In August 2014 William Duncan McGee was charged with aggravated assault with a deadly weapon, aggravated sexual assault and retaliation, was represented at his May 2016 trial by John Carsey and Rick Flores of Minton, Bassett, Flores & Carsey, P.C. (the Firm), was acquitted of the sexual-assault charge and convicted on the others, and received concurrent sentences of 42 and 10 years; his conviction was affirmed on a single ineffective-assistance issue.¹ More than five years after trial McGee and his mother, Amber Carden, sued Carsey and the Firm for malpractice, breach of fiduciary duty, breach of contract, negligent misrepresentation, and fraud.² They allege deficient representation and that Carsey solicited $300,000 from Carden in three $100,000 payments, promised specific services such as a $10,000 investigator, weekly all-day meetings with McGee and experts, never delivered them, and never accounted for the funds or refunded unearned fees.³ The Firm says it diligently represented McGee and that the suit is a misguided response to his conviction.⁴

The Firm moved to dismiss under Rule 91a, arguing that Carden lacked standing as a non-client, that the Peeler doctrine bars McGee's claims because he has not been exonerated, that the remaining claims are improperly fractured malpractice claims, and that the suit was untimely, and the trial court dismissed all claims with prejudice after a nonevidentiary hearing.¹ The Third Court of Appeals (Austin) affirmed, holding that Carden lacked standing and that Peeler categorically bars McGee's claims, without reaching fracturing and limitations.² The Supreme Court heard argument on December 4, 2025³ and on June 26, 2026 affirmed in part, reversed in part and remanded.⁴

Petition for review from the Third Court of Appeals (Austin) after a Rule 91a dismissal; argued December 4, 2025; opinion by Justice Devine issued June 26, 2026.⁵

• Carden and McGee:¹ whether the trial court erred in granting a Rule 91a motion based on defensive theories that were not conclusively established.
• The Firm:² whether the claims fail in their entirety on the face of the pleadings so that the Rule 91a dismissal was proper.

Rule 91a permits dismissal only if the allegations, taken as true with reasonable inferences, do not entitle the claimant to relief, the Court accepts nonconclusory facts but not legal conclusions, and the legal effect of the pleaded facts is reviewed de novo.¹

Whether the Peeler doctrine bars McGee's claims.

Carden and McGee (Petitioners): Lower courts have inappropriately expanded Peeler to bar all claims by convicted criminals against their defense attorneys simply because they are criminal defense attorneys, and plaintiffs may still maintain fraud, fiduciary-duty and contract claims supported by factual allegations.¹

The Firm (Respondents): Because McGee remains incarcerated and has not been exonerated, Peeler completely bars all claims, and all but the negligence claim are improperly fractured professional-negligence claims.²

Whether Carden has standing.

Carden and McGee (Petitioners): The court of appeals erred in holding Carden lacks standing although she had an attorney-client relationship with the Firm or, alternatively, suffered concrete injury.³

The Firm (Respondents): Carden was never the Firm's client and lacks standing, and the statute of limitations has run with the discovery rule inapplicable.⁴

The petitioners argued that the court of appeals' categorical expansion of Peeler undermines the integrity of the legal profession and the justice system and that it erred on standing and fracturing, and the Firm responded that the claims fail on the face of the pleadings.¹

• Intentional torts. Asked the essence of the claim, petitioners' counsel said it is intentional torts, not legal malpractice, and they do not challenge the underlying conviction. (Oral Argument, 0:10:35; 0:11:46)
• True fraud claim. Asked if a fraud claim by a criminal defense lawyer's client escapes Peeler, respondents' counsel said a true fraud claim not intermingled with legal skill could. (Oral Argument, 0:32:02)
• Limitations. Asked why limitations is not decided as a matter of law, petitioners' counsel said it is fact-based and should be developed in the trial court, not under Rule 91a. (Oral Argument, 0:18:36)
• Skill and strategy. Respondents' counsel said anything arguably touching an attorney's skill, knowledge, experience or strategy is malpractice, though a lawyer could defraud a client in a distinct way. (Oral Argument, 0:21:53; 0:23:04)
• Extending Peeler. Asked why Peeler should not extend to criminal defense, petitioners' counsel said a Rule 91a review does not allow developing facts, and asked for remand. (Oral Argument, 0:09:08)
• Her own words. Respondents' counsel quoted petitioners' reply brief that the mother "actively participated in and directed the case strategy and decision-making." (Oral Argument, 0:34:35)
• Breach of contract. Asked about the breach of contract claim, respondents' counsel said it rolls up into legal malpractice, so the mother lacks standing. (Oral Argument, 0:39:04; 0:40:15)

None noted

Holding

Peeler precludes an unexonerated criminal defendant from suing for legal malpractice and bars claims that would require him to prove counsel's negligence caused his conviction, but it does not bar billing or fee disputes independent of the conviction, such as billing for work not performed, inflated hours or failure to account for retainer funds.¹ Carden, a non-client, has standing to pursue fraud and contract claims for her own direct financial injury as a payor who was solicited and promised specific services, though not claims that depend on an attorney-client relationship.²

Reasoning

Carden was not the Firm's client because paying fees, communicating with counsel and sharing her son's interests do not show the Firm agreed to provide legal services to her, so her malpractice, gross-negligence, and fiduciary-duty claims were properly dismissed.³ But as a direct payor whom the lawyer solicited, who relied on specific promises that went unfulfilled and who was not given an accounting or refund, she pleaded a pocketbook injury that supports standing for fraud and contract claims, and the privity concerns do not apply to such claims.⁴ Peeler rests on causation, since the convict's conduct is treated as the sole cause of the conviction, and on policy, but the court of appeals applied it as a categorical bar, which would immunize defense counsel from claims wholly independent of the conviction.⁵ Whether the fee claims are repackaged malpractice claims barred by the anti-fracturing rule, and whether limitations bars them, are left for the court of appeals to decide in the first instance on remand.⁶

Disposition

Dismissal affirmed in part and reversed in part, with remand to the court of appeals to consider the fracturing and limitations issues not reached in the first appeal.⁷

Vote Breakdown

Majority Opinion by Justice Devine

Joined by Busby, Hawkins, Huddle, Lehrmann, Sullivan, and Young, JJ.; Blacklock, C.J., and Bland, J. (except as to Part II.B)

Concurrence by Justice Young

Joined by Devine, J.

Concurrence in Part and Dissent in Part by Chief Justice Blacklock

Joined by Bland, J.

De novo review of the legal effect of the pleaded facts on a Rule 91a dismissal, with standing assessed claim by claim.¹

Justice Devine wrote the opinion, joined by Justices Lehrmann, Busby, Huddle, Young, Sullivan and Hawkins, and by Chief Justice Blacklock and Justice Bland except as to Part II.B.¹ Justice Young, joined by Justice Devine, concurred, agreeing with remand but expressing serious concern about the limitations issue.² Chief Justice Blacklock, joined by Justice Bland, concurred in part and dissented in part, because all of the son's claims are barred by Peeler and, as his mother paid the bills, he has no fee claims of his own.³