The opinion
No. 24-1010
In re E. Pierce Marshall, Jr.,
Relator
On Petition for Writ of Mandamus
and
No. 25-0057
In re Edwin K. Hunter,
Relator
On Petition for Writ of Mandamus
JUSTICE YOUNG and JUSTICE SULLIVAN, dissenting from the
denials of the petitions for writ of mandamus.
Does attorney immunity provide immunity from suit or only from
liability? Another way to frame this question is to ask when the substantive
rights that the law calls “attorney immunity” may be invoked—only after
a trial that the attorney-immunity doctrine says should never happen in
the first place, or upon a trial court’s refusal to grant relief? A straight
answer would benefit Texas attorneys, the clients they represent, and the
state and federal courts that confront this recurring issue with surprising
regularity. But there is precious little clarity to be found in this Court’s
inconsistent pronouncements about the nature of attorney immunity, as
reflected in an entrenched split among our intermediate state courts. To
date, the leading case on this topic is an Erie guess from the Fifth Circuit.
The Supreme Court of Texas can and should do better. By denying
this pair of mandamus petitions, however, the Court passes on a chance
to deliver an authoritative clarification. We respectfully dissent from this
missed opportunity.
These two cases—No. 24-1010, In re Marshall, and No. 25-0057, In
re Hunter—involve an intra-family drama with billions of dollars at stake.
We recount the story only for background. The complex questions of
trust-and-estate law that frame the underlying dispute are not before us;
instead, the petitions denied today ask us to address whether, wholly aside
from any other questions, a defendant who thinks himself entitled to
“attorney immunity” because he is being sued for work performed as a
lawyer may have that entitlement resolved before enduring a trial.
The story started after E. Pierce Marshall, Sr., passed away, leaving
his wife, Elaine T. Marshall, as the trustee and income beneficiary of a
Texas trust. The trust document states that upon Elaine’s death, Pierce
Sr.’s youngest son, Real Party in Interest Preston Marshall, will become
the successor trustee. Should Preston be unable to do so, the trust document
provides that an “independent person,” rather than Pierce Sr.’s oldest son,
Relator E. Pierce Marshall, Jr., will serve as successor trustee.
But in her capacity as trustee, Elaine performed a series of complex
legal maneuvers to effectively designate Pierce Jr.—and not Preston or any
independent person—as the successor trustee of a newly created trust in
Wyoming. The short of it allis that Elaine merged the existing Texas trust
into a Wyoming trust, with only the Wyoming trust surviving. All agree
that the Wyoming trust did not alter the rights that Pierce Jr. or Preston
otherwise would have had as beneficiaries under the Texas trust. Indeed,
the Wyoming trust divides the corpus into two equal marital trusts—one
for Preston and his children, and the other for Pierce Jr. and his children.
For Preston, however, all things are not equal. He sued his mother,
Elaine; his brother, Pierce Jr.; and attorney Edwin K. Hunter, alleging
that by designating Pierce Jr. as trustee, Elaine is liable for breach of
fiduciary duty and that Pierce Jr. and Hunter aided and abetted her
breach. He explains that upon Elaine’s death, the Marshall family will
owe substantial inheritance tax and Pierce Jr. will be responsible for
paying the bill as trustee. Therefore, Preston continues, Pierce Jr. could
structure the transactions necessary to liquidate the family’s substantial
holdings to benefit himself and harm Preston, hence the suit.
After discovery, both Pierce Jr. and Hunter moved for summary
judgment based on attorney immunity, which the trial court denied. Pierce
Jr. then sought mandamus relief from the court of appeals, which stayed
the trial court’s proceedings while it considered the petition. The court of
appeals then denied the mandamus petition and lifted the stay without
comment. In re Marshall, No. 14-24-00230-CV, 2024 WL 4501234, at *1
(Tex. App.—Houston [14th Dist.] Oct. 16, 2024, orig. proceeding). Hunter
likewise sought mandamus relief, which the court of appeals also denied
without comment. In re Hunter, No. 14-24-00296-CV, 2024 WL 4502117,
at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2024, orig. proceeding).
There are distinctions in the factual background, procedural
posture, and legal arguments presented by Pierce Jr. and Hunter. But
what matters is their similarity: they both now seek a writ of mandamus
from this Court to prevent the right they claim from being impaired or lost.
II
Attorney immunity has been a frequent topic in this Court’s
jurisprudence. F.g., Taylor v. Tolbert, 644 S.W.3d 687, 645 (Tex. 2022);
Haynes & Boone, LLP v. NFTD, LLC, 631 S.W.3d 65, 73 (Tex. 2021);
Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 47, 51-53 (Tex.
2021); Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595
S.W.3d 651, 654 (Tex. 2020); Cantey Hanger, LLP v. Byrd, 467 8.W.3d
477, 481 (Tex. 2015). By now, the analysis is well-established. We have
said that the “only facts” needed to support the “common-law attorney-
immunity defense” are (1) “the type of conduct at issue” and (2) “the
existence of an attorney-client relationship at the time the attorney
engaged in the conduct.” Taylor, 644 5.W.3d at 645—46 (emphasis added;
internal quotation marks omitted). The immunity is not primarily to
protect attorneys (who “must be able to pursue legal rights they deem
necessary and proper”) but to protect their clients, the public at large,
and the courts, who justifiably expect lawyers to “competently, diligently,
and zealously represent” their clients. Jd. at 647 (citation omitted). Of
course, our approach has been “functional, not qualitative, and leaves
an attorney’s improper conduct addressable by public remedies,”
including “sanctions, professional discipline, or criminal penalties, as
appropriate.” Id. at 646, 648. Attorneys, to be clear, have no incentives
to engage in misconduct or to violate the law, and there are many tools
to enforce the high demands of the profession. But at base, attorney
immunity “furthers loyal, faithful, and aggressive representation” by
Texas attorneys for their likely Texan clients. Jd. at 647 (internal
quotation marks omitted).
Despite our familiarity with the doctrine, these cases raise issues
that this Court has not yet directly addressed and that arise in a distinct
factual context, too. For example, Marshall involves whether a genuine
issue of material fact exists regarding the “existence of an attorney—client
relationship’—1.e., whether Pierce Jr. in fact represented his mother
Elaine in the Wyoming transactions. But Marshall also raises significant
questions that affect the legal profession in Texas—to say nothing of the
clients it serves. So too in Hunter, as both Hunter and Pierce Jr. argue
that attorney immunity is immunity from suit and not simply immunity
from liability.
To vindicate their perceived immunities, Pierce Jr. and Hunter say
that mandamus relief is appropriate not only because the trial court clearly
abused its discretion in denying their motions for summary judgment, but
also because they have no adequate remedy by appeal. It is, at a minimum,
their latter argument that the Court should address—not just for these
parties or on these facts.
Yet exactly these parties and these facts demonstrate the need for
this Court’s intercession. We do not regularly see so many simultaneous
hallmarks of what merits the Court’s attention: a fight about the loss of
a substantive right; the precedents of this Court that support each
competing faction; the inconsistency among the courts of appeals; and
(to top it all off) an Erie guess from the Fifth Circuit, which all factions
both defend and attack and which reflects a now-settled legal practice
in the federal courts applying Texas law despite disarray in the lower
Texas courts about the same legal practice.
In our view, the Court should take this opportunity to provide clarity
by setting these cases for argument to answer whether “[m]Jandamus
relief is appropriate to correct a clear abuse of discretion” for which the
relators have “no adequate remedy by appeal.” In re Facebook, Inc., 625
5.W.3d 80, 86 (Tex. 2021) Gnternal quotation marks omitted).
This section begins by explaining Pierce Jr.’s and Hunter’s theory
for why mandamus, and not the usual appellate process, is the appropriate
vehicle for vindicating their attorney-immunity defenses. We then turn
to the Fifth Circuit’s Erie guess, which finds support in this Court’s
precedents. Next, we note the inconsistencies among the courts of appeals
and then offer a potential solution to the cognitive dissonance, harmonizing
our holdings despite Preston’s concerns with our doing so. Finally, we note
that the attorney-immunity doctrine frequently arises in both state and
federal litigation, revealing just how unfortunate it is that the Court fails
to seize this opportunity.
Start with the theory behind the petitions. Generally, mandamus
relief is “unavailable when a trial court denies summary judgment, no
matter how meritorious the motion.” In re McAllen Med. Ctr., Inc., 275
S.W.3d 458, 465 (Tex. 2008). That is true of most procedural rulings that
fall short of a final judgment. For example, a trial court’s order for a new
trial has been generally regarded as unreviewable, see, e.g., In re Rudolph
Auto., LLC, 674 8.W.3d 289, 299 (Tex. 2023), but this Court has held that
a new-trial order that improperly eliminates a jury’s verdict is subject to
mandamus review, see id. at 299-302. To take another example outside
civil litigation, denial of a double-jeopardy claim must be reviewed before
trial if the right against double jeopardy is to be effective. E.g., Abney v.
United States, 431 U.S. 651, 659 (1977). Pierce Jr. and Hunter assert that
the attorney-immunity doctrine likewise logically demands vindication
before trial. They say that by denying attorney immunity where it clearly
applies, the trial court will force them to litigate Preston’s claims at trial,
thereby irreparably compromising the protections they believe are
provided by attorney immunity.
Pierce Jr. and Hunter analogize their situation to the one the Court
confronted in Facebook, 625 S.W.3d at 84, 86. There, Facebook filed a
Rule 91a motion to dismiss based on a federal statute that provides
immunity from suit for causes of action brought under inconsistent state
laws. Id. at 86 (citing 47 U.S.C. § 230(c), (e)(8)). The Court acknowledged
that “mandamus relief is often unavailable to correct the erroneous denial
of a motion to dismiss” but observed that mandamus “may nevertheless
be warranted if a litigant would suffer ‘impairment or loss’ of ‘important
substantive... rights’ while awaiting the error’s correction on appeal.”
Id. (omission in original) (quoting Jn re Prudential Ins. Co. of Am., 148
S.W.3d 124, 136 (Tex. 2004)). Because section 230 immunity was one
such “important substantive right[],” which “confers ‘immunity from
suit rather than a mere defense to liability’” according to “federal cases
interpreting section 230,” the Court held that mandamus could issue “if
the denials of Facebook’s motions to dismiss were erroneous.” Id. at 87
(quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 254 (4th Cir. 2009)).
According to Pierce Jr. and Hunter, attorney immunity is like
section 230 immunity in that it is an immunity from suit rather than a
mere defense to lability—and lke section 230 immunity, attorney
immunity is a substantive right “to avoid litigation of this nature,” which
“would be impaired if [they] had to await relief on appeal.” Jd. So just
as the Court departed from its general rule not to deploy mandamus to
correct the erroneous denial of a motion to dismiss in that case, the Court
should depart from its general rule not to do so from the erroneous denial
of a summary-judgment motion here. See id. Pierce Jr. and Hunter’s
interpretation of attorney immunity, like Facebook’s interpretation of
section 230 immunity, has significant support among our colleagues on
the federal bench.
In Troice v. Proskauer Rose, L.L.P., the Fifth Circuit made an Erie
guess and “conclude[d] that the Texas Supreme Court would consider
attorney immunity to be a true immunity from suit” and not just “a simple
defense to liability.” 816 F.3d 341, 345, 348 (5th Cir. 2016). The court
wrestled with whether the “denial of a motion to dismiss based on
attorney immunity [was] appealable under the collateral order doctrine.”
Id. at 344. In answering that question “in the affirmative,” the court
concluded that “the policies underlying attorney immunity support[ed]
the conclusion that Texas courts seek to protect attorneys against even
defending a lawsuit” and that “Texas courts describe[d] conduct covered
by attorney immunity as not actionable (and attorneys engaging in that
conduct as immune from suit).” Id. at 344, 348 (emphases added).
We can readily see how the Fifth Circuit decided (and has not
since questioned) that we would reach that conclusion. See, e.g., Troice
v. Greenberg Traurig, L.L.P., 921 F.3d 501, 507 n.2 (5th Cir. 2019)
(noting its prior holding in Troice v. Proskauer Rose that “attorney
immunity is properly characterized as true immunity from suit”); but
see Frias v. Hernandez, 142 F.4th 803, 810-13 (5th Cir. 2025) (Oldham,
J., concurring) (calling into question the Fifth Circuit’s extension of the
collateral-order doctrine to state-law immunities). We will start with
some of this Court’s language that might support the opposite view:
e We have said that “[t]he common-law attorney-immunity defense”
shields counsel from “liability in a civil suit.” Taylor, 644 8.W.3d
at 646 (emphasis added).
e We have recalled that attorney immunity “stem[s] from the broad
declaration over a century ago that ‘attorneys are authorized to
practice their profession, to advise their clients and interpose any
defense or supposed defense, without making themselves liable for
damages.” Cantey Hanger, 467 S.W.3d at 481 (emphasis added)
(quoting Kruegel v. Murphy, 126 8.W. 348, 345 (Tex. Civ. App.—
Dallas 1910, writ ref’d)).
At first blush, that might sound like this Court has regarded
attorney immunity as just a defense, meaning that Troice got it all wrong.
Yet take these two additional snippets from our decision in Taylor:
e “To prevent chilling [lawyers’] faithful discharge of [their]
dut[ies]” to their clients, “lawyers must be able to pursue legal
rights they deem necessary and proper for their clients without
the menace of civil liability looming over them and influencing
their actions.” 644 8.W.3d at 647 (emphasis added).
e Attorney immunity not only “remov[es] the fear of personal
liability,” but also “alleviat[es] in the mind of [an] attorney any
fear that he or she may be sued by or held liable to a non-client
for providing... zealous representation.” Jd. (emphasis added;
internal quotation marks omitted).
Or this snippet from our decision in Haynes & Boone:
e Attorney immunity protects against “the threat of litigation...
and liability.” 631 5.W.3d at 74 (emphasis added).
And perhaps most notably, between just two pages of the South Western
Reporter, this Court has recounted that “as a general rule, attorneys are
immune from civil liability to non-clients for actions taken in connection
with representing a client in litigation,” Bethel, 595 S.W.3d at 657 (emphasis
added) (quoting Cantey Hanger, 467 S.W.38d at 481), while also summarizing
that case as holding “attorney immunity shield[ed the defendant law firm]
from civil suit by a third party,” id. at 658 (emphasis added).
So at second blush, these decisions might illustrate that the Court
does not really have a view—sometimes saying that attorney immunity
was immunity from suit but other times saying that attorney immunity
is immunity from liability. The same could be said of our state courts of
appeals. Like our decisions in Taylor, Haynes & Boone, and Bethel, some
have oscillated between describing attorney immunity as immunity “from
suit” and as immunity “from liability.” E.g., Kappos v. Baxter, No. 05-19-
00020-CV, 2019 WL 5615147, at *4 (Tex. App.—Dallas Oct. 30, 2019, no
pet.); Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman,
P.C., No. 01-06-00696-CV, 2008 WL 746548, at *7 (Tex. App.—Houston
[1st Dist.] Mar. 20, 2008, pet. denied). Others simply proclaim that under
the attorney-immunity doctrine, “an attorney is generally entitled to
immunity from a civil lawsuit.” E.g., 1st & Trinity Super Majority, LLC
10
v. Milligan, 657 S.W.3d 349, 368 (Tex. App.—El Paso 2022, no pet.)
(emphasis added); see also In re Shire PLC, 633 8.W.3d 1, 18 (Tex. App.—
Texarkana 2021, orig. proceeding [mand. denied]) (“immunity from suit”);
Campbell v. Mortg. Elec. Registration Sys., Inc., No. 03-11-00429-CV, 2012
WL 1839357, at *6 (Tex. App.—Austin May 18, 2012, pet. denied) (same).
But there is a possible third blush that harmonizes this Court’s
statements: To say that attorney immunity protects attorneys from
“lability” is not wrong, just incomplete. The “menace” of liability that
the doctrine protects against, see Taylor, 644 S.W.3d at 647, goes beyond
“lability” itself—it protects against the threat of liability, which would
arise by virtue of being subjected to suit for the provision of legal services
to a client. If attorney immunity is immunity from suit, in other words,
it also necessarily protects against liability itself. In this way, all the
statements in our cases could coexist—it is true enough that attorney
immunity protects against damages, for example, if it also protects
against the lawsuit altogether.
Take, for example, an early case discussing the attorney-immunity
doctrine. In National Savings Bank of D.C. v. Ward, the U.S. Supreme
Court concluded that “an attorney is not liable to an action ...of one
between whom ... the relation of attorney and client does not exist.” 100
U.S. 195, 200 (1879) (emphasis added). Its conclusion relied on “several
cases of high authority,” one of which held “that [a solicitor] could not be
held responsible’ to a third-party plaintiff. Jd. at 200-01 (emphasis added).
We could therefore read Ward—and our attorney-immunity cases like it—
to suggest that attorney immunity is both immunity from suit (7.e., “to an
action”) and immunity from liability (i.e., from being “held responsible”).
11
Under this harmonious reading, not only is the Fifth Circuit’s Erie
guess in Troice v. Proskauer Rose correct, but so are this Court’s holdings.
The importance of attorney immunity—which, again, could be immunity
both from suit and from liability—may be such that its clearly improper
denial at any pretrial stage of litigation warrants mandamus relief. And
if so, this Court should say as much. As Pierce Jr. argues, in some cases
(perhaps in many, or perhaps just in his), “not applying [attorney]
immunity will have serious ramifications and significantly undermine
the important principles that animate the immunity—ensuring clients
receive zealous and loyal representation by their attorneys without the
specter of vexatious litigation brought by interlopers to the attorney—
client relationship.” In deciding whether attorney immunity is immunity
from suit, from liability, or from both, the Court will not have to
definitively answer whether mandamus could issue in every attorney-
immunity case. Rather, it will settle a question that is vital both to the
public and to the bar, clarifying the benefit and cost of the bargain of
entering an attorney-client relationship in this State.
We do appreciate, however, Preston’s potentially portentous point,
which is that neither Troice nor any of our attorney-immunity precedents
have given any consideration to the notion that “immunity from suit”
might have jurisdiction-implicating effects. He reminds us that “immunity
from suit implicates subject-matter jurisdiction,” Pepper Lawson Horizon
Intl Grp., LLC v. Tex. S. Univ., 669 S.W.3d 205, 211 (Tex. 2023), whereas
“i]jmmunity from lability, unlike immunity from suit, does not affect a
court’s jurisdiction to hear a case,” Gulf Coast Ctr. v. Curry, 658 8.W.3d
281, 284 (Tex. 2022); accord Von Dohlen v. City of San Antonio, 643 S.W.3d
12
387, 392 (Tex. 2022) “Only immunity from suit implicates a court’s subject-
matter jurisdiction.”). For Preston, this means that attorney immunity
must necessarily be mere immunity from liability, “an affirmative defense,”
Curry, 658 S.W.3d at 284, which “bars enforcement of a judgment,” akin
to, say, official immunity, Brown & Gay Eng’g, Inc. v. Olivares, 461 8.W.3d
117, 121 (Tex. 2015).
To Preston’s point, it is conspicuous that not once in our relatively
recent, repeated visits to the attorney-immunity doctrine—despite at least
suggesting that attorney immunity can preclude litigation altogether—
have we even hinted that a finding of attorney immunity destroys or even
pertains to the courts’ subject-matter jurisdiction. E.g., Taylor, 644
S.W.3d at 645. Equally conspicuous is that we have been aware of Troice,
see Youngkin v. Hines, 546 8.W.3d 675, 679 n.2 (Tex. 2018) (citing Troice,
816 F.3d at 346-47), yet none of our later-written attorney-immunity
opinions can be read to have expressly adopted its holding, see Haynes &
Boone, 631 S.W.3d at 73; Bethel, 595 S.W.3d at 654; Cantey Hanger, 467
S.W.3d at 481. We have also expressly stated that “[a]ttorney immunity
is an affirmative defense.” Bethel, 595 S.W.3d at 654.
Setting aside the fact that, as far as we can tell, this Court has never
needed to engage with the issue Preston raises, we find that the solution
may well be simple—to reject as a false dichotomy the idea that attorney
immunity either constitutes a jurisdictional doctrine (such that even if a
lawyer never invokes it, he could later challenge a judgment against him
on the ground that the court lacked jurisdiction) or is nothing but a defense
that cannot be remedied until an appeal (such that if a lawyer invokes it
and a court wrongly denies it, the entitlement not to go through trial can
13
only be remedied after going through trial). Instead, it is possible that the
doctrine confers a significant right to avoid litigation altogether, such that
a denial of that claim before trial cannot be allowed to await appeal because
doing so would destroy the very right at issue. See, e.g., Haynes & Boone,
631 S.W.3d at 79 (emphasizing that lawyers must be able to “competently,
diligently, and zealously represent their clients’ interests while avoiding
any conflicting obligations or duties to themselves or others”). New-trial
orders, double-jeopardy invocations, and other matters that have not yet
ripened into a final judgment prove the dichotomy is a false one.
All mandamus actions, after all, require a showing that awaiting
appeal would provide only an inadequate remedy. At the same time, the
Court could also hold that an attorney who fails to invoke attorney
immunity before trial has forfeited the mandamus aspect of the immunity’s
protections. Instead, that attorney could, if necessary (and if otherwise
adequately preserved at trial), appeal an adverse judgment in the usual
course to avoid any damages if the doctrine applies. So even if attorney
immunity does not implicate subject-matter jurisdiction, that does not
mean a party must wait until trial to vindicate it.
Resolving what procedural vehicle might be available strikes us,
therefore, as a matter for another day: at the very least, if attorney
immunity protects against going through litigation, appeal cannot be an
adequate remedy, and mandamus ought to be available. It is of no moment
to us that Pierce Jr. has not asserted his right to immunity from suit by
filing a plea to the jurisdiction. Maybe he could have; more likely, given
our doubt that there is any true jurisdictional aspect of this common-law
immunity, he proceeded exactly as he should have. We can avoid the fire
14
swamp of subject-matter jurisdiction and rest assured that “the attorney-
immunity defense is not without its limits.” Jd. at 77. Ultimately, it is
incumbent upon this Court, and no other, to set its boundaries.
Using mandamus to vindicate a clearly erroneous denial of attorney
immunity is no innovation. As Pierce Jr. notes, certain lower courts have
eranted mandamus relief after finding that attorney immunity should
have been granted upon a Rule 91a motion to dismiss. See In re Canfora,
No. 01-21-00128-CV, 2021 WL 4095580, at *1 (Tex. App.—Houston [1st
Dist.] Sept. 9, 2021, orig. proceeding); In re Sams, No. 05-22-00150-CV,
2022 WL 33541387, at *38 (Tex. App.—Dallas Aug. 15, 2022, orig.
proceeding). True, Canfora found that mandamus relief was appropriate
given that “there is no adequate remedy by appeal if a Rule 91a motion is
improperly denied.” 2021 WL 4095580, at *9; see also In re Farmers Tex.
County Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (“Mandamus relief
is appropriate when the trial court abuses its discretion in denying a Rule
91a motion to dismiss.”). And Sams concluded that mandamus relief
“[was| appropriate in this case to spare the parties and the public the time
and money spent on a fatally flawed proceeding.” 2022 WL 33541387, at
*3; see also In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (holding
that mandamus relief was appropriate to “spare the parties and the
public the time and money spent on fatally flawed proceedings”). But it
strikes us that these courts may have been onto something in deploying
mandamus relief in the context of attorney immunity—and if they were
not, then this Court should say so.
Attorney immunity, after all, is frequently before the courts. As
recently as this spring, attorneys representing our State discussed attorney
15
immunity in a brief to the Fifth Circuit, noting first that “Texas law
provides attorneys immunity from suit” and then stating that it shields
attorneys “from liability.” Br. for Texas as Amicus Curiae in Support of
Rehearing En Banc at 2, 3, United States ex rel. Doe v. Planned
Parenthood Fed’n of Am., Inc., No. 23-11184 (5th Cir. Mar. 19, 2025)
(emphasis added). It is unsurprising that Planned Parenthood arose from
an appeal of a collateral order, with the Fifth Circuit again “conclud[ing]
that under federal, Texas, and Louisiana law, attorney immunity is akin
to immunity from suit,” meaning the “court must permit the collateral
order appeal.” 2025 WL 618102, at *4 (5th Cir. Feb. 26, 2025) (per curiam)
(not designated for publication).
What is more, this Court has recently received petitions that raise
the doctrine. See, e.g., Pet. for Writ of Mandamus at 24, In re Howell,
No. 25-0183 (Tex. Feb. 28, 2025) (arguing that “[m]Jandamus relief is
also appropriate to preserve [the attorney’s] important substantive and
procedural rights” arising out of the trial court’s denial of a Rule 9la
motion to dismiss based on attorney immunity). And a quick Westlaw
search reveals that “attorney immunity” has arisen in some form or fashion
in Texas courts, both federal and state, nearly 300 times (and maybe more,
given search limitations) since the Fifth Circuit decided Troice in 2016.
Enough is enough. It is high time this Court answered what the
Fifth Circuit could only guess at. The petitions in Marshall and Hunter
give us a good vehicle for doing so, as we will now explain.
Take first the Marshall case. It may well have been proper for the
trial court to have denied attorney immunity there, at least, due to (and up
16
to the extent of) a genuine issue of material fact regarding the “existence of
an attorney—client relationship”—1.e., whether Pierce Jr. in fact represented
his mother Elaine in the Wyoming transactions. Even so, this Court’s
decision as to the scope of the attorney-immunity doctrine could inform the
proceedings on remand, during which Pierce Jr. could renew his summary-
judgment motion in light of our holding and with further record evidence.
Typically, our cases have required the Court to then “decide the
legal question of whether said conduct was within the scope of
representation.” Taylor, 644 S.W.3d at 645 Gnternal quotation marks
omitted). But Marshall is not one of those cases. Recognizing as much,
Pierce Jr. argues that no fact issue exists, citing his undisputed testimony
that he “provide[s] legal advice and services to [Elaine] in her individual
capacity” and that all his actions related to Elaine’s moving the Texas
trust to Wyoming were taken in his capacity as Elaine’s attorney. Thus,
Pierce Jr. maintains that “[i]f attorney immunity applies anywhere, it
applies here.”
To support the trial court’s denial on the merits, Preston urges the
Court not to credit “Pierce Jr.’s meager, self-interested testimony.” Of
course, summary judgment may be “based on uncontroverted testimonial
evidence of an interested witness” if it “is clear, positive and direct,
otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted.” Tex. R. Civ. P. 166a(c) (emphasis
added). Relying on the latter language, Preston says he could not have
“readily controverted” Pierce Jr.’s testimony given the “strikingly un-
papered attorney—client relationship” between Pierce Jr. and Elaine.
17
While Pierce Jr. says (and Elaine agrees*) that the attorney-client
relationship existed, Preston argues that there is no “paper trail” to prove
it—no engagement letter, no contract, no pleadings or correspondence, no
billing invoices, and no document signed by Pierce Jr. identifying himself
as Elaine’s lawyer. Thus, says Preston, the trial court properly denied
Pierce Jr. summary judgment based on attorney immunity.
Given the foregoing, the trial court’s decision in Marshall may not
have been an abuse of discretion, although we reserve judgment on that
question. True, both Pierce Jr. and Elaine agree that the attorney—client
relationship existed. Had the trial court had the testimony from Elaine or
her Wyoming counsel before it when it ruled on Pierce Jr.’s summary-
judgment motion, the trial court may very well have erred in denying the
motion. But perhaps even Pierce Jr.’s self-serving testimony alone is
enough to reverse the trial court. If the Court ultimately were to hold
otherwise, the parties could renew their summary-judgment motions on
remand because we may expressly deny mandamus without prejudice to
refiling. Taking up the case, however, would still allow the Court to clarify
the essentially legal question, and this particular case would have a chance
at being resolved properly under the standard we would articulate.
So too in Hunter. Preston argues that he had an attorney-client
* Elaine’s Wyoming counsel for the Wyoming trust transactions testified that
Pierce Jr. was his co-counsel in the matter and that Pierce Jr. was acting as “an attorney”
who “represent[ed] the interest of his mother.” Elaine also testified that Pierce Jr. was
acting as her attorney. While Pierce Jr. relies on all this in his brief to the Court, Preston
points out that this evidence was not in the record before the trial court when it was
deciding Pierce Jr.’s summary-judgment motion. See In re M-I L.L.C., 505 S.W.3d 569,
574 (Tex. 2016) (“In determining whether a trial court abused its discretion, a reviewing
court is generally bound by the record before the trial court at the time its decision was
made.”). A renewed motion in light of any guidance that this Court would provide could,
of course, take such points into account if they indeed were to turn out to be essential.
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relationship with Hunter, such that attorney immunity cannot apply as to
the claims at issue. But Preston litigated and lost that issue in a separate
case, see Marshall v. MarOpCo, Inc., 714S.W.3d 724 (Tex. App.—Houston
[1st Dist.] 2025, pet. filed), the judgment from which would appear to have
issue-preclusive effect here. If so, then Hunter boils down to a clean
vehicle for clarifying the law of attorney immunity in Texas, through an
authoritative pronouncement that only this Court can deliver.
III
As might be expected when billions of dollars are on the line, all
the parties in Marshall and Hunter are ably represented by high-quality
counsel. This Court would therefore have the benefit of effective briefing
and oral advocacy were it to take up the attorney-immunity question
presented here. To deny these two mandamus petitions is to miss out
on as good an opportunity as the Court is likely to get to provide clarity
that has been lacking in our opinions addressing this recurring issue.
Because the Court refuses to heed the call—Cleanup on aisle SCOTX!—
we respectfully dissent.
Evan A. Young
Justice
James P. Sullivan
Justice
OPINION FILED: October 10, 2025
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