concurring.
I concur in the results reached but do not join in all the language and reasoning of the majority opinion. I write only to express my concern for the unnecessary consumption of the judicial resources in this case1 merely to determine whether the petitioner should have been required to continue with his appointment as counsel for Stone. Surely, early on, it became clear that a serious question about the appointment was involved which could cause the granting of a new trial or a reversal on appeal. Practicality should play an important part in our judicial system and district judges should make the extra effort to remove any question for reversal when it can be easily done, even when the judge does not regard the question a serious one. The granting of a new trial or a reversal on appeal resulting in a second trial is costly to the taxpayers and delays justice. Judicial wheel spinning should be avoided.
I concur.
TEAGUE, J., joins in this opinion.OPINION
CLINTON, Judge.Pursuant to our opinion delivered July 21, 1982 (hereinafter Opinion), in which we remanded this cause, the Honorable Putnam Kaye Reiter, Judge of the 87th Judicial District Court and Respondent here, has forwarded to this Court a supplemental transcript containing what profess to be de novo findings of fact and conclusions of law supporting his refusal to grant a motion to withdraw as appointed counsel for Richard P. Stone, on the ground of conflict of interest, filed by Petitioner, William Louis White.
The conclusion of law made by respondent which is offered to dispose of the issue of whether a conflict of interest could arise in Petitioner’s representation of Stone, is:
“There exists no conflict of interest which would render Counsel ineffective in Mr. William Louis White representing Defendant Richard P. Stone in the trial of the two indictments presently pending in the 87th Judicial District Court of Freestone County.”1
This conclusion assumes that a conflict of interest necessitating Petitioner’s withdrawal as counsel, would arise only if it be shown his representation would result in ineffective assistance to Stone.2 We fail to see in what manner such a showing might be made or refuted at this pretrial stage of the prosecutions against Stone. Indeed, the Supreme Court of the United States has made it clear that undertaking such an inquiry even after a criminal trial is complete, is the equivalent of “unguided speculation.” Holloway v. Arkansas, 435 U.S. *599475, 491, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Futhermore, as was discussed in Part II-B of the Opinion, there are contexts in which conflicts of interests can arise, other than in the criminal prosecutions of Stone.
We also noted apparently sworn testimony given by Petitioner at the April 1 hearing before Judge David Walker. Opinion at 6-7. Petitioner testified it was his understanding T.D.C. employees set up a road block on a public highway which resulted in Stone’s arrest and perforce, a seizure of evidence of his commission of crimes for which he had been indicted; it was also Petitioner’s understanding that T.D.C. officials have no legal authority to so stop a vehicle; Petitioner offered his professional opinion that the validity of Stone’s arrest would therefore be litigated and the attorney representing Stone would necessarily be called upon to establish the arresting T.D.C. personnel had acted illegally or were testifying falsely. Petitioner further testified, as facts, that due to the nature of the objectives of the Staff Counsel for inmates, the relationships between staff counsel attorneys and other T.D.C. employees, were at times tenuous; that the success of many pursuits on behalf of indigent T.D.C. inmates was dependent on the day to day cooperation of the staff’s fellow T.D.C. employees.
Finally, Petitioner gave testimony that it was his “fear” that, if he were the attorney assailing the legality of his fellow T.D.C. employees’ acts in arresting Stone, the discord created thereby would affect the future effectiveness of legal representation to be provided all other indigent inmates who might obtain assistance from the Staff Counsel for inmates, which might be to any degree dependent on cooperation of other T.D.C. personnel, and that he doubted any attorney in his position could undertake representation of Stone without an attitude of divided loyalty.
These representations by Petitioner are entitled to great deference and, as we understand the Supreme Court’s pronouncements, Respondent is compelled to defer to them unless there is no factual support for them and there is affirmative evidence of dilatory intent. Holloway v. Arkansas, supra.3 In our Opinion we observed we had found “no evidence at all” in the record to support Respondent’s conclusion that no potential conflict is presented by the relationship between Petitioner and the State’s primary witnesses against Stone, in Petitioner’s representation of Stone.
Thus, we remanded this cause to give Respondent an opportunity to reevaluate all evidence which had been adduced, so that he might for the first time determine whether any factual basis could be found which would support the legal conclusion that there were no conflicts of interests extant in the juxtaposition of the unique facts involved in the arrest of Stone, and the personal and professional aspects of the relationships between Petitioner and other T.D.C. employees.4
Thereafter, on August 12, 1982, we denied Petitioner leave to file a motion for issuance of the writ of mandamus which sought to prevent Respondent from adducing additional evidence he deemed relevant to the issue, but ordered Respondent’s compliance with our Opinion no later than September 1, 1982. But Respondent had by that time already convened a hearing, over *600the objection of Petitioner, on August 5, 1982.
It is clear then, that Respondent has not only been given an opportunity to find a factual basis for his original conclusion that Petitioner’s representation of Stone vis-a-vis his relationship with Stone’s primary accusers does not present a conflict of interests, but he has also taken an opportunity to adduce additional factual support therefor. The transcription of the court reporter’s notes from the August 5 hearing, however, reflects only the testimony of Gerald G. Fall, Jr., General Counsel to the Texas Department of Corrections, which does nothing more than amplify evidence already adduced, that Petitioner’s employer, W. J. Estelle, Jr., approved Petitioner’s representation of Stone — a fact this Court has earlier made clear is not controlling of the constitutional question presented in this cause.5 Opinion at 19-20, n. 21 (wherein it was stated the trial court had an obligation to determine whether a conflict of interests exists without regard to the judgments of Petitioner’s employer).
But no evidence was adduced which would belie the factual support for Petitioner’s representations, such as that T.D.C. employees were not involved in Stone’s arrest or that T.D.C. employees have nothing to do with the smooth effectuation of the staff counsel’s objectives as lawyers of indigent convicts. And, the only “finding” before us which is relevant to the juxtaposition of Petitioner’s interests is:
“There is no factual distinction between Mr. William Louis White’s appointment to represent Defendant Richard P. Stone and having to vigorously examine his employer’s personnel, and any other appointed counsel having to vigorously examine county and state law enforcement personnel.”
We perceive no “finding of fact” in this assertion. And to say, as a matter of judicial knowledge, that there is no difference between an attorney’s taking an adversary role against people with whom he must work, associate and cooperate daily, and taking such a position against law enforcement officials with whom he does not associate or work other than in an adversarial capacity, does not comport with common experience.6
Neither was any evidence elicited at the hearing which would indicate a dilatory intent on Petitioner’s part in moving for his withdrawal as counsel for Stone. The only finding which could be construed as relevant to a dilatory intent on Petitioner’s part is:
“Through his intentional efforts to avoid representing Defendant Richard P. Stone, Mr. William Louis White has delayed the trial of .. . Stone time and again, for over six months. Mr. White has made only minimal effort to prepare for trial. Mr. White has only contacted ... Stone to gain support for [his] efforts to be discharged as appointed counsel.”
Thus, Respondent has not made a finding that Petitioner’s action in seeking to withdraw constitutes a bad faith effort to delay Stone’s prosecutions, and we find no sup*601port in the record for such a finding in any event.
In our prior consideration of this cause, we found it unnecessary to reach the question of whether the relief sought by Petitioner constitutes a result which is within the sound discretion of Respondent, or one which is essentially a ministerial act, and therefore, compelled by mandamus. This was so because Respondent had not yet performed the ministerial duty appropriate to his office of considering a constitutional question squarely raised by a motion. This ministerial duty has still not been performed.
In view of what we previously characterized as the “collateral effect this litigation has had, continues to have and will ... have upon the integrity of the prosecutions presently pending in Freestone County against Richard P. Stone” as long as it continues, and the understanding displayed by Respondent in his findings that time is of the essence, it is plain that he has abnegated his responsibility to consider the issue raised herein. We accordingly proceed to determine if the decision of whether to relieve Petitioner of his appointment as counsel for Stone, is manifestly discretionary. Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980).
In Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex.Cr.App.1980), we stated:
“We agree that the writ [of mandamus] ‘issues to require the execution of a matter whose merit is beyond dispute, and may not be employed as scales in which to balance the weight of evidence or to bridge the gap between broken and disconnected facts.’ Wortham v. Walker [133 Tex. 255, 128 S.W.2d 1138, 1151 (1939)].”
Further, we have noted an exception to the general rule that mandamus will not issue to compel a specified judgment:
“A Court ‘may be directed by mandamus to enter a particular judgment if that judgment is the only proper one that can be rendered under the circumstances and there is no other adequate remedy.’ [Citations omitted.]”
Vance v. Routt, 571 S.W.2d 903, 907 (Tex.Cr.App.1978).
We have already stated in n. 3, ante, that it is not within Respondent’s discretion to give no weight to, or ignore completely, the representations of Petitioner regarding his feelings of divided loyalty. And since no evidence is contained in the entire record before us which even the most liberal construction might lend to support the propositions that no factual basis exists for Petitioner’s attitude,7 or that Petitioner’s position is motivated by bad faith or dilatory intent, it is clear, as a matter of constitutional law,8 that the only proper order which can be issued under the circumstances, is one which relieves Petitioner of his appointment to represent Richard P. Stone. Compare Garcia v. Dial, supra; Vance v. Routt, supra; and Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971), with Knowles v. Scofield, supra.
We are constrained to issue the writ of mandamus.
It is so ordered.
ROBERTS and ODOM, JJ., concur in result.
. Three district judges and nine appellate judges were all involved in the process involving research by this court. This does not consider the time consumed in briefing the question by the parties and the delay of the trial.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. The conclusion of law in question has been merely reworded by Respondent from its original form to place emphasis on a necessity that a pertinent conflict of interest confronting Petitioner must operate to render his future assistance to Stone ineffective. In our Opinion on original submission, we stated only that the conclusion in its original form was not supported by the findings or the record. Respondent apparently read our statement to say that such a conclusion was otherwise correct; we did not.
. While we are in general accord with the recitation prefacing Respondent’s “de novo” findings, that he is “the sole and exclusive judge of the credibility of witnesses and the weight to be given their testimony,” it is clear that the Supreme Court has provided mandatory guidelines for a trial court’s judging the credibility of, and the weight to be given, solemn representations by an officer of the court, that he feels or fears a division in his loyalty. In short, absent evidence of dilatory intent coupled with no factual basis for the attorney’s representation, a trial judge does not have the discretion to ignore, or give no weight to, those representations. Id.
. We fear Respondent may have misapprehended our meaning in using the phrase “unique facts.” Of course, each and every case is composed of “unique facts,” and it was to those comprising the alleged transgressions, and subsequent apprehension, of Stone, which we made reference.
. Apparently construing our statement that a breach of Petitioner’s employment contract with T.D.C. would establish a “patent conflict” posited the ultimate issue, the County Attorney caused Mr. Fall to appear and testify that a document entitled “Inmate Legal Assistance Program Policy, Rules and Regulations,” was not a binding contract governing the employment of staff counsel; that at most an “implied contract” arises from its terms; that W. J. Estelle could unilaterally and at will modify or amend these rules and regulations; that it was Fall’s opinion Estelle had created an amendment when he approved Petitioner’s representation of Stone, and finally, that such would govern any conflicting term of the policy statement. Notwithstanding the fact that the unambiguous terms of that statement refute Fall’s assertions on virtually every count, we will assume for the sake of argument his testimony established “no contract.”
But, while a clear violation of the patent terms of a written agreement would establish a conflict of interests, not all conflicts of interest exist within that context. Thus, the fact that no contract exists between Petitioner and T.D.C., does not terminate the inquiry.
. This Court can no more defer to this “finding” than we could had Respondent simply stated “no conflicts of interests ever exist in fact.”
. Indeed, all relevant evidence is to the contrary.
. Holloway v. Arkansas, supra.