                                                OPINION
                                           No. 04-11-00835-CV

                                       IN RE Florinda G. GARZA

                                    Original Mandamus Proceeding 1

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 15, 2012

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On November 21, 2011, relator Florinda G. Garza filed a petition for writ of mandamus,

complaining the trial court abused its discretion in granting real party in interest Narciso R.

Garza’s motion to disqualify counsel. We agree and conditionally grant the petition for writ of

mandamus.

                                             BACKGROUND

           This proceeding arises out of a suit filed by Narciso for the partition of property in Starr

County, Texas. The dispute arose from a gift deed that was signed by Crisanta G. Garza on June

28, 1995, which granted her son, Leonel Saul Garza, sole ownership of the property. In 2000,

Leonel passed away and as per the terms of his will he left his interest in the property to his wife,

1
 This proceeding arises out of Cause No. DC-09-448, Narciso R. Garza v. Florinda G. Garza, pending in the 229th
Judicial District Court, Starr County, Texas, the Honorable Ana Lisa Garza presiding.
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relator Florinda G. Garza. However, in the partition suit Narciso asserts he was gifted a one-

fourth interest in the property in a 1980 warranty deed.

       On August 2, 2011, Narciso filed a motion to disqualify relator’s counsel, Fela B.

Olivarez and Roy Garza, because Fela notarized the 1995 gift deed and only Fela and Roy were

in the room when Crisanta signed the gift deed. At the hearing on the motion to disqualify

counsel, Narciso argued that under Rule 3.08 of the Texas Rules of Professional Conduct that

Fela and Roy are witnesses necessary to establish an essential fact of Florinda’s case. At the

conclusion of the hearing, the trial court granted Narciso’s motion, disqualifying both Fela and

Roy. In the petition for writ of mandamus filed in this court, Florinda only challenges the trial

court’s disqualification of Fela. This court gave Narciso and the trial court an opportunity to

respond to the petition; however, no response was filed.

                                           ANALYSIS

       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) (orig.

proceeding); In re Sandoval, 308 S.W.3d 31, 32 (Tex. App.—San Antonio 2009, orig.

proceeding). Disqualification is a severe remedy because it can cause immediate harm by

depriving a party of its chosen counsel and disrupting court proceedings. Sanders, 153 S.W.3d

at 57. Courts must adhere to an exacting standard when considering motions to disqualify so as

to discourage their use as a dilatory trial tactic. Spears v. Fourth Court of Appeals, 797 S.W.2d

654, 656 (Tex. 1990) (orig. proceeding). The party moving for disqualification must establish

with specificity a violation of one or more of the disciplinary rules. Id. Thus, mere allegations

of unethical conduct or evidence showing only a remote possibility of a violation of the

disciplinary rules are not sufficient to merit disqualification. Sanders, 153 S.W.3d at 57.



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       Rule 3.08 was “promulgated as a disciplinary standard rather than one of procedural

disqualification, but [courts] have recognized that the rule provides guidelines relevant to a

disqualification determination.” Id. at 546. The rule provides as follows:

               A lawyer shall not . . . continue employment as an advocate before
               a tribunal in a . . . 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.

TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G

app. A (Tex. State Bar R. art. X, § 9).

       The fact that a lawyer serves as both an advocate and a witness does not, standing alone,

compel disqualification. Sanders, 153 S.W.3d at 57. Disqualification is appropriate only if the

lawyer’s testimony is “necessary to establish an essential fact on behalf of the lawyer’s client.”

TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). Therefore, disqualification is inappropriate

under Rule 3.08 when opposing counsel merely announces their intention to call the attorney as a

fact witness without establishing both a genuine need for the attorney’s testimony and that the

testimony goes to an essential fact. In the Int. of A.M., 974 S.W.2d 857, 864 (Tex. App.—San

Antonio 1998, no pet.). Also, the party moving for disqualification must show the opposing



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lawyer’s dual roles as attorney and witness will cause the moving party actual prejudice.

Sanders, 153 S.W.3d at 57; Ayres v. Canales, 790 S.W.2d 554, 558 (Tex. 1990) (orig.

proceeding). Without these limitations, the rule could be improperly employed “as a tactical

weapon to deprive the opposing party of the right to be represented by the lawyer of his or her

choice.” TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08 cmt. 10 (stating that lawyer “should not

seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness”).

        Because he has sought the disqualification of Fela, it was Narciso’s burden to show that

Fela’s testimony is necessary. Sanders, 153 S.W.3d at 57 (citing Spears, 797 S.W.2d at 656). In

the motion to disqualify, Narciso claimed the 1995 gift deed was signed by Crisanta under

suspicious circumstances. Narciso further claims in the motion that Fela notarized the deed and

Roy and Fela were the only persons present other than Crisanta when the deed was signed. At

the hearing, Narciso’s attorney argued that he will have to amend his petition to put into question

the validity of the 1995 deed, but nothing in the record indicates this was ever done.

Additionally, it was argued at the hearing that both Roy and Fela would have to testify as to what

happened the day the deed was signed. As a result of their presence, Narciso asserts Roy and

Fela are fact witnesses, and allowing them to remain both witnesses and attorneys would create

confusion for the jury. 2

        We conclude Narciso failed to meet his burden that Fela’s testimony is necessary. See

Sanders, 153 S.W.3d at 57 (citing Spears, 797 S.W.2d at 656). First, Fela would not be

disqualified from representing Florinda simply because she was the notary. See Sandoval, 308

S.W.3d at 34. Furthermore, although Narciso argued at the hearing that there are questions

concerning the validity of the deed, we note that Narciso acknowledged that he has not yet, but

2
 At the hearing, Fela directed the trial court to her discovery responses in which she listed Roy as a fact witness,
and asserted Roy is not representing Florinda in the case.


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will in the future, file pleadings addressing this issue. Even assuming such facts regarding the

signing of the deed are “essential” to the claims before the court, Narciso failed to explain why

other sources such as Roy’s testimony are insufficient to establish those facts. See Sanders, 153

S.W.3d at 57 (holding that a movant’s failure to explain why other sources were insufficient

resulted in a failure to show the necessity of the attorney’s testimony). As a result of the

foregoing, based on the record before us at this time we conclude Narciso failed to meet his

burden that any testimony Fela might provide is necessary to establish an essential fact. 3 Id. at

58; TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a).

                                               CONCLUSION

        Accordingly, we conclude the trial court erred in granting Narciso’s motion to disqualify

Fela Olivarez as attorney for Florinda. Therefore, we conditionally grant the petition for writ of

mandamus. The trial court is ordered to withdraw its August 8, 2011 order to the extent that it

grants the motion to disqualify Fela Olivarez. The writ will issue only if the trial court fails to

comply within fourteen days.

                                                                      Karen Angelini, Justice




3
 Because of our ruling on this issue, we do not reach Florinda’s argument that Narciso waived his right to seek the
disqualification of Fela.

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