In Re Alexandria Smith v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00347-CV

In re Alexandria Smith

Original Proceeding

On appeal from the
County Court at Law of Navarro County, Texas
Judge Amanda Doan Putman, presiding
Trial Court Cause No. C22-30337-CV

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

By petition for writ of mandamus, relator Alexandria Smith contends

that the trial court abused its discretion when, upon Scott Smith’s motion, it

disqualified her counsel of record from representing her in a proceeding to

modify their final decree of divorce. Alexandria also contends the trial court

violated its nondiscretionary duty to accept and rule on properly filed

motions. We conditionally grant the petition for writ of mandamus.

I. Background
Scott filed a petition to modify the parent-child relationship in July

2024. Alexandria’s father, attorney Joseph Watts, filed an answer and

counter petition on her behalf. Scott subsequently filed a motion to disqualify

Alexandria’s father in which Scott alleged Watts had a “clear conflict of

interest . . . in that he is the father of his client” and the “conflict of interest

will likely prejudice” Scott. Additionally, Scott alleged that Watts “is in

violation of the Code of Ethics by representing a client in a matter” in which

he is a material witness because Watts was the purchaser of a motorcycle

that was wrecked by one of the minor children. The trial court granted

Scott’s motion to disqualify and directed the Navarro County District Clerk to

return several documents Watts had submitted through EFileTexas.

II. Authority

We review a trial court’s decision on a motion to disqualify an attorney

using an abuse of discretion standard. In re Sanders, 153 S.W.3d 54, 56 (Tex.

2004) (orig. proceeding). “In determining whether the trial court abused its

discretion with respect to the resolution of factual matters, we may not

substitute our judgment for that of the trial court and may not disturb the

trial court’s decision unless it is shown to be arbitrary and unreasonable.” In

re Sanders, 153 S.W.3d at 56. A trial court decision is arbitrary and

unreasonable if it departs from the only finding the facts support. In re

Wallingford, 64 S.W.3d 22, 24 (Tex. App.—Austin 1999, no pet.) The “[m]ere
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allegation of unethical conduct or evidence showing a remote possibility of a

violation of the disciplinary rules will not suffice under this standard.” See

Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig.

proceeding).

“Mandamus is appropriate to correct an erroneous order disqualifying

counsel because there is no adequate remedy by appeal.” In re Sanders, 153

S.W.3d at 56–57. “[T]he right to be represented by counsel of choice is a

valuable one and the unwarranted denial of that right has been held to be

fundamental error.” In re Vossdale Townhouse Ass’n, Inc., 302 S.W.3d 890,

893 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).

“Disqualification is a measure that can cause immediate harm by depriving a

party of its chosen counsel and disrupting court proceedings.” In re Sanders,

153 S.W.3d at 56–57. Because disqualification is a severe remedy, trial

courts must adhere to an exacting standard in order to discourage the use of

a motion to disqualify as a dilatory trial tactic. See Spears v. Fourth Court of

Appeals, 797 S.W.2d at 656. Therefore, the burden is on the party seeking

the disqualification to establish with specificity a violation of one or more of

the disciplinary rules. See Spears v. Fourth Court of Appeals, 797 S.W.2d at

656. However, “a court should not disqualify a lawyer for a disciplinary

violation that has not resulted in actual prejudice to the party seeking

disqualification” because the disciplinary rules are merely guidelines and are
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not necessarily controlling standards in deciding a motion to disqualify. In re

Meador, 968 S.W.2d 346, 350 (Tex. 1998). Even when an attorney has

violated a disciplinary rule, the party moving for disqualification must

demonstrate that the violating attorney’s conduct caused actual prejudice

that requires disqualification. In re Dalco, 186 S.W.3d 660, 668 (Tex. App.—

Beaumont 2006, no pet.). Thus, technical compliance with ethical rules

might not foreclose disqualification, and conversely a violation of ethical rules

might not require disqualification. In re Users Sys. Servs., Inc., 22 S.W.3d

331, 334 (Tex. 1999) (orig. proceeding).

Rule 3.08(a) applies when an attorney may be called to testify

regarding an essential fact of their client’s case, and Rule 3.08(b) applies

when an attorney may be compelled to testify in a manner that will be

substantially adverse to their client’s case. In re Bivins, 162 S.W.3d 415, 421

(Tex. App.—Waco 2005, no pet.); see TEX. DISCIPLINARY R. PROF'L CONDUCT

3.08(a)–(b). In either instance, Rule 3.08 should rarely be the basis for

disqualification. In re Bivins, 162 S.W.3d at 421. Under Rule 3.08(a), the

moving party must present evidence that the testimony of nonmovant’s

lawyer is “necessary” and that it goes to an “essential fact” of the

nonmovant’s case. In re Bahn, 13 S.W.3d 865, 873 (Tex. App.—Fort Worth

2000, no pet.). Furthermore, the party requesting disqualification must

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demonstrate that the opposing lawyer’s dual roles as attorney and witness

will cause the party actual prejudice. In re Sanders, 153 S.W.3d at 57.

III. Discussion

DISQUALIFICATION

Alexandria contends that Scott failed to meet the required burden of

proof necessary to warrant disqualification of Watts. We agree.

During the hearing in the trial court on the motion to disqualify, Scott

did not call any witnesses or offer any exhibits in favor of the motion. Scott

offered only argument in support of the motion. In summary, Scott’s trial

court argument in support of the motion requested disqualification of Watts

under Rule 3.08 because Scott believed Watts was going to be a “material

witness” in the matter whether his testimony was adverse to or on behalf of

Alexandria. It was Scott’s contention that Watts’ testimony would provide

proof that the parenting decisions of Alexandria and Watts were not sound

when a motorcycle was purchased for one of the minor children. Scott also

cited the potential for confusion of the factfinder because it can be unclear

whether a lawyer who also testifies as a witness is providing facts or arguing

as a lawyer in the case. Additionally, Scott argued that because the guardian

ad litem was tasked with interviewing collateral witnesses that Watts, as

grandfather, would need to be interviewed which would result in Watts

having more access to the guardian ad litem which was unfair to Scott. Scott
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did not offer an argument on his allegation of Watts having a conflict of

interest. The record before us reflects that the entire hearing required only

eight pages of the reporter’s record.

The order granting the motion to disqualify found “that Scott Smith

will be unduly prejudiced and the fair and efficient administration of justice

will be served by the requested disqualification.” Because a mere allegation

of unethical conduct will not support disqualification and the party moving

for disqualification must demonstrate that the violating attorney’s conduct

caused actual prejudice, Scott failed to provide evidence in favor of the

motion. See In re Dalco, 186 S.W.3d at 668. We conclude Scott failed to

produce any evidence to meet his burden and therefore the trial court

departed from the only finding the facts, or lack thereof, supported and

abused its discretion in disqualifying Watts.

WATT’S FILINGS WITH THE DISTRICT CLERK

The mandamus record included seven emails as exhibits. Six of the

emails were notifications to Watts that a filing had been returned for

correction. The reason given for the return was “Judge’s request.” When a

clerk refuses to accept a filing, the party should attempt to file the pleading

directly with the trial court, explaining in a verified motion that the clerk

refused to accept the pleading for filing. See In re Speed, No. 10-07-00027-

CV, 2007 WL 765293, at *2 (Tex. App.—Waco Mar. 14, 2007, no pet.). If the
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trial court refuses to accept the filing, the Court of Appeals would have

jurisdiction over a mandamus proceeding and could direct the trial court to

file the pleading. In re Speed, No. 10-07-00027-CV, 2007 WL 765293, at *2

(Tex. App.—Waco Mar. 14, 2007, no pet.). Here, there is nothing in the

record that Alexandria attempted to file the pleading directly with the trial

court or brought this to the attention of the trial court. It is a well-

established rule of mandamus practice that arguments withheld from the

trial court will not be considered in a petition for writ of mandamus. In re

Abney, 486 S.W.3d 135, 138 (Tex. App.—Amarillo 2016, no pet.). Because the

relief requested now was not urged in the trial court, we decline to consider

such relief in this mandamus proceeding.

IV. Conclusion

We conclude the trial court erred in granting Scott’s motion to

disqualify Watts. Therefore, we conditionally grant the petition for writ of

mandamus and order the trial court to withdraw its September 19, 2024,

order granting the motion to disqualify. The writ will issue only if the trial

court fails to comply with this order within seven days. Our stay of October

28, 2024, is lifted.

MATT JOHNSON
Chief Justice

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OPINION DELIVERED and FILED: February 20, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Petition granted
Publish
CV06

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