IN RE: DAVID BURROWS (2017)

MEMORANDUM OPINION

By a petition for writ of mandamus, David Burrows asks that we direct the Longview-based trial court to remove Jennifer Kroscher as the previously agreed-to amicus attorney ¹ in his divorce suit or, in the alternative, to require Kroscher to be questioned regarding her relationship with Myla Mayberry, the attorney for Lyndsi Arnold. Burrows claims that Kroscher has a disqualifying conflict of interest because of social and professional contacts she has had with Mayberry.² Because we identify nothing requiring the trial court to take the requested actions, we deny the requested relief.

To be entitled to mandamus relief, the relator must show (1) that he or she has no adequate remedy at law and (2) that the action he or she seeks to compel is ministerial, not one involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). The relator is obligated to provide this Court with a record sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding); see TEX. R. APP. P. 52.3. Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act. In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig. proceeding); see also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding) (“Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling.”).

A trial court “may appoint” an amicus attorney “[i]n a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child ․” TEX. FAM. CODE ANN. § 107.021(a)(1). Statutes using the verb “may” usually describe a discretionary act; versus statutes using “shall,” which generally connote mandatory action. The Code Construction Act confirms that truth:

The following constructions apply [to Codes subject to this Act] unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:

(1) “May” creates discretionary authority or grants permission or a power.

(2) “Shall” imposes a duty. ․

TEX. GOV'T CODE ANN. § 311.016 (West 2013). Since there is no indication from Section 107.021's context that a different construction was intended, we treat its use of the verb “may” as providing the trial court with discretion whether to appoint an amicus attorney. Indeed, Section 107.021 is titled “Discretionary Appointments.”

Because the trial court has discretion concerning whether to appoint an amicus attorney, it follows that such discretion also applies regarding whether to remove that amicus, absent demonstration of some situation which would create a ministerial duty to remove that amicus attorney. We find no such ministerial duty.

Burrows anchors his argument in an attorney disciplinary rule that forbids representation based on various types of conflicts of interest, including representation that “reasonably appears to be or become adversely limited ․ by the lawyer's or law firm's own interests.” See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.06(b)(2), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013). On its face, Rule 1.06 does not entail the situation as alleged here by Burrows. Burrows' counsel conceded as much when the court asked, “What is the conflict?”

Burrows testified that attorneys Kroscher and Mayberry had traveled together, had once shared a case, and even shared the fee in that joint case. There was evidence that Mayberry had thrown a baby shower for Kroscher and that Mayberry was godmother to Kroscher's child. These facts, argued Burrows, created an untenable conflict of interest where Kroscher would be predisposed to argue in favor of Mayberry's client, Arnold. The trial court could have found that Burrows' testimony alone did not establish a disqualifying conflict of interest facing Kroscher.

Burrows argues that statements made to the trial court by Kroscher and Mayberry were some evidence of the attorneys' relationship. We agree. A trial court may consider unsworn statements of counsel, in this circumstance, as some evidence where no objection is lodged. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). In closing arguments, Kroscher told the trial court that Kroscher's husband was Catholic and that appointment of a godmother was a Catholic tradition. However, she said that there was no designation of Mayberry with any legal duties in the Kroschers' wills and that Kroscher has a sister who is also named as a godmother. Kroscher added that the only significance she attaches to Mayberry as godmother was the hope that Mayberry would “continue to be a positive influence” in the child's life.

Mayberry said she and Kroscher had shared one case “that was settled two years ago,” but made no statement regarding how the fee from that case was handled. Mayberry represented to the court that baby showers had been thrown for Kroscher by other persons, including the wife of Burrows' first attorney, and not by Mayberry. Mayberry also indicated that Kroscher and Mayberry had traveled together one time and that joining them on that trip were another local attorney and that attorney's wife. She then listed other local attorneys with whom she had travelled.

“Mandamus relief requires existence of a legal duty to perform a nondiscretionary act, a demand for performance of that act, and a refusal to so act.” Blakeney, 254 S.W.3d at 661 (citing Foreman v. Jarrett, 796 S.W.2d 316, 317 (Tex. App.—Austin 1990, orig. proceeding) (per curiam)). We can find nothing in the record that would establish a conflict of interest that would require Kroscher's removal as amicus attorney. No authority was presented at trial or in this petition for mandamus relief showing that Rule 3.08 precludes Kroscher's serving as amicus in this situation. The trial court was within its discretion, based on the record before it, to deny Burrows' request to remove Kroscher as amicus attorney. See Tucker v. Thomas, 405 S.W.3d 694, 715 (Tex. App.—Houston [14th Dist.] 2011) (en banc) (Jamison, J., concurring), rev'd in part, 419 S.W.3d 292 (Tex. 2013) (“trial court should be given broad discretion in making ․ determination” whether to appoint amicus attorney under Section 107.021) (limited reversal based on attorney fees).

Because Burrows failed to show his entitlement to mandamus relief, we deny his petition.³

FOOTNOTES

1.   By a Rule 11 agreement between Burrows and his wife, Lyndsi Arnold, Kroscher was appointed amicus attorney to assist the trial court in establishing the best interests of the three-year-old child of the marriage. See TEX. FAM. CODE ANN. §§ 107.001–.202 (West 2014 & West Supp. 2016); In re Bradshaw, 273 S.W.3d 851, 860 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); In re Baby Boy R., 191 S.W.3d 916, 922 n.2 (Tex. App.—Dallas 2006, pet. denied); see also In re S.A.G., 403 S.W.3d 907 (Tex. App.—Texarkana 2013, pet. denied).

2.   The divorce action was filed in October 2016. On December 7, after a change of attorneys, Burrows filed a motion to remove Kroscher, alleging a disqualifying conflict of interest. All four attorneys—Burrows' prior and current attorneys, along with Mayberry and Kroscher—have Longview-based practices. Part of the arguments before the trial court referenced the relatively small family bar in that community.

3.   As an alternative ground for relief, Burrows asks that we remand the case to the trial court so Burrows can question Kroscher about her relationship with Mayberry. In a further effort to establish a conflict of interest in the relationship between attorneys Kroscher and Mayberry, Burrows' attorney had called Kroscher to testify at the hearing on the motion to remove Kroscher as amicus. Kroscher resisted testifying by asserting a statutory right not to testify except in limited circumstances. In resisting giving her testimony, Kroscher invoked Section 107.005 of the Texas Family Code, which addresses the amicus' duties to represent the child's best interest and assisting the trial court with that matter. It appears, however, that the applicable provision is Section 107.007, which precludes an amicus from testifying “in accordance with rule 3.08 of the Texas Rules of Disciplinary Procedure.” See TEX. FAM. CODE ANN. §§ 107.005, 107.007. Burrows argued that the dispute at bar did not involve the amicus' duty toward the child, but to the alleged conflict motivating his motion to remove Kroscher. “I think that's an exception to that rule,” counsel for Burrows argued to the trial court. The court was not persuaded and asked for authority. When counsel conceded that she had none, the trial court explained that its review of Rule 3.08 did not suggest its applicability to the current situation, because Kroscher represented, not a client, but the child's best interests. See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 3.08, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013). The court sustained Kroscher's objection, and she was not compelled to testify. Burrows made no effort to make a record of what he thought Kroscher would say on the stand, or how such testimony would further Burrows' claim of a conflict on Kroscher's part. Burrows did not attempt to call Mayberry to the stand. We can find nothing in the record establishing the trial court precluded Burrows from making an adequate record to establish either a mandatory duty on the court's part or to warrant mandamus relief regarding the lack of testimony from Kroscher.

Josh R. Morriss, III Chief Justice