IN THE
TENTH COURT OF APPEALS
No. 10-98-339-CV
IN RE JAMES V. FULCHER
Original Proceeding
O P I N I O N
Relator James V. Fulcher seeks a writ of mandamus directing the Honorable H.D. Black, Jr., to allow Fulcher to withdraw as counsel in a criminal case. We conclude that Fulcher is entitled to the relief sought and conditionally grant the writ.
Background
Fulcher was appointed to represent Jonathan McWilliams in a felony case pending in the 77th District Court of Freestone County. On September 30, 1998, McWilliams appeared with Fulcher in court to enter a plea of “guilty” under a plea bargain. Judge Black, the respondent in this proceeding, ordered McWilliams to undergo a psychological evaluation for mental competency.
On October 27, 1998, the mental health examiner’s report was presented to the court. The report indicated that McWilliams did not feel Fulcher was working in his best interest. The report also detailed McWilliams’ statements confessing to continuing involvement with drug dealing despite Fulcher’s admonition that he stop. After presentment of the report, Fulcher asked to be allowed to withdraw as McWilliams’ counsel. Respondent held a hearing on the motion and then denied it. Fulcher brought this mandamus proceeding.
Evidence
Before denying the motion, the court questioned McWilliams, who denied making the reported statements about Fulcher. McWilliams also said he did not want Fulcher to withdraw. Fulcher testified in response that his differences with McWilliams could not be reconciled and that he could not be “an adequate advocate” for McWilliams. Fulcher further testified that McWilliams was uncooperative, which made it impossible to properly represent him.
Mandamus Will Lie
The Court of Criminal Appeals has established a right for counsel to withdraw upon the determination of a conflict of interest. White v. Reiter, 640 S.W.2d 586, 597 (Tex. Crim. App. 1982). Great deference should be accorded the presentations of the attorney because he is best qualified to know the extent of the relationship between himself and the client. Id. Disqualification of counsel is a proper subject of a mandamus proceeding. Wasserman v. Black, 910 S.W.2d 564, 568-69 (Tex. App.—Waco 1995, orig. proceeding). Fulcher testified that he cannot represent McWilliams in a manner in which he is entitled. Respondent abused his discretion in denying the motion to withdraw. Thus, we conditionally grant the relief sought herein.
Respondent is directed to grant Fulcher’s motion to withdraw as counsel for McWilliams. Confident that he will do so, the writ will issue only upon Respondent’s failure to comply with this opinion.
PER CURIAM
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Relief granted
Opinion delivered and filed November 18, 1998
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