In Re Goodman

OPINION

Opinion by Justice CARTER.

Leslie Gene Goodman has filed a petition for writ of mandamus, asking this Court to order the Honorable Jim D. Lo-vett, presiding judge of the Sixth Judicial District Court of Lamar County, Texas, to enter an order disqualifying the Honorable Gary Young, county attorney for Lamar County, as the State’s attorney of record in trial court cause number 21313, styled State of Texas v. Goodman, now pending in the Sixth Judicial District Court. The State contends we lack jurisdiction over this matter. For the reasons set forth below, we disagree with the State’s jurisdictional challenge. We further conclude there is merit to Goodman’s claim that Young should be disqualified — given the discrete facts in the record before us. We, therefore, conditionally grant the petition.

I. The State’s Jurisdictional Challenge

Intermediate appellate courts in this State have original and appellate jurisdiction as provided by law. Tex. Const. art. V, § 6. State law authorizes this Court to issue writs of mandamus against judges of a district or county court within our appellate district. Tex. Gov’t Code Ann. § 22.221(b) (Vernon 2004). The State contends we lack jurisdiction over this matter because Goodman seeks the recusal of an elected county attorney, not a district judge. See, e.g., In re Jones, No. 06-03-00061-CV, 2003 WL 1985247, 2003 Tex.App. LEXIS 3673 (Tex.App.-Texarkana Apr.30, 2003, orig. proceeding) (mem. op.). The State’s jurisdictional argument misses its mark: Goodman is asking us to direct the district judge — not the elected prosecutor — to perform a required, ministerial act. As the relief sought concerns a lower court’s duty to perform a nondiscre-tionary act, we do have original jurisdiction to review Goodman’s petition. Accord Tex. Gov’t Code Ann. § 22.221(b); Palermo v. McCorkle, 838 S.W.2d 887 (Tex.App.Houston [14th Dist.] 1992, orig. proceeding).

II. The Standard for Obtaining Mandamus Relief Regarding Attorney Disqualification

“[M]andamus is a drastic remedy, to be invoked only in extraordinary situations.” State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex.Crim.App.1994). To permit the issuance of such writs in less than extraordinary situations “would encourage piecemeal litigation and frustrate the efficient administration of justice.” Id. (quoting State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App.1992) (orig. proceeding)). Mandamus will issue only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). An abuse of discretion occurs only when the record affirmatively shows the trial court “acted without reference to any guiding rules or principles, or acted in an arbitrary or unreasonable manner.” Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex.1994). “A prosecutor is ‘disqualified’ from a case if he is barred by law from conducting the prosecution.” Edward L. Wilkinson, Conflicts of Interest in Texas Criminal Cases, 54 Bayloe L.Rev. 171, 173-74 (2002). A trial court may not disqualify a district attorney on the basis of a conflict of interest unless that conflict rises to the level of a due-process violation. Id. at 175 (referencing Pirtle, 887 S.W.2d at 927).

Under both statute and case law, a court can and should disqualify the district attorney from representing the State in cases in which the district attorney once represented the defendant in the matter to be tried. A defendant’s due process rights are violated when an attorney represents a client and then participates in the prosecution of that client in the same matter or another matter with a substantial relationship to the first.

Id. at 176-77 (footnotes omitted). A trial court’s authority to disqualify a prosecutor comes from the court’s duty to protect the accused’s constitutional due-process rights, see, e.g., Ex parte Morgan, 616 S.W.2d 625, 626 (Tex.Crim.App.1981) (orig. proceeding), and the statute barring prosecutors from representing the State in the same matter for which he or she has been previously employed adversely, see Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005).

A party seeking to disqualify an attorney must show the existence of a prior attorney-client relationship “in which the factual matters were so related to the facts in the pending litigation that it creates a genuine threat that confidences that were revealed to the former attorney will be revealed by that attorney to its present adversary.” In re Cap Rock Elec. Coop., Inc., 35 S.W.3d 222, 230 (Tex.App.-Texarkana 2000, orig. proceeding). When seeking disqualification, “[t]he movant has the burden of producing evidence of such specific similarities capable of being recited in the disqualification order.” Id.; See also Metro. Life Ins., 881 S.W.2d at 320-21.

A trial court may not disqualify a prosecutor on the basis of a conflict of interest unless that conflict rises to the level of a due-process violation. Pirtle, 887 S.W.2d at 927. Goodman has claimed before both the trial court and this Court that his due-process rights will be violated if Young is himself permitted to prosecute the underlying criminal charge.

III. Background, Applicable Law, and Analysis of Goodman’s Issue

A. Factual and Procedural Background

The State has charged Goodman with driving while intoxicated (DWI)—subsequent offense. See Tex. Penal Code Ann. § 49.04 (Vernon 2003) (defining offense) and Tex. Penal Code Ann. § 49.09 (Vernon Supp.2006) (providing for enhanced penalties for repeat offenders). The State has alleged two misdemeanor, jurisdictional convictions: first, that Goodman was convicted of DWI in Delta County cause number 9667 on February 28, 1997; and, second, that he was convicted in Lamar County cause number 18802 on September 12, 2000. The record before us indicates Young, before becoming the elected county attorney, 1 represented Goodman in cause number 18802, one of the convictions the State now proposes to use to enhance Goodman’s potential sentence, should he be found guilty. 2 The indictment for Goodman’s current felony charge also alleges Goodman has been twice previously convicted of a felony offense, further raising the available punishment range to between twenty-five and ninety-nine years’ imprisonment, or imprisonment for life. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp.2006).

The record before us shows Young submitted a bill to the Lamar County district clerk’s office for 8.49 hours of work Young completed in cause number 18802, State v. Goodman. That bill, dated September 12, 2000 (the date of Goodman’s conviction in cause number 18802), lists five separate conferences Young had with Goodman during the course of their four-month-long attorney-client relationship. The trial court’s judgment in cause number 18802 also lists Young as Goodman’s attorney of record, and Young’s signature appears on the plea paperwork associated with the judgment in that case.

At the hearing on the motion to disqualify Young, Goodman testified he was represented by Young in one of the DWI cases now being used by the State for a jurisdictional enhancement. Goodman also testified that, during the course of that association with Young, Goodman disclosed confidential information about himself and about the facts of that case. Goodman testified that he discussed with Young the “alcohol issue.” In fact, the following exchange took place during Goodman’s testimony:

Q. [By the State] Your alcohol issues are a matter of public record.

A. [Goodman] I don’t believe that how many beers I drink a day is a public record.

Q. Did you tell that to Mr. Young?

A. Yes.

This testimony is undisputed. Additionally, Goodman told the trial court that he has not given Young permission to prosecute the current charge, nor has he waived any other rights he has concerning his preexisting attorney-client relationship with Young. Goodman expressed a fear that Young would use those confidential communications — specifically those regarding how much Goodman drank on a daily basis — against the accused during the trial of the current charges.

Young testified that he is the elected county attorney of Lamar County, but previously worked as a criminal defense attorney in private practice. Young admitted he has not received permission from Goodman to prosecute the latter. Young opined that he does not have a conflict of interest because Goodman had not made an attempt to attack the validity of any of his previous DWI convictions.

B. The Texas Disciplinary Rules of Professional Conduct Provide Guidance

As a member of the State Bar of Texas, Young is subject to the Texas Disciplinary Rules of Professional Conduct. Texas courts have often looked to these disciplinary rules to decide disqualification issues. See, e.g., In re Meador, 968 S.W.2d 346, 350 (Tex.1998); In re Works, 118 S.W.3d 906, 908-09 (Tex.App.-Texarkana 2003, orig. proceeding). While the disciplinary rules are merely guidelines for court-ordered disqualification (rather than controlling standards), these rules do provide reasonable guidance — even in cases where an attorney may not have clearly violated one of the disciplinary rules. In re EPIC Holdings, Inc., 985 S.W.2d 41, 48 (Tex.1998); Meador, 968 S.W.2d at 351; see also Gonzalez v. State, 117 S.W.3d 831, 837-38 (Tex.Crim.App.2003) (using Tex. Disciplinary R. Prof’l Conduct 3.08 as guideline); House v. State, 947 S.W.2d 251, 252-53 (Tex.Crim.App.1997) (citing Rule 3.08, cmt. 10, which states: “this rule may furnish some guidance”); Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996); Works, 118 S.W.3d at 908-09; In re Bahn, 13 S.W.3d 865, 872 (Tex.App.-Fort Worth 2000, orig. proceeding).

The Sixth Amendment to our Federal Constitution guarantees a number of rights to the accused in a criminal proceeding. Not the least of these rights is the right to counsel. U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel in all felony cases); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (right to counsel in jailable misdemeanor cases). Professor Susette M. Talarico has written, “The assistance of counsel, more than any other dimension of due process, evokes general American support for fair play and reflects the centrality of attorneys in the adversarial tradition of Common Law Countries.” Susette M. Talarico, Right to Counsel in The OxfoRd Companion to the Supreme Court of the United States 229, 230 (Kermit L. Hall ed., 2005).

“The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual,” writes Professor Sargentich of American University’s Washington College of Law. “The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behavior.” Thomas O. Sargentich, Procedural Due Process in The Oxford Companion to the Supreme Court of the United States 273, 274. But due process “is not a technical conception with a fixed content unrelated to time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Instead, the United States Supreme Court has instructed that the

identification of specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335, 96 S.Ct. 893.

Rules 1.05 and 1.09 of the Texas Rules of Disciplinary Procedure are pertinent to Young’s prior and current representation in the proceeding now before this Court. Rule 1.05 provides that, with certain exceptions not applicable here,

[A] lawyer shall not knowingly ... (2)[u]se confidential information of a client to the disadvantage of the client unless the client consents after consultation [or] (3)[u]se confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

Tex. Disciplinary R. Prof’l Conduct 1.05(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). Rule 1.09 concerns conflicts of interest:

Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client ... if the representation in reasonable probability will involve a violation of Rule 1.05; or ... if it is the same or a substantially related matter.

Tex. Disciplinary R. Prof’l Conduct 1.09(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005).

C. An Attorney May Not Prosecute a Former Client in the Same Case in Which the Attorney Represented That Client

An attorney may not represent the State when the matter being prosecuted is the same matter for which that attorney previously represented the accused. Morgan, 616 S.W.2d at 626; see also Tex. Comm. on Prof'l Ethics, Op. 538, 64 Tex. B.J. 698 (2001) (discussed further below). In such a situation, “there exists the very real danger that the district attorney would be prosecuting the defendant on the basis of fact acquired by him [or her] during the existence of his [or her] former professional relationship with the defendant. Use of such confidential knowledge would be a violation of the attorney-client relationship and would be clearly prejudicial to the defendant.” Id. (referencing Gajewski v. United States, 321 F.2d 261 (8th Cir.1963)). In Morgan, Texas’ highest criminal court found that an attorney who had formerly represented a defendant at trial (in which the defendant received a probated sentence) was prohibited from subsequently representing the State at a hearing regarding the revocation of that same defendant’s probated sentence in the case for which that attorney had represented the defendant. Morgan, 616 S.W.2d at 626. Such a conflict of interest inherently rose to the level of a due-process violation. Id.

Though Young is not representing the State in a revocation proceeding against Goodman in the same case for which he previously represented Goodman, Young did serve as Goodman’s attorney in one of the cases now being used by the State to enhance Goodman’s potential punishment to the felony level. And the degree to which Goodman abuses alcohol — information the record indicates Young learned during the scope of the prior representation — is of such an inherently similar subject matter as what will be at issue for the current DWI charge that we believe there is a real and substantial danger such information would be used to Goodman’s disadvantage at trial, especially during cross-examination of Goodman (should he testify) at guilt/innocence or punishment (where such evidence inherently concerns Goodman’s potential for rehabilitation). Morgan, therefore, provides guidance.

D. An Attorney May Also Be Barred from Adverse Representation at Other Times

In 1998, the Texas Supreme Court reviewed an original proceeding in which several defendants sought the disqualification of the plaintiff’s attorneys. EPIC Holdings, 985 S.W.2d at 43-44. The defendants alleged the plaintiffs lawsuit against them involved proceedings that were “substantially similar” to the legal services previously provided to the defendants by the now adverse attorneys. Id. The plaintiffs lawyers had previously helped draft the articles of incorporation for one of the defendants, and one of the plaintiffs claims sought to attack the validity of the work previously completed for the defendants. Id. at 50-51. Justice Hecht, writing for a 6-3 majority, agreed disqualification was appropriate:

We have 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. Such a threat exists here, when information Johnson & Gibbs lawyers obtained from George and EPIC in 1988 may be relevant in the prosecution of Anderson’s claims. An actual disclosure of confidences need not be proven; the issue is the existence of a genuine threat of disclosure because of the similarity of the matters.

Id. at 51 (footnotes omitted). Thus, the maxim we take from EPIC Holdings is that, where a subsequent matter is “substantially related,” the attorney may also be prohibited from representing a party adverse to the former client. See also Metro. Life Ins. Co., 881 S.W.2d at 320. This “substantial relationship” test is a product of common law and predates the Texas Rules of Disciplinary Conduct for attorneys. Cap Rock Elec. Coop., 35 S.W.3d at 230.

In 2001, the Texas Center for Legal Ethics and Professionalism was asked to address whether “a lawyer, who is the newly elected district attorney, [is] prohibited from prosecuting a former client in a new criminal proceeding.” Tex. Comm, on Profl Ethics, Op. 538. While opinions of the Texas Ethics Commission are advisory, rather than binding, authority, Opinion 538 directly addresses the issues ■ now before this Court and we find great logic in its reasoning. The opinion acknowledged that, under Rule 1.09, an attorney is prohibited from representing a party adverse to a former client if the matter then being litigated would be considered “substantially related” to the prior representation. Id. “The ‘substantially related’ aspect primarily involves current proceedings where a lawyer could have acquired confidential information in a previous representation that could now be used to the former client’s disadvantage or the advantage of a current client or some other person.” Id. (referencing Comment 4, Rule 1.09). The ethics opinion then noted that “our confidentiality rules are designed to encourage such free discussions with the added guarantee that confidentiality will continue even after the attorney-client relationship is terminated,” but allowing an elected district attorney to prosecute a former client ultimately “undermine[s] our legal system.” Id. (referencing Comment 1 and 8, Rule 1.05). The only way the elected prosecutor could avoid an ethical conflict would be if he or she proceeded cautiously, “ignoring any fact known by the new prosecutor about the former client as a result of the former representation.” Id. But, continued the ethics committee, this is not an adequate solution:

Although a prosecutor has the responsibility to see that justice is done and not simply be an advocate, Comment 1, Rule 3.09, the prosecutor is still obligated to act with competence, commitment and dedication on the State’s behalf. Comment 6, Rule 1.01. Adherence to the Rules places an impossible burden on an effective prosecutor and creates an almost certain probability that in the adversarial trial setting, confidentiality will be compromised. Similarly, to ■ obtain and ensure protection, the objecting former client is forced to divulge the very same confidential information he seeks to prevent from disadvantageous use, thus defeating the purpose of the rules. These conflicting obligations impose conflicting duties on both the prosecutor and the former client and thus requires [sic] prohibition of this practice, absent the former client’s consent. See Comment 7 to Rule 1.06.

Id.

The opinion also goes one step further— opining that an elected district attorney would be prohibited from participating in a Mai in which the elected district attorney used a prior conviction as enhancement or punishment evidence, regardless of whether the prior conviction is for a matter that is “substantially related” to the current proceeding. Id. As this latter situation requires no proof of a “substantial relationship” between the prior representation and the current proceedings, yet would nonetheless be prohibited, the opinion’s ultimate resolution of this corollary issue only undergirds our conclusion that the present case likewise cannot be permitted to go forward with Young representing the State as an adversary to his former client.

E. The Record Below Mandates But One Result: Young May Not Prosecute Goodman

Young, by virtue of his previous representation of Goodman, possesses confidential information about Goodman regarding “the alcohol issue,” specifically, how much alcohol Goodman consumes on an average basis. Goodman has not waived Young’s duty not to disclose the confidences revealed during that prior presentation.

There is a real, genuine, and inherent danger that the State, with Young serving as its representative, would use this confidential information in its prosecution of Goodman, especially when the prior offense is being used as a felony jurisdictional enhancement and when the underlying criminal offense is the same type of crime for which Young previously represented Goodman. If Goodman chooses to testify during guilt/innocence, Young will be free to cross-examine the accused about his pattern of alcohol use and abuse. See Tex.R. Evid. 611(b) (witness may be cross-examined about any matter relevant to any issue in the case). While this is true in all DWI prosecutions, what is unique in this case is that Young already knows the proper and truthful answers to such questions solely because he learned those answers during the scope of his pri- or representation. See Tex. Comm, on Prof 1 Ethics, Op. 538. The typical district attorney prosecuting the average DWI case would not have such an advantage. Further, the fear of being cross-examined by Young during guilt/innocence about these confidential disclosures may dissuade Goodman from otherwise testifying in his own defense during guilt/innocence. And because the majority of DWI prosecutions involve only two potential fact witnesses — the arresting police officer and the accused — Goodman might well be foreclosed (as a practical matter) from offering any evidence in his defense because the fear of being cross-examined potentially prohibits the testimony of the only other witness capable of controverting the State’s testimonial evidence.

Additionally, the gravity of Goodman’s pattern of alcohol use, misuse, and/or abuse will undoubtedly become an issue before the jury if the case reaches the punishment phase. Young, by virtue of having previously represented Goodman on an alcohol-related charge, and having discussed with him his daily alcohol consumption, will have greater insight into Goodman’s habits and character flaws than would someone who had not been a part of that necessarily intimate attorney-client relationship. Since this information may be highly probative and relevant at the instant trial, there exists a genuine threat that Young, to properly fulfill his responsibility as a zealous prosecutor, would use the confidential information to make the best case that Goodman is deserving of the strongest punishment from the judge or jury. See id. This creates an undeniable advantage for the State — an advantage that is both violative of the right of due process and avoidable. See id.

We conclude the evidence before the trial court leads to but one, inescapable conclusion: these confidences (learned by Young during his prior service as Goodman’s attorney in the most recent DWI prior) are so “substantially related” to the issues that will arise in the current prosecution that we have before us “the existence of a genuine threat of disclosure,” which necessitates Young’s disqualification. Because the trial court did not reach this determination, the trial court erred, and we must direct the lower court to render the judgment that is required by the evidence.

F. Why This Rises to a Due-Process Violation

Remembering the United States Supreme Court’s guidance from Mathews, 424 U.S. at 335, 96 S.Ct. 893, regarding how to identify due-process violations, we are led to the conclusion that this case achieves such a classification. First, Goodman’s interest in keeping confidential his attorney-client communications will be protected by prohibiting Young from prosecuting this case. Second, there is a real risk that these communications will be used to Goodman’s detriment if Young is not disqualified. There are no adequate safeguards short of Young’s disqualification that will protect this interest. And finally, the Government (as represented by the Lamar County district attorney’s office) will, at best, suffer a minimal fiscal or administrative burden due to Young’s disqualification because all that is required is the substitution of another attorney to handle Goodman’s prosecution. See Tex. Comm, on Profl Ethics, Op. 538 (discussing solutions of appointing special prosecutor under TexCode Grim. Proc. Ann. art. 2.07 (Vernon 2005), or screening the elected from other lawyers in prosecutor’s office). Thus, on balance, the factors enunciated by the Supreme Court tip the scales of justice in Goodman’s favor on the issue of whether the trial court’s failure to disqualify Young rises to the level of a due-process violation.

G. Appeal Is Neither an “Efficient” Nor Adequate Remedy

The State has argued that Goodman has two available remedies in this case: If he is convicted, and if the fact-finder makes affirmative findings regarding the jurisdictional priors, then Goodman could appeal the conviction and seek reversal based on the erroneous denial of his motion to disqualify the prosecutor. See TexCode Crim. Proc. Ann. art. 44.02 (Vernon 1979). Goodman may also file an application for writ of habeas corpus following the disposition of any appeal. See generally Tex.Code Crim. Proc. Ann. art. 11.07 (Vernon 2005). However, appeal and habeas corpus are both inadequate and inefficient remedies in this case for several reasons.

First, requiring the parties to proceed through a lengthy litigation process, just so Goodman could later obtain reversal on appeal, would be a tremendous waste of the parties’ (and the judicial system’s) financial and temporal resources. Second, if Young is convicted and sentenced for the enhanced first-degree felony, or if he receives any sentence greater than nine years’ imprisonment, he will be ineligible for release on bond pending appeal. See Tex.Code Crim. Proc. Ann. art. 44.04(b) (Vernon Supp.2006). . The threat of incarceration pending an appeal on the denial of the motion to quash might further impact Goodman’s trial strategy. Cf. Kniatt v. State, 157 S.W.3d 83, 85-87 (Tex.App.Waco 2005, no pet.) (discussion that pre trial incarceration resulting from improper revocation of bond may cause involuntary guilty plea), rev’d, PD-0323-05, 206 S.W.3d 657 (Tex.Crim.App., 2006) (finding revocation of bond improper, but guilty plea freely given). Third, Goodman is not entitled to bond pending the determination of a post-conviction application for writ of habeas corpus. See generally Tex.Code Crim. Proc. Ann. art. 11.07, § 5 (applicant entitled to release only if Texas Court of Criminal Appeals grants such relief in its disposition on application’s merits). Fourth, Goodman has no right to counsel during a habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Individually and collectively, these reasons dissuade us from concluding the State’s proposed alternative remedies are adequate.

IV. State ex rel. Eidson v. Edwards

Finally, the State contends a trial court is without authority to disqualify a prosecutor due to his or her status as an independent member of the judicial branch. In support of this contention, the State cites State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex.Crim.App.1990). In Eid-son, a member of the Taylor County criminal district attorney’s staff had previously represented James Edward Clayton in three felony cases. Id. at 3. The court then reasoned that (1) because the offices of county and district attorneys are constitutionally protected under Tex. Const, art. V, § 21; (2) because the effect of the trial court’s disqualification order was to remove the entire prosecutor’s office without conducting a removal trial, see Tex. Local Gov’t Code Ann. § 87.013 (Vernon 1999); and (3) because there was no difference between removing a prosecutor from a case and removing a prosecutor from office, then the tidal court erred in ordering the disqualification of the Taylor County criminal district attorney’s office in its prosecution of Clayton. Eidson, 793 S.W.2d at 4-6.

We believe the applicability of Eidson has since been undermined. In Pirtle, 887 S.W.2d at 926, this State’s highest criminal court enunciated a standard that mandamus relief is available when the relator can establish that he or she has no other adequate legal remedy and that the facts of the case show he or she has a clear legal right to the remedy sought. A trial court may disqualify a State’s attorney on the basis of a conflict of interest that rises to a due-process violation. Id. at 927. In Hill, the court ultimately concluded that the relator had failed to make such a showing. However, the concurring and dissenting opinions further clarify that the court was debating the proper standards for the availability of mandamus relief, under the assumption that ultimately (on a proper showing) relief could be granted. See, e.g., id. at 933 (Meyers, J., concurring) (“But it is clear from the text of this opinion that the plurality judges do not mean Respondent would really have been without lawful authority to bar the AGs from serving as prosecutors had the evidence shown a conflict of interest rising to the level of a due process violation.... ”). Accordingly, we believe the sweeping language employed in Eidson is no longer binding precedent in light of the court’s more recent decisions.

V. A Final Note

Our decision today should not be read as an endorsement of the idea that a district or county attorney is forever barred from prosecuting his or her former clients. That is not the law, nor should it be. Instead, a disqualification should occur only when (1) the underlying proceeding is so substantially related to real and actual disclosures (as opposed to theoretical discussions) that occurred during the previous attorney-client relationship, and (2)there exists a genuine threat that disclosure of these confidential communications will either materially advance the State’s ease or drastically undermine the accused’s ability to mount a defense — such that this advancement or undermining rises to the level of a due-process violation. We believe such is the case here, but only because of the discrete facts in the record before us.

There may be other times, even cases involving subsequent DWI charges, where there is no undisputed evidence of actual confidential communications that would materially impact either the State’s case or the accused’s ability to mount a defense. In those situations, disqualifications should neither be sought nor granted. Similarly, merely because a prosecutor once served as an accused’s attorney for a traffic ticket does not now automatically prohibit that attorney from prosecuting the accused for murder; much more evidence must be apparent in the record that somehow demonstrates that the denial of a disqualification motion will result in a due-process violation.

VI. Conclusion

For the reasons given above, we cannot say either appeal or habeas provides Goodman with an adequate or efficient remedy. Goodman has shown Young possesses confidential information as a result of the latter’s prior representation of Goodman for a DWI case now being used by the State to jurisdictionally enhance Goodman’s current charge. The former and the current charges are substantially related, and there is a genuine threat that the confidential information may be used against Goodman. To permit Young to continue to represent the State would violate Goodman’s due-process rights. Because the law and facts available in this case lead to that inescapable conclusion, and because the trial court did not so hold, we find the trial court erred in denying Goodman’s petition for writ of mandamus. We, therefore, conditionally grant Goodman’s petition. The writ will issue only if the trial court does not withdraw its previous order of denial and enter an order disqualifying Young in accordance with the opinion of this Court within ten days of the issuance of our opinion.

Notes

1

. We take judicial notice of the fact that Young was elected Lamar County’s county attorney, also performing the duties of a district attorney, in 2004. See Tex.R. Evid. 201(b), (f).

2

. The charge in cause number 18802 was originally categorized as a third-degree felony. Goodman ultimately pled guilty pursuant to a negotiated plea agreement and received punishment at the misdemeanor level.

Case Details

Case Name: In Re Goodman

Court Name: Court of Appeals of Texas

Date Published: Jan 11, 2007

Citation: 210 S.W.3d 805

Docket Number: 06-06-00102-CV

Court Abbreviation: Tex. App.