in Re Gary MacK McDaniel ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00166-CV

In re Gary Mack McDaniel

Original Proceeding

DISSENTING Opinion

          I would deny the petition for writ of mandamus because the trial court did not abuse its discretion.  Based upon the majority’s unwarranted extension of In re Bivins, it will be almost impossible to disqualify counsel.  In re Bivins, 162 S.W.3d 415 (Tex. App.—Waco 2005, orig. proceeding).  We should not be so quick to reverse the well-considered decision of a trial court.  This is particularly true when that trial court is considering issues that are designed to protect, and to some extent restore, the image of the legal profession by removing the possibility that a proceeding will be affected by the prior service of a lawyer for one of the parties.  The trial court’s order promotes fairness in the judicial system but the majority’s holding will reinforce the public’s perception of the system’s inability to be fair because of a perceived advantage given to one of the parties.  Accordingly, I dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed February 23, 2006

justify;line-height:200%'>            By letter dated March 12, 2008, the Clerk of this Court notified Runnels that the clerk’s record in the above cause had apparently not been filed because Runnels had failed to pay or make arrangements to pay the clerk’s fee for preparation of the record.  Runnels was further notified that if she desired to proceed with this appeal, she must pay or make arrangements to pay the clerk’s fee and notify this Court of the actions taken within 21 days after the date of this letter.  Runnels was warned that if she failed to do so, this appeal may be dismissed for want of prosecution.  See Tex. R. App. P. 37.3(b).

            More than 21 days have passed and we have not been notified that Runnels has paid or made arrangements to pay the clerk’s fee.  Accordingly, this appeal is dismissed. 

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed

Opinion delivered and filed May 7, 2008

[CV06]