*1 lawyers from (a) exempt the extent that: a law- no reason and to when a impose or to on of section rely operation the non-client to ... invites yer negligent misrep on a requirement of oth- opinion provision privity or lawyer’s section of action under services, non-client so cause resentation legal er not, of the (b) holding, disapprove we relies, un- In so the non-client re Texas cases law, following too remote from applicable language der tort bring nonclient lawyer protection. permit to be entitled fusing attorney section 552 claim (ThiRd) of the Law Govern- Restatement Munici First privity: on a lack based 73(2) (Tentative 8, § Lawyers Draft Potts, Blankenship, Leasing Corp. pal 1997). words, cannot In a nonclient other Stewart, Aikman, Hagin & statement, as an attorney’s on an such rely 1983, 410, writ ref'd letter, invites unless the opinion — Dallas n.r.e.), Manning, 613 S.W.2d Bell v. that reliance. writ (Tex.Civ.App. Tyler — 73(2) com- accommodates the Subsection n.r.e.). ref'd jurisdiction appropriate mon law of the lawyer may McCamish, determining when whether Mar- granted trial court inviting a nonclient for summary Ap- be liable to judgment tin’s motion (e) identi- nonclient’s reliance. Comment claim negligent misrepresentation pling’s jurisdic- that, fies section 552 as one of several privity, absent ground the sole lawyer’s limiting approaches McCamish, duty Ap- tional Martin owed no Additionally, McCamish, duty in a situation. we hold that pling. (e) incorporates require- comment diity to irre- may Appling, Martin owe into the subsection ments of section 552 judgment affirm the privity, we spective 73(2) analysis. section duty Citing remanding comment-(e) that explains [subsec- “[t]he the trial court. cause to 73(2) ordinarily tion cause of action is in ] negligent
substance identical to a claim for participate not did Justice GONZALES subject to rules misrepresentation and is in the decision. concerning
such as of material- proof those Thus,
ity and reliance.” the Restatement Lawyers Governing
(Third) the Law
§ application 73 validates the section lawyers, specifically in circumstances in attorney-client
which there is no relation- ship. WOODARD, Presiding Hon. limits
Neither section 552 nor Sloane Relator, County, El Paso the class of defendants under potential addition, nonlawyers. section In theory negligent misrepresentation APPEALS, OF COURT THE EIGHTH require privity and section 552 itself do not Respondent. behind the implicate policy concerns Finally, rule. the Restatement privity 73,133. Lawyers Governing (Third) the Law Appeals of of Criminal 73(2), § addresses situa specifically attorney invites reliance tions in which an nonclient, only recognizes the tort by a 21, 1998. Aug. defined misrepresentation, as negligent incorporates but also by section into its anal of section 552
limitations therefore, We, that there is conclude
ysis.
796
OPINION PER CURIAM.
This is an original action a writ Eighth mandamus Appeals. judge Jerry State district Wood ard appeals clearly maintains by conditionally abused its discretion him in a pending capital prosecution. In re Castillo, 08-97-00479-CR, 1998 WL 197656, opinion vacated and withdrawn on 21,1998, Paso, August April — El 28, 1998). Richard by Castillo has been indicted El County Paso grand jury for the offense of capital Judge murder. Woodard has assigned been preside over the trial. Castillo has filed numerous motions seek- ing the recusal of Woodard. 22, 1997, On October Judge Woodard denied Castillo’s fourth amended motion to He did not forward matter to the presiding judge of the Sixth Adminis- trative Judicial District. See Tex.R.Civ.P. 18a(d). appeals conditionally grant- It found duty by
Woodard violated a ministerial failing to refer the recusal matter and Castillo had no which to complain of the violation. Castil- lo, 08-97-00479-CR,1998 WL 197656 at *5.
It is a clear abuse of discretion for a court grant relief to an aggrieved party with ade quate remedy at law. See Alvarez v. Eighth Court Appeals, S.W.2d (Tex.Cr.App.1998) and Ater and Lewis Barajas, Richard Judge, 8th Court of Eighth Paso, Appeals, El (Tex.Cr.App.1991). A court of appeals Woodard, should not mandamus relief to the Court, Relator, Paso, Paul, El Matthew complaining party on a recusal motion un Austin, State’s Attorney, for State. party der Tex.R.Civ.P. because the by
an adequate remedy way of an judgment. from the final In re judi- judge of the Company, Resources Union Pacific to hear (Tex.1998) assign judge cial district S.W.2d 427 provi- That [Emphasis added.] motion.” cause the In the instant no discretion— sion leaves appeals clearly abused its discretion he either recuse himself shall *3 against Judge granting relief judge to assign to presiding judge the is Woodard. In the event Castillo convict case, relator did hear the In this motion. ed and he will have an appeals, adequate motion to not do so with to the last respect remedy by way point of a of error recuse, himself denied but rather relator of appeal complaining Woodard’s the matter forwarding the motion without action on the fourth amended motion to direct judge the which is in presiding to contravention of Rule 18a. is entitled to relief Woodard the defendant, if the This Court states that conditionally which he seeks. We have an he is convicted and will the writ of mandamus and direct court of point law via a adequate remedy at appeals to vacate and withdraw its opinion appeal of relator’s complaining error relief. The granting mandamus writ of action on the to recuse. Such last motion this Court will mandamus from issue if the “remedy” a future does not seem all court appeals comply fails to with adequate to me. a defendant Requiring Court’s directive. mo to trial his recusal go having without Rule upon tion ruled in with compliance HOLLAND, JJ., BAIRD and unfair, is as inefficient patently as well participating. Going of judicial and wasteful resources. OVERSTREET, Judge, dissenting. convicted, being being as The appeals conditionally grant- prereq sessed a death or life sentence as a relator, complaining order- uisite to about and ing him to either recuse himself the the get ruling from on a motion to recuse trial underlying capital proceeding, or in Rule 18a is hard judge compliance with alternative, immediately request ly adequate In some situa procedure. the presiding judge tions, process simply the appellate normal district to the pending remedy. hear motion to re- not provide does cuse. Relator claims that the court State ex rel. Holmes v. Court of appeals its discretion in doing (Tex.Cr.App.1994). abused so. 885 S.W.2d This agrees and directs the exists remedy court Sometimes a at law that uncertain, tedious, to vacate and withdraw opinion may its so nevertheless be burdensome, inconvenient, slow, inappro I decision, agree appeals’ with the court of inad as to be deemed priate, ineffective Flack, dissent to this Court’s directive the Smith v. 728 S.W.2d equate. appeals. As in Steames (Tex.Cr.App.1987). Clinton, (Tex.Cr.App. clearly Relator violated ministerial 1989), erroneously judge where trial the either recuse by failing to himself or coun removed the appointed defendant’s refer matter to the the recusal sel, simply inap judge per of the administrative district uncertain, slow, It is too propriate. 18a, applies Tex.R.Civ.Pro. to crimi- “remedy” ineffective as an after-the-fact State, nal cases. Arnold under already when the trial has concluded 543, 544 ex- (Tex.Cr.App.1993). Rule 18a judge tainted supervision of a timely plicitly upon filing states that himself denies. a motion recuse that he motion, proper any “Prior case, response our appeals’ further proceedings that the dis- himself or June indicates shall either recuse order trict attorney’s expressly office in writing
declined to join relator’s motion for re-
hearing, join and refused to relator’s re-
quest for mandamus relief from this Court. response
Its also notes that both dis-
trict attorney and the defendant “have joint
filed a motion underly- to dismiss the prosecution.” criminal Thus the dis-
trict seems recognize pro-
priety of the court of appeals’ decision
ordering 18a, relator to comply with Rule
and the inadequacy requiring a full- conviction,
blown and sentence to
complain about noncompliance with such
Rule and to seek enforcement thereof.
Though certainly sympathize with rela- exasperation
tor’s with the defendant’s fil- motions,
ing multiple Rule 18a with, complied exasperated
must still be
not. the court of appeals proper- Because
ly concluded that relator violated a minis-
terial defendant no ade-
quate complain of such
violation, relator’s motion de- should be
nied. majority this Court relief,
grants rather than I respect- denies
fully dissent. SIMPSON, Appellant,
Jesse Britton
The STATE of Texas.
No. 1277-97. Appeals Criminal
Sept. Withrow, Dallas,
Blake