Motion Denied as Moot; Petition for Writ of Mandamus Granted and 

Memorandum Opinion filed April 19, 2013.

In The

Fourteenth Court of Appeals

NO. 14-13-00311-CV

IN RE MARGARET DIANE STONE, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

On Appeal from the 387th District Court

Fort Bend County, Texas

Trial Court Cause No. 11-DCV-190152

MEMORANDUM OPINION

On April 10, 2013, relator filed a petition for writ of mandamus in this 

Court. See Tex. Gov’t Code Ann. §22.221 (West 2004); see also Tex. R. App. P. 

52. In the petition, relator asks this Court to compel the Honorable Brenda 

Mullinix, presiding judge of the 387th District Court of Fort Bend County, to 

vacate her order signed April 2, 2013, disqualifying relator’s attorney in the 
2

proceeding below. Relator also filed an emergency motion for stay. A response 

was requested but none was filed.

In the divorce proceeding below, relator’s husband moved to disqualify her 

attorney. Following a hearing, the trial court granted the motion. In her petition, 

relator claims the trial court abused her discretion. 

We first note that mandamus is appropriate to correct an erroneous order 

disqualifying counsel because there is no adequate remedy by appeal. See In re 

Epic Holdings, Inc., 985 S.W.2d 41, 52 (Tex.1998) (orig. proceeding). In 

determining whether the trial court abused its discretion with respect to 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. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.1992). A trial court 

also abuses its discretion if it fails to analyze or apply the law correctly. Id. at 840.

 “When a lawyer is or may be a witness necessary to establish an essential 

fact, Texas Disciplinary Rule of Professional Conduct 3.08 prohibits the lawyer 

from acting as both an advocate and a witness in an adjudicatory proceeding.” In 

re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding). Disqualification is 

a severe remedy that can cause immediate harm by depriving a party of its chosen 

counsel and disrupting court proceedings. See Spears v. Fourth Court of 

Appeals, 797 S.W.2d 654, 656 (Tex.1990) (orig. proceeding); and In re Nitla S.A. 

de C.V., 92 S.W.3d 419, 423 (Tex.2002) (orig. proceeding). Disqualification is 

appropriate only if the lawyer's testimony is “necessary to establish an essential 

fact.” Tex. Disciplinary R. Prof'l Conduct 3.08(a). Thus the fact that a lawyer 

serves as both an advocate and a witness does not in itself compel disqualification.
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Ayres v. Canales, 790 S.W.2d 554, 557-58 (Tex. 1990) (orig. proceeding). The 

movant must demonstrate that the opposing lawyer's dual roles as attorney and 

witness will cause the party actual prejudice. Ayres, 790 S.W.2d at 558. Such 

prejudice can occur if a fact finder is confused as to whether a statement by an 

advocate-witness should be taken as proof or an analysis of the proof and an 

opposing party is thereby handicapped in challenging the credibility of the 

testifying attorney. See Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 

422 (Tex.1996). Absent such a showing, the rule could be improperly employed 

“as a tactical weapon to deprive the opposing party of the right to be represented 

by the lawyer of his or her choice.” Tex. Disciplinary R. Prof'l Conduct 3.08 cmt. 

10 (stating that a lawyer “should not seek to disqualify an opposing lawyer by 

unnecessarily calling that lawyer as a witness”).

The motion to disqualify claimed relator’s attorney may be a fact witness 

and that as such her dual role could cause actual prejudice based on three 

assertions: (1) relator’s attorney took relator to open a bank account and 

documented the event by taking photographs;

1

(2) relator’s attorney hired relator to 

work in her law office in spite of pleading relator is unable to work; and (3) 

relator’s attorney assisted relator, either financially or otherwise, with her 

psychological or mental health care.

The hearing record reflects there was no evidence that relator’s attorney is

the only person in possession of facts regarding these allegations. See In re 

Guidry, 316 S.W.3d 729, 740 (Tex. App. -- Houston [14th Dist.] 2010, orig. 

 

1 We note the attempt to also disqualify relator’s attorney on the basis she took photographs

smacks of gamesmanship.
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proceeding) (lawyer’s testimony was necessary to establish an essential fact 

because other sources of proof would not reveal what the lawyer knew and when 

he knew it, crucial elements of the defense). Thus it was not shown the testimony 

of relator’s attorney is necessary to establish an essential fact. Moreover, the 

record fails to demonstrate that the attorney’s dual role, if she were a fact witness, 

would cause actual prejudice. See Ayres, 790 S.W.2d at 558 n. 2. In light of the 

fact the underlying proceeding is a bench trial, the risk of confusion cannot simply 

be presumed.

Because there was no evidence the attorney’s testimony is necessary to 

establish an essential fact, and no evidence that actual prejudice would result if the 

attorney does testify as a fact witness, we find the trial court’s abused her 

discretion in granting the motion to disqualify. Accordingly, we conditionally 

grant the petition for a writ of mandamus and direct the trial court to vacate its 

April 2, 2013 order. The writ will issue only if the trial court fails to act in 

accordance with this opinion.

Relator’s emergency motion for stay is denied as moot.

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, Jamison and McCally.