Background

• This mandamus proceeding challenges the trial court’s August 8, 2011 order disqualifying Florinda’s counsel Fela Olivarez in a Starr County partition suit; Narciso filed the disqualification motion asserting Rule 3.08 requires disqualification because Fela may be a necessary witness to establish an essential fact about the 1995 gift deed.
• The partition suit involves a 1995 gift deed signed by Crisanta Garza transferring Leonel Garza’s interest to Florinda, with Leonel having died in 2000 and Florinda’s ownership asserted by will.
• Narciso claimed the 1995 deed’s signing was suspicious and that Fela notarized it, with Roy present; Narciso argued both Fela and Roy should be witnesses and thus disqualified as Florinda’s counsel.
• The motion contended Fela’s testimony would be necessary to prove essential facts; the hearing led to the trial court disqualifying both Fela and Roy.
• Florinda filed a petition for writ of mandamus challenging only Fela’s disqualification; the court grants mandamus conditionally, directing the trial court to withdraw the order as to Fela within 14 days.
• The issue before the court is whether the trial court abused its discretion in disqualifying Fela under Rule 3.08 and related standards.

Issues

Key Cases Cited

• In re Sanders, 153 S.W.3d 54 (Tex. 2004) (mandamus appropriate; disqualification is a severe remedy and must show necessity)
• In re Sandoval, 308 S.W.3d 31 (Tex. App.—San Antonio 2009) (disqualification analyzed with standard of necessity and preservation of client’s rights)
• Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990) (high court on disqualification standards and avoidance of tactical weaponry)
• Int. of A.M., 974 S.W.2d 857 (Tex. App.—San Antonio 1998) (dual role of attorney and witness requires genuine need for testimony)