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 In re Alexandria Smith Page 2 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 In re Alexandria Smith Page 3 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
In re Alexandria Smith Page 4 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
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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 In re Alexandria Smith Page 2 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 In re Alexandria Smith Page 3 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
In re Alexandria Smith Page 4 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 In re Alexandria Smith Page 5 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 In re Alexandria Smith Page 6 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
In re Alexandria Smith Page 7 OPINION DELIVERED and FILED: February 20, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Petition granted Publish CV06
In re Alexandria Smith Page 8