${Defendant_First} ${member_last}

${member_address}

${member_city}, ${defendant_state} ${member_zip}

${member_email}

Case: ${MEMBER_CASE_NO}

MOTION TO SHOW AUTHORITY UNDER TEXAS RULE OF CIVIL PROCEDURE RULE 12

COMES NOW, ${Defendant_First} ${member_last}, and moves this Court to require prosecuting attorney to show authority pursuant to Texas Rule of Civil Procedure 12. In support of this motion, I would respectfully show the Court as follows:

1. I. Legal Basis for the Motion

Article 5, Section 21 of the Texas Constitution states that

Section 21 - COUNTY ATTORNEYS; DISTRICT ATTORNEYS

A County Attorney, for counties in which there is not a resident Criminal District Attorney, shall be elected by the qualified voters of each county, who shall be commissioned by the Governor, and hold his office for the term of four years. In case of vacancy the Commissioners Court of the county shall have the power to appoint a County Attorney until the next general election. The County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature. The Legislature may provide for the election of District Attorneys in such districts, as may be deemed necessary, and make provision for the compensation of District Attorneys and County Attorneys. District Attorneys shall hold office for a term of four years, and until their successors have qualified. (Amended Nov. 2, 1954.)

This constitutional provision makes it clear that only duly elected County Attorneys or District Attorneys have the authority to represent the State in court cases.

Texas Rule of Civil Procedure 12 allows any party to challenge the authority of an attorney to act on behalf of a party by filing a motion requiring the attorney to show their authority to act.

A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act. The notice of the motion shall be served upon the challenged attorney at least ten days before the hearing on the motion. At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears. The motion may be heard and determined at any time before the parties have announced ready for trial, but the trial shall not be unnecessarily continued or delayed for the hearing.  Rule 12 - Attorney to Show Authority, Tex. R. Civ. P. 12

2. II. Lack of Authority

prosecuting attorney  is acting as the prosecuting attorney in the Municipal Court of Mineola for the current proceedings against me. However, there is no evidence indicating that prosecuting attorney  has been elected  as a County Attorney, appointed as an assistant to a duly elected County Attorney, or otherwise authorized by the State of Texas to represent it in this matter.

The Texas Constitution, specifically Article 5, Section 21 supra, clearly limits representation of the State in criminal matters to duly elected County or District Attorneys, unless otherwise regulated by the Legislature. prosecuting attorney’s role as a city attorney does not grant him the authority to represent the State of Texas in the present matter.

III. Request for Relief

WHEREFORE, PREMISES CONSIDERED, I respectfully move this Court to:

1.  Require Blake Armstrong to appear and show authority to act on behalf of the State of Texas in this matter.

2.  If prosecuting attorney  is unable to show such authority, that the Court disqualify him from acting as the prosecutor in this case and dismiss the charges against me due to lack of proper prosecutorial authority.

3.  Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

_________________________

${Defendant_First} ${member_last}

${member_address}

${member_city}, ${defendant_state} ${member_zip}

${member_email}

Case: ${MEMBER_CASE_NO}

ORDER

This, the ______day of __________________, ${current_year} the foregoing motion having been presented and heard by the Court, it is hereby ORDERED that:

All relief requested is hereby granted.

__________________________

Judge Presiding

The relief requested is granted in part as follows:

____________________________________________________________

____________________________________________________________

____________________________________________________________

__________________________

Judge Presiding

All relief requested is DENIED, to which action Defendant excepts.

__________________________

Judge Presiding

VERIFICATION

I,  ${Defendant_First}   ${member_last} , do swear and affirm that all statements made herein are true and accurate, in all respects, to the best of my knowledge.  

__________________

${Defendant_First} ${member_last}

${member_address}

${member_city}, ${defendant_state} ${member_zip}

${member_email}

The Person above, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this document and acknowledged to me that he/she executed the same in his authorized capacity and that by his signature on this instrument who is the person who executed this instrument.

I certify under PENALTY OF PERJURY under the laws of this State that the foregoing paragraph is true and correct.

Witness my hand and official seal.

_________________________________________ __________________________

NOTARY PUBLIC IN AND FOR Notary Seal

THE STATE OF TEXAS

CERTIFICATE OF SERVICE

I,  ${Defendant_First}   ${member_last} , hereby certify that a true and correct copy of above and foregoing has been delivered to ___________________________________________________,  on this the ___ day of _____________ ${current_year}, by certified mail (Certified Mail Receipt # _____ _____ _____ _____ _____), in accordance with the rules governing same.

___________________

${Defendant_First}   ${member_last}

${member_city}, ${defendant_state} ${member_zip}

${member_email}