in Re: Houston County Ex Rel Daphne L. Session ( 2015 )


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  •                                        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.