The Texas Supreme Court has granted review of an Austin Court of Appeals decision affirming trial court orders dismissing a legal malpractice case under Rule 91a.
Amber Carden and William Duncan McGee v. Minton, Bassett, Flores & Carsey, P.C. and John C. Carsey, Individually (No. 24-0834; granted September 26, 2025) arose from a dispute over a law firm’s representation of a criminal defendant. Carden and her son McGee retained the law firm to defend McGee on charges of aggravated assault with a deadly weapon in 2014. Carsey informed Carden that the firm required a $60,000 retainer and that fees were likely to surmount $100,000 (in addition to $10,000 for a private investigator). Carden paid $100,000, but in June 2015 Carsey informed Carden that only $20,000 of the retainer remained and that preparing for trial would cost another $200,000. Carden paid another $100,000, only to be informed that the trial had been moved to May 2016 and a third payment of $100,000 was required. Carden paid it. McGee was convicted. In 2022 Carden and McGee sued the firm and Carsey, asserting negligence, breach of fiduciary duty, negligent misrepresentation, breach of contract, and fraud.
The firm and Carsey moved to dismiss under Rule 91a and the TCPA. Plaintiffs moved for limited discovery and amended their pleading, adding gross negligence and dropping negligent misrepresentation. After a hearing, the trial court denied Plaintiffs’ motion for limited discovery. Shortly thereafter the trial court heard the Rule 91a and TCPA motions. The court denied Defendants’t TCPA motion, granted the Rule 91a motion, and denied Defendants their attorney’s fees. Plaintiffs appealed. Defendants cross-appealed the denial of their TCPA motion to dismiss and the trial court’s ruling on attorney’s fees.
In an opinion by Chief Justice Byrne, the court of appeals affirmed. Defendants argued that since “McGee [was] currently incarcerated has not been exonerated for his crimes, and did not plead his exoneration from them,…under the Peeler doctrine, his claims against [the firm] are baseless as a matter of law.” Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995) (plurality op.). Peeler ruled that a convict could not sue his or her defense counsel for legal malpractice, breach of contract, breach of warranty, and DTPA violations for “failing to tell her that the prosecutor offered immunity in exchange for testimony against the convict’s colleagues. Rather, ‘[f]actual allegations of this nature generally merit review by the State Bar.” (Carden and McGee filed a grievance in this case as well.) Plaintiffs argued that Peeler “does not bar his ‘distinct’ claims for breach of fiduciary duty, breach of contract, and fraud, which are based on allegations that [the firm] charged an excessive fee for work performed, failed to account for or return funds paid, and made fraudulent communications to obtain funds.”
The court rejected Plaintiffs’ argument, pointing to subsequent authority holding that the Peeler doctrine bars convicts from suing their criminal-defense lawyers for malpractice unless “they have been exonerated on direct appeal, through post-conviction relief, or otherwise” (citations omitted). Additionally, the court observed, Peeler likewise barred claims based on allegations that a convict’s attorney “(1) failed to provide accounts of how funds were expended; (2) overcharged and refused to refund fees paid; and (3) used fees paid for purposes other than he said he would.” (citation omitted). The court thus held that the Peeler doctrine applied and barred McGee’s claims against the firm. The court further held that Carden had no standing to assert claims against Defendants because she wasn’t the firm’s client, McGee was. Since no contract existed that demonstrated privity between Carden and the firm, she had no attorney-client relationship with the firm, express or implied. The trial court did not err, consequently, in granting Defendants’ Rule 91a motion.
Turning to the TCPA issues, Plaintiffs argued that they were entitled to limited discovery, which sought a transcript of Carsey’s sworn testimony to a 2021 investigator hearing conducted by SBOT’s Office of Chief Disciplinary Counsel on their grievance. Observing that both the Texas Rules of Disciplinary Procedure and Government Code protect that information from public disclosure, the court concluded that Plaintiffs could not get discovery of the transcript and that the trial court did not abuse its discretion when it denied their request. As to Defendants’ contention that they were entitled to TCPA dismissal and attorney’s fees, the court determined that: (1) Plaintiffs’ lawsuit against the firm was “based on or in response to” communications pertaining to a judicial proceeding, i.e., McGee’s criminal trial; and (2) the TCPA’s commercial speech exemption applied to Plaintiffs’ legal action against the firm. The trial court did not err in denying the TCPA motion to dismiss.
Oral argument has been scheduled for December 4.
