictionary 273 (5th ed. 1983).
Under this definition, Boyles and Else are not employees of relator for at least three *941reasons. First, Boyles and Else do not receive a salary from Potter County.13 Second, Boyles and Else have not assumed any general responsibility for the prosecution of criminal cases in Potter County. In fact, the deputation order specifically limits their responsibilities to the instant prosecution. Third, although relator may be controlling or directing the result to be accomplished by Boyles and Else, relator does not control the details or means by which this result is accomplished. The record from the hearing on the “Motion to Prohibit” demonstrates:
1) The physical evidence in the underlying cases includes “a couple of truckloads” of records which have been removed from the Potter County District Attorney’s Office and are currently in the possession of the Office of the Attorney General in Austin, approximately ⅛75 miles from Potter County.
2) An investigator from the Office of the Attorney General was assigned to investigate the underlying cases even before the Potter County District Attorney’s involvement. This investigator reports to Boyles and Else, and reported to Burt before them. Further, all evidence obtained through this investigation has been retained by the Austin Office of the Attorney General.
3) The Potter County grand jury was convened at the request of the Office of the Attorney General, (exhibit S — 1). Burt prepared the grand jury subpoenas. (75-76) Burt further, representing the Office of the Attorney General, scheduled witness’ appearances before the grand jury (exhibits D-16, D-17, D-18), notified other counsel of court appearances, (exhibits D-19, D-21) and transmitted plea bargain offers to the real parties in interest, (exhibit 22).
Clearly, the details and means underlying the instant prosecution are controlled by the Office of the Attorney General.
In his concurring opinion, Judge Maloney finds an “absence of a showing that the district attorney’s office relinquished control and decision-making authority over the prosecution of the [instant] case_” Concurring op. 887 S.W.2d at 933 (Maloney, J., concurring). He concludes “the district attorney is entitled to the help and assistance of the attorney general’s office provided he does not relinquish control over the prosecution.” Id. This conclusion is simply not supported by the record before us. With the exception of the deputation order signed by relator, but prepared by Boyles, the record contains no evidence that relator has exercised any control over the details and means of the instant prosecution. To the contrary, relator himself contends he relinquished control of the instant prosecution to Boyles and Else because Boyles and Else “possess particular expertise” in the prosecution of “cases of providers’ abuse and neglect of Medicaid recipients, as well as complex white-collar Medicaid crime.” Petition for Writ of Mandamus at 6. Judge Maloney’s concurrence has every appearance of a result searching for a rationale.
For the aforementioned reasons, Boyles and Else are not employees of relator and § 41.102 is inapplicable.
C.
Independent Prosecutor
The plurality does not address this last category of appointed prosecutors which, for lack of a better term, I will refer to as “independent prosecutors.” This category of appointed prosecutors is not defined by statute but is found in our case law and is akin to an independent contractor. An independent contractor is
... one who ... contracts to do a piece of work according to his own methods and is *942subject to his employer’s control only as to [the] end product or final result of his work.
Black’s Law Dictionary 394 (5th ed. 1983). Such prosecutors appear on behalf of the State in a specific case usually at the request of the district attorney, or in some eases, the victim’s family. We have addressed this type of appointed prosecutor on several occasions. See, Lopez v. State, 628 S.W.2d 77, 80 (Tex.Cr.App.1982) (private attorney employed to prosecute case); Ex parte Powers, 487 S.W.2d 101, 104 (Tex.Cr.App.1972) (private attorney employed by victim’s family to prosecute case); Lopez v. State, 437 S.W.2d 268, 269 (Tex.Cr.App.1969) (private attorney employed by victim’s family to prosecute case); Phillips v. State, 159 Tex.Crim. 286, 263 S.W.2d 159, 160 (App.1953) (“special prosecutor” participated in the trial of the case over defendant’s objection); Bingham v. State, 163 Tex.Crim. 352, 290 S.W.2d 915, 918-919 (App.1956) (district attorney from another judicial district assisted elected district attorney in the trial of case).
In this case, the deputation demonstrates that relator intended Boyles and Else to become independent prosecutors:
I, [relator], nominate and appoint Rod Boyles and Jack Else, Assistant Attorney Generals, as my lawful Assistant District Attorneys, in this cause, in my name, place, and stead, to do and perform any and all acts and things pertaining to the Office of said District Attorney for the 251st Judicial District, of the said County and State, hereby ratifying and confirming any and all such acts and things lawfully done in the premises by virtue hereof, save and except any indictment against P. Har-lon Wilson, D.O.
Furthermore, relator contends that Boyles and Else, as assistant attorneys general assigned to the Attorney General’s Medicaid Fraud Control Unit, “possess particular expertise” in the prosecution of “cases of providers’ abuse and neglect of Medicaid recipients, as well as complex white-collar Medicaid crime.” Petition for Writ of Mandamus pg. 6. As is discussed supra, III, B, the Austin Office of the Attorney General has directed the investigation, collection of evidence, and prosecution of the instant case.
Because relator, in order to receive the benefit of their expertise, has surrendered control of the detail and means by which Boyles and Else will prosecute the real parties in interest, Boyles and Else are independent prosecutors.
D.
Discussion
The questions remains whether a trial judge’s decision to authorize the appointment of an independent prosecutor is a ministerial or discretionary act. In Loshe v. State, 160 Tex.Crim. 561, 272 S.W.2d 517 (App.1954), the defendant contended the trial judge erred in allowing the participation of an independent prosecutor. We held:
We have found no case where, as here, the trial court has permitted, over objection of the accused, volunteer counsel to appear and assist the State in the prosecution where the prosecuting attorneys were not only present to conduct the prosecution but entirely able and well qualified to protect every interest of the State.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
The discretion of the trial court over such matters must be given application and his action reviewed only for the purpose of ascertaining if an abuse of discretion has occurred.
Id., 272 S.W.2d at 520 (opinion on rehearing).
We have consistently applied an abuse of discretion standard when reviewing a trial judge’s decision to permit the appointment of an independent prosecutor. In Bingham, the district attorney of another judicial district appeared and assisted in the prosecution at the request of the district attorney in whose district the prosecution was pending. Bingham’s motion to remove the district attorney from the other district was denied. *943We held: ‘We are unable to conclude, here, that the trial court abused his discretion in refusing [Bingham’s] motion.” Bingham, 290 S.W.2d at 919. In Lopez, 437 S.W.2d at 269, we overruled a similar point of error because there was “nothing in the record which would warrant a finding that the trial court abused his discretion in permitting the special prosecutor to participate in the case.” See also, Figueroa v. State, 375 S.W.2d 907 (Tex.Cr.App.1964) (no abuse of discretion shown by allowing special prosecutor).
Boyles and Else are independent prosecutors and Bingham and Lopez hold that the decision to permit their appointment was within the discretion of respondent.14 Since the decision to enter the complained of order was discretionary, mandamus will not he.
IV.
Abuse of Discretion
Even if mandamus would he in discretionary situations, relator is still not entitled to rehef. Respondent made several findings in support of his order. If any finding was not so “arbitrary and capricious as to amount to an abuse of discretion,” relator’s request for mandamus rehef should be denied. For the following reasons, I would conclude respondent did not abuse his discretion in finding a conflict of interest from the participation of Attorney General’s office in both the criminal and civil htigation.
The Rules of Professional Conduct may limit prosecutorial authority. For example, in Lehman v. State, 792 S.W.2d 82, 85, fn. 2 (Tex.Cr.App.1990), we addressed the defendant’s concern over the pleading practices of the prosecutor. We stated:
... A prosecutor is not free to put unfounded allegations in an indictment in the hope that a plenitude of accusation will make the defendant look like a criminal.
Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct require him to “refrain from prosecuting or threatening to prosecute a charge that [he] knows is not supported by probable cause.”
Our recognition that attorneys are subject to the Rules of Professional Conduct is not isolated. See also, Duggan v. State, 778 S.W.2d 465 (Tex.Cr.App.1989); Stearnes v. Clinton, 780 S.W.2d at 218-220; and, Almanzar v. State, 702 S.W.2d 653, 657 (Tex.Cr.App.1986).
Nevertheless, the plurality, relying on State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex.Cr.App.1990), effectively removes the trial judge’s authority to require ethical conduct from the attorneys appearing before him. The plurality states:
A trial court may not disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise to the level of a due process violation.
Plurality op. 887 S.W.2d at 927. However, the plurality’s reliance upon Eidson is misplaced for several reasons. First, Eidson was a plurality opinion which does not carry the force of binding precedent. Second, Eid-son is distinguishable from the instant case. The Eidson plurality held that the decision concerning the disqualification of a prosecutor lies with the prosecutor, not the trial judge. Id., 793 S.W.2d at 6.
... Unlike any private attorney, the local prosecutor — be he district attorney, county attorney, or criminal district attorney — is an elected official whose office is constitutionally mandated and protected. Prosecutors are still subject to the Rules of Professional Responsibility, but they must police themselves at the trial court level because of their status as independent members of the judicial branch of government ... [The district attorney’s] violation of the rules will subject his cases to reversal on appeal when his unprofessional *944conduct results in a denial of due process to a defendant. Lastly, he, like all elected officials, must regularly answer to the will of the electorate. Should his conduct create too much appearance of impropriety and public suspicion, he will ultimately answer to the voters.
Id., 793 S.W.2d at 7. Eidson might be applicable had respondent attempted to limit the participation of relator or one of his employees. See, n. 11, supra. However, as previously noted, Eidson is inapposite because respondent’s order limits the participation of the Attorney General’s Office; the order does not limit relator’s participation. The plurality apparently fails to recognize this critical distinction. Moreover, Boyles and Else have no constitutionally mandated or protected right to prosecute the real parties in interest. That right is held by relator, who has not been removed from the prosecution.
Respondent, as a district judge, must comply with the Code of Judicial Conduct which requires that he “take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which [respondent] become[s] aware.” Code of Judicial Conduct, Cannon 3(B)(3). In the instant case respondent finds himself in the same position as the defense attorney in Steames, “between a rock and a hard place.” Steames, 780 S.W.2d at 224.15 Respondent, in order to comply with the Code of Judicial Conduct, must take some action to prevent what he perceives as unprofessional conduct. However, under the plurality opinion, respondent is subject to mandamus when he takes such action.
With little analysis, the plurality finds no conflict of interest in this case:
... We find respondent did not properly disqualify Else and Boyles on the basis of a conflict of interest because the real parties in interest failed to prove any prejudice to their rights, or deprivation of their right to due process.
Plurality op. 887 S.W.2d at 927. However, the record reveals that at least one assistant attorney general was connected with both the civil litigation and the criminal proceedings. The criminal action was initially investigated by assistant attorney general Penny Burt, who, with relator’s consent, presented evidence to the Potter County Grand Jury which resulted in the indictments against the real parties in interest. See, n. 3, supra The record also contains undisputed evidence that Burt appeared on behalf of the Attorney General in depositions taken in the civil action.
All attorneys are governed by the Texas Disciplinary Rules of Conduct. Rule 4.04 specifically applies to the prosecutor who participates in a criminal action when the result is to gain advantage in a civil matter.16 The United States Supreme Court considered a similar issue in Young v. U.S. ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). In Young, two private attorneys were appointed to prosecute Young for criminal contempt. The two attorneys also represented the parties in civil *945litigation against Young. The Supreme Court held:
... The prosecutor is appointed solely to pursue the public interest ... A private attorney appointed to prosecute ... therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.
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... It is a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters.
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... We may require a stronger showing for a prosecutor than a judge in order to conclude that a conflict of interest exists. Once we have drawn that conclusion, however, we have deemed the ‘prosecutor subject to influences that undermine confidence that a prosecution can be conducted in disinterested fashion. If this is the case, we cannot have confidence in a proceeding in which this officers plays the critical role of preparing and presenting the case for the defendant’s guilt.
Id,, 481 U.S. at 804-811, 107 S.Ct. at 2136-2138.
Thus, even though the plurality would require the real parties in interest to “prove ... prejudice to their rights,” Plurality op. 887 S.W.2d at 927, Young clearly does not require the real parties in interest to prove prejudice. A constitutional violation may occur simply upon proof of a conflict of interest. Young, 481 U.S. at 811, 107 S.Ct. at 2138. It is notable that the plurality does not cite, distinguish or in any way acknowledge Young, even though respondent specifically relied on Young and found a conflict of interest and that “the Attorney General’s participation in [the prosecution] undermines public confidence in the prosecution.” Id. In spite of this finding of a conflict of interest, respondent limited his order so that relator could retain the benefit of the work previously performed by the Attorney General’s Office and have available the experience possessed by Boyles and Else. Relator does not state why this limitation is detrimental to his ability to prosecute the instant case.
The issue is whether respondent’s finding of a conflict of interest was an abuse of discretion. Plurality op. 887 S.W.2d at 925. An abuse of discretion is a decision by the trial judge “so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Cr.App.1992). See also, Erdman v. State, 861 S.W.2d 890, 894 (Tex.Cr.App.1993) (Baird, J., concurring). In light of the aforementioned participation of former Assistant Attorney General Burt in both the civil litigation and the criminal proceedings, Rule 4.04 of the Texas Disciplinary Rules of Conduct and Young, one cannot conclude that respondent abused his discretion in finding a conflict of interest. Consequently, even if mandamus would lie in discretionary situations, relator is still not entitled to relief.
For all of the foregoing reasons, I respectfully dissent.
OVERSTREET, J., joins this opinion.. The civil action was fEed by Viviana S. Patino, an assistant attorney general assigned to the Consumer Protection Division of the Attorney General’s office.
. SpecificaEy, the real parties in interest were indicted for injury to an elderly individual, injury to an invahd, tampering with government records, and, misapplication of fiduciary property. See, Tex.Penal Code Ann. §§ 22.04, 32.45, and 37.10.
. Assistant Attorneys General Rod Boyles and Jack Else assumed responsibEity for the prosecution of this case after the departure of Assistant Attorney General Penny Burt. Burt initiaEy investigated this case and presented evidence to the Potter County Grand Jury. Each of these attorneys are/were assigned to the Medicaid Fraud Unit of the Attorney General’s office.
. The document erroneously referred to relator as the district attorney for the 251st Judicial District.
. In their motion, the real parties in interest alleged: 1) under Tex. Const, art. V, § 21, Tex. Gov't Code Ann. § 43.127, and Tex.Code Crim. Proc.Ann. art. 2.01, only the Potter County Criminal District Attorney may prosecute the pending criminal actions; 2) under Tex.Code Crim.Proc. Ann. art. 2.01, only the county attorney may replace the district attorney if he is unable to prosecute and action; 3) under Tex.Code Crim. Proc.Ann. art. 2.07, the district attorney may be replaced only in limited circumstances, none of which have been shown; 4) Tex. Const, art. IV, § 22 does not confer jurisdiction on the attorney general to prosecute criminal cases; 5) the appointment of Boyles and Else violates Tex. Const, art. 16, §§ 33 and 40 because they are holding two government offices; and, 6) Boyles and Else, by participating this prosecution, have violated Rules 1.11, 1.15 and Rule 4.04(b)(1), of the Texas Disciplinary Rules of Conduct. It was the mov-ant's position that the actions of Assistant Attorneys General Boyles and Else "violate the constitutional grant of authorities to the Attorney General and the County and District Attorneys, the Separations of Powers doctrine, the sovereignty of the local prosecution system, and the constitutional prohibition against holding of two state offices.”
. Additionally, relator was represented by Assistant Attorney General Charles A. Palmer in oral argument before this Court. However, relator did not "deputize” Palmer as an assistant district attorney.
. This testimony is discussed in greater detail in Part III, B, infra.
. All emphasis is supplied unless otherwise indicated.
. Presumably, the trial judge may initiate the appointment in situations where a district attorney has been removed from office. Tex.Loc’l Gov't Code Ann. §§ 87.012 & 87.013. Section 87.013 furnishes the grounds and procedures concerning the removal of a district attorney:
(a) An officer [district attorney] may be removed for:
(1) incompetency;
(2) official misconduct; or
(3) intoxication on or off duty caused by drinking alcoholic beverage.
These three areas are exclusive. A trial judge may "remove a District Attorney only for one of the three causes enumerated in Sec. 87.013 and only after the trial by jury mandated in Sec. 87.018(a).” State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex.Cr.App.1990) (plurality opinion) (emphasis in original).
. The record reveals that relator considered re-cusal but chose not to recuse himself in these cases. At the hearing on the Motion to Prohibit, Boyles testified:
... The understanding at the time was that [relator’s] recusing himself was a direction he could take. And it became apparent to me personally, after discussions with [relator], that there were other options. And we talked about those options, about what the law required, what kind of problems may be if [relator] re-cused himself, what [relator's] heartfelt feelings were about the recusal and what [relator’s] concerns were.
. I pause to note that Eidson might apply had respondent attempted to limit the participation of relator or one of his employees. See, II B, infra.
. The plurality states:
Relator appointed Else and Boyles to be assistant district attorneys in the instant case under the authority of [Tex.Gov't Code Ann. §§ 41.102, 41.103 & 41.105]. They are lawfully designated assistant prosecuting attorneys on relator’s staff. A district attorney in this state, such as relator, has the right to appoint to his staff personnel which he feels are necessary to carry out the constitutional duties of his office....
Plurality op. 887 S.W.2d at 927.
. Relator does not contend that Boyles and Else receive a salary from Potter County, contending only that Boyles and Else may be appointed regardless of their position as employees of the Attorney General. The plurality avoids this issue by recognizing the Potter County Commissioner’s Court must approve the payment of any salaries of assistant prosecutors from county funds. Plurality op. 887 S.W.2d at 929. The plurality further, raises and decides an issue which is not found in any of the materials before the Court: whether relator has authority to hire salaried employees without the approval of the Potter County Commissioner's Court if the salaries are paid from funds under relator's "direct control.” Plurality op. 887 S.W.2d at 929, n. 4.
. I pause to note that there are cases which appear to allow the appointment of an independent prosecutor without the trial judge's consent or approval. See, Lopez v. State, 628 S.W.2d at 80; and, Reed v. State, 503 S.W.2d 775, 776 (Tex.Cr.App.1974). However, those cases do not purport to overrule the aforementioned authority, rather they rely upon Bingham and Lopez which impose an abuse of discretion standard.
. In Steames, the trial judge removed the defense attorney because he interviewed a State’s witness. We stated:
... Judge Clinton, after condemning his conduct, removed [the defense attorney] because he interviewed a witness. On the other hand, [the defense attorney] could have been deemed incompetent if he did not interview her.
Stearnes, 780 S.W.2d at 225.
. Rule 4.04(b) provides:
A lawyer shall not present, participate in presenting, or threaten to present:
(1) criminal or disciplinary charges solely to gain advantage in a civil matter....
See also, Ethics Opinion 332 (August, 1967):
CONFLICTING INTERESTS — PUBLIC PROSECUTOR REPRESENTING CIVIL SUITORS — It is improper for a public prosecutor (District Attorney, County Attorney or City Attorney) to represent any party in a civil matter arising out of an occurrence which also is the subject of criminal investigation or prosecution within the jurisdiction of such public prosecutor except in rare instances where his duties as prosecutor have been fully performed before actual or contemplated connection with the civil matter and where the civil matter and where also no advantage has been obtained through the public office.