In re Meza

• Decision Date: 18 November 2020
• Docket Number: NO. WR-90,325-01,WR-90,325-01
• Citation: 611 S.W.3d 383
• Parties: IN RE Honorable Velia MEZA, Relator
• Court: Texas Court of Criminal Appeals

611 S.W.3d 383

IN RE Honorable Velia MEZA, Relator

NO. WR-90,325-01

Court of Criminal Appeals of Texas.

Delivered: November 18, 2020

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 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 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 Giovenco 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 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, 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

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 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 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...