dissenting on Relator’s Application for Writ of Mandamus.
I write to clarify my reasons why I believe that a writ of mandamus is not warranted nor proper in the instant cause. Suffice it to say, over the last few years we have muddied the water regarding mandamus, and we are duty bound to clear the same for the bench and bar.
Of greatest importance and concern is the right of the trial court to insure that a fair trial is received by both the State, i.e. the people of Texas, and the accused defendants. Article 2.03(b), V.A.C.C.P. explicitly declares that it is the duty of the trial court to act such as “to insure a fair trial for both the state and the defendant^]” (Emphasis added.) This includes a concern for avoiding conflicts of interest among the parties and litigants. This Court in State ex rel. Eidson *946v. Edwards, 793 S.W.2d 1, 6 (Tex.Cr.App.1990) (plurality opinion) has even acknowledged that “[t]here may be instances when a prosecutor must recuse himself from the prosecution of an individual” and that the failure to do so would be a violation of due process rights. (Emphasis added.)
In the instant cause, it does appear that with the assistant attorneys general prosecuting the criminal cases there might well be some conflict of interest, or at least the potential for the Office of the Attorney General’s duties in the civil spectrum, i.e. the pending civil action, to conflict with the criminal prosecutions against the real parties in interest here who are also accused in the civil action. Rule 4.04(b) of the Texas Disciplinary Rules of Professional Conduct states that a lawyer shall not present or participate in presenting criminal charges solely to gain an advantage in a civil matter. The accompanying comment to the rule expresses concerns about using the criminal process to coerce a party in a private matter, which improperly suggests that the criminal process can be manipulated. It is certainly at least arguable that the involvement by the Office of the Attorney General in this criminal prosecution could suggest that such prosecution is being used to gain an advantage in the pending civil matter involving the real parties in interest here. Such issue is at least quite arguable, certainly such as to preclude the State’s requisite showing for the extraordinary relief of mandamus to overturn the trial court’s ruling.
U.S. ex rel. S.E.C. v. Carter, 907 F.2d 484 (5th Cir.1990) held that it was reversible error to appoint Securities and Exchange Commission (SEC) attorneys to act as special prosecutors in criminal contempt proceedings where the SEC was “locked in an on-going civil struggle” with the parties. It emphasized concerns that “[t]he SEC attorneys’ previous involvement in the underlying civil case created a potential for conflict and an appearance of impropriety.” Id. at 488. It noted that the competing interest stemmed from the special prosecutors’ concurrent representation of a government agency, i.e. the SEC. Id. at 486. The Court found the issue so critical that it raised it sua sponte. Id. at 488. In my view, the respondent, i.e. the trial court, acted well within the bounds of its discretion in likewise finding a potential for conflict and an appearance of impropriety in the assistant attorneys general’s participation in the prosecution in the case at bar when the Office of the Attorney General was likewise locked in an on-going civil struggle with the real parties in interest.1
For example, a large civil law firm, with multiple divisions and offices, could institute a civil action against various entities; and after initiating proceedings in that civil action, including securing discovery, e.g. via depositions, interrogatories, and requests for admissions, it thereafter gets different lawyers in the same firm, though perhaps in a different office or division, to prosecute a criminal action at the behest of the local district attorney. Such would clearly raise the appearance of impropriety and potential conflict with such civil and criminal actions being undertaken by the same firm against the same parties, regardless of the assurances of non-cooperation by the various offices and divisions of that firm. As noted by the plurality, the criminal charges in the instant cause involve allegations similar or identical to those that were the basis of the civil action involving nursing home residents. Hill v. Pirtle, 887 S.W.2d 921, 923 (Tex.Cr.App.1994.)
*947This Court has recognized that mandamus is a drastic remedy, to be invoked only in extraordinary situations. Perkins v. Court of Appeals, 738 S.W.2d 276, 284 (Tex.Cr.App.1987). In fact, we have said, “A willingness to issue writs of mandamus in less than extraordinary situations would encourage piecemeal litigation and frustrate the efficient administration of justice.” State ex rel. Sutton v. Page, 822 S.W.2d 55, 57 (Tex.Cr.App.1992). Black’s Law Dictionary 985, 1113, 1148 (Revised Fourth Edition 1968) provides the following definitions:
Ministerial Duty: One regarding which nothing is left to discretion — a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist, [citations omitted] It arises when an individual has such a legal interest in its performance that neglect of performance becomes a wrong to such individual, [citation omitted]
Judicial Duty: One that requires exercise of judgment or choice of alternatives in its performance, [citation omitted] One that requires exercise of judgment or decision of a question of fact, [citation omitted] One that requires use of discretion or examination of evidence and decision of questions of law and fact, [citation omitted] One that legitimately pertains to an officer in judicial department, [citations omitted]
Mandamus: We command. This is the name of a writ (formerly a high prerogative writ) which issues from a court of superior jurisdiction, and is directed to a private or municipal corporation, or any of its officers, or to an executive, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act therein specified, and belonging to his or their public, official, or ministerial duty, or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived. [citations omitted]
Clearly, a judicial duty involves discretion while a ministerial duty does not. Equally clearly, in the instant cause, the respondent/trial court heard and evaluated testimony, weighed evidence, and made a discretionary decision thereon, thus exercising a judicial rather than ministerial duty.
All in all, the record does not show that the trial court violated any ministerial duty which would entitle the relator to the relief he seeks. In light of the record the relator has failed to meet the high standard for obtaining the drastic remedy of mandamus. Thus mandamus is not warranted. The plurality is usurping the trial court’s right and duty to act such as to insure a fair trial for both the State, i.e. the people of Texas, and the defendant. The trial court is certainly in the best position to determine such, and that decision, like many others, should not be reversed via mandamus. Mandamus should never be used as an appellate remedy.
I note that attached to the relator’s Petition is an affidavit from the Attorney General of Texas. In it he expresses very legitimate and justifiable concerns about his office’s ability to assist local jurisdictions in prosecuting certain types of cases, particularly in situations where those jurisdictions lack the requisite expertise or resources. It states that if his office “were barred from assisting local prosecutors in this manner, the [S]tate would not be able to prosecute many of these cases due to inadequate resources of many local prosecutors’ offices.” However, in the instant cause, there is no showing that relator lacks the resources or expertise to prosecute the real parties in interest. I agree that the assistance is important. But when assistance from the attorney general presents a potential for conflict of interest, as the trial court held in the instant case, the right to a fair trial free of conflict of interest should always win.
CONCLUSION
In my view, based upon the facts reflected in this record, the respondent did not violate any ministerial duty and the relator is not entitled to the relief he seeks. Simply put, the respondent acted under his judicial duty, not ministerial duty, and therefore manda*948mus is not the appropriate remedy. Having said such, the water is much clearer to me and hopefully to the bench and bar, including this honorable Court. Because the plurality refuses to see clearly, I dissent with principle.
. In making its oral pronouncement in ruling on the motions of the real parties in interest, the respondent, i.e. the trial court, stated, among other things,
Our system of justice is not just a system that requires the effective administration, but it’s a system that requires that the public have confidence in that administration.
This Court believes that it has not only the power, but the duty to see to it not that the system is administrated in an effective way, but that justice is done.
⅜ sH # ⅝ ‡ ⅝
In summary, I believe that the Defendants have argued that the Attorney General's participation undermines public confidence in the prosecution. I agree with those assessments.