COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00132-CV 

IN RE CARLA LORENE COX RELATOR

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ORIGINAL PROCEEDING

TRIAL COURT NO. 14-00439

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 CONCURRING AND DISSENTING OPINION

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I. INTRODUCTION

Relator Carla Lorene Cox has filed a petition for writ of mandamus 

asserting that the trial court abused its discretion by denying her motion to 

disqualify the entire Cooke County District Attorney’s Office and special 

prosecutor Cary Piel from prosecuting her for murder. I concur with the 

majority’s denial of Relator’s petition for writ of mandamus seeking the 

disqualification of the entire Cooke County District Attorney’s Office. But I 
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respectfully dissent from the majority’s denial of Relator’s petition for writ of 

mandamus seeking the disqualification of special prosecutor Cary Piel.

II. FACTUAL BACKGROUND

The mandamus record conclusively establishes the following facts:

 In 2011, while employed with the Denton County Criminal District 

Attorney’s Office, prosecutor Cary Piel and a law student named Eric 

Erlandson, who was interning at the Denton County Criminal District 

Attorney’s Office, began investigating a “cold case” murder that had 

occurred in 2009 in Cooke County, Texas.

 Cooke County District Attorney Janice Warder authorized Piel to look into 

the case and to discuss it with investigators.

 Piel and Erlandson worked on the murder case together from 2011 through 

June 2012 and “went into enormous detail together” about the Carla Cox 

case. Erlandson testified that he had access to the State’s files related to 

the Carla Cox case during this time. 

 After becoming a person of interest in the cold case, Carla Cox hired 

attorney Lee Tatum to represent her in connection with this case. Cox was 

indicted for murder on December 12, 2012, and she discharged Tatum on

January 31, 2013, and hired her present counsel.

 Piel left the Denton County District Attorney’s Office in June 2012 and went 

into private practice as a criminal defense attorney. Piel continued his 

prosecution of the Carla Cox case. Through 2014, portions of the 

discovery file in the case remained at Piel’s office. 

 Erlandson graduated from law school and began working for Lee Tatum in 

August 2013. Erlandson is currently a partner with Tatum. While working 

for Tatum––who had represented Relator in this exact murder case––

Erlandson discussed Relator’s murder case “in general” with Piel and until 

February or March 2014, Erlandson expected to try the Carla Cox murder 

case with Piel. In early 2014, Erlandson told a partner with Relator’s 

present counsel that he was working on the case and was going to 

prosecute the case with Piel. 
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 On March 26, 2014, Warder filed a formal appointment of Piel as a special 

prosecutor in the case.

 Relator subsequently filed the motion to disqualify Piel and the entire 

Cooke County District Attorney’s Office.

III. THE LAW CONCERNING DISQUALIFICATION

A. The District Attorney and Her Prosecutors

The standard for disqualification of an elected district attorney and her 

entire office is different from the standard for disqualification of a special 

prosecutor. A trial court may not disqualify a district attorney on the basis of a 

conflict of interest unless that conflict rises to the level of a due-process violation. 

Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008) (citing State ex 

rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim. App. 1994)). A due-process 

violation occurs only when the defendant can establish “actual prejudice,” not just 

the threat of possible prejudice to her rights by virtue of the district attorney’s 

prior representation. Id. Actual prejudice would occur, for example, if the 

prosecuting attorney had previously represented the defendant in the same 

matter or in a substantially-related matter and in that representation had obtained 

confidential information and used it to the defendant’s disadvantage. Id. at 304–

05. A trial court’s authority to disqualify a prosecutor comes from the court’s duty 

to protect the accused’s constitutional due-process rights, see, e.g., Ex parte 

Morgan, 616 S.W.2d 625, 626 (Tex. Crim. App. 1981) (orig. proceeding), and the 

statute barring prosecutors from representing the State in the same matter for 
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which he or she has been previously employed adversely, see Tex. Code Crim. 

Proc. Ann. art. 2.01 (West 2005).

The heightened burden for disqualifying a district attorney is policy driven: 

unlike a private attorney, a district attorney is an elected official whose office is 

constitutionally mandated and protected. Landers, 256 S.W.3d at 303; State ex 

rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex. Crim. App. 1990) (orig. 

proceeding) (plurality op. on reh’g). District attorneys and their prosecutors are 

subject to the rules of disciplinary conduct, “but they must police themselves at 

the trial court level because of their status as independent members of the 

judicial branch of government.” Eidson, 793 S.W.2d at 6. And because the 

district attorney is an elected official, “[s]hould h[er] conduct [and the conduct of 

the prosecutors in her office] create too much appearance of impropriety and 

public suspicion, [s]he will ultimately answer to the voters.” Id. 

B. Special Prosecutors1

A “special prosecutor,” though enlisted by a district attorney to help in a 

particular case, is not part of the district attorney’s staff. Coleman v. State, 246 

S.W.3d 76, 82 (Tex. Crim. App. 2008). Unlike the district attorney and the 

attorneys employed in the district attorney’s office, a special prosecutor is not 

required to sign the oath of office. Id. Commissioning a special prosecutor does 

 

1As pointed out by Relator and the State in this proceeding, a special 

prosecutor is different from an attorney pro tem. See Tex. Code Crim. Proc. Ann. 

art. 2.08 (West Supp. 2014). This opinion is limited in scope to special 

prosecutors.
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not require court approval. Id. Additionally, unlike a prosecutor, who is statutorily 

prohibited from appearing adversely to the State, a private attorney asked to 

serve as a special prosecutor is under no such prohibition. See Tex. Code Crim. 

Proc. Ann. art. 2.08(a). Unlike a prosecutor in the district attorney’s office whose 

position is constitutionally mandated and protected, the position of a special 

prosecutor enjoys no such constitutional underpinnings. Cf. Landers, 256 

S.W.3d at 303. If one private attorney appointed as a special prosecutor is 

disqualified in a particular case, a district attorney may appoint a different private 

attorney to serve as a special prosecutor. In short, the policy reasons articulated 

by the court of criminal appeals as supporting disqualification of an entire district 

attorney’s office on the basis of a conflict of interest only if that conflict rises to 

the level of a due-process violation simply do not apply to an attorney in private 

practice appointed as a special prosecutor in a single case. Accord Landers, 256 

S.W.3d at 304. A private attorney appointed as a special prosecutor nonetheless 

remains a private attorney and is disqualifiable on conflict-of-interest grounds that 

need not rise to the level of a due-process violation. 

The Texas Disciplinary Rules of Professional Conduct serve as guidelines 

for the courts when considering motions to disqualify. See In re Epic Holdings, 

Inc., 985 S.W.2d 41, 48 (Tex. 1998) (orig. proceeding). Rule 1.09 sets forth the 

general rules concerning conflicts of interest between a private attorney and a 

former client. Tex. Disciplinary Rules Prof’l Conduct R. 1.09, reprinted in Tex. 
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Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, 

§ 9)). It provides, in pertinent part:

(a) Without prior consent, a lawyer who personally has formerly 

represented a client in a matter shall not thereafter represent 

another person in a matter adverse to the former client:

. . . . 

(3) if it is the same or a substantially related matter.

(b) Except to the extent authorized by Rule 1.10, when lawyers are 

or have become members of or associated with a firm, none of them 

shall knowingly represent a client if any one of them practicing alone 

would be prohibited from doing so by paragraph (a). 

Tex. Disciplinary Rules Prof’l Conduct R. 1.09(a)(3), (b). 

The law is well-settled that a private attorney who has previously 

represented a client will be automatically disqualified from representing another 

person adverse to the former client in the same matter. In re Guar. Ins. Servs., 

Inc., 343 S.W.3d 130, 133–34 (Tex. 2011) (orig. proceeding); In re Columbia 

Valley Healthcare Sys., LP, 320 S.W.3d 819, 824 (Tex. 2010) (orig. proceeding)

(citing Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 833 (Tex. 1994)

(orig. proceeding)); Epic Holdings, Inc., 985 S.W.2d at 48; see also Tex. 

Disciplinary Rules Prof’l Conduct R. 1.09(a). This is because when an attorney 

works on a matter, there is an irrebuttable presumption that the attorney obtains

confidential information. Guar. Ins. Servs., Inc., 343 S.W.3d at 134; Columbia 

Valley Healthcare Sys., LP, 320 S.W.3d at 824 (citing Phoenix Founders, Inc., 

887 S.W.2d at 833); Epic Holdings, Inc., 985 S.W.2d at 48. The attorney’s 
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knowledge of client confidences is imputed by law to every other attorney in the 

firm; an irrebuttable presumption exists that an attorney in a law firm has access 

to the confidences of the clients and former clients of other attorneys in the firm. 

Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996) (orig. 

proceeding). This irrebuttable presumption also applies when an attorney has 

worked on a matter and that attorney subsequently moves to a new firm that is 

representing an opposing party in the ongoing matter; it is presumed that the 

attorney will share the previously-acquired confidences, requiring imputed 

disqualification of the new firm. Columbia Valley Healthcare Sys., LP, 320 

S.W.3d at 824 (citing Phoenix Founders, Inc., 887 S.W.2d at 834; Tex. 

Disciplinary Rules Prof’l Conduct R. 1.09(b)). 

IV. STANDARD OF REVIEW

A writ of mandamus will issue only to correct a clear abuse of discretion for 

which the relator lacks an adequate remedy at law. See, e.g., In re Frank Motor 

Co., 361 S.W.3d 628, 630 (Tex.) (orig. proceeding), cert. denied, 133 S. Ct. 167 

(2012); In re Olshan Found. Repair Co., 328 S.W.3d 883, 887 (Tex. 2010) (orig.

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

2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) 

(orig. proceeding). A trial court abuses its discretion if it reaches a decision so 

arbitrary and unreasonable that it amounts to a clear and prejudicial error of law 

or if it clearly fails to correctly analyze or apply the law. Olshan Found. Repair 

Co., 328 S.W.3d at 888; Walker, 827 S.W.2d at 840. When a trial court 
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improperly denies a motion to disqualify opposing counsel, there is not adequate 

relief by appeal. In re Basco, 221 S.W.3d 637, 639 (Tex. 2007) (orig. 

proceeding).

V. APPLICATION OF THE LAW TO THE FACTS

Tatum represented Relator in this exact matter; an irrebuttable 

presumption exists that Tatum obtained confidential information from Relator 

during this representation. See, e.g., Guar. Ins. Servs., Inc., 343 S.W.3d at 134. 

It is undisputed that Tatum, who represented Relator on this murder charge, 

could not appear adversely to Relator on this matter by prosecuting her on the 

murder charge. See, e.g., Epic Holdings, Inc., 985 S.W.2d at 48; see also Tex. 

Disciplinary Rules Prof’l Conduct R. 1.09(a)(3). 

The proscription against Tatum’s prosecution of Relator extends to 

Erlandson because, by virtue of Erlandson’s position as an associate and now a 

partner with Tatum, he presumptively became privy to Relator’s confidences 

known by Tatum. See Nat’l Med. Enters., Inc., 924 S.W.2d at 131 (recognizing 

that “attorney’s knowledge [of confidences] is imputed by law to every other 

attorney in the firm,” despite lack of evidence of actual disclosure of 

confidences); see also Epic Holdings, Inc., 985 S.W.2d at 48 (“Members of a law

firm cannot disavow access to confidential information of any one attorney’s 

client.”); Tex. Disciplinary Rules Prof’l Conduct R. 1.09(b). Because Tatum 

would be disqualified from prosecuting Relator, all attorneys with his firm are 

disqualified. See Texaco, Inc. v. Garcia, 891 S.W.2d 255, 257 (Tex. 1995) 
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(explaining that because Mr. Secrest was disqualified, his entire firm was 

disqualified).

The proscription likewise extends to Piel because, for purposes of rule 1.9 

of the disciplinary rules, he became “associated” with Erlandson as co-counsel in 

the prosecution of Relator’s murder case while Erlandson was employed with 

Tatum. See In re CMH Homes, Inc., No. 04-13-00050-CV, 2013 WL 2446724, at 

*5 (Tex. App.—San Antonio June 5, 2013, orig. proceeding) (mem. op.) (granting 

mandamus requiring trial court to disqualify co-counsel based on violation of rule 

1.09(b) because co-counsel “associated” on case with disqualified attorney); see 

also Tex. Disciplinary Rules Prof’l Conduct R. 1.09(b). When Erlandson became 

a member of Tatum’s firm and when Piel “associated” with Tatum’s firm by cocounseling with Erlandson in this very case, none of them (Tatum, Erlandson, or 

Piel) could prosecute Relator for murder if any of them practicing alone would be 

prohibited from doing so by subsection (a) of rule 1.09, and Tatum is so 

prohibited. See Tex. Disciplinary Rules Prof’l Conduct R. 1.09(a), (b). 

A trial court has no discretion in applying the law to the facts, and 

consequently, the trial court's failure to analyze or apply the law correctly is an 

abuse of discretion. In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 

(Tex. 2001) (orig. proceeding). I would hold that here Respondent misapplied 

well-settled law concerning the disqualification of Piel to the undisputed facts 

presented at the disqualification hearing. Because Relator possesses no 

adequate remedy at law concerning Respondent’s denial of her motion to 
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disqualify Piel, I would conditionally grant Relator’s petition for writ of mandamus 

concerning the disqualification of Piel. See, e.g., Basco, 221 S.W.3d at 639. 

Because the majority does not, I respectfully dissent.

VI. CONCLUSION

I concur with the majority’s denial of Relator’s petition for writ of mandamus 

concerning the disqualification of the entire Cooke County District Attorney’s 

Office. For the reasons set forth above, I dissent from the majority’s denial of 

Relator’s petition for writ of mandamus concerning the disqualification of Cary 

Piel to serve as a special prosecutor in Relator’s murder prosecution.

/s/ Sue Walker

SUE WALKER

JUSTICE 

DELIVERED: July 23, 2015