In Re: Tara McDaniel v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 21, 2023
• Docket: 05-22-01370-CV
• Status: Published

Opinion

DENY and Opinion Filed March 21, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01370-CV

IN RE TARA MCDANIEL, Relator

Original Proceeding from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-07909

MEMORANDUM OPINION Before Justices Reichek, Carlyle, and Kennedy Opinion by Justice Reichek In her December 28, 2022 petition for writ of mandamus, relator complains

that the trial court abused its discretion by (1) denying her plea in abatement and

(2) disqualifying her attorney Aaron Cartwright. We strike the petition in part and

deny the remainder of the petition.

At the threshold, we strike the portion of the petition seeking mandamus relief

from the denial of relator’s plea in abatement. Because we questioned whether

Cartwright may represent relator in this original proceeding in light of the trial

court’s disqualification order, we requested letter briefing regarding this issue. After

reviewing the parties’ submissions, we conclude that Cartwright is prohibited from

representing relator in this mandamus proceeding with respect to the abatement issue because it is part of the underlying matter and the trial court’s disqualification order,

which has not been stayed, remains in effect.

In any event, relator has failed to show her entitlement to mandamus relief for

both issues. Entitlement to mandamus relief requires relator to show that the trial

court clearly abused its discretion and that she lacks an adequate remedy by appeal.

See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). After reviewing the petition and the record before us, we conclude that

relator has not made this showing for both issues.

Accordingly, we strike the petition in part and deny the remainder of the

petition. See TEX. R. APP. P. 52.8(a).

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

221370F.P05

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