in Re Honorable Velia J. Meza, Judge, 226th Judicial District Court, Bexar County, Texas ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-90,325-01
IN RE HONORABLE VELIA MEZA, Relator
ON APPLICATION FOR WRIT OF MANDAMUS
CAUSE NO. 04-19-00444-CR
IN THE FOURTH COURT OF APPEALS
BEXAR COUNTY
KELLER, P.J., delivered the opinion for a unanimous Court.
A district attorney called a subordinate into his office to discuss a case and review the case
file. Within a few weeks, the district attorney’s official status ended, he became part of a private law
firm, and a member of that private law firm substituted in as defense counsel in the case. The State
moved to disqualify the entire firm. The trial court denied the motion, but the court of appeals
granted mandamus relief, ordering the trial court to disqualify the entire firm. The trial court now
seeks mandamus relief from the court of appeals’s order. We conclude that under unequivocal, well-
settled law, the former district attorney was disqualified from acting as defense counsel. But we also
MEZA — 2
conclude that the same cannot be said for the other members of the law firm. Consequently, we deny
mandamus in part and grant mandamus in part.
I. BACKGROUND
A. Facts
In 2017, Michael Stovall was indicted for family violence assault. At the time, Nico LaHood
was the District Attorney of Bexar County. On December 20, 2018, Assistant District Attorney
Melissa Saenz received an email summoning her to a meeting with LaHood to discuss Stovall’s case.
Saenz recounted that, during this meeting, she and LaHood reviewed 911 calls and photographs, and
they expressed different opinions about whether an injury suffered by the complainant looked like
a bite mark.1 Saenz said that LaHood asked her about the strengths and weaknesses of the State’s
case. LaHood did not, however, tell Saenz how to prosecute the case.
On January 1, 2019, Saenz was moved to a different court, so she never made an appearance
in the case. She did not write any work product notes in the State’s file, and she did not talk about
the facts of the case, or her impressions of those facts, to the prosecutors who have worked on the
case since then. Saenz also testified that there was nothing in the file that she reviewed that would
not have to be turned over in accordance with a prosecutor’s obligations under Brady v. Maryland2
and the Michael Morton Act.3
As of January 1, 2019, LaHood’s term as District Attorney had ended. He became a partner
1
This testimony was given at a hearing on the State’s motion to disqualify LaHood and his
law firm from representing Stovall.
2
373 U.S. 83 (1963) (prosecutor’s duty to disclose exculpatory evidence).
3
See TEX. CODE CRIM. PROC. 39.14 (discovery statute).
MEZA — 3
in a private law firm with Jay Norton and Jason Goss. On January 7, 2019, Goss filed a motion to
substitute himself as Stovall’s counsel. He alone signed the pleading, but “LaHood Norton Law
Group” appears under his signature. According to Marissa Giovenco, a subsequent prosecutor on
the case, Goss talked with her about getting the case dismissed. She testified that he told her that he
had information that would kill the case but would not say what the information was. LaHood was
in the courtroom, talking to the judge at the bench, but as he walked by Giovanco and Goss, LaHood
“kind of asked what we were talking about, and he said that he would talk to Jason [Goss] and see
if it was something that they could tell me.” Later that day, LaHood informed her that they would
not be able to share that information with her. On May 17, 2019, LaHood, Norton, and Goss all
signed a document requesting discovery in the Stovall case. On June 3, 2019, the State filed a
motion to disqualify the LaHood Norton firm due to LaHood’s involvement in the case while he was
District Attorney. At a hearing on the motion, the trial court heard the testimony we have recounted
earlier.4 LaHood did not testify at the hearing.5
B. Trial Court’s Ruling
The trial court denied the State’s motion with a written order, which set out Saenz’s
testimony consistent with our recounting above.6 In the order, the trial court pointed to the
4
The hearing included other testimony by Saenz and testimony by other witnesses. For what
is generally a more expansive recitation of what occurred, see In re State ex. rel. Gonzales, No. 04-
19-00444-CR, 2019 Tex. App. LEXIS 7801, *1-4 (Tex. App.—San Antonio August 28, 2019) (not
designated for publication).
5
LaHood did not appear as counsel at the hearing and was reserved as a potential witness.
Attorney Goss told the trial court, “we will not share with him. We understand the Court’s
instructions and we will not share with him anything.”
6
The trial court’s order did not explicitly address whether this testimony was credible.
Neither did defense counsel, but defense counsel did not dispute its truth, and counsel’s argument
MEZA — 4
presumption in favor of a defendant’s counsel of choice and stated the need to exercise extreme
caution in deciding whether to override that choice on the basis of other important interests. The
trial court summarized the rule in civil cases as involving two irrebuttable presumptions for an
attorney who moves from one law firm to another: (1) that he has access to confidential information
possessed by the law firm he moves from, and (2) that he shares this information with the law firm
he moves to. Under these two presumptions, an attorney can be automatically disqualified from
working adversely to a client of the law firm he moved from (if the attorney was there and it is the
same matter), and if he is disqualified, the law firm he moves to is disqualified as well. However,
the trial court discerned the disqualification rule to be somewhat different in criminal cases, which
involve a defendant’s right to counsel of choice and where there is a rule that (in the trial court’s
estimation) allows disqualification only when the failure to do so rises to a due process violation.
As to the present case, the trial court found:
Even if Mr. LaHood’s knowledge of this case is imputed to Mr. Norton and Mr.
Goss, and regardless of whether any rules of professional responsibility were
violated, this court finds that the State has not met its heavy burden to show that Mr.
LaHood was privy to any work product or acquired confidential information
pertaining to this case that would not have otherwise been available to defense
counsel through the rules of discovery and under Brady v. Maryland.
The trial court also found:
There is no evidence to show that Mr. LaHood actively participated in the
prosecution of this case. Mr. LaHood did not tell Ms. Saenz how to prosecute this
case or direct Ms. Saenz to dismiss defendant’s case.
From these findings, the trial court concluded that “the State has not demonstrated actual prejudice
resulting from Mr. LaHood’s actions or knowledge with regard to this case.” From that conclusion,
at the hearing seemed to assume its truth.
MEZA — 5
the trial court decided that “it does not have a valid reason under the law to interfere in the
defendant’s constitutional right to the counsel of his choice.”
C. Court of Appeals Opinion
The State filed a petition for writ of mandamus with the court of appeals. The court of
appeals discussed the facts of the case, including Saenz’s testimony.7
The court then examined whether LaHood’s actions as District Attorney disqualified him
from representing Stovall.8 The court observed that Article 2.08 of the Code of Criminal Procedure
prevents a former prosecutor from representing a criminal defendant if, while a prosecutor, he was
“of counsel for the State” on the defendant’s case.9 Looking for guidance from cases involving the
disqualification of judges who were previously prosecutors, the court of appeals concluded that even
minor involvement in the case can cause one to be “of counsel for the State” (so long as that
involvement is “more than merely perfunctory”) and that participation in any manner in the
preparation or investigation of the case would qualify.10 The court concluded that the discussion of
the case between LaHood and Saenz was sufficient participation to qualify.11
7
Gonzales, 2019 Tex. App. LEXIS 7801, at *1-4. The court of appeals’s recitation of the
facts is, in general, more expansive than in our opinion, but it is by no means complete.
8
Id. at *6-12.
9
Id. at * 6-8 (quoting and discussing TEX. CODE CRIM. PROC. art. 2.08).
10
Id. at *8-11 (discussing Metts v. State, 510 S.W.3d 1 (Tex. Crim. App. 2016); Lee v. State,
555 S.W.2d 121 (Tex. Crim. App. 1977); Prince v. State, 158 Tex. Crim. 65, 252 S.W.2d 945 (1952)
(on reh’g)).
11
Id. at *11-12. Giving more detail than the trial court, the court of appeals also referred to
LaHood and Saenz discussing the complainant’s medical history and emails from Stovall’s family
to the complainant. Id. at *12. These additional details would not change our analysis, so we need
not further dwell on them.
MEZA — 6
Next, the court of appeals examined whether LaHood’s disqualification required that the
entire firm be disqualified.12 Relying upon a Fort Worth court of appeals opinion in a civil case, the
court concluded that “it is the relationship of the attorneys to the parties and to each other that
controls, not whether they have actually engaged in conduct which would create a conflict.”13 The
court of appeals observed that the LaHood Norton firm was a small law firm consisting of three
lawyers and that the firm advertises each lawyer bringing a “different set of skills to their clients.”14
Relying upon a Fifth Circuit opinion affirming a lower trial court order involving facts similar to the
present case, the court of appeals held that disqualification of the entire law firm was required.15
Finally, the court of appeals addressed whether Stovall’s constitutional right to counsel of
choice requires a different result. The court responded that the right to counsel of choice is not
absolute and that the strong presumption in favor of counsel of choice can nevertheless be overridden
by other important considerations relating to the integrity of the judicial process and the fair and
orderly administration of justice.16 Relying on the Fifth Circuit case cited earlier and a Second
12
Id. at *12-13.
13
Id. at *12 (quoting Dillard v. Berryman, 683 S.W.2d 13, 15 (Tex. App.—Fort Worth 1984,
no writ)) (brackets removed).
14
Id. at *12-13.
15
Id. at *13 (quoting from United States v. Kitchin, 592 F.2d 900, 904-05 (5th Cir. 1979))
(“Given the presumed interplay among lawyers who practice together, the rule applies not only to
individual attorneys but also requires disqualification of the entire firm as well as all employees
thereof. . . . more is at stake than the confidences of a private litigant. The public has an interest in
seeing that criminal laws are enforced. . . . For a former prosecutor to be associated with the lawyer
who represents a person he earlier helped prosecute, even if only at an embryonic stage, would likely
provoke suspicion and distrust of the judicial process.”).
16
Id. at *13-14.
MEZA — 7
Circuit case, the court of appeals found such considerations to be present here.17
Concluding that the trial court erred by denying the State’s motion to disqualify the LaHood
Norton Law Group from serving as defense counsel for Stovall, the court of appeals conditionally
granted the mandamus petition.18 The trial court has now petitioned this Court for a writ of
mandamus to require the court of appeals to withdraw its issuance of a writ of mandamus.
II. ANALYSIS
A. Mandamus Standards
When this Court is called upon in a mandamus proceeding to review the issuance of
mandamus by a court of appeals against a trial court, “we review the propriety of the trial court’s
conduct itself by undertaking a de novo application of the two pronged test for mandamus relief.”19
In this case, that means deciding, de novo, whether the State was entitled to the mandamus relief of
forcing the trial court to disqualify the LaHood Norton law firm as Stovall’s attorneys.
The two pronged test for mandamus requires the record to establish: (1) that the relator has
no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act, not involving
a discretionary or judicial decision.20 The first prong is not seriously contested here. The State has
no adequate remedy because it had no immediate right to appeal the trial court’s order refusing to
17
Id. at *14 (citing Kitchin and United States v. Ostrer, 597 F.2d 337, 340 (2d Cir. 1979)).
18
Id. at *14-15.
19
In re State ex rel. Wice v. Fifth Judicial Dist. Court of Appeals, 581 S.W.3d 189, 193-94
(Tex. Crim. App. 2018).
20
Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) (quoting from State ex
rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App.
2007)).
MEZA — 8
disqualify counsel and because its only ultimate right to complain would be a cross-point that
depends on the defendant taking an appeal from a conviction.21 The contested question here is
whether the ministerial act prong is satisfied.
The ministerial act prong is satisfied if the record establishes “a clear right to the relief
sought,” which means that “the facts and circumstances dictate but one rational decision under
unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly
controlling legal principles.”22 Sometimes an issue of first impression will qualify for mandamus
relief.23 This can be true when the issue involves an unambiguous statute24 or when “the combined
weight of our precedents clearly establishes” the proposition of law on which relief is predicated.25
B. Does Unequivocal, Well-Settled Law Require LaHood to be Disqualified?
The first issue is whether the court of appeals was correct to conclude that unequivocal, well-
settled law requires that LaHood be disqualified as Stovall’s counsel. Article 2.08 provides:
District and county attorneys shall not be of counsel adversely to the State in any
case, in any court, nor shall they, after they cease to be such officers, be of counsel
adversely to the State in any case in which they have been of counsel for the State.26
In addressing a prior, identically worded, version of the statute in King v. State, this Court held that
a county attorney who filled out the complaint charging the defendant with a crime could not later
21
See In re State ex rel. Weeks, 391 S.W.3d 117, 123 (Tex. Crim. App. 2013).
22
Bowen, 343 S.W.3d at 810 (quoting from Young, 236 S.W.3d at 210).
23
Weeks, 391 S.W.3d at 122.
24
Wice, 581 S.W.3d at 194-95.
25
Weeks, 391 S.W.3d at 126.
26
TEX. CODE CRIM. PROC. art. 2.08(a).
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represent the defendant in a criminal prosecution arising from the same facts.27 This was true even
though filling out the complaint was the only thing the county attorney did for the State in the case.28
In Parker v. State, the defendant claimed that his attorney should have been disqualified because he
had been an assistant district attorney at the time of the offense.29 This Court held that the
defendant’s objection was untimely because it was raised for the first time on appeal.30 In explaining
the basis for the claim, the Court said that, at most, the attorney “was present at one time when
appellant was being questioned after his arrest and his name does appear as counsel for the state in
the bond hearing.”31 The Court stated, “Had the state moved to disqualify [counsel] prior to trial as
was done in King v. State, another question would have been presented.”32
The court of appeals did not rely upon these cases but relied instead on cases construing a
statute that applies when a prosecutor becomes a judge—Article 30.01. That statute provides in
relevant part: “No judge or justice of the peace shall sit in any case . . . where he has been of counsel
for the State or the accused.”33 Both the prosecutor-turned-defense attorney and the prosecutor-
turned-judge statutes use the same phrase “of counsel for the State” in the exact same way. We have
held that when two statutes “are not only similar in purpose and operation, but also appear designed
27
184 Tex. Crim. 583, 587-88, 286 S.W. 231, 233 (Tex. Crim. App. 1926).
28
Id., 184 Tex. Crim. at 588, 286 S.W. at 233.
29
457 S.W.2d 638, 640 (Tex. Crim. App. 1970).
30
Id.31
Id.32
Id.33
TEX. CODE CRIM. PROC. art. 30.01.
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to work together, with the identical phrase accomplishing that cooperation,” that circumstance
“strongly supports interpreting the same phrase to mean the same thing.”34 Here, we have parallel
statutes using the identical phrase for the exact same purpose. Under that circumstance, the caselaw
for what “of counsel of the State” means in Article 30.01 applies to the meaning of that same phrase
in Article 2.08, so the court of appeals did not err in considering those cases in the mandamus
context.
Those cases do not conflict with King and Parker but provide further guidance about what
level of involvement makes a prosecutor “of counsel for the State” in a particular case. In Prince
v. State, this Court held that a prosecutor was “of counsel for the State” if he “participated in any
manner in the preparation or investigation of the case.”35 In Metts v. State, we explained that the
prosecutor must have “investigated, advised or participated” as counsel in the case, or, stated another
way, his “involvement must have arisen to a level of active participation.”36 We surveyed the
caselaw relating to Article 30.01 and observed a variety of relatively minor acts that would make a
prosecutor qualify as “of counsel” for the State.37 We held that merely signing a jury-waiver form
was enough.38 Our discussion included the earlier case of Lee v. State, where we held sufficient a
prosecutor’s act of writing a letter to defense counsel stating what his punishment recommendation
34
Ex parte Kussmaul, 548 S.W.3d 606, 634 (Tex. Crim. App. 2018) (quoting from Ex parte
White, 506 S.W.3d 39, 44 (Tex. Crim. App. 2016)).
35
158 Tex. Crim. at 67, 252 S.W.2d at 946.
36
510 S.W.3d at 4.
37
510 S.W.3d at 4-6.
38
Id. at 5-6.
MEZA — 11
would be.39 Although the prosecutor had never appeared in the case and did not remember writing
the letter, the letter nevertheless revealed that he had reviewed the defendant’s file.40 We also
discussed Gamez v. State for the proposition that a prosecutor’s conduct would not make him of
counsel for the State if it was a “mere ‘perfunctory act.’”41 In that case, the prosecutor’s name
appeared “rubber stamped” on the State’s announcement of ready, but the prosecutor had never made
an appearance in the case and had never examined the State’s files.42 To be sufficient, the
participation has to be in the same case as the one before the prosecutor-turned-judge.43
Saenz’s testimony, if credited, was indisputably sufficient to establish that LaHood was of
counsel for the State under the caselaw construing Articles 2.08 and 30.01. LaHood examined the
State’s files, and he discussed the evidence with the assistant district attorney who had been assigned
to the case. He offered his opinion of whether the evidence showed a bite mark. This was not mere
“water-cooler” talk between co-workers about a new case in the office to which they were not
assigned. It is clear that by reviewing the file and engaging in a discussion with the assistant district
attorney about the evidence, LaHood participated in the preparation of the case. LaHood’s
involvement in the case far exceeds the kind of involvement we have previously held sufficient.
The next question is whether Saenz’s testimony must be credited. The trial court recited
Saenz’s testimony extensively but did not explicitly comment on its truth or credibility. It is, at the
39
Id. at 5 (citing Lee, 555 S.W.2d at 125). .
40
Id. (citing Lee, 555 S.W.2d at 123, 125).
41
Id. (citing Gamez v. State, 737 S.W.2d 315, 319-20 (Tex. Crim. App. 1987)).
42
Id.43
Id. (citing Holifield v. State, 538 S.W.2d 123, 125 (Tex. Crim. App. 1976)).
MEZA — 12
least, true that the trial court assumed the truth of that testimony for purposes of its ruling. But the
trial court’s order suggests more than that. The trial court referred to “Mr. LaHood’s knowledge of
this case.” And the trial court’s finding that Mr. LaHood was not privy to any information that
would not have otherwise been turned over to the defense flows directly from Saenz’s testimony, as
does the trial court’s statement that LaHood did not tell Saenz how to prosecute the case. Moreover,
Saenz was an officer of the court, her testimony was not disputed, that testimony was corroborated
to some degree by documentary evidence (an email), and LaHood could have, but did not, testify to
controvert such testimony.44 Under those circumstances, we conclude that the trial court implicitly
found Saenz’s testimony to be true in its entirety.
The trial court did say that “[t]here is no evidence to show that Mr. LaHood actively
participated in the prosecution of this case,” but that statement appears to be a legal conclusion rather
than a comment on the believability of Saenz’s testimony. The trial court’s comment about
LaHood’s lack of active participation was followed by and obviously depends on the trial court’s
statement that LaHood did not tell Saenz how to prosecute the case. The trial court’s legal
conclusion is indisputably erroneous because exerting control over the progress of a case is not
required by caselaw to establish active participation. By reviewing the State’s file and discussing
the case with Saenz, LaHood indisputably qualified as “of counsel for the State” for purposes of
Article 2.08.
The trial court also made a finding that LaHood did not have access to confidential
44
See Cameron v. State, 490 S.W.3d 57, 62 (Tex. Crim. App. 2014) (“It is well established
that ‘this Court accepts as true factual assertions made by counsel which are not disputed by
opposing counsel.’”) (quoting Thieleman v. State, 187 S.W.3d 455, 457 (Tex. Crim. App. 2005),
citing Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996)).
MEZA — 13
information, although that finding seems mainly relevant to the trial court’s conclusion that the entire
law firm was not disqualified, which we will discuss later. Suffice it to say here, Article 2.08
contains no requirement that the former prosecutor possess confidential information belonging to
the State; it is a rule of automatic disqualification. The statute disqualifies LaHood by virtue of his
participation in the case, regardless of whether he obtained any confidential information belonging
to the State.
The remaining question, with respect to LaHood, is whether the trial court could conclude
that Article 2.08’s dictates must give way to Stovall’s constitutional right to counsel of his choice.
It is true that “courts must exercise caution in disqualifying defense attorneys, especially if less
serious means would adequately protect the government’s interests.”45 But a defendant’s right to
counsel of choice is not absolute.46 “[W]hile there is a strong presumption in favor of a defendant’s
right to retain counsel of choice, this presumption may be overridden by other important
considerations relating to the integrity of the judicial process and the fair and orderly administration
of justice.”47 And while a trial court typically has “wide latitude in balancing the right to counsel of
choice against the needs of fairness,”48 the Supreme Court has held that federal courts nevertheless
have an “independent interest in ensuring that criminal trials are conducted within the ethical
45
Bowen, 343 S.W.3d at 813 (quoting from Gonzalez v. State, 117 S.W.3d 831, 837 (Tex.
Crim. App. 2003)).
46
Gonzalez, 117 S.W.3d at 837.
47
Id.48
United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006).
MEZA — 14
standards of the profession and that legal proceedings appear fair to all who observe them.”49 In
Bowen, we applied this maxim to state courts.50
The legislature has stepped in with Article 2.08 to protect that interest by barring a former
prosecutor from representing a defendant in the same case in which the prosecutor was of counsel
for the State. In the opposite context, in which a defense attorney later prosecutes the defendant, we
have explained, “For a prosecuting attorney to ‘switch sides’ in the same criminal case is an actual
conflict of interest and constitutes a due-process violation, even without a specific showing of
prejudice. This has been called a ‘hard and fast rule of disqualification.’”51 It is true that the State
does not have a federal constitutional right to due process. But the independent interest of the courts
in “ensuring that criminal trials are conducted within the ethical standards of the profession and that
legal proceedings appear fair to all who observe them,” is relevant when a prosecutor switches sides
to become defense counsel just as it is when defense counsel becomes the prosecutor. It is beyond
dispute that Article 2.08’s rule of automatic disqualification is reasonable and constitutional in the
usual case. No attempt has been made to show a special need for LaHood to represent Stovall.
Finally, LaHood argues that the State forfeited its right to complain by failing to move to
disqualify him in a timely manner. As far as we can tell from the record before us, the first time
LaHood signed a pleading in the Stovall case was on May 17. The State moved to disqualify
LaHood and the entire firm on May 30. At least as to LaHood, the motion to disqualify was timely.
49
Wheat v. United States, 486 U.S. 153, 160 (1988) (saying “federal courts” have this
independent interest). See also Bowen, 343 S.W.3d at 816 (quoting this passage in part, saying “trial
courts” have this independent interest).
50
Bowen, 343 S.W.3d at 816.
51
Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App. 2008).
MEZA — 15
We conclude that the court of appeals was correct to hold that, under unequivocal, well-
settled law, LaHood was disqualified from representing Stovall. To the extent the court of appeals’s
opinion grants mandamus relief as to LaHood’s participation in the case, we agree with the court of
appeals, and we deny the trial court’s request for mandamus relief.
B. Does Unequivocal, Well-Settled Law Require the Entire Law Firm to be Disqualified?
We next turn to whether the court of appeals was correct to conclude that unequivocal, well-
settled law requires the disqualification of the entire law firm. Article 2.08 says nothing about
disqualifying the entire law firm to which the former prosecutor belongs; it speaks only to
disqualifying the former prosecutor. In holding that the relationship of the attorneys to the parties
and each other is what controls, the court of appeals relied upon Dillard, a court of appeals decision
from a different district in a civil case.52 No matter how one looks at it, such a decision does not
constitute binding authority.53 The court of appeals also cited federal circuit decisions,54 but those
also are not binding on state courts.55 The State cites two Texas Supreme Court decisions for the
proposition that disqualification of an attorney automatically requires disqualification of the entire
52
See supra at n.13.
53
See Franklin v. State, 579 S.W.3d 382, 385 (Tex. Crim. App. 2019) (court of appeals
decision not binding on Court of Criminal Appeals); In re State ex rel. Mau v. Third Court of
Appeals, 560 S.W.3d 640, 647-48 (Tex. Crim. App. 2018) (court of appeals decision not binding on
trial courts outside of its district); McNatt v. State, 188 S.W.3d 198, 201-02 (Tex. Crim. App. 2006)
(before pointing to non-binding nature of court of appeals opinion, noting it was from a civil case).
54
See supra at nn.15, 17.
55
Ex parte Evans, 338 S.W.3d 545, 552 n.27 (Tex. Crim. App. 2011); Mosley v. State, 983
S.W.2d 249, 256 (Tex. Crim. App. 1998).
MEZA — 16
firm.56 This is based at least in part on the two irrebuttable presumptions for an attorney who moves
from one private firm to another: that the attorney has access to confidential information from the
firm he leaves and shares that information with the firm he moves to.57 But Texas Supreme Court
decisions are generally not binding precedent in criminal cases.58
A review of the Texas Supreme Court cases shows other flaws in the reliance by the court
of appeals and the State on these authorities. The Texas Supreme Court cases rely upon Texas
Disciplinary Rule of Professional Conduct 1.09.59 The Texas Supreme Court looks to the
Disciplinary Rules of Professional Conduct for guidance in determining when an attorney is
disqualified,60 but this Court has taken the position that a disciplinary rule cannot by itself furnish
a sufficient basis for disqualification.61 The decisions relied upon by the court of appeals suffer from
the same shortcoming: the court of appeals decision in Dillard looked to what was then the Code of
56
In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 (Tex. 2010); Nat’l
Med. Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996).
57
Columbia Valley Healthcare Sys., 320 S.W.3d at 824.
58
Kirk v. State, 454 S.W.3d 511, 514 (Tex. Crim. App. 2015) (characterizing Texas Supreme
Court holding as persuasive authority); Rankin v. State, 974 S.W.2d 707, 711 (Tex. Crim. App.
1996) (stating that “the decisions of the Texas Supreme Court in no way bind us”). But see Ex parte
Rhodes, 974 S.W.2d 735, 740 (Tex. Crim. App. 1998) (this Court was “bound by Texas Supreme
Court precedent” on a criminal contempt conviction arising out of civil proceedings).
59
Columbia Valley Healthcare Sys., 320 S.W.3d at 824; Godbey, 924 S.W.2d at 131.
60
Henderson v. Floyd, 891 S.W.2d 252, 253 (Tex. 1995).
61
Landers, 256 S.W.3d at 310 & n.56 (“A district attorney may be disqualified only for a
violation of the defendant’s due-process rights, not for violations of the disciplinary rules of
professional conduct alone.”) (“The disciplinary rules cannot be turned into a tactical weapon to
disqualify opposing counsel unless the defendant can show that the alleged rule violations deprived
him of a fair trial or otherwise affected his substantial rights.”).
MEZA — 17
Professional Conduct,62 and the cited Fifth Circuit decision relied on an ethics rule by the American
Bar Association.63
Moreover, even if it could alone provide a basis for disqualification, Rule 1.09 is not the
applicable rule here. Rule 1.09(b) provides: “Except to the extent authorized by Rule 1.10, when
lawyers are or have become members of or associated with a firm, none of them shall knowingly
represent a client if any one of them practicing alone would be prohibited from doing so by
paragraph (a).”64 Comment 1 of Rule 1.09 says that the rule applies to a lawyer who switches from
one private firm to another, and that a lawyer who moves from government to private employment
is governed by Rule 1.10.65 Rule 1.10 provides that “a lawyer shall not represent a private client in
connection with a matter in which the lawyer participated personally and substantially as a public
officer or employee, unless the appropriate government agency consents after consultation.”66 The
rule also prohibits such a lawyer from representing a client whose interests are adverse to the
government agency if the lawyer is in possession of confidential information as a result of
62
Dillard, 683 S.W.2d at 15.
63
Kitchin, 592 F.2d at 904.
64
TEX. DISC. R. PROF. CONDUCT 1.09(b).
65
Id. 1.09, comment 1 (“Rule 1.09 addresses the circumstances in which a lawyer in private
practice, and other lawyers who were, are or become members of or associated with a firm in which
that lawyer practiced or practices, may represent a client against a former client of that lawyer or the
lawyer’s former firm. Whether a lawyer, or that lawyer’s present or former firm, is prohibited from
representing a client in a matter by reason of the lawyer’s successive government and private
employment is governed by Rule 1.10 rather than by this Rule.”).
66
Id. 1.10(a).
MEZA — 18
government employment.67 But under Rule 1.10, disqualification of the lawyer need not result in
disqualification of the firm if the disqualified lawyer “is screened from any participation in the matter
and is apportioned no part of the fee therefrom” and “written notice is given with reasonable
promptness to the appropriate government agency.”68
The Texas Supreme Court cases that relied on Rule 1.09 involved individuals who moved
from one private firm to another, not from a government agency to a private firm.69 And while the
State cites one of those cases for factors to consider in determining whether screening measures are
effective, those factors were invoked because the individual who transferred from one private firm
to another was a non-lawyer.70 It is unclear that those factors apply to a Rule 1.10 inquiry. And
while Rule 1.09 rests on the two irrebuttable presumptions of access to and sharing of confidential
information, Rule 1.10 rests on neither of these presumptions. As already explained, Rule 1.10 does
not rest on an irrebuttable presumption of sharing confidential information because the attorney can
be screened from the case handled by the firm he moves to. But it is also true that Rule 1.10 does
not rest on an irrebuttable presumption of access to confidential information in the possession of the
government agency the attorney leaves: there must be either a showing of “personal and substantial”
67
Id. 1.10(c).
68
Id. 1.10(b). See also id. 1.10(d).
69
See Columbia Valley Healthcare Sys., 320 S.W.3d at 822-23; Godbey, 924 S.W.2d at 124-
26.
70
Columbia Valley Healthcare Sys., 320 S.W.3d at 824 (“A nonlawyer employee who
worked on a matter at a prior firm is also subject to an irrebuttable presumption ‘that confidences
and secrets were imparted’ to the employee at the firm . . . However, unlike with attorneys, a
nonlawyer is not generally subject to an irrebuttable presumption of having shared confidential
information with members of the new firm.”).
MEZA — 19
participation in the matter or a showing of possession of confidential information. With respect to
the latter, the Texas Supreme Court has held that “the rule operates only when the former
government attorney has ‘actual as opposed to imputed knowledge.’”71 With respect to the
former—personal and substantial participation—the Texas Supreme Court has held it must be
“‘hands on’ involvement.”72
The differences between Rules 1.09 and 1.10 also undermine the applicability of Dillard and
the federal circuit cases relied upon by the court of appeals. Dillard was decided under a predecessor
to our current ethics rules, and the Supreme Court has suggested that Rule 1.10’s requirement of
“hands on” involvement or actual access to confidential information differs from the predecessor
rule.73 Moreover, the Fifth Circuit case cited by the court of appeals seems to rely on an absolute
rule of disqualification that leaves no room for the screening measures allowed by Rule 1.10.74 And
the other federal circuit case cited by the court of appeals appears to involve an attorney’s ability to
71
Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 657 (Tex. 1990). See also R. 1.10
Comment 7. (“Paragraph (c) operates only when the lawyer in question has actual as opposed to
imputed knowledge of the confidential government information.”).
72
Spears, supra.
73
Id. (Saying, “While the predecessor to Rule 1.10, barring private employment in a matter
in which a former government attorney had ‘substantial responsibility,’ might permit such a
construction, the new rule does not,” and then discussing the requirements of “hands on”
involvement or actual access to confidential information).
74
See Kitchin, 592 F.2d at 904 (“Finally, given the presumed interplay among lawyers who
practice together, the rule applies not only to individual attorneys but also requires disqualification
of the entire firm as well as all employees thereof. Thus, it does not matter that Ludwick is only an
associate to the defendant’s counsel of record.”) (citations omitted).
MEZA — 20
use confidential information,75 which would not apply in a case where the attorney was screened and
the other members of the firm had no confidential information to use.
If Rule 1.10 were held to apply, the question would arise whether the former government
lawyer, in this case LaHood, participated “personally and substantially” in the case or whether he
actually possessed confidential information. The Texas Supreme Court has said that participation
must be “hands on,” which at least meets the element of “personal,” but the court has not said
whether “substantial” dictates a certain level of hands-on involvement (or what that level would
be).76 And while we do have cases construing the level of participation required under Articles 2.08
and 30.01, there are no cases saying that Rule 1.10’s phrase “personal and substantial” embodies the
same standard. As for the actual possession of confidential information, the trial court found that
LaHood possessed none, and that finding appears to be supported by the record.77
And even if all of those hurdles were cleared, it is still true that Rule 1.10 is merely a
disciplinary rule, and this Court has declined in the past to accord relief based on a disciplinary rule
alone.78 A defendant’s constitutional right to counsel of choice might be a basis for crafting a less
75
See Ostrer, 597 F.2d 340 (“Because much of what a Government attorney learns while
investigating a case does not become part of the prosecution’s files, the fact that some impeachment
material may be available to appellant under Brady v. Maryland minimizes but does not eradicate
the unfair advantage that appellant secures through Pollack’s representation.”) (citation omitted).
76
See Spears, 797 S.W.2d at passim.
77
See Cameron v. State, 482 S.W.3d 576, 582 (Tex. Crim. App. 2016) (quoting Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997): “[A]s a general rule, the appellate courts,
including this Court, should afford almost total deference to a trial court’s determination of the
historical facts that the record supports especially when the trial court’s fact finding are based on an
evaluation of credibility and demeanor.”) (brackets in Cameron).
78
See supra at n.61 and accompanying text.
MEZA — 21
serious remedy than disqualification.79 And the rules of procedural default can potentially come into
play.80
The upshot of all this is that, although Article 2.08 unequivocally barred LaHood from
participating in the case, there is no similar authority unequivocally barring the other members of
LaHood’s firm. A number of complicating factors stand in the way of a conclusion that settled law
requires the entire law firm to be disqualified: Article 2.08 doesn’t talk about law firms, and there
is no caselaw authority from this Court that would mandate disqualification of the entire firm. There
are unsettled legal questions concerning whether Disciplinary Rule 1.10 would apply to this case,
and the rule might permit the lesser remedy of screening LaHood from the case. As a mere
disciplinary rule, Rule 1.10 is not sufficient by itself to require a grant of relief, and the trial court
found that LaHood had no confidential information so the State’s substantial rights were not
affected. And absent any unambiguous statutory authority, the constitutional right to counsel of
choice arguably controls or at least gives the trial court the discretion to fashion a lesser remedy than
disqualification.81
It has not been shown under unequivocal, well-settled law that the entire law firm was
disqualified from representing Stovall. To the extent the court of appeals’s opinion grants
mandamus relief as to members of the law firm other than LaHood, we conclude that the court of
79
See supra at n.45 and accompanying text.
80
See supra at n.30 and accompanying text (indicating that a claim under Art. 2.08 is
forfeitable). See also State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (“Ordinary
notions of procedural default should apply equally to the defendant and the State.”).
81
Because we grant relief as to members of the firm other than LaHood, we need not address
their claim that the motion to disqualify was untimely as to them.
MEZA — 22
appeals acted erroneously, and we grant the trial court’s request for mandamus relief.
III. DISPOSITION
We deny the trial court’s request for mandamus relief as it relates to Nico LaHood. He is
disqualified from representing the defendant Michael Stovall in this case and must be screened from
any participation in the case. We conditionally grant the trial court’s request for mandamus relief
as it relates to the other members of the law firm and direct the court of appeals to rescind its
mandamus order to that extent. The writ of mandamus will issue only in the event that the court of
appeals fails to comply with this opinion.
Delivered: November 18, 2020
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