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In re Posadas USA7/31/2001
attempting to represent conflicting interests creates a situation which should never occur under our adversary system of trying cases." J.W. Hill & Sons, Inc. v. Wilson, 399 S.W.2d 152, 154 (Tex. Civ. App.-San Antonio 1966, writ ref'd n.r.e.). We hold mandamus relief is appropriate.
Motion for Continuance
Finally, the Garzas claim that "even if the trial court improperly denied the motion to withdraw, he still had discretion to deny the motion for continuance." Specifically, they claim that had the relators "spoken truthfully and fully disclosed all information to their attorney, the multiple representation would have never occurred or the withdrawal would have occurred well before trial."
The trial court has wide discretion in granting or denying a motion for continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). When the ground for a continuance is withdrawal of counsel, the movant must show that the lack of counsel is not due to their own fault or negligence. Id. When an attorney is permitted to withdraw, the trial court must give the party time to secure new counsel and time for new counsel to investigate the case and prepare for trial. Id.
Again, to accept the Garzas' argument that the withdrawal is Posadas' fault would require us to conclude Posadas had knowledge of the information long before counsel filed his motion to withdraw. We cannot reach such a conclusion. Because the withdrawal here is proper, Posadas must be given time to obtain new counsel, who must have time to prepare for trial. Id. The trial court abused its discretion in denying the motion for continuance.
Conclusion
Because a conflict exists, Posadas' counsel should have been permitted to withdraw and the trial court abused his discretion in denying the motion to withdraw and the motion for continuance. Accordingly, we conditionally grant Posadas' petition for writ of mandamus. Judge Flores is directed to vacate his orders denying the motion to withdraw and the motion for continuance and to grant Posadas' counsel's motion to withdraw and Posadas' motion for continuance. A writ of mandamus will issue only if Judge Flores fails to comply with these instructions. Our previous stay order is lifted.
Karen Angelini, Justice
PUBLISH
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