in Re J.E., Relator ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00447-CV
IN RE J.E., RELATOR
ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
January 24, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL, and PARKER, JJ.
“Oh, the movie never ends. It goes on and on and on and on . . . .”1
This movie began in 2013, as explained by one of our initial opinions in the dispute.
See In re Epps, No. 07-14-00420-CV, 2014 Tex. App. LEXIS 13951 (Tex. App.—Amarillo
Dec. 31, 2014, orig. proceeding) (mem. op.) (discussing the history of the dispute
involving J.E., M.J., Adoption Covenant, and the biological child of J.E and M.J.). Scenes
have been added to it through the ensuing years. See In re Epps, No. 07-14-00344-CV,
2014 Tex. App. LEXIS 11317 (Tex. App.—Amarillo Oct. 14, 2014, orig. proceeding)
(mem. op.) (rejecting the claim that M.J. lacked standing to seek the modification of
conservatorship because her rights had been terminated); In re B.B.J., No. 07-15-00291-
1 “Don’t Stop Believin”, Journey.
CV, 2015 Tex. App. LEXIS 8804 (Tex. App.—Amarillo Aug. 20, 2015, order) (per curiam)
(order abating for findings of facts and conclusions of law); In re B.B.J., No. 07-15-00291-
CV, 2016 Tex. App. LEXIS 4018 (Tex. App.—Amarillo Apr. 15, 2016, pet. denied) (mem.
op.) (dismissing appeal for want of jurisdiction and holding that J.E. had standing to
challenge the reinstatement of M.J.’s parental rights).
The new scene before us also concerns a petition for writ of mandamus. J.E.
petitioned this Court for such a writ directing the Honorable Jim Bob Darnell, presiding
judge of the 140th District Court, to vacate the November 16, 2018 order disqualifying
William McNamara from representing J.E. We conditionally grant the writ.
According to the record, the parties were conducting voir dire of potential jurors
when Adoption Covenant, a party to the proceeding from its inception, moved for
McNamara’s disqualification. It argued that the attorney had represented another party
in the cause, namely M.J., gave her advice, and, therefore, became a fact witness subject
to disqualification. The trial court granted the motion because it believed that “since the
very first hearing in this matter [in 2014] that Mr. McNamara should have recused from
representation of either party.” That decision resulted in the petition currently before us.
M.J. filed a response to the petition and represented therein that “she does not
assert McNamara represented her.” She also supported this representation through
citation to an excerpt of a hearing conducted in September of 2017. Adoption Covenant
appeared at and participated in that hearing. The excerpt to which we allude consisted
of M.J. being asked the following: “Ma’am, when you testified on September the 14th of
2014, you testified you did not think Bill McNamara was your lawyer, correct?” (Emphasis
added). She responded, “Correct.” That was followed by the query: “That’s still true
today, correct?” She answered, “Yes.”
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In that September 2014 hearing, questions arose concerning McNamara’s
potential disqualification or recusal due to his supposed representation of M.J. At that
time, the trial court asked the litigants whether “we have a problem.” Upon hearing no
complaint from M.J., it then said, “Well, we’ll go forward at this point in time.” Now, on the
precipice of a trial seemingly to finalize whether M.J. should regain her parental rights to
her biological child, B.B.J., Adoption Covenant resurrected the topic of disqualification.
Mandamus lies to correct a clear abuse of discretion where an adequate legal
remedy does not exist. In re Columbia Med. Ctr., 290 S.W.3d 204, 207 (Tex. 2009); In
re Grubbs, No. 07-18-00217-CV, 2018 Tex. App. LEXIS 4454, at *2 (Tex. App.—Amarillo
June 19, 2018, orig. proceeding) (mem. op.). That it is available to correct an improperly
issued order of disqualification is beyond doubt. See In re Sanders, 153 S.W.3d 54, 56
(Tex. 2004) (per curiam) (stating that “[m]andamus is appropriate to correct an erroneous
order disqualifying counsel because there is no adequate remedy by appeal”). So, the
second element of the requisite test is satisfied here.
Regarding the existence of a clear abuse of discretion, we again turn to Supreme
Court precedent and see where we have been told that a lawyer serving as both advocate
and witness does not in itself compel disqualification. Id. at 57. Like precedent also told
us that disqualification can be waived. That is, a litigant seeking to disqualify opposing
counsel must do so in a timely manner; should he not, then the delay results in the
question’s waiver. In re George, 28 S.W.3d 511, 513 (Tex. 2000) (quoting Vaughan v.
Walther, 875 S.W.2d 690 (Tex. 1994) (per curiam)). As for what constitutes untimeliness,
a delay of seven months was enough to effectuate waiver, according to our Supreme
Court. See, e.g., Buck v. Palmer, 381 S.W.3d 525, 528 (Tex. 2012) (per curiam) (wherein
the movant waited seven months and the reviewing court held not only that the trial court
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correctly denied the motion due to the delay but also that a delay of less time has also
resulted in waiver).
Whether McNamara should recuse himself or be disqualified from representing
J.E. due to some purported representation of M.J. is not a new topic. It reared its head
over four years ago and died because the party having the greatest interest in objecting,
i.e, M.J., did not complain. No one can deny that, since at least September of 2017,
Adoption Covenant has known of the allegations about McNamara’s supposed
representation of M.J. Yet, it waited for over a year and until the middle of selecting jurors
to attempt to resuscitate the corpse of disqualification and did so on the very basis raised
back in 2014. Delaying for such an amount of time effectuated a waiver of its complaint.
Consequently, the trial court clearly abused its discretion in disqualifying McNamara at
this late date.
The movie may go on and on, but we do not stop believing that the litigants will get
their final day in court. We do not stop believing that the child in question soon will find
one measure of stability through the adjudication of who his lawful parents are. The
prongs underlying the issuance of mandamus having been established, we conditionally
grant the petition. Should the trial court not vacate its November 16, 2018 order
disqualifying William McNamara as counsel for J.E. within thirty (30) days, we will issue
a writ of mandamus directing that he do so.
Brian Quinn
Chief Justice
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