Conflicts of interest continue to be a common source of claims against attorneys for legal malpractice and breach of fiduciary duty. These claims are difficult to successfully defend, especially to a jury of lay people. Although all lawyers are charged with knowing the rules, many fail to properly address conflicts when they arise, as well as fail to understand how and when a representation can continue in light of a conflict or potential conflict.
Through hypotheticals and discussion, this article addresses the conflict of interest rules, common circumstances that give rise to conflicts and whether the conflict may be resolved between the lawyer and client(s), including through informed consent.
Opposing Parties to the Same Litigation – Texas Disciplinary Rule of Professional Conduct 1.06(a)
Rule 1.06(a) forbids a lawyer from representing “opposing parties to the same litigation.” On its face, the Rule appears to mean “parties on opposite sides of the ‘v’ in the litigation.” But Comment 2 explains that 1.06(a) is broader, because “opposing parties” includes “a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party.” In the below fact pattern, from an actual case out of the Waco Court of Appeals,[1] the court recently concluded that parties may be considered “opposed” even though they both had the same litigation strategy and liability theory.
Some Students were driving home from college. They stopped at Travel Stop, and then, as they were leaving Travel Stop’s parking lot, Package Truck blocked their view of oncoming traffic by making an improper stop. Students pulled out and were struck by Tractor Trailer. Students initially sued Tractor Trailer and Package Truck, but then nonsuited Package Truck, added Travel Stop, and settled with Tractor Trailer. Shortly thereafter, Travel Stop added Package Truck back into the litigation as a third-party contribution defendant, alleging that Package Truck was liable to Students if Travel Stop was liable. Students then noticed the appearance of Package Truck’s Lawyer, Andy Attorney, as their new lawyer, such that Students (plaintiffs) and Package Truck (third party defendant) were all represented by Andy. Students and Package Truck all consented to Andy’s representation and all blamed Travel Stop for the injuries. Travel Stop, however, moved to disqualify Andy on grounds that he was representing opposing parties under Rule 1.06(a). Travel Stop argued that a verdict of no liability would be adverse to Students but favorable to Package Truck, while a verdict that Travel Stop was liable would be the opposite – favorable to Students but unfavorable to Package Truck as a contribution defendant.
The court agreed. Under Rule 1.06(a), Andy was disqualified because of the possibility that a judgment favoring one client would be unfavorable to the other, even though Students and Package Truck both had the same liability theory and litigation strategy.
But can the representation continue despite the conflict—can the clients provide consent to the representation? Rule 1.06(a) does not appear to authorize waiver by consent, and at least one intermediate court of appeals has concluded that a conflict under Rule 1.06(a) cannot be consented to by the client.[2]
Substantially Related Matter Directly Adverse to Another Client – Texas Disciplinary Rule of Professional Conduct 1.06(b)(1)
A lawyer may not represent a new client in a substantially related matter where the new client’s interests are “materially and directly adverse” to a lawyer’s existing client. Consider the following fact pattern:
Attorney Lopez is a real estate lawyer, who has represented Casa LLC (“Casa”) for many years on development projects, including advising on zoning issues and securing financing for a planned 200-unit residential subdivision just outside the city.
A new prospective client, Ms. Santos, approaches Lopez for representation. Santos recently sold land adjacent to Casa’s planned subdivision to a construction company, Build, Inc. (“Build”). Santos alleges that Build breached their purchase contract by failing to make full payment and by beginning site excavation before closing. She wants to pursue litigation against Build to enforce the contract and recover damages.
At first, this looks like a straightforward breach-of-contract case between Santos and Build. However, Lopez quickly realizes:
Lopez’s other client, Casa, has partnered with Build on the financing, permitting, and planning of its subdivision project. If Santos succeeds in her lawsuit against Build, the financial and logistical disruption will cause Build to miss deadlines and default on its obligations to Casa.
Casa is currently Lopez’s ongoing client. Her responsibilities to Casa are therefore in direct tension with Santos’s request for representation. Even though Casa isn’t in the courtroom, Lopez understands that helping Santos may effectively undermine Casa’s project — which Casa hired her to support.
Can Lopez represent Santos considering her representation of Casa?
The question here is whether the Santos v. Build matter is substantially related to Lopez’s representation of Casa, and if so, are Santos’s interests materially and directly adverse to Casa?
“Substantially related” is not defined in Rule 1.06 or its comments. But it is defined in the comments to Rule 1.09 as matters that “involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information obtained in the prior representation would materially advance the client’s position in the subsequent matter.” See, Comment 3 to Rule 1.09. Here, the transaction in which Lopez represents Casa is the same as the one at the heart of the Santos v. Builder dispute, so they are substantially related.
Comment 6 to Rule 1.06 defines “directly adverse” as the situation where the “lawyer’s independent judgment on behalf of a client or the lawyer’s ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer’s representation of, or responsibilities to, the other client” or when “the lawyer reasonably appears to be called upon to espouse adverse positions in the same matter or a related matter.”
Under these facts, Lopez’s ongoing representation of Casa and new representation of Santos are directly adverse.
However, under Rule 1.06(b) and (c), Casa and Santos can consent to the representation despite the conflict. To properly represent both parties, Lopez will need to (1) reasonably believe the representation of both will not be materially affected; (2) fully disclose to Casa and Santos “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any”; and (3) obtain Casa’s and Santos’s consent to the representation after the full disclosure (friendly reminder, the disclosure itself may require each client’s consent prior to being made). While disclosure and consent are not required by Rule 1.06 to be in writing, it is highly recommended that everything be documented in writing by the lawyer and signed by all parties giving consent. See, also, Comment 8 to Rule 1.06.
Representation Adversely Limited by Lawyer’s Responsibilities to Others – Texas Disciplinary Rule of Professional Conduct 1.06(b)(2)
A lawyer may also not take on a new client representation when the representation reasonably appears to be or becomes adversely limited by the lawyer’s responsibilities to another client or third party or by the lawyer’s or firm’s own interests. Rule 1.06(b)(2) also applies when representing co-parties in litigation.
Using the same fact patten above, Lopez needs to determine whether his representation of Santos would be adversely limited by his responsibilities to Casa – even if Lopez’s ongoing representation of Casa and new representation of Santos are not substantially related and are not directly adverse.
Under Rule 1.06(b)(2), a conflict arises when a lawyer’s own interests or responsibilities to others may prohibit the lawyer from considering, recommending, or implementing a solution for her client. Comment 4 to Rule 1.06 states, “The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.” Further, lawyers should consider “whether there is potential for adverse effect” by looking at factors such as “the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise.” See Comment 13 to Rule 1.06. “The question is often one of proximity and degree.” Id.
If Lopez’s ongoing efforts supporting Casa’s project would cause her to limit or circumscribe her advice and counsel for Santos, restrain from acting for Santos’s benefit, limit or circumscribe her advice to Casa, or restrain from acting for Casa’s benefit, she should be mindful of the potential conflict from taking on Santos as a new client.
Lopez may represent both if she (1) reasonably believes the representation of both will not be materially affected; (2) fully discloses to Casa and Santos “the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any”; and (3) obtains Casa’s and Santos’s consent to the representation after the full disclosure (friendly reminder, the disclosure itself may require each client’s consent prior to being made). While disclosure and consent are not required by Rule 1.06 to be in writing, it is highly recommended that everything be documented in writing by the lawyer and signed by all parties giving consent. See, also, Comment 8 to Rule 1.06.
Multiple Party Representation that Turns into a Dispute Among the Parties – Texas Disciplinary Rule of Professional Conduct 1.06(d)
Rule 1.06(d) addresses conflicts arising from multi-party representation. The following fact pattern illustrates the issue:
Attorney Morgan is an estate planning lawyer. Two siblings, Alex and Jordan, jointly hire Morgan to assist them in probating their late father’s will. Both siblings initially agree they want the process to go smoothly and that they will share responsibilities for administering the estate.
Morgan represents them both in the probate matter, helps file the necessary documents with the court, and prepares the estate’s inventory and distribution plan, which contemplates an equal division of assets. At the time, Morgan clearly explained the nature of her joint representation and both siblings consented in accordance with Rule 1.06(c).
Months after the estate is settled, however, Alex and Jordan fall into a heated dispute. Alex discovers that Jordan allegedly withdrew funds from one of their father’s accounts before the estate was finalized, and now Alex claims Jordan should reimburse the estate (and ultimately Alex). Alex approaches Morgan and asks her to represent him in a lawsuit against Jordan for breach of fiduciary duty and conversion of estate funds.
Because Morgan represented Alex and Jordan in the probate, and this issue arises from that matter, Morgan is conflicted and can only represent Alex against Jordan if both Alex and Jordan give their consent (note: the consent given for the initial dual-representation in probate is not sufficient for Morgan to represent Alex against Jordan).
Lawyer as Intermediary – Texas Disciplinary Rule of Professional Conduct 1.07
Rule 1.07 authorizes a lawyer to act as an intermediary between clients when certain considerations are met. The following fact pattern provides the basis for the discussion below:
Attorney Smith is a family law lawyer. Two adult siblings, Elena and Marco, come to her for help dividing their late mother’s property. Their mother passed away without a will, and under Texas intestacy law, both siblings inherit equally. However, they disagree about how to divide the two major assets: the family home and a piece of undeveloped land.
Elena wants to keep the family home and is willing to let Marco have the land, but Marco insists the land is worth substantially less than the house. Neither sibling wants drawn-out litigation; they strongly prefer to negotiate a settlement and maintain peace in the family. They jointly ask Attorney Smith to serve as their lawyer and help broker a resolution.
Attorney Smith can take on the dual representation after she obtains written consent from both Elena and Marco and if she reasonably believes that (1) the resolution can be achieved without litigation, (2) that both Elena and Marco can make informed decisions, (3) that if an agreement cannot be reached, the risk of material prejudice is low, and (4) she can remain impartial and represent both without improperly affecting her representation of either. Before she can obtain written consent, she must inform both Elena and Marco about the advantages and risks involved in the dual representation and that the attorney-client privilege does not apply. If litigation ensues, their communications will not be privileged. Further, during the representation, Attorney Smith will be required to consult with both Elena and Marco so they can make informed decisions about the matter.
Transactions with Clients – Texas Disciplinary Rule of Professional Conduct 1.08
Rule 1.08(a) prohibits business transactions between lawyers and clients (other than the transaction through which the client initially engages the lawyer) unless the lawyer follows a required three-step process. This three-step process, recently updated by the Texas Supreme Court, is also required if the lawyer knowingly acquires an ownership, possessory, security or other pecuniary interest adverse to the client. A primary concern is that the lawyer’s position of influence over the client provides lawyers with the opportunity to take advantage of clients. As illustrated below, fully informed clients may nevertheless consent.
Attorney Chen is a small business lawyer. She has represented Mr. Victor, a local restaurateur, for years, helping him draft leases, employment contracts, and vendor agreements.
Victor recently tells Chen that his restaurant is struggling financially but has the potential to thrive with some remodeling and marketing. He confides that he needs an immediate $50,000 cash infusion but that banks won’t lend to him.
Chen agrees to provide $50,000 but demands a 30% ownership stake in return. Victor wants to accept Chen’s proposal; however, Chen’s demand for an ownership interest creates a conflict because Chen would be acquiring a pecuniary interest that is adverse to Victor.
Despite the conflict, Victor may agree to the transaction, but only if (1) the terms are fair and reasonable to him and are fully disclosed to Victor in a writing that Victor can understand; (2) Victor has a lawyer representing him in the transaction, or Chen advises Victor in writing to get a lawyer and gives Victor time to do so; and (3) Victor then provides informed consent in writing to the terms, and to Chen’s role in the transaction, including whether Victor is representing Chen in the transaction (note: in this fact pattern, Victor is not representing Chen in the transaction…that situation could arise if, for example, multiple parties including Chen were investing in Victor’s business in exchange for ownership).
It is important to understand that “informed consent” is now a defined term in the Rules and means “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about material risks of and reasonably available alternatives to the proposed course of conduct.”
If Victor is not independently represented in the transaction, Chen should discuss both the material risks of the transaction, including any risks presented by Chen’s involvement, and the existence of reasonably available alternatives. See, Comment 2 to Rule 1.08. Chen should also explain why the advice of independent legal counsel is advisable. Id. If Chen were representing Victor in the transaction, the Chen is also required to comply with Rule 1.06 (which we discussed above). See, Comment 3 to Rule 1.08.
Rule 1.08 prohibits certain transactions even if the client were to consent, including preparing a gift instrument for a client that includes a “substantial gift” from the client to the lawyer or the lawyer’s family, and obtaining media rights from the client before the representation giving rise to the potential media interest has ended. Rule 1.08 excepts from otherwise prohibited transactions agreements related to the advancement of court costs and certain expenses. Additionally, it addresses whether and how a lawyer may accept payment of fees by a third party, participate in making aggregate settlements, enter into agreements that limit the lawyer’s liability, and acquire a lien to secure payment. If these situations apply to your facts and circumstances, you should read Rule 1.08 to understand any requirements and limitations involved.
Former Client Conflicts – Texas Disciplinary Rule of Professional Conduct 1.09
Rule 1.09 addresses when a lawyer can take on a new client representation even if it conflicts with a prior client’s representation. The Texas Supreme Court recently adopted changes to Rule 1.09 which include new requirements every lawyer should become familiar with. The following fact pattern is informative:
Attorney Smith is a business lawyer with the ABC Law Firm. For several years, ABC represented Clean, LLC (“Clean”), a startup developing proprietary green cleaning products. Smith helped Clean draft and negotiate license agreements, protect intellectual property, and settle disputes with suppliers. During ABC’s representation, Smith became familiar with Clean’s internal pricing strategies, marketing plans, and technical details of their cleaning formula.
After the representation ended, Clean moved their business to another firm. Smith later left ABC and joined a new law firm, XYZ Group.
A year after leaving ABC, Smith is approached by Pure Inc., a national competitor to Clean. Pure wants Smith and XYZ Group to represent it in a lawsuit against Clean regarding alleged patent infringement and unfair competition. The lawsuit is based on the same cleaning formula license agreements Smith worked on for Clean.
First, Rule 1.09(a) will preclude Smith from representing Pure if Pure’s interests are materially adverse in a substantially related matter in which Smith previously represented Clean. As discussed above, “substantially related” means the matters “involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information obtained in the prior representation would materially advance the client’s position in the subsequent matter.” See Comment 3 to Rule 1.09. The hypothetical notes that Pure’s issues are the same cleaning formula license agreements that Smith handled for Clean — a substantially related matter. However, if Smith obtains “informed consent, confirmed in writing,” from Clean, she may represent Pure.
Side note – we discussed the meaning of “informed consent” above. “Confirmed in writing” is also a new defined term which means “informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”
Second, even if Pure was seeking Smith’s help in areas unrelated to Smith’s prior representation of Clean, Rule 1.09(b) may still preclude Smith’s representation of Pure if 1) other lawyers at ABC represented Clean in those areas, and 2) Smith acquired information about Clean that is material to the new matter and protected under Rules 1.05 (confidential client information) and 1.09(c). Nonetheless, should Clean provide informed consent, confirmed in writing, Smith and XYZ may take on the new matter for Pure.
Third, Rule 1.09(c) extends the confidentiality protections covering former clients beyond the situations discussed in 1.09(a) and (b). Any information Smith and ABC obtained from Clean during their representation cannot be used to Clean’s disadvantage nor can Smith or ABC reveal such information, unless otherwise permitted or required by the disciplinary rules, or when the information has become generally known. In other words, the lawyer has a continuing duty to preserve confidentiality of information about a former client. See, Comment 6 to Rule 1.09.
Imputation of Conflicts and Screening – Texas Disciplinary Rule of Professional Conduct 1.10
New Rule 1.10 imputes a lawyer’s conflicts to her firm (i.e., if the lawyer is conflicted, then so is the rest of the firm), but also allows the firm to continue the representation despite the lawyer’s conflicts under certain circumstances. If the lawyer’s conflict is personal and does not risk the zealous representation by the other lawyers in the firm, the conflict arises through the lawyer’s association with a prior firm and the lawyer is properly screened in her new firm, or the client provides informed consent confirmed in writing, then the firm may continue the representation.
Rule 1.10 is a new rule only recently adopted by the Texas Supreme Court in October 2024.
Rule 1.10(a)(1) acknowledges that a lawyer’s conflict may be personal, and Comment 2 provides an example where the lawyer’s political beliefs cause the lawyer to be unable to represent a client. The following hypothetical supplies another example:
Attorney Lopez is a partner at Local Firm, which is approached by Developers, Inc., a construction company, to represent it in a breach of contract lawsuit against Subcontractor Co. Lopez previously dated the CEO of Developers, Inc., and the relationship ended badly. Lopez still feels deep animosity toward the CEO of Developers, Inc. Lopez’s strong feelings about the CEO create a potential conflict regarding his representation of Developers, Inc. because they may prevent Lopez from being able to consider, recommend or carry out an appropriate course of action for Developers, Inc. However, Local Firm may take on the representation if the other lawyers in Local Firm are not at significant risk of their representation of Developers, Inc. being materially limited by Lopez’s animosity.
Rule 1.10(a)(2) addresses the situation where a lawyer’s conflict is due to the representation of a former client under Rule 1.09(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm.
For example: Attorney Smith recently joined Mid-Law PLLC. Before joining, Smith was an associate in Small-Law, P.C., where he represented Marina, LLC in a loan workout matter involving Bank, N.A. Months after Smith’s move to Mid-Law PLLC, it is approached to represent a different client, Investors Inc., in a shareholder dispute against Marina, LLC. Assuming the workout and the shareholder dispute are substantially related matters, Smith cannot represent Investors Inc., and under Rule 1.10, his conflict is imputed to Mid-Law PLLC. However, Mid-Law PLLC will not be disqualified by Smith’s conflict if Smith is timely screened from participating in the representation and receives no part of the fee. Mid-Law must also give written notice to Marina, LLC which includes a description of the procedures Mid-Law used to screen Smith, a statement that Mid-Law PLLC and Smith complied with the TDRCP, and an agreement by Mid-Law PLLC to respond promptly to Marina, LLC’s questions or objections about the procedures.
Please note that even if the screening procedures are properly adhered to, Marina, LLC can still file a motion to disqualify Mid-Law PLLC, and a tribunal may consider additional factors in ruling upon the motion to disqualify the law firm from pending litigation. See, Comment 6 to Rule 1.10.
What if Investors, Inc. had approached Small-Law, P.C. after Smith left to work at Mid-Law PLLC instead of approaching Mid-Law? Is Small-Law, P.C. disqualified from representing Investors, Inc. against Marina, LLC? If the matter is not substantially related, then Rule 1.10(b) authorizes Small-Law, P.C.’s representation as long as no other lawyer in Small-Law, P.C. has confidential information protected by Rules 1.05 and 1.09 that is material to the Investors, Inc. versus Marina, LLC matter. In this scenario, Small-Law, P.C. will have the burden of proof to demonstrate that no other lawyer has that kind of information.
There are some additional noteworthy provisions in Rule 1.10 and its comments. For example, Rule 1.10(c) authorizes a client to waive the conflict if the waiver process in Rule 1.06 is followed. Also, as noted in Comment 3, Rule 1.10(a) does not apply if the person involved is a nonlawyer or if the lawyer is prohibited because of events that took place before the lawyer became a lawyer.
Public Interest Activities – Texas Disciplinary Rule of Professional Conduct 1.14
Lawyers are routinely asked to serve on boards or in other ways to serve public interest groups in their communities. Rule 1.14 recognizes that such service can lead to potential conflicts. The following fact pattern provides one example:
Attorney Delgado is a partner at a mid-sized law firm focusing on real estate and land-use law. She is also deeply involved in community affairs. She serves as a board member of Green Inc., a nonprofit civic organization advocating for environmentally sustainable development and urban preservation efforts across the state.
At a board meeting, Green considers whether to formally adopt a policy opposing a proposed commercial development project on wetlands near the Trinity River. Environmental assessments suggest the project would harm the ecosystem, and the nonprofit is debating whether to launch a public campaign and potentially file an amicus brief opposing zoning approval.
Delgado’s private client, Trinity, LLC, is the very company proposing that wetlands project. She has been representing Trinity for over a year in securing permits, negotiating with the city, and helping with compliance issues related to the development.
Delgado may have a potential conflict arising from at least two different scenarios. She may be faced with participating in a board decision that is adverse to Trinity if, for example, Green provides litigation assistance to a group opposed to Trinity’ project, or Delgado may be called upon to vote for Green itself to oppose the project.
Unlike other Rules previously discussed, there is no avenue to waive the conflict, but neither is the lawyer required to step down from the board or to terminate her relationship with the client. Instead, she must simply avoid participating in any such decisions or actions by the board.
Handling the Prospective Client – Texas Disciplinary Rule of Professional Conduct 1.18
Potential conflicts can also arise, even if no lawyer-client relationship is ultimately formed, when a person approaches a lawyer as a prospective client. Rule 1.18 shows how the conflict arises and how the lawyer should handle it. Notably, Rule 1.18 is a new rule only recently adopted by the Texas Supreme Court in October 2024.
The following fact pattern aids the discussion:
Attorney Nguyen is a well-regarded employment lawyer who frequently handles high-stakes wrongful termination cases. One afternoon, Ms. Angela schedules a free half-hour consultation with Nguyen to discuss a potential lawsuit against her employer, Tech, Inc. Angela explains that she was recently terminated, claims the firing was retaliatory, and shares details about Tech’s internal decision-making process, including sensitive emails from the HR director.
Nguyen listens carefully but ultimately declines representation, explaining that her caseload is full, and she cannot take on Angela’s case. Angela leaves, disappointed, but believes she can use the information shared to help another lawyer pursue her claim.
A week later, Tech, Inc. contacts Nguyen, asking her to represent it in defending the very same wrongful termination suit Angela has since filed with another lawyer.
Angela is a “prospective client” under Rule 1.18 because she consulted with Attorney Nguyen in good faith as opposed to some bad faith intention, like attorney disqualification. This means that Attorney Nguyen cannot represent Tech if Attorney Nguyen received information from Angela that would be significantly harmful to her in the litigation, unless both Tech and Angela give informed consent in writing. If Attorney Nguyen works for a firm, other members of the firm may represent Tech if: (1) Attorney Nguyen took reasonable measures in her discussion with Angela to obtain only the information necessary to determine whether to represent Angela, (2) Attorney Nguyen shielded herself from receiving more disqualifying information than necessary, (3) Attorney Nguyen is screened from any participation in the work and is not directly apportioned any fees associated with the wrongful termination lawsuit, and (4) written notice is promptly given to Angela.
Even if representation against the prospective client is permitted, Nguyen still owes some limited duty of confidentiality to the prospective client. Under Rule 1.18(b), even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as the disciplinary rules permit or require with respect to a client, or if the information has become generally known or would not be significantly harmful to the former prospective client.
Conclusion
Except for Rules 1.06(a) and 1.14, the Rules addressed above allow a client to consent to an attorney’s representation despite the presence of a conflict, assuming all of the requirements are met to obtain that consent. Lawyers are well-advised to provide full disclosures in writing and to obtain informed consent, confirmed in writing, of any waiver, even if the specific rule does not require it. Otherwise, the Lawyer risks a grievance or malpractice claim and may even be disqualified by a court in the matter.
TLI has several forms that attorneys can use to address conflicts of interest with their clients and obtained informed consent, confirmed in writing. Insureds can email rskmgmt@tlie.org to request these forms. Also, stay tuned for a new CLE on conflicts later this year.
[1] In re Seven-O Corp., 289 S.W.3d 384 (Tex. App.—Waco 2009, orig. proceeding).
[2] See In re Halter, No. 05-98-01164-CV, 1999 Tex. App. LEXIS 6478 (Tex. App.—Dallas 1999, orig. proceeding).