In Re Rosalind Johnson v. the State of Texas

Petition for Writ of Mandamus Conditionally Granted and Opinion filed
April 11, 2024.

In The
Fourteenth Court of Appeals
NO. 14-24-00142-CV

IN RE ROSALIND JOHNSON, Relator

ORIGINAL PROCEEDING
WRIT OF MANDAMUS
10th District Court
Galveston County, Texas
Trial Court Cause No. 18-CV-0891

MEMORANDUM OPINION

On Monday, February 26, 2024, relator Rosalind Johnson filed a petition for
writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex.
R. App. P. 52. In the petition, relator asks this court to compel the Honorable
Kerry Neves, presiding judge of the 10th District Court of Galveston County, to
disqualify real party in interest’s attorney for two reasons. First, relator asks this
court to compel the trial court to disqualify real party in interest’s attorney because
he violated the Texas Disciplinary Rules of Professional Conduct when he made a
recommendation in a 1998 tax judgment underlying the case. See Tex. Disciplinary
Rules Prof’l Conduct R. 1.10(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.
G, app. A) (Tex. State Bar R., art. X, §9). Second, relator asks this court to compel
the trial court to disqualify real party in interest’s attorney because he violated the
Texas Rules Disciplinary of Professional Conduct as she alleges he is a necessary
witness to the proceeding. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a).
Relator claims the trial court’s failure to disqualify real party in interest’s counsel
for his violations of these rules constitutes an abuse of discretion. We conditionally
grant the petition for writ of mandamus.

Background
Relator, in an adverse possession case, alleges she learned counsel for real
party in interest made a recommendation as a tax master in a 1998 tax judgment
underlying the case. See Tex. Tax Code Ann. §33.71; §33.73. The recommendation
was signed as a final judgment by the presiding judge of the 10th Judicial District
Court of Galveston County at the time. Relator states this recommendation “is
connected to the pending proceeding, in that evidence of the final judgment in that
suit is the crux” of real party in interest’s defense against relator’s claims. She
alleges because real party in interest’s signature is on the final judgment,
“arguments and statements made by counsel regarding the contents and legal effect
of that judgment will probably be accepted as true by the jury.” In her petition for
mandamus, she says she plans to call real party in interest’s attorney as a witness to
testify about his “previous involvement with the case,” “exploitation of his public
office for personal gain”; and the “possible voidness of the judgment, based upon
lack of service on the property owner.”

She asks this court to hold the trial court abused its discretion when it failed
to disqualify real party in interest’s attorney because the attorney violated the
Texas Disciplinary Rules of Professional Conduct in two ways. Due to that alleged
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abuse of discretion, she requests this court to vacate the trial court's denial of her
motion to disqualify and to enter an order disqualifying real party in interest’s
attorney. We examine both of her arguments in turn.

Standard of review

Mandamus is appropriate when the relator demonstrates that (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate remedy by
appeal. In re Quintanilla, No. 14-16-00473-CV, 2016 WL 4483743, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 25, 2016, orig. proceeding); see In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court clearly abuses its
discretion if it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law, or if it clearly fails to analyze the law correctly
or apply the law correctly to the facts. Id.; see In re Cerberus Capital Mgmt., L.P.,
164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). It is well
established that, if the trial court has abused its discretion in ruling on a motion to
disqualify counsel, mandamus is appropriate to correct the trial court's erroneous
ruling because there is no adequate remedy by appeal. Id.; see In re Sanders, 153
S.W.3d 54, 56 (Tex. 2004) (orig. proceeding); In re Epic Holdings, Inc., 985
S.W.2d 41, 52 (Tex. 1998) (orig. proceeding).
Disqualification
The Texas Disciplinary Rules of Professional Conduct were adopted by the
State Bar of Texas to establish the “minimum standards of conduct below which no
lawyer can fall without being subject to disciplinary action.” Spears v. Fourth Ct.
of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (quoting Tex. Disciplinary Rules
Prof’l. Conduct preamble ¶7, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G,
app. A.) This court often looks to the disciplinary rules to decide disqualification
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issues. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). While the
disciplinary rules are not controlling as standards governing motions to disqualify,
they have been viewed by the courts as guidelines that articulate considerations
relevant to the merits of such motion. Spears of Appeals, 797 S.W.2d at 656; see
also In re Gunn, No. 14-13-00566-CV, 2013 WL 5631241, at *3 (Tex. App.—
Houston [14th Dist.] Oct. 15, 2013, orig. proceeding) (“The Texas Disciplinary
Rules of Professional Conduct do not determine whether counsel is disqualified,
but they do provide guidelines and suggest the relevant issues courts should
consider.”) Even if a lawyer violates a disciplinary rule, the party requesting
disqualification must demonstrate that the opposing lawyer's conduct caused actual
prejudice that requires disqualification. In re Nitla S.A. de C.V., 92 S.W.3d at 422.
Disqualification is a severe remedy. Spears of Appeals, 797 S.W.2d at 656.
The courts must adhere to an exacting standard when considering motions to
disqualify so as to discourage their use as a dilatory trial tactic. Id. Thus, the
burden is on the movant to establish with specificity a violation of one or more of
the disciplinary rules. Id. Mere allegations of unethical conduct or evidence
showing a remote possibility of a violation of the disciplinary rules will not suffice
under this standard. Id.
Former government attorney Rule 1.10(a) “prohibits representation of a
private client by a former government attorney. . .when the subsequent
representation involves ‘a matter in which the lawyer participated personally and
substantially as a public officer or employee,’ unless the government agency
consents.” Id. (quoting. Tex. Disciplinary Rules Prof’l Conduct R. 1.10(a)).
Here, real party in interest’s attorney violated Rule 1.10(a) because: (1) he
represents a private client, the real party in interest, in the current matter and; (2)
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he previously participated personally and substantially as a public officer in this
matter when he made a recommendation as a tax master in a judgment that
underlies suit. Relator states in her petition that “evidence of the final judgment in
that suit is the crux of Defendant’s defense against Plaintiff’s claims.” Further,
there is no showing that the government agency that employed real party in
interest’s attorney consented to the representation. Finally, real party in interest’s
attorney’s violation of Rule 1.10(a) is prejudicial to relator because counsel’s
signature is on the 1998 final judgment underlying the case, therefore, arguments
and statements made by counsel regarding the judgment may be given greater
weight by the jury.
Accordingly, the trial court abused its discretion in denying relator’s motion
to disqualify.
Necessary witness Rule 3.08(a) prohibits continued representation. . . if
“‘the lawyer knows or believes that the lawyer is or may be a witness necessary to
establish an essential fact on behalf of the lawyer's client,’” Spears, 797 S.W.2d at
657 (quoting Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a)). The fact that a
lawyer serves as both an advocate and a witness does not in itself compel
disqualification. Sanders, 153 S.W.3d at 57. Disqualification is only appropriate if
the lawyer's testimony is “necessary to establish an essential fact.” Id.
Consequently, the party requesting disqualification must demonstrate that the
opposing lawyer's dual roles as attorney and witness will cause the party actual
prejudice. Id. We have stated that Rule 3.08 should not be used tactically to
deprive the opposing party of the right to be represented by the lawyer of his or her
choice and have condemned disqualifications based upon “speculative and
contingent allegation[s].” Id. at 58 (quoting Spears, 797 S.W.2d at 658); see also
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Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a) cmt. 10, reprinted in Tex. Gov’t
Code Ann., tit. 2, subtit. G, app. A) (“[A] lawyer should not seek to disqualify an
opposing lawyer by unnecessarily calling that lawyer as a witness.”).
Here, relator states in her petition that she plans to call real party in interest’s
attorney to address his “previous involvement with the case; exploitation of his
public office for personal gain; and possible voidness of the judgment, based upon
lack of service on the property owner.” But this testimony will not serve to
“establish an essential fact on behalf of the lawyer's client.” Tex. Disciplinary
Rules Prof’l Conduct R. 3.08(a). Real party in interest attorney’s involvement in
the case is limited to making a recommendation as a tax master in a 1998 judgment
underlying the case. The underlying judgment is self-authenticating. See Tex. R.
Evid. Rule 902(1) (“The following items of evidence are self-authenticating; they
require no extrinsic evidence of authenticity in order to be admitted: A document
that bears:. . .a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States. . .and a
signature purporting to be an execution or attestation.”). There is no evidence of
personal gain. Further, the real party in interest attorney’s testimony would not
establish the judgment is void due to a lack of service.

Thus, because real party in interest’s attorney is not a necessary witness,
relator's argument regarding Rule 3.08(a) lacks merit.

Conclusion
The trial court abused its discretion in denying relator’s motion to disqualify
because (1) real party in interest’s attorney violated Rule 1.10(a) when he
represented a private client, the real party in interest, after participating “personally
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and substantially as a public officer or employee,” by making a recommendation as
a tax master in the 1998 judgment underlying the case and failing to obtain consent
from the government agency that employed him; and (2) his previous involvement
is prejudicial to relator.
We conditionally grant the petition for writ of mandamus. The writ will
issue only if the court of appeals fails to comply.

PER CURIAM

Panel consists of Justices Wise, Bourliot, and Zimmerer.

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