After E. Pierce Marshall, Sr. died, his wife Elaine T. Marshall became trustee and income beneficiary of a Texas trust that, on her death, would make their youngest son Preston Marshall successor trustee, or an independent person if he could not serve, rather than the oldest son, E. Pierce Marshall, Jr..¹ Starting in December 2013, Elaine moved the trust to Wyoming on her attorneys' advice, after obtaining an IRS private letter ruling, by forming a Wyoming trust and merging the Texas trust into it; the Wyoming trust divides the assets into two equal marital trusts, one for Preston and his children and one for Pierce Jr. and his children.² Pierce Jr. says he gave Elaine and the family company MarOpCo legal advice on those transactions and managed her outside attorneys.³ Preston sued Elaine for breach of fiduciary duty and sued Pierce Jr. and attorney Edwin K. Hunter for aiding and abetting, arguing that after Elaine's death Pierce Jr. as trustee could structure the liquidation of the family's holdings to benefit himself; billions of dollars are at stake.⁴

This is an original proceeding for writ of mandamus from the denial of summary judgment on attorney immunity. Pierce Jr. and Hunter moved for summary judgment after discovery, the trial court (the probate court) denied the motions, and the Fourteenth Court of Appeals stayed its proceedings in Pierce Jr.'s case while it considered his petition and then denied relief without comment on October 16, 2024.¹ Pierce Jr. filed his petition in this Court on December 3, 2024; Elaine responded in support and Preston in opposition, the Court issued a stay on April 17, 2025, and requested briefs on the merits, which were filed through the summer of 2025. The Court denied the petition on October 10, 2025, with Justice Devine not participating, together with the companion petition in In re Hunter (No. 25-0057), over a dissent by Justice Young and Justice Sullivan.²

Original proceeding for writ of mandamus after the Fourteenth Court of Appeals denied relief; denied October 10, 2025, with a dissent by Justices Young and Sullivan.³

Pierce Jr. presents one issue: whether the probate court clearly abused its discretion, leaving him no adequate remedy by appeal, by denying attorney immunity although all the claims against him rest on actions he took as an attorney for his client.¹ Preston presents two: whether the trial court abused its discretion in denying summary judgment filed six years into the litigation where Pierce Jr. offered no competent evidence of an attorney-client relationship with his mother and fact issues remain for a jury, and whether Pierce Jr. has an adequate remedy by appeal from the routine denial of summary judgment.² The dissent frames the question as whether attorney immunity is immunity from suit or only from liability, and so whether mandamus is available before trial.³

Mandamus is generally unavailable when a trial court denies summary judgment, but the Court has made exceptions when a substantive right would be impaired or lost while awaiting appeal, as in In re Facebook.¹ The attorney-immunity defense turns on two facts, the existence of an attorney-client relationship and the kind of conduct at issue, after which the court decides whether the conduct was within the scope of representation.²

Whether the trial court erred in denying attorney immunity.

Relator (Pierce Jr.): The claims rest on his legal advice and assistance with trust transactions for Elaine and MarOpCo, which is the kind of conduct attorney immunity protects, and the uncontroverted testimony of both lawyer and client shows he represented her; Preston's failure to controvert it means summary judgment should have been granted.¹

Real Party in Interest (Preston): Pierce Jr. offered no competent evidence of the existence and scope of an attorney-client relationship, such as an engagement agreement, pleadings, or correspondence, and even if he had, Preston raised a fact issue that a jury must resolve; every attorney-immunity decision of this Court involved an undisputed representation of a third party at arm's length.²

Real Party in Interest (Elaine): She supports the petition: Pierce Jr. acted as her lawyer and the lawyer for MarOpCo, so attorney immunity bars Preston's claims, and she should be able to retain counsel without threat of suit against him.³

Whether mandamus is available to enforce attorney immunity.

Relator (Pierce Jr.): Attorney immunity shields an attorney from the burdens of suit, not just from liability, so he, his client, and their attorney-client relationship have no adequate remedy by appeal, and continued litigation wastes resources.⁴

Real Party in Interest (Preston): Mandamus review is typically unavailable for a routine denial of summary judgment on an affirmative defense, so Pierce Jr. has an adequate remedy by appeal.⁵

The dissent would have granted review because the immunity-from-suit question recurs, the courts of appeals are split, and the leading authority is the Fifth Circuit's Erie guess in Troice.¹

• Adriano Kruel Budri filed an amicus brief.
• Wolfgang P. Hirczy de Miño filed an amicus brief.

Reasoning

The Court gave no reasons for denying the petition; the only writing is the dissent by Justices Young and Sullivan, which is not a holding.¹ They wrote that the Court passed up a chance to say whether attorney immunity protects from suit or only from liability, a question that would benefit Texas attorneys, their clients, and the state and federal courts that confront it.² The immunity requires only an attorney-client relationship and conduct of the kind attorneys engage in, and Pierce Jr. and Hunter both argue it is immunity from suit that mandamus must protect before trial, like the section 230 immunity in In re Facebook.³

They explained that the Court's cases use "suit" and "liability" inconsistently while the Fifth Circuit's Troice decision guessed that Texas would treat attorney immunity as true immunity from suit, and suggested harmonizing the cases because immunity from suit necessarily also protects against liability; they rejected Preston's argument that immunity from suit must be jurisdictional as a false dichotomy and said that if the doctrine protects against litigation, appeal cannot be an adequate remedy.⁴

As to this case, the trial court's denial may not have been an abuse of discretion, because a fact question exists about whether Pierce Jr. represented Elaine, though both say he did and they reserved judgment; the Court could still have taken the case to clarify the legal question, with the parties free to renew summary judgment on remand.⁵

Disposition

Petition for writ of mandamus denied on October 10, 2025, and the stay order lifted.

Vote Breakdown

Justice Young and Justice Sullivan dissented from the denial of the petitions.⁶ Justice Devine did not participate.