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Bexar County District Attorney's Office Recuses Itself From Phipps Prosecution

Joey Palacios
Texas Public Radio
Martin Phipps, second from right, said his work representing the county in its opioid litigation should disqualify DAs office from prosecuting him.

The Bexar County District Attorney’s Office recused itself from the case against San Antonio attorney Martin Phipps on Friday. Phipps was arrested for a Class-B misdemeanor harassment of his now former wife, but charges have yet to be filed months after his arrest.

“DA Gonzales has decided that out of an abundance of caution and to avoid any appearance of impropriety, the office will be voluntarily recusing itself from the case,” said Christian Neumann, the Assistant District Attorney during a Friday hearing.

In early June, Phipps’ attorney filed a motion to disqualify the DA’s office from prosecuting the criminal case against the lawyer. In the motion, they argued Phipps’ work for the county’s opioid litigation, disagreements about how the high-value case should proceed, and his removal as “lead counsel” created a conflict of interest.

Trial of Bexar County’s Opioid Lawyer Delayed, Alleged History of Abuse

Phipps is a co-counsel on the county’s opioid litigation against manufacturers and distributors.

He was removed as lead counsel by the Bexar County Commissioners Court on Feb. 23. Mikal Watts, whose firm was already co-counsel, was placed in charge.

Bexar County Court 14 Judge Carlo Key said he would appoint a prosecutor pro-tem to proceed in the case and would look for a DA in another county. Key said he recently had trouble finding assistance in a similar case.

“It was a struggle because every DA that I contacted locally (in Medina County) said, ‘You know what, Judge, we’re just busy. All our courts are coming back to life again, and we’re just saturated with cases,’” Key told the lawyers.

After 14 months without jury trials because of the pandemic, many counties including Bexar have restarted in-person trials.

Key said he would find someone, and the case would continue in 60 days.

Phipps attorney Mike McCrum voiced concern about how long the case has dragged on without charges being filed. Despite Phipps’ arrest in early February, no charges have been filed by the state in the case. Key himself chided the DA in the last hearing over this and said they needed to move the case along.

McCrum noted that when he said he would likely file a motion for a speedy trial, meaning the time between his arrest and his trial has gone on too long. In extreme cases, a court has dismissed a case for such reasons

“Once I file that motion, it may be that the state or rather, the court, deems that appropriate — in consideration of my client's constitutional rights to speedy trial — to dismiss the case,” McCrum said.

Key did not appear receptive to the argument, but said he would look at the motion.

It wasn’t immediately clear how the DA’s office decision would be recorded. According to McCrum, even the voluntary recusal would go down as a disqualification because of his motion. The DA’s office said during the hearing it would file its own motion to recuse on Friday and Key would decide.

According to State District Judge Ron Rangel, the elected district attorneys in Bexar County are often asked to recuse themselves for one reason or another. It is not the norm that the DA actually does so, saying the only clear conflict of interest would be if the DA prior to being elected had represented the defendant. Despite that, he said there was nothing wrong with it.

“Any judge or prosecutor who recuses themselves to avoid the appearance of a conflict helps confirm the public trust," he said.

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Paul Flahive can be reached at Paul@tpr.org