James Teal, Relator v. Honorable Billy Lee Stellbauer, Judge, County Court, Robertson County, Texas, Respondent--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-94-184-CR

JAMES TEAL,

Relator

v.

HONORABLE BILLY LEE STELLBAUER,

JUDGE, COUNTY COURT, ROBERTSON

COUNTY, TEXAS,

Respondent

Original Proceeding

O P I N I O N

In this original proceeding, Teal seeks a writ of mandamus directing the trial court to suppress the testimony of V. Bryant Spence in the criminal proceedings against Teal for conflict of interest.

Teal is a city council member for the City of Hearne. During Teal's term, Mr. and Mrs. George Rattler sought a variance from the local zoning ordinance to construct a funeral home on property zoned for residential use. Before voting on the variance request, Teal consulted Spence, the city attorney, to seek advice concerning whether he should participate in the vote on the variance. Teal later participated, voting against the variance, and it failed. The Rattlers filed a criminal complaint against Teal, and he was indicted for violating section 171.004 of the Texas Government Code. // The indictment alleged:

that JAMES TEAL, hereinafter styled defendant, on or about the 12TH day of July A.D. 1993 and before the presentment of this indictment, in the County and State aforesaid, did then and there as a local public official to wit: A City Councilman for the City of Hearne, knowingly participate in a vote or decision on a matter involving a business entity in which the said James Teal had a substantial interest, to wit: the Tyler Funeral Home, by virtue of his employment with the said Tyler Funeral Home, by voting against the granting of a zoning variance request made by George Rattler to locate a funeral home in a local retail zone as established by the zoning ordinances of the City of Hearne, which would be in business competition against the said Tyler Funeral Home, where it was reasonably foreseeable that such action on the matter would confer an economic benefit on the business entity to wit: the Tyler Funeral Home.

Teal pleaded not guilty to the charged offense. In response to Teal's discovery motions, the State listed Spence among the potential witnesses in the case.

Teal filed a motion to suppress Spence's testimony arguing that, as the attorney for the City of Hearne and the city council, any testimony by Spence pertaining to the legal advice given to Teal was privileged pursuant to Rule 503 of the Texas Rules of Criminal Evidence. // Teal further argued that any communication with Spence was in the course of an attorney-client relationship and was not intended to be disclosed to third parties, and that such legal services were not sought to aid any person in the commission of a crime.

On April 19, 1994, the trial court held a hearing on Teal's motion to suppress. Teal's defense counsel called Spence to testify only "for the purpose of this Motion to Suppress." Spence testified at the hearing that in his capacity as city attorney, he not only represents the city, but occasionally gives legal advice to the city council. Spence testified that on two occasions he and Teal talked about the George Rattler Funeral Home zoning variance request which was before the city council.

The first conversation also involved Thomas Mathews, the Mayor of Hearne. Spence testified that Mathews and Teal were sitting at the table in the council chambers talking about whether Teal had a conflict of interest on the variance request when one of them asked him for his advice. According to Spence, both Mathews and Teal, as members of the city council, were his clients. Spence also testified that there was no doubt in his mind that he was acting as the attorney for the city council when he gave Mathews and Teal legal advice regarding the matter. Furthermore, Teal testified that the conversation was not a public conversation and that he did not believe anyone else could hear them. When asked by Teal's defense counsel what Spence's advice to Mathews and Teal was, Spence replied:

This was a novel issue to me. This was the first time it had ever come up and I thought about it for a minute, you know, I didn't know offhand if Mr. Teal worked for the other funeral home and then it dawned on me that he did and that it might be a problem, but my advice to him was I don't know if a conflict exists or not, but it sure doesn't look good for him to participate in the vote.

Spence also testified that Teal came to his office one morning and said, "Mr. Spence, I don't believe I have a problem." According to Spence, he invited Teal into his office, and they discussed the potential conflict of interest issue again. They examined the conflict of interest statute element by element. According to Spence, after going through the statute, Teal concluded, "I don't believe I've got a conflict," and Spence replied, "Mr. Teal, it may not convict you, but they sure can cause you a lot of heartache." Spence again testified that he was advising Teal in his capacity as a member of the city council.

On cross-examination, Spence testified that he told Teal the only potential problem he saw was that Teal may have received more than ten percent of his income from the Tyler Funeral Home. // Adding the figures up in his mind Teal concluded that he didn't think he had a problem, so Spence told Teal to do what he thought he needed to do.

The State argued that the communication was not privileged because the advice was sought to aid Teal to commit a crime. However, Spence testified that Teal was not attempting to circumvent the statute or to further a crime or fraud, but that he was on a "fact-finding mission" to determine whether he had a conflict of interest with the variance request.

After hearing the evidence, the trial court denied Teal's motion to suppress and ruled that Spence would be allowed to testify as a witness for the State. Teal now seeks a writ of mandamus to prevent information protected by the attorney-client privilege from being introduced in the criminal proceedings against him. To be entitled to the extraordinary relief of mandamus, the relator must establish two essential requirements: (1) that the act sought to be compelled is ministerial as opposed to discretionary and (2) no other adequate remedy at law is available. //

An act is ministerial "when the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment." // At the hearing on the motion to suppress, Teal established that his conversations with the city attorney were privileged by Spence's uncontroverted testimony that he was acting as Teal's attorney when he provided confidential legal services on the two occasions that they discussed Teal's potential conflict of interest. // Furthermore, the record reflects no evidence supporting the exception argued by the State that the legal services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. // Finally, we do not regard Spence's testimony at the hearing, necessary to defeat the State's argument that his advice was sought in furtherance of a fraud, as constituting a waiver of the privilege. // Finding that Teal was clearly entitled to the privilege, we turn to the second requirement of mandamus relief the lack of an adequate remedy by appeal.

The Texas Supreme Court has recently held that a party has no adequate remedy by appeal when the appellate court would not be able to cure the trial court's discovery error in ordering the disclosure of privileged information. // Teal is not attempting to prevent discovery of the contents of his conversations with Spence, but is, instead, attempting to suppress Spence's testimony at trial the admission of which he could complain of on direct appeal. According to the Supreme Court, an appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. // However, the interpretation of "adequate remedy by appeal" is "more relaxed" in criminal cases than in civil cases. // According to the Court of Criminal Appeals, before the appellate remedy may be deemed adequate, it must be equally convenient, beneficial, and effective as the proceeding by mandamus. // "In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate." // In Stearnes v. Clinton, the Court of Criminal Appeals held that the remedy of appeal was simply inadequate: "The utilization of the appellate process in this situation to correct this particular ill would be too burdensome and would only aggravate the harm and most likely would result in a new trial compelling relator to again endure a trip through the system, creating in turn needless additional cost to the taxpayers of this state." // Under the Court of Criminal Appeals' interpretation of "adequate remedy by appeal," we hold that mandamus is proper to compel the exclusion of Spence's testimony protected by the attorney-client privilege.

Accordingly, we conditionally grant Teal's petition for writ of mandamus. Unless the trial court grants Teal's motion to suppress before trial, the writ shall issue.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Writ granted

Opinion delivered and filed July 13, 1994

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