







NUMBER 13-09-00494-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

IN RE:  DONNA INDEPENDENT SCHOOL DISTRICT, 
ALFREDO LUGO, GEORGE HERNANDEZ, 
NICK CASTILLO, AND RENE REYNA
 

On Relators' Petition for Writ of Mandamus
and Emergency Motion for Temporary Relief
 

O P I N I O N


Before Justices Rodriguez, Garza, and Vela
Opinion by Justice Garza


	Relators, Donna Independent School District ("Donna ISD"), Alfredo Lugo, George
Hernandez, Nick Castillo, and Rene Reyna, filed a petition for writ of mandamus alleging
that respondent, the Honorable Israel Ramon Jr., presiding judge of the 430th Judicial
District Court of Hidalgo County, Texas, abused his discretion by granting the "Verified
Petition to Take Deposition Before Suit" filed by the real party in interest, Oscar Cassiano. 
Relators also filed an "Emergency Motion for Temporary Relief" with this Court asking us
to stay the trial court proceedings until such time as the petition may be fully considered. 
On August 26, 2009, we granted the emergency motion and requested that Cassiano file
a response to relators' petition.  Cassiano filed a response on September 4, 2009, and
relators filed a reply to said response on September 18, 2009.  Having examined and fully
considered relators' petition, Cassiano's response, and relators' reply, we deny the petition
and lift the emergency stay.
I.  Background
	Cassiano sought the court's permission, under Texas Rule of Civil Procedure 202,
to take the pre-suit depositions of Donna ISD board members Lugo, Hernandez, Castillo
and Reyna, as well as Rachel Martinez, a teacher employed by Donna ISD. (1) See Tex. R.
Civ. P. 202.1.  According to his verified petition, Cassiano sought to take the depositions
"to investigate a potential claim" for "slander and tortious interference with contract arising
from [Cassiano's] employment with [Donna ISD]."  See Tex. R. Civ. P. 202.1(b).  The
petition specifically alleged the following underlying facts:
In the middle of an administrative proceeding contesting his termination from
Donna ISD, Cassiano, the chief financial officer and employee of Donna
ISD[,] became aware that a Donna ISD concerned citizen had stated in open
session at a recent Donna ISD board meeting that money had been given to
one or more of the Donna ISD school board members to influence the board
into terminating Cassiano's employment with the Donna ISD and employ the
purveyor of the money.  Further, Cassiano also became aware that false
statements about his job performance had been made all in an effort to oust
him from his employment with Donna ISD.

	. . . .

Without eliciting testimony on the issue from [relators], it is likely [Cassiano]
will not receive a fair and unbiased hearing before the Donna ISD school
board as Constitutionally required by the Due Process Clause.

	The board members filed a response to the petition, arguing that the depositions
should not be authorized for two reasons.  First, they contended that Cassiano's request
should be denied because the relators retained governmental immunity from the potential
tort claims.  See, e.g., Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); see also
Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.051 (Vernon 2005) (waiving immunity
for school districts only for claims arising from the operation or use of a motor vehicle);
Tex. Educ. Code Ann. § 22.0511(a) (Vernon Supp. 2008) (providing immunity for
professional employees of school districts for any act that is within the scope of
employment and that involves the exercise of discretion, other than acts involving
excessive discipline or negligence resulting in bodily injury to students).  Second, the board
members argued that, because Cassiano had not exhausted his administrative remedies,
the trial court would lack jurisdiction over the underlying dispute and therefore lacks
jurisdiction to grant relief under Rule 202.  See Tex. Educ. Code Ann. § 7.057 (Vernon
2006) (providing an administrative appeals process for persons aggrieved by school laws,
violations of school laws, or violations of school district employment contracts); see also,
e.g., Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 354 (Tex. 2005) (stating that
"exhaustion of administrative remedies [is] a prerequisite to the trial court's jurisdiction").
	After a hearing on August 12, 2009, the trial court granted Cassiano's Rule 202
petition and issued findings of fact and conclusions of law in support thereof.  Relators now
challenge the order through the instant petition for writ of mandamus.
II.  Standard of Review and Applicable Law
	Mandamus will issue to correct a clear abuse of discretion for which the remedy by
appeal is inadequate.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding).  A trial court abuses its discretion when it acts in an unreasonable
or arbitrary manner; or, stated differently, when it acts without reference to guiding rules
and principles. See, e.g., Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.
1991).  An appeal is inadequate, and mandamus relief is therefore appropriate, where a
trial court abuses its discretion by granting a petition for pre-suit depositions under Rule
202.  In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex. App.-Austin 2006, orig.
proceeding).
	Under Rule 202, a person may petition a trial court for an order authorizing pre-suit
depositions in order to investigate a potential claim or suit.  Tex. R. Civ. P. 202.1(b). (2)  The
trial court must then grant the petition if, but only if, it finds that the likely benefit of allowing
the petitioner to take the requested depositions outweighs the burden or expense of the
procedure.  Tex. R. Civ. P. 202.4(a)(2).
	The petition must be filed "in a proper court of any county" where the witness
resides.  Tex. R. Civ. P. 202.2(b)(2).  "A reasonable interpretation of 'proper court' is a court
with jurisdiction over the underlying dispute."  City of Willow Park v. Squaw Creek Downs,
L.P., 166 S.W.3d 336, 340 (Tex. App.-Fort Worth 2005, no pet.).  In determining whether
a court is "proper" where no suit is yet anticipated, as here, we look to the reasons stated
by the petitioner for desiring to obtain the testimony.  Id.; see Tex. R. Civ. P. 202.2(g)
(providing that a Rule 202 petition must state petitioner's reasons for desiring to obtain the
testimony of the proposed deponents).
III.  Analysis
	Relators argue that the trial court would lack jurisdiction over Cassiano's potential
suit because (1) relators are entitled to governmental immunity to suit, and (2) Cassiano
has not exhausted his administrative remedies under the education code.  According to
relators, the trial court is therefore not a "proper court" under the definition provided in City
of Willow Park, 166 S.W.3d at 340.  These arguments are predicated on relators'
contention that, "[b]ased on his allegations and contentions at the [August 12] hearing, it
is clear that [Cassiano] anticipates a lawsuit against [the board members and Martinez] in
their capacities as officials and employee of the Donna ISD."
	We do not agree with relators' premise that Cassiano necessarily anticipates
bringing a lawsuit against relators.  Cassiano specifically stated in his Rule 202 petition that
he sought to take pre-suit depositions in order to determine if he has a claim for slander
and tortious interference with contract, both arising out of statements allegedly made by
a "concerned citizen" at a Donna ISD board meeting.  It is not at all clear to this Court that
Cassiano's potential claims, if they are indeed eventually pursued, will necessarily be
brought against relators.  Moreover, "[t]here is no requirement in Rule 202 that the person
sought to be deposed be a potentially liable defendant in the claim under investigation." 
City of Houston v. U.S. Filter Wastewater Group, Inc., 190 S.W.3d 242, 245 (Tex.
App.-Houston [1st Dist.] 2006, no pet.).
	Additionally, it is not certain that Cassiano would first be required to exhaust the
administrative appeals process provided in the education code.  That process applies only
to complaints alleging violations of school laws or of school district employment contracts. 
Tex. Educ. Code Ann. § 7.057(a).  However, Cassiano's Rule 202 petition states that his
potential claim is for slander or tortious interference with contract, not a violation of school
law or a violation of his employment contract.  If the evidence obtained through discovery
establishes that suit is warranted on the slander or tortious interference causes of action,
Cassiano would not be required to exhaust administrative remedies before filing suit in a
court of law. (3)
	Looking to the reasons stated by Cassiano for desiring to obtain the deposition
testimony, see City of Willow Park, 166 S.W.3d at 340, we cannot say that the trial court
would lack jurisdiction over the underlying claim such that it would not be a "proper court"
under Rule 202.2(b)(2).  We therefore conclude that the trial court did not abuse its
discretion by granting Cassiano's verified petition for pre-suit depositions.
IV.  Conclusion
	For the foregoing reasons, relators' petition for writ of mandamus is DENIED. 
Having denied the petition, we hereby LIFT the emergency stay of proceedings previously
imposed in trial court cause number C-1672-09.


  
							DORI CONTRERAS GARZA,
							Justice

Opinion delivered and filed on
the 6th day of October, 2009.
1.  Martinez is not a party to this original proceeding.
2.  Rule 202 offers two exclusive avenues of relief for parties seeking to take pre-suit depositions.  Rule
202.1(b) is available for petitioners who wish "to investigate a potential claim or suit," whereas Rule 202.1(a)
allows the authorization of pre-suit depositions in order "to perpetuate or obtain the [petitioner]'s own testimony
or that of any other person for use in an anticipated suit."  Tex. R. Civ. P. 202.1(a), (b) (emphases added). 
As noted below, relators argue that Cassiano anticipates suing them and that Rule 202.1(a) should therefore
apply.  However, based upon Cassiano's petition and arguments made by counsel at the August 12 hearing,
the trial court concluded, and we agree, that Cassiano's Rule 202 petition instead sought deposition testimony
"to investigate a potential claim or suit."  See Tex. R. Civ. P. 202.1(b).  Accordingly, we analyze the propriety
of the trial court's order within the context of Rule 202.1(b).
3.  The trial court noted in its conclusions of law that exhaustion of administrative remedies is not
required if the claim at issue is for a violation of a constitutional or federal statutory right.  Tex. Educ. Agency
v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 91 n.3 (Tex. 1992).  The trial court further concluded
that Cassiano's pleadings "are sufficient to allege a constitutional claim" and that such constitutional claim is
"not solely ancillary" to Cassiano's state law tort claims.  See Dotson v. Grand Prairie Indep. Sch. Dist., 161
S.W.3d 289, 292-93 (Tex. App.-Dallas 2005, no pet.) ("Where the constitutional claims brought by a school
employee are only ancillary to and supportive of a complaint about the board's handling of an employment
contract or application of school law, the employee must first exhaust the administrative process.").

	Relators contend that this conclusion was erroneous because:  (1) Cassiano's pleadings were not,
in fact, sufficient to allege a constitutional claim; and (2) to the extent that Cassiano did effectively plead a
constitutional claim, such claim is only "ancillary to his complaint concerning his employment contract."  We
need not determine whether the trial court erred in this regard, however, because even if Cassiano failed to
properly plead a non-ancillary constitutional claim, we find no abuse of discretion in the trial court's granting
of Cassiano's Rule 202 petition for the reasons stated.  See Tex. R. App. P. 47.1.
