NO. 12-14-00312-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: HOUSTON COUNTY §
EX REL DAPHNE L. SESSION, § ORIGINAL PROCEEDING
RELATOR §
OPINION
Relator, Daphne L. Session, filed this original mandamus proceeding in her capacity as
County Attorney for Houston County, Texas, complaining of two trial court orders. The first
order granted J.H.’s motion to disqualify both attorneys in the County Attorney’s Office from
representing the Department of Family and Protective Services (the Department) in the
underlying termination case.1 The second order denied the County Attorney’s motion for
reconsideration. We deny the petition.
BACKGROUND
On March 28, 2014, the Department began investigating allegations of child abuse
involving J.H. and her two month old son, A.D.H.G. During an interview with a Department
investigator, J.H. signed a safety plan requiring, in part, that she seek a protective order against
R.G. for A.D.H.G. and herself. R.G. is the child’s father.
The next day, J.H. went to the County Attorney’s Office and was interviewed by Amber
Bewley, the assistant county attorney. Bewley prepared the protective order application and
J.H.’s supporting affidavit, and filed them in the County Court at Law of Houston County. That
1
The underlying case is In the Interest of A.D.H.G., a Child, Cause No. 14-0071, in the 3rd Judicial
District Court of Houston County. The Honorable Pam Foster Fletcher is the presiding judge of the 349th Judicial
District Court of Houston County. However, she is presiding over the underlying proceeding and therefore is named
as the respondent here.
court immediately issued a temporary ex parte protective order against R.G. and set a hearing on
the application.
Six days later, Session filed a petition in district court on behalf of the Department,
seeking termination of J.H.’s and R.G.’s parental rights to A.D.H.G. The district court (the trial
court), in which the respondent was sitting, issued temporary orders granting the Department’s
request to be appointed temporary sole managing conservator of A.D.H.G. This appointment
included the right to possession of A.D.H.G. until a full adversary hearing could be held. At the
first setting for the adversary hearing, the trial court appointed an attorney to represent J.H.
Bewley appeared at this setting, and at another a week later, on behalf of the Department. By
agreement of the parties, the full adversary hearing was set for April 29.
On April 28 (the day before the adversary hearing), J.H. filed a motion to disqualify
Bewley from representing the Department in the termination case because she was representing
J.H. in the protective order proceeding. In her motion, J.H. cited Texas Disciplinary Rules of
Professional Conduct 1.05 and 1.06. The adversary hearing was held on April 29 as scheduled,
following which the trial court confirmed the Department’s appointment as temporary managing
conservator of A.D.H.G. For reasons unrelated to J.H.’s pending motion, the Department was
represented by its regional attorney at the hearing. The next day (April 30), the County Court at
Law granted J.H.’s application and issued a protective order prohibiting R.G. from engaging in
the conduct specified in the application for a period of one year.
The trial court conducted a hearing on J.H.’s motion to disqualify. During the hearing,
Session informed the trial court that she had represented J.H. at both settings for the protective
order hearing.2 J.H.’s counsel asked that Session be disqualified as well.
The trial court granted J.H.’s motion to disqualify both Bewley and Session (collectively,
the County Attorney’s Office). After filing a motion for reconsideration, which the trial court
denied, the County Attorney filed this original proceeding. On the County Attorney’s motion,
we stayed the proceedings in the trial court until further order of this court.
2
The record reflects that the first hearing was reset after appearances. At the second setting, the court
granted J.H.’s application and issued the one year protective order.
2
PREREQUISITES TO MANDAMUS
Mandamus will issue to correct a clear abuse of discretion where there is no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). The
trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). 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). Additionally, where the challenged order is void, as the
County Attorney argues here, a relator need not show that appeal is an inadequate remedy. In re
Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014) (per curiam). Consequently, we address only
whether the trial court abused its discretion in disqualifying the County Attorney’s Office from
representing the Department.
COUNTY ATTORNEY’S STATUTORY RESPONSIBILITIES
The Texas Constitution provides that county attorneys shall represent the State of Texas
in all cases in the district and inferior courts in their respective counties. TEX. CONST. art. V,
§ 21. Where there is a district attorney in the county, the respective duties of district and county
attorneys “shall in such counties be regulated by the Legislature.” Id. As relevant here, the
legislature has provided that when a county is within a district that has a district attorney, either
the county attorney or the district attorney is responsible for filing applications for family
violence protective orders. See TEX. FAM. CODE ANN. §§ 81.007(a), 82.002(d)(1) (West 2014).
Additionally, the county attorney or the district attorney in such a county must represent the
Department in family code actions filed there. See id. § 264.009(a) (West 2014). However, the
district attorney may assume either or both responsibilities. See id. §§ 81.007(a), 264.009(a).
Houston County has both a district attorney and a county attorney. However, it is undisputed
that the Houston County District Attorney has not assumed either of these responsibilities. As a
result, the County Attorney fulfills both responsibilities in Houston County.
If the County Attorney is unable to represent the Department because of a conflict of
interest, the Attorney General of Texas, subject to certain exceptions not applicable in this case,
must represent the Department. See id. § 264.009(b) (West 2014).
3
TRIAL COURT’S AUTHORITY
As a threshold matter, the County Attorney asserts the trial court has no authority to
disqualify her or her office from representing the Department in the underlying proceeding. As
support for her position, the County Attorney relies on State ex rel. Eidson v. Edwards, 793
S.W.2d 1 (Tex. Crim. App. 1990) (op. on reh'g) (4-4-1 decision).
Applicability of Eidson
In Eidson, the State challenged the trial court’s order disqualifying a district attorney’s
office from prosecuting three felony cases against a single defendant. Id. at 3. On the State’s
petition, the court of criminal appeals conditionally granted mandamus relief against the trial
judge. See id. at 7.
In the lead opinion, Judge White stated that the offices of county and district attorneys are
constitutionally created and therefore constitutionally protected. Id. at 4. Thus, he reasoned, the
authority of county and district attorneys cannot be abridged or taken away. Id. Judge White
noted the district attorney’s statutory duty to represent the state in all criminal cases in all district
courts and appeals therefrom unless the district attorney had been employed adversely. See id. at
4; TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005).3 He also stated that disqualification of an
entire district attorney’s office constructively removes the district attorney from his elected office
with respect to that case. Eidson, 793 S.W.2d at 4.
Ultimately, Judge White concluded that a trial court cannot remove a district attorney
from office except under statutorily defined circumstances after a trial by jury. Id. at 4-5; see
TEX. LOC. GOV’T CODE ANN. §§ 87.013 (authorizing district court to remove county officials,
including district attorney, for (1) incompetency, (2) official misconduct, or (3) intoxication);
87.018(a) (permitting removal only after jury trial) (West 2008). And none of the statutory
circumstances supporting removal were present. See Eidson, 793 S.W.2d at 5. Judge White
recognized that there may be instances in which a prosecutor must recuse himself from the
prosecution of an individual. Id. at 6; see TEX. CODE CRIM. PROC. ANN. art. 2.07(b-1) (West
2005) (providing that attorney for state who is not disqualified may request trial court to permit
recusal for good cause). But he also opined that the responsibility for recusal lies with the
prosecutor and not the trial court. Eidson, 793 S.W.2d at 5. Therefore, Judge White concluded
3
The language of Article 2.01 and the other statutes referred to in our discussion of Eidson has not
changed since that case was decided. Therefore, for convenience, we cite the current version of the statutes.
4
further that a trial court is without legal authority to remove a district attorney from a case and
any order attempting to do so is void. Id. at 5. Three other judges joined in the opinion.
Judge Berchelmann, also joined by three other judges, concurred with the result only. Id.
at 7. He expressly disagreed that removal of a district attorney’s office from a particular case is
tantamount to removing the district attorney from his elected office. Id. (Berchelmann, J.,
concurring). Judge Teague dissented, stating that the trial court had the authority to disqualify
the district attorney’s office and had not abused its discretion in doing so. Id. at 9 (Teague, J.,
dissenting).
Ordinarily, plurality opinions such as Eidson are not binding precedent. See Chavez v.
State, 9 S.W.3d 817, 833 (Tex. Crim. App. 2000). The County Attorney points out, however,
that the court of criminal appeals, citing Eidson, has stated that a trial court has no authority to
require a prosecutor’s recusal. See, e.g., Coleman v. State, 246 S.W.3d 76, 81 & n.14 (Tex.
2008); Johnson v. State, 169 S.W.3d 223, 229 & n.18 (Tex. Crim. App. 2005). More
importantly, however, the case before us does not involve the recusal of a prosecutor in a
criminal case. And the duties of the County Attorney that are involved here are prescribed by the
family code rather than the code of criminal procedure. Therefore, Eidson and its progeny are
not binding precedent.4 See Carr v. Smith, 22 S.W.3d 128, 133 (Tex. App.–Fort Worth 2000,
pet. denied) (explaining that criminal cases are not binding precedent where court of criminal
appeals is not reviewing court with jurisdiction over issue decided).
Disqualification for Conflicts of Interest in Civil Cases
Texas disciplinary rule 1.06(b)(1) provides that a lawyer “shall not” represent a person if
that representation “involves a substantially related matter in which that person’s interests are
materially and directly adverse to the interests of another client of the lawyer or the lawyer’s
firm[.]” TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.06(b)(1), reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9). And it is well
4
Four months after Coleman, the court of criminal appeals explained that a district attorney may be
disqualified for a conflict of interest not based on prior representation in the same criminal matter only if there is an
actual conflict that violates due process. Landers v. State, 256 S.W.3d 295, 304-05, 310 (Tex. Crim. App. 2008) (no
abuse of discretion by trial court in denying motion to disqualify where no due process violation shown). Citing
Landers, the court stated more recently that “[w]hen an alleged conflict of interest is at issue, a district attorney or
his or her staff may not be disqualified unless an actual conflict of interest exists and that conflict rises to the level of
a due-process violation.” See Ex parte Reposa, No. AP-75965, 2009 WL 3478455, at *10 (Tex. Crim. App.
Oct. 28, 2009) (orig. proceeding, not designated for publication) (no abuse of discretion by trial court in denying
motion to disqualify where no due process violation shown).
5
established that where two representations are shown to be “substantially related,” the trial court
has a duty, as part of its role in the internal regulation of the legal profession, to disqualify
counsel from further representation in the pending litigation. NCNB Tex. Nat’l Bank v. Coker,
765 S.W.2d 398, 400 (Tex. 1989).
The Texas Supreme Court has recognized the constitutional protection given county and
district attorneys. As pertinent here, that court has held that the duties conferred by the Texas
Constitution upon a county attorney cannot be withdrawn or abridged by the legislature unless
the constitution expressly so provides. See, e.g., Hill Cnty. v. Sheppard, 178 S.W.2d 261, 264
(Tex. 1944) (invalidating statute creating office of criminal district attorney to assume duties of
county attorney); State v. Moore, 57 Tex. 307, 315-16 (Tex. 1882) (invalidating statute
conferring authority upon attorney general to bring certain suits that were county attorney’s duty
to file); see also TEX. CONST. art. V, § 21. Moreover, as a general rule, the state may not be
represented in the district or inferior courts by any person other than the county or district
attorney, “unless such officer joins therein.” State Bd. of Dental Examiners v. Bickham, 203
S.W.2d 563, 566 (Tex. Civ. App.–Dallas 1947, no writ) (cited with approval in Garcia v.
Laughlin, 285 S.W.2d 191, 197 (Tex. 1955)). And mandamus is available where a trial court
does not permit the county attorney to appear in an action on behalf of the county when she has
the statutory right and duty to prosecute the action. See Terrell v. Greene, 31 S.W. 631, 635
(Tex. 1895) (trial court denied county attorney’s motion for permission to represent county in
suit against county treasurer for mishandling county funds initiated by commissioners court’s
retained counsel although within statutory duties of county attorney).
In Eidson, Judge White cited the above cases (and other civil cases) to support his
general statements regarding the constitutional protection afforded the offices of county and
district attorneys. See Eidson, 793 S.W.2d at 4. However, the cited cases examine the
protection afforded county attorneys and district attorneys from unauthorized legislative and
judicial interference with the performance of their duties. They do not address whether a trial
court can disqualify a county attorney (or a district attorney) for a conflict of interest in a civil
case.
The County Attorney has not cited any civil case supporting her argument that the trial
court has no authority to disqualify the County Attorney’s Office in the underlying proceeding.
Nor does she refer us to any civil case in which the protection afforded her office from
6
unauthorized legislative and judicial interference has been held to prevent a trial court from
disqualifying a county attorney’s office for a conflict of interest. And, in our independent
research, we have been unable to locate any such cases. Consequently, we cannot agree with the
County Attorney that the trial court lacks the authority to disqualify the County Attorney’s
Office from representing the Department when the County Attorney or another attorney in her
office has a conflict of interest.
TEXAS FAMILY CODE SECTION 81.0075
The County Attorney argues further that a conflict of interest is legislatively precluded
when a county attorney represents a party in a family violence protective order proceeding and
represents the Department in another action involving that same party. She urges that Texas
Family Code Section 81.0075 “plainly states that the prosecuting attorney is not precluded from
representing the Department in this case.” See TEX. FAM. CODE ANN. § 81.0075 (West 2014).
This argument requires us to construe Section 81.0075.
Principles of Statutory Construction
Statutory construction is a legal question, which we review de novo. Tex. Lottery
Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Our primary objective is to determine the
legislature’s intent, which, when possible, we discern from the plain meaning of the words
chosen. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Where the text is clear, it is
determinative of that intent. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.
2009). Thus, when the language of a statute is clear and unambiguous, it is inappropriate to
resort to rules of construction or extrinsic aids to construe it. City of Rockwall, 246 S.W.3d at
626. If the legislature has failed to define a word or term, we will apply its ordinary meaning.
Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993).
The Statute
Section 81.0075 permits the prosecuting attorney (in this case, the County Attorney) to
represent “a party in a [protective order proceeding] and the Department . . . in another action
involving the party, regardless of whether the proceeding occurs before, concurrently with, or
7
after the other action involving the party.”5 TEX. FAM. CODE ANN. §§ 81.007(a), 81.0075. Thus,
the County Attorney urges this statute prevents the conflict of interest J.H. alleges. J.H. counters
that the County Attorney’s representation of J.H. and the Department in separate proceedings is
“[s]ubject to the Texas Disciplinary Rules of Professional Conduct[.]” See id. § 81.0075.
The words “subject to” are not defined in Section 81.0075. Used in the ordinary sense,
“subject to” means “subordinate to,” subservient to,” or “limited by.” Cockrell v. Tex. Gulf
Sulphur Co., 299 S.W.2d 672, 676 (Tex. 1956); EOG Res., Inc. v. Hanson Prod. Co., 94
S.W.3d 697, 702 (Tex. App.–San Antonio 2002, no pet.). Applying that definition here, “subject
to” unambiguously indicates that the specific language relating to the Texas disciplinary rules
limits Section 81.0075’s general language describing the permitted representation. See Franks
v. Roades, 310 S.W.3d 615, 629 (Tex. App.–Corpus Christi 2010, no pet.) (concluding general
language in Texas Disciplinary Rule of Professional Conduct 1.02 “gives way to the specific
language” of applicable subsection referred to in “subject to” clause of Rule 1.02); see also
EOG, 94 S.W.3d at 702 (holding statement that assignment is “subject to” letter agreement, at
minimum, incorporates letter agreement by reference). Consequently, we hold that the
unambiguous language of the statute reflects the legislature’s intent to authorize the
representation described in Section 81.0075 unless the Texas Disciplinary Rules of Professional
Conduct prohibits it. See TEX. FAM. CODE ANN. § 81.0075.
The County Attorney maintains that Section 81.0075’s legislative history supports her
position. But she does not point to any ambiguity in the statute, and we have concluded that its
plain text is unambiguous. As a result, we cannot resort to extrinsic aids such as legislative
history to interpret the statute. City of Rockwall, 246 S.W.3d at 626; see also Summers, 282
S.W.3d at 442 (stating that courts do not resort to extrinsic aids “such as the Act’s legislative
history [when construing a statute] . . . unless the plain language is ambiguous”). Therefore, we
do not consider the statute’s legislative history or express any opinion about the merits of the
County Attorney’s interpretation of it.
5
“Prosecuting attorney” means the attorney, as determined by other applicable statutes, who represents the
state in a district or statutory county court in the proper county of venue for the protective order application. TEX.
FAM. CODE ANN. § 71.007 (West 2014).
8
CONFLICT OF INTEREST
Finally, the County Attorney contends that J.H. did not meet her burden to show that
disqualification of the County Attorney’s Office is required under Texas disciplinary rule 1.05 or
1.06. She maintains that J.H. did not prove she shared confidential information with Bewley or
the County Attorney in connection with the protective order proceeding.6 She also argues that
J.H. did not present any evidence that the protective order proceeding and the termination case
are substantially related. Therefore, she concludes, the trial court’s disqualification of the
County Attorney’s Office, whether under Rule 1.05 or Rule 1.06, is an abuse of its discretion.
In the trial court, J.H. asserted that the County Attorney’s representation of the
Department violated Rule 1.05 and Rule 1.06. In this proceeding, J.H.’s argument is based
solely on Rule 1.06. Accordingly, we limit our discussion to whether J.H. established that the
protective order and the termination case are substantially related.
“Substantially Related”
“Disqualification of a party’s counsel is a severe remedy[.]” In re Columbia Valley
Healthcare Sys., L.P., 320 S.W.3d 819, 825 (Tex. 2010). It can cause immediate harm by
depriving a party of its chosen counsel and by disrupting court proceedings. In re Nitla S.A. de
C.V., 92 S.W.3d 419, 423 (Tex. 2002). As a result, the trial court, “[i]n considering a motion to
disqualify, . . . must strictly adhere to an exacting standard to discourage a party from using the
motion as a dilatory trial tactic.” Id. To meet this standard, the party seeking disqualification
must establish with specificity a violation of one or more of the disciplinary rules. Spears v.
Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990). Mere allegations of unethical
conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not
suffice under the “exacting standard” required to grant a motion to disqualify. Id.
As we stated earlier, a lawyer “shall not” represent a person if the representation involves
a “substantially related matter” in which that person’s interests are materially and directly
adverse to the interests of another client of the lawyer or the lawyer’s firm. 7 TEX. DISCIPLINARY
6
J.H. asserted in the trial court that when Bewley prepared her affidavit supporting the protective order
application, she included confidential information that she had obtained from J.H.
7
An exception applies when the lawyer reasonably believes the representation of each client will not be
materially affected and each client consents to the representation after full disclosure. See TEX. DISCIPLINARY
RULES PROF’L CONDUCT R. 1.06(c) & cmt. 2, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West
2013) (Tex. State Bar R. art. X, § 9).
9
RULES PROF’L CONDUCT R. 1.06(b)(1). Likewise, a lawyer shall not represent a client in a matter
adverse to a former client if it is the “same or a substantially related matter.” Id. 1.09(a)(3).
The term “substantially related matter” is not defined in Rule 1.06 or Rule 1.09. See id.
1.06, 1.09. However, the Texas Supreme Court has held that two matters are “substantially
related” within the meaning of Rule 1.09 when “a genuine threat exists that a lawyer may
divulge in one matter confidential information obtained in the other because the facts and issues
involved in both are so similar.” In re EPIC Holdings, Inc., 985 S.W.2d 41, 51 (Tex. 1998). In
the only case we are aware of that addresses this issue in the context of Rule 1.06, the Dallas
court of appeals applied the Rule 1.09 test to determine whether matters were “substantially
related.” State Bar of Tex. v. Dolenz, 3 S.W.3d 260, 270-71 (Tex. App.–Dallas 1999, no pet.).
We see no reason to do otherwise here.
If the person seeking disqualification shows that two matters are “substantially related,”
she is entitled to a conclusive presumption that a lawyer who worked on the case obtained
confidential information during the representation. See, e.g., Coker, 765 S.W.2d at 400. Thus,
the movant is not forced to reveal the very confidences she wishes to protect to demonstrate that
such confidences exist. See id.; Troutman v. Ramsay, 960 S.W.2d 176, 178 (Tex. App.–Austin
1997, orig. proceeding). Once the movant meets her burden to show a substantial relationship
between the two representations, the trial court should perform its role in the internal regulation
of the legal profession and grant the motion to disqualify. See Coker, 765 S.W.2d at 400. Any
conflict that prevents a particular attorney from continuing a representation of a client also
prevents any other attorney in the firm from doing so. TEXAS RULES OF PROF’L CONDUCT R.
1.06, cmt. 1.
J.H.’s Evidence
J.H. argued in the trial court that the protective order proceeding and the termination case
are “substantially related” because R.G.’s family violence is an issue in both. As proof, J.H.’s
attorney introduced, and the trial court admitted into evidence, the March 31 service plan
between J.H. and the Department; the application for the family violence protective order against
R.G.; J.H.’s supporting affidavit; and the temporary ex parte protective order.
J.H.’s attorney also called the trial court’s attention to the affidavit of Cecilia Vasquez, a
Department investigator. Vasquez interviewed J.H. when the investigation began and signed
J.H.’s safety plan on behalf of the Department. Counsel pointed out to the court that the affidavit
10
was “given to [the trial court] in the CPS case.” The record reflects that Vasquez’s affidavit was
attached to the Department’s petition in the termination case, which was in the trial court’s file at
the time of the disqualification hearing. The affidavit, in part, identifies the grounds for the
Department’s request to be appointed A.D.H.G.’s temporary managing conservator.8
J.H.’s Burden
To prevail on her motion to disqualify, J.H. had to show that if the County Attorney’s
Office continues to represent the Department in the termination case, “a genuine threat exists that
[the County Attorney’s Office] may divulge in [the termination case] confidential information
obtained in the [protective order proceeding]. . . .” See EPIC, 985 S.W.2d at 51. The evidence
before the trial court shows that, from the outset of its investigation, the Department indicated its
concern that R.G.’s presence was a threat to A.D.H.G.’s safety. The document, which is
described in the document itself as a “Plan for Immediate and Short-Term Child Safety,”
identifies certain tasks J.H. was required to perform “to provide for [A.D.H.G.’s] immediate and
short-term safety.” One of those tasks is to “follow thru [sic] with the protective order against
[R.G.].” The safety plan includes a warning that “[f]ailure to comply with this safety plan may
result in further action by the department which may include removal of [A.D.H.G.] from your
care.”
As required by the Department, J.H. applied for a protective order against R.G. for
herself and A.D.H.G. In her supporting affidavit, J.H. describes her four year relationship with
R.G. in explicit detail. She chronicles R.G.’s repeated violence and threats of violence. She also
recounts three incidents relating to A.D.H.G.
Based on J.H.’s affidavit, the County Court at Law issued a temporary ex parte protective
order. But the affidavit also is relevant to the Department’s concerns for A.D.H.G.’s safety.
Vasquez’s affidavit confirms that “[d]ue [in part] to . . . the domestic violence between [J.H.] and
[R.G.] . . . , the Department of Family and Protective Services is requesting to be named
8
A trial court may take judicial notice of the contents of its file. See TEX. R. EVID. 201(b) (providing trial
court may take judicial notice of matters generally known or those easily proven that cannot reasonably be
disputed); In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.–San Antonio 2012, no pet.). Therefore, a trial court may
take judicial notice that a pleading or other document has been filed in the case or that the court has signed an order.
See, e.g., In re J.E.H., 384 S.W.3d at 870 (holding that trial court could properly take judicial notice that it signed
order adopting family service plan and of requirements listed in plan). The court may not take judicial notice of the
truth of factual statements and allegations contained in the pleadings, affidavits, or other documents in the file. In re
R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.–San Antonio 2014, no pet.).
11
temporary managing conservator of [A.D.H.G.].” The trial court granted the Department’s
request.
In summary, J.H. has shown that R.G.’s alleged violence and threats of violence are
issues in the protective order proceeding and the termination case because of their relationship to
A.D.H.G.’s safety. Consequently, we conclude that J.H. has met her burden to show that “a
genuine threat exists that [the County Attorney’s Office] may divulge in [the termination case]
confidential information obtained in the [protective order proceeding]. . . .” See EPIC, 985
S.W.2d at 51. Thus, J.H. has shown that the protective order proceeding and the termination
case are substantially related. Because J.H. has met this burden, she is entitled to the conclusive
presumption that she imparted confidences and secrets to both Bewley and the County Attorney
in the protective order proceeding. See Coker, 765 S.W.2d at 400. Therefore, the trial court was
required to disqualify the County Attorney’s Office from further representation of the
Department in the pending termination case.9 See id. The trial court did not abuse its discretion
in granting J.H.’s motion to disqualify the County Attorney’s Office or in denying
reconsideration of its disqualification order.
DISPOSITION
Because the County Attorney has not shown an abuse of discretion by the trial court, she
has not shown that she is entitled to mandamus relief. Accordingly, we deny her petition for writ
of mandamus. Our stay of the trial court proceedings is lifted.
BRIAN T. HOYLE
Justice
Opinion delivered August 19, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
9
Even if only one attorney in the County Attorney’s Office represented J.H. in the protective order
proceeding, the result would not differ. As we stated earlier, any conflict that prevents a particular attorney from
continuing a representation of a client also prevents any other attorney in the firm from doing so. See TEX.
DISCIPLINARY RULES PROF’L CONDUCT R. 1.06, cmt. 1.
12
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 19, 2015
NO. 12-14-00312-CV
HOUSTON COUNTY EX REL DAPHNE L. SESSION,
Relator
V.
HON. PAM FOSTER FLETCHER,
Respondent
Appeal from the 3rd District Court
of Houston County, Texas (Tr.Ct.No. 14-0071)
ON THIS DAY came to be heard the petition for writ of mandamus filed
by HOUSTON COUNTY EX REL DAPHNE L. SESSION, who is the relator in Cause
No.14-0071, pending on the docket of the 3rd Judicial District Court of Houston County, Texas.
Said petition for writ of mandamus having been filed herein on October 28, 2014, and the same
having been duly considered, because it is the opinion of this Court that a writ of mandamus
should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said
petition for writ of mandamus be, and the same is, hereby DENIED.
Brian T. Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.