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Trusts & Estates Click here for the full text of this decision FACTS:The facts, as set out in the court of appeals’ opinion, are as follows: The limited record before the court shows that the relator, a lawyer, was the trustee and “residual beneficiary” of a trust created by Ronnie Lee Morgan in 2001, named the 657 Trust. On April 19, 2003, Morgan’s wife, Jacqueline Spenser Morgan, represented by opposing counsel, brought suit in Lubbock County seeking a declaration that the trust was invalid, for an accounting, and for return of property held by relator as trustee. The relator is a party to that suit. On May 8, the trial judge signed a judgment, to which Morgan, opposing counsel (on behalf of Morgan’s wife) and the relator agreed, declaring the trust void. The judgment also directed relator to provide Morgan’s wife with an accounting and to “deliver possession to [Morgan's wife] all assets and all documentation and evidence regarding assets and liabilities” of the trust. The relator’s petition recites that he conveyed to Morgan’s wife all the real estate and vehicles he held as trustee, but did not produce “financial disclosures and activities” of the trust, claiming the protection from self incrimination provided by the Fifth Amendment to the U.S. Constitution and Article I, sec. 10 of the Texas Constitution. Within days of the judgment, Morgan’s wife died. Opposing counsel filed a motion to compel and for sanctions in the trial court on July 2, alleging that relator had failed and refused to comply with his obligations under the May 8 judgment, and asking the court, on hearing, to order the relator to comply fully with the obligation to provide the accounting, documentation and evidence of assets and liabilities. The motion also asked for attorneys’ fees and other sanctions. Opposing counsel also undertook post-judgment discovery. He noticed the relator for deposition on July 15, via a notice that also called for the production of documents and caused a subpoena duces tecum to be issued. The motion, deposition notice and subpoena were served on relator on July 3, a Thursday. Opposing counsel signed the deposition notice as attorney for Morgan (who also was a party) and for Morgan’s wife’s estate. On July 8, the relator filed a motion to quash and for protective order, which asserted that the information sought by opposing counsel’s clients was protected by lawyer-client privilege because the relator had previously represented Morgan, and that relator needed time to retain counsel for himself because of the conflicts of interest raised by the subpoena and the deposition notice. Opposing counsel sent a letter dated July 10 to relator stating that opposing counsel had represented Morgan for “a substantial period of time,” and demanding documents concerning relator’s representation of Morgan. The letter stated that opposing counsel had Morgan’s “permission to extend to you his consent to distribute” the documents to opposing counsel. The relator did not appear for the deposition or provide any documents on July 15. Opposing counsel’s motion to compel and for sanctions, and relator’s motion to quash and for protective order, were heard by the trial court on July 18. At the hearing, opposing counsel sought to question the relator about whether he had given documents sought by opposing counsel’s clients to the Federal Bureau of Investigation after he had received the deposition notice. The relator refused to answer any questions, asserting his Fifth Amendment right against self-incrimination. The court granted the motion to compel. The record presented with the relator’s petition did not contain a written order reflecting the court’s rulings, and the precise terms of the court’s order were not clear from the court’s statements from the bench, as reflected in the reporter’s record. The court’s written order, apparently signed July 22, though, required the relator to produce the documents and tangible things requested in the subpoena duces tecum and to appear for deposition at opposing counsel’s office at 9 a.m. on July 23, 2003. The court did not declare relator could not continue to exercise his Fifth Amendment right at the deposition. The court also assessed $2,000 as attorneys’ fees and other reasonable expenses related to the motion to compel against the relator for his refusal to comply with the May 8 judgment. According to the reporter’s record of the July 18 hearing, the court did not directly address the merits of the relator’s motion to quash and for a protective order, finding that the motion was untimely filed. HOLDINGInsofar as relator’s petition seeks a writ of mandamus addressed to opposing counsel or Ronnie Lee Morgan, it is dismissed for want of jurisdiction. The petition for a writ of mandamus addressed to the trial judge is denied. The cour denies the relator’s petition with respect to the trial court’s orders that he appear in opposing counsel’s office for deposition and produce documents. The most obvious reason why mandamus relief must be denied is that the primary issue presented is moot. The relator filed his petition four days after the July 18 hearing but less than 24 hours before he was to be deposed. The record leads to the conclusion that the deposition has now taken place and the writ sought by the relator would therefore have no effect. There are additional reasons why the petition must be denied. The relator’s petition does not directly ask that the court order the trial court to consider the merits of his motion to quash and for a protective order. Nonetheless, he contends that the court was wrong to rule that the motion was filed untimely. Although, on the face of the record, it appears that the relator’s contention may be correct on this issue, neither of the grounds asserted in the relator’s motion would provide a basis for the mandamus relief the relator seeks. The motion first asserted that information sought by opposing counsel’s clients was protected by the lawyer-client privilege. Texas Rule of Evidence 503. A motion for protection is not the preferred method of asserting a privilege under the discovery rules, but moving for protection does not waive the later assertion of privilege. Texas Rule of Civil Procedure 192.6. The court does not understand the trial court’s order to rule that the documents opposing counsel’s clients sought were not privileged, nor to have pre-empted any party to the proceeding from obtaining the trial court’s ruling on claims of privilege. Texas Rule of Civil Procedure 193.3 and 193.4. The second basis for the relator’s motion to quash and for protective order was his need for time to retain counsel. Although he filed his mandamus petition pro se, the relator was represented by counsel at the July 18 hearing, and voiced no objection to proceeding with the hearing. The relator also argues that the trial court’s order deprived him of his right against self incrimination under the Fifth Amendment. The court cannot agree. The record does not reflect that the trial court ordered relator to testify in violation of his Fifth Amendment rights. In fact, the trial court did not order relator to testify at all. Concerning the deposition, at the hearing the court stated only, “Also, I don’t know how you’re going to handle the deposition if he’s going to claim the Fifth Amendment and all, but he still has to appear.” The court’s written July 22 order requires only that relator “present himself for oral deposition” at the stated time and place. The relator’s petition asks that the court issue a writ of mandamus to opposing counsel and his client Ronnie Lee Morgan as well as to the trial judge. This court’s writ power is established, and limited, by sec. 22.221 of the Government Code. Except as otherwise necessary to enforce this court’s jurisdiction, that section authorizes the court to issue writs of mandamus to judges, not parties or their counsel. The court has no authority to issue a writ in this instance to opposing counsel or to his client. OPINION: Per curiam.

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