Opinion issued September 22, 2015 

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00016-CV

———————————

IN RE TEXAS TECHNICAL SERVICES, INC., Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION

In this original proceeding, relator Texas Technical Services, Inc. (TTSI), 

seeks mandamus review of the trial court’s October 6, 2014 order disqualifying the 

law firm of Lambright & Associates (“Lambright”) from representing TTSI in the 
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underlying proceeding.

1

 TTSI contends that Lambright should not have been 

disqualified or, in the alternative, that the trial court abused its discretion in 

disqualifying Lambright from acting as TTSI’s counsel even outside the presence 

of the jury. We hold that the trial court abused its discretion in disqualifying

Lambright and, accordingly, we conditionally grant the writ of mandamus.

Background

The Employment Suit

In 2012, after Derek Frantz left employment with TTSI and went to work for 

real party in interest, Parking Guidance Systems (PGS), TTSI sued PGS 

contending Frantz was violating non-compete and non-disclosure obligations. The 

trial judge granted TTSI injunctive relief, enjoining Frantz from working on certain 

parking projects in Houston and surrounding counties. PGS, with Frantz’s 

involvement, continued to pursue a sole source contract for parking systems with 

Dallas-Fort Worth Airport (DFW). 

Thereafter, Lambright attorneys sent multiple written communications to 

DFW regarding the employment suit and Frantz’s alleged violations of the 

injunction. For example, on November 22, 2013, a Lambright attorney wrote to 

DFW:

 1 The underlying proceeding is Parking Guidance Systems, LLC v. Texas Technical 

Services, Inc., No. 2014-16785, in the 133rd District Court, Harris County, Texas, 

the Honorable Jaclanel McFarland, presiding. 
3

[W]e understand that Mr. Frantz has continuously worked on 

the DFW parking improvement project from Fall 2012 to at least 

Spring 2013, and that he is out there, once again, in direct violation of 

Court orders. TTSI respectfully requests you to honor the Courts’ 

[sic] Orders and that you require your subcontractors to do the same. 

TTSI will endeavor to minimize the impact these issues have on your 

operations. Be advised, however, that should Mr. Frantz continue to 

violate the Orders of the 129[t]h District Court (of which you now 

have express knowledge), TTSI will proceed to enforce its judicially 

recognized rights against him and any third parties that aid or assist 

him.

Legal counsel for DFW responded to Lambright, expressing his view “that 

the [injunction] (in the form provided to me) probably does not preclude Mr. 

Frantz from participating in the [DFW] transaction.” A Lambright attorney

replied: “the two injunctions you have been sent clearly establish that DFW 

parking jobs are off-limits for Frantz.” The attorney also told DFW’s counsel to 

“deal with Mr. Frantz at your own risk.”

On February 4, 2014, the Operations Committee of DFW recommended that 

the DFW Board of Directors award the DFW parking contract to PGS. Two days 

later, a Lambright attorney wrote to DFW’s counsel:

We have learned that DFW intends to award the sole-source 

Terminal D parking guidance contract to Parking Guidance Systems, 

LLC-Derek Frantz’[s] (via his wife) company. Derek is heavily 

involved in this company, and now they have been joined in our 

lawsuit. I was under the impression from the below correspondence 

and past telephone conversations that DFW would not be doing 

business with Frantz. Given your explanation to me that the reason 

behind the sole source contract was that they were the contracting 

party on Terminal A, and that your concern was whether Derek Frantz 

could be involved in our litigation, I find it extremely interesting that 
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DFW decided to award it to PGS, who as an entity had no prior 

history with DFW (given the fact it was set up by Derek’s wife and a 

friend only last May). Maybe your client’s diligence as to the party 

they were contracting with (PGS) wasn’t as thorough as it needed to 

be.

Shortly thereafter, DFW informed PGS that it was no longer going to be awarded 

the contract.

The Underlying Suit

PGS sued TTSI alleging tortious interference with a contractual and business 

relationship between PGS and DFW. PGS alleges that Lambright “engaged in a 

systematic and deliberate attempt to disrupt the business relationship between PGS 

and DFW Airport and [to] cause DFW to withdraw the contract award [from]

PGS.”

TTSI moved for summary judgment on PGS’s tortious interference claim 

and on its affirmative defenses, and set the hearing on the motion for October 6, 

2014. On September 29, 2014, PGS filed its response to TTSI’s motion for 

summary judgment and also filed a motion to continue the hearing on the motion 

for summary judgment. On the same day, it filed its motion to disqualify 

Lambright and set it for hearing one hour before the trial court was to hear TTSI’s 

motion for summary judgment. The basis for PGS’s motion is that Lambright’s 

attorneys’ testimony is essential to prove PGS’s interference claim, because it was 

the attorneys’ communications with DFW that constituted the intentional act of
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interference that caused PGS to lose the DFW contract. Therefore, PGS argued, 

Lambright was disqualified under the Texas Disciplinary Rules of Professional 

Conduct because its attorneys cannot act as an advocate and witness. See TEX.

DISCIPLINARY RULES PROF’L CONDUCT R. 3.08(a), reprinted in TEX. GOV’T CODE 

ANN., tit. 2, subtit. G, app. A (West 2013). 

On October 6, 2014, the trial court held a hearing on PGS’s motion to 

disqualify. The trial court granted the motion to disqualify and continued the 

hearing on TTSI’s summary judgment motion. The order granting PGS’s motion 

to disqualify states, “it is ORDERED that Lambright & Associates be disqualified 

from representing Defendant in the above-referenced litigation.” 

TTSI moved for reconsideration of the order, arguing that the Lambright

attorneys’ testimony was not essential and that disqualification was not warranted. 

During the hearing on TTSI’s motion to reconsider the trial court stated “My ruling 

stands. If y’all want to work on an order that says that you can work on a case but 

not be—not represent them in court in front of a jury, I don’t really have a big 

problem with that. But you’re still disqualified until y’all give me another order. 

Your motion to reconsider is denied at this point.” 

TTSI sought mandamus relief. It asks us to order the trial court to vacate the 

order disqualifying Lambright from representing TTSI in the underlying 

proceeding. In the alternative, TTSI requests that this Court “instruct Judge 
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McFarland to revise her disqualification order to permit Lambright & Associates to 

represent TTSI in all matters outside the presence of the jury.”

Standard of Review and Applicable Law

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 54, 56 

(Tex. 2004). We review disqualification orders under an abuse of discretion 

standard. Id. 

Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct states:

(a) A lawyer shall not accept or continue employment as an 

advocate before a tribunal in a contemplated or pending adjudicatory 

proceeding 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, unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of 

formality and there is no reason to believe that substantial 

evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of 

legal services rendered in the case;

(4) the lawyer is a party to the action and is appearing 

pro se; or

(5) the lawyer has promptly notified opposing counsel 

that the lawyer expects to testify in the matter and 

disqualification of the lawyer would work substantial 

hardship on the client.
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TEX. DISCIPLINARY RULES PROF’L CONDUCT 3.08(a). Although Rule 3.08 was 

“promulgated as a disciplinary standard rather than one of procedural 

disqualification,” Texas courts “have recognized that the rule provides guidelines 

relevant to a disqualification determination.” See Sanders, 153 S.W.3d at 56

(citing Anderson Prod. Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex. 1996)).

The Texas Supreme Court has emphasized that “[d]isqualification is a severe 

remedy.” Id. at 57 (quoting Spears v. Fourth Ct. of App., 797 S.W.2d 654, 656 

(Tex. 1990)). It can “cause immediate harm by depriving a party of its chosen 

counsel and disrupting court proceedings.” Id. Consequently, in considering a 

motion to disqualify, the district court must strictly adhere to an exacting standard 

to discourage a party from using the motion as a dilatory tactic. Spears, 797 

S.W.2d at 656. “‘Mere allegations of unethical conduct or evidence showing a 

remote possibility of a violation of the disciplinary rules will not suffice’ to merit 

disqualification.” Id. 

It is only appropriate to disqualify an attorney due to his status as a potential 

witness if the attorney’s testimony is “necessary to establish an essential fact.” 

Sanders, 153 S.W.3d at 57 (quoting TEX. DISCIPLINARY RULES PROF’L CONDUCT

R. 3.08(a)). The fact that an attorney serves, or may serve, as both a representative 

and as a witness does not in itself compel disqualification. Id.; see also In re 

Garza, 373 S.W.3d 115, 118 (Tex. App.—San Antonio, orig. proceeding) (stating 
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disqualification under Rule 3.08 is not appropriate unless party seeking 

disqualification establishes “a genuine need for the attorney’s testimony and that 

the testimony goes to an essential fact”). Rather, the party requesting 

disqualification must demonstrate that the opposing attorney’s dual roles as 

attorney and witness will cause the party actual prejudice. Ayres v. Canales, 790 

S.W.2d 554, 557–58 (Tex. 1990).

Analysis

PGS sought disqualification on the basis that the testimony of Lambright’s

attorneys was necessary to prove an act of willful and intentional interference, 

which is an element of PGS’s tortious interference claim. TTSI argues that the 

trial court abused its discretion in disqualifying Lambright because the testimony 

of Lambright’s attorneys is not essential to prove TTSI’s alleged interference 

inasmuch as TTSI has produced the written communications between Lambright 

and DFW, and does not dispute their contents. TTSI asserts that the written 

communications “are what they are” and that the central contested issue in the case 

is causation, i.e., whether Lambright’s communications caused DFW to rescind its 

award of the contract to PGS. This causation evidence, TTSI asserts, can only be 

established through testimony of DFW employees.

The elements of tortious interference with an existing contract are (1) an 

existing contract subject to interference, (2) a willful and intentional act of 
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interference with the contract, (3) that proximately caused injury, and (4) actual 

damages or loss. Prudential Ins. Co. of Am. v. Fin. Rev. Servs, Inc., 29 S.W.3d 74, 

77 (Tex. 2000). To prevail on its tortious interference claim, PGS bears the burden 

to prove that a contract existed between PGS and DFW, and that TTSI or its agent, 

Lambright, willfully and intentionally interfered with that contract and proximately

caused DFW’s termination of the contract with PGS, damaging PGS. 

TTSI does not dispute the existence or content of its attorneys’ written 

communications with DFW’s counsel, but PGS nevertheless argues that it needs

the testimony of Lambright’s attorneys to establish that the alleged interference 

was willful and intentional. PGS also argues that it requires the testimony of 

Lambright because verbal communications occurred between Lambright and 

DFW. PGS contends that the Lambright attorneys’ testimony is necessary because 

all of the communications with DFW were made by Lambright. We disagree.

Although PGS repeatedly asserted in the trial court and in its response to the 

mandamus petition that Lambright’s attorneys’ testimony is necessary to show that 

the alleged interference was willful and intentional, PGS never explained what

essential facts it needs to prove through the testimony of the Lambright attorneys, 

or why the written communications would not be sufficient to establish an 

intentional act of interference. See In re VSDH Vaquero Venture, Ltd., No. 05-14-

00958-CV, 2014 WL 4262167, at *2–3 (Tex. App.—Dallas Aug. 28, 2014, orig. 
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proceeding) (mem. op.) (disqualification movant must identify the essential facts 

that attorney’s testimony would establish). Simply stating that Lambright’s 

attorneys’ testimony is necessary to establish one of the elements of its interference 

claim, without further explanation, is insufficient to meet PGS’s significant burden 

to show that the testimony is necessary to establish an essential fact. See id.; In re 

Hormachea, No. 04-04-00581-CV, 2004 WL 2597447, at *2 (Tex. App.—San 

Antonio Nov. 17, 2004, orig. proceeding) (mem. op.) (mere fact that attorney 

participated in allegedly defamatory press conference was not enough to prove that 

his testimony was “necessary” or “essential” in defamation suit against his clients). 

Moreover, the fact that Lambright attorneys verbally communicated with 

DFW personnel, without more, does not demonstrate that the testimony of the 

Lambright attorneys is necessary to establish an essential fact. To the contrary, if 

PGS needs testimony about those verbal communications, PGS can elicit testimony 

from DFW personnel regarding these communications. See Sanders, 153 S.W.3d 

at 57 (trial court did not abuse discretion in denying motion to disqualify where 

there was no evidence testimony was not available from another source); In re 

Stone, No. 14-13-00311-CV, 2013 WL 1844267, at *2 (Tex. App.—Houston [14th 

Dist.] Apr. 19, 2013, orig. proceeding) (mem. op.) (disqualification improper 

where record shows that lawyer is not the only person who can testify regarding 

particular facts). Because PGS can procure testimony regarding the content of 
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these communications from another source, it has not met its burden to show that 

the testimony from Lambright’s attorneys is necessary. See In re Stone, 2013 WL 

1844267, at *2.

Thus, the record does not support the conclusion that testimony from 

Lambright’s attorneys is “necessary to establish an essential fact” or that PGS 

genuinely needs the attorneys’ testimony. TEX. DISCIPLINARY RULES PROF’L 

CONDUCT R. 3.08(a); Sanders, 153 S.W.3d at 56 (fact that attorney serves, or may 

serve, as both a representative and as a witness does not in itself compel 

disqualification); see also In re Garza, 373 S.W.3d at 118 (disqualification is not 

appropriate unless party seeking disqualification establishes “a genuine need for 

the attorney’s testimony”). Because “[d]isqualification is a severe remedy,” and 

the record does not show any essential fact that could be established only by 

Lambright’s attorneys’ testimony, we hold that the trial court abused its discretion 

in disqualifying Lambright. Sanders, 153 S.W.3d at 57 (quoting Spears, 797 

S.W.2d at 656); see In re VSDH Vaquero Venture, Ltd., 2014 WL 4262167, at *2–

3 (trial court abused discretion in disqualifying attorney where record did not 

identify essential fact that attorney’s testimony was needed to establish); cf. Mauze 

v. Curry, 861 S.W.2d 869, 870 (Tex. 1993) (trial court abused discretion in failing

to grant motion to disqualify where attorney filed affidavit as expert witness which 

was necessary to establish essential fact).
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Conclusion

We hold that the trial court abused its discretion by disqualifying Lambright 

& Associates from serving as TTSI’s attorneys. Accordingly, we direct the trial 

court to vacate its order disqualifying Lambright & Associates from representing

TTSI in the underlying proceeding and to enter an order denying the motion to 

disqualify. Our writ of mandamus will issue only if the trial court does not 

comply.

Rebeca Huddle

Justice 

Panel consists of Justices Keyes, Huddle, and Lloyd.