                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-18-00230-CV


       IN RE KATRENA BECKER AND CARL DEAN MATTHEWS, RELATORS


        OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

                                      July 11, 2018

                                       OPINION
                     Before QUINN, C.J., and PIRTLE and PARKER, JJ.

       Relators, Katrena Becker and Carl Dean Matthews (Becker/Matthews), petition

this court for a writ of mandamus. Through it, they ask that we direct the Honorable Anna

Estevez, 251st Judicial District, “to vacate the portion of her May 2, 2018 Order permitting

interrogatories be propounded to Relators and requiring Relators’ depositions be taken

between July 10, 2018 and August 31, 2018” and “to enter an order Granting Relators’

Motion to Abate.”     Through the latter, Becker/Matthews wanted the trial court to

“temporarily stay this civil case so that any criminal proceedings against them may

proceed without interference and their constitutional rights will not be compromised.” We

deny the petition.
       Authority

       Mandamus is an extraordinary remedy granted only when a relator shows that the

trial court clearly abused its discretion and that no adequate appellate remedy exists. In

re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per

curiam); In re Lloyd, No. 07-16-00340-CV, 2016 Tex. App. LEXIS 10489, at *3 (Tex.

App.—Amarillo Sept. 26, 2016, orig. proceeding) (mem. op.). A relator bears the burden

of proving these two requirements. In re Lloyd, 2016 Tex. App. LEXIS 10489, at *3. So

too must the relator show that 1) the trial court had a legal duty to perform, 2) performance

was demanded of the court, and 3) it refused. Id.

       Next, whether to grant or deny a motion to abate a proceeding lies within the trial

court’s discretion. In re AAA Tex. Cty. Mut. Ins. Co., No 12-15-00277-CV, 2016 Tex. App.

LEXIS 9000, at *3 (Tex. App.—Tyler Aug. 18, 2016, orig. proceeding) (mem. op.); In re

Am. Nat’l Cty. Mut. Ins. Co., 384 S.W.3d 429, 435 (Tex. App.—Austin 2012, orig.

proceeding). In exercising that discretion, the trial court must be mindful of its duty to

schedule proceedings so as to expeditiously dispose of them. Jongebloed v. Horkey Oil

Co., No. 07-03-00052-CV, 2005 Tex. App. LEXIS 2793, at *8 (Tex. App.—Amarillo Apr.

12, 2005, pet. denied) (mem. op.). In turn, we must be respectful of the trial court’s

considerable discretion in managing its docket. Id.

       Application of Authority

       Amarillo Natural Gas, Inc., Paisano Natural Gas, Inc., Paisano Pronto, Ltd., and

William Leslie Price (Amarillo) sued approximately ninety-seven different entities and

individuals to recover damages for tortious acts allegedly committed by those defendants.

The causes of action alleged included conversion, fraud, breached fiduciary duty, and



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mail fraud. Becker/Matthews were two of the ninety-seven sued. Furthermore, the action

was commenced in March of 2016. Its two-year anniversary date lapsed several months

ago.

          The motion to abate was at least the second one filed by Becker/Matthews based

upon purported criminal investigations being conducted by various federal governmental

agencies. Furthermore, the order underlying this petition for writ of mandamus was

actually another one which granted Becker/Matthews relief and abated the conduct of

discovery in some manner. At least one other had been issued. This time, however, the

trial court abated the proceeding until July 9, 2018, and decided to permit discovery to

proceed thereafter. A primary reason underlying its decision to do so was the existence

of a special two-week trial setting scheduled in January 2019. According to counsel for

the plaintiffs, further postponing discovery would hamper their ability to prepare for that

setting.

          The request being made to us by Becker/Matthews is a bit confusing. For instance,

they suggest that they only want to stay discovery from occurring through the use of

interrogatories and depositions. Yet, they also ask that we order the trial court to grant

their motion to abate in toto, and in that motion they requested the trial court to “abate the

civil proceedings against them until September 4, 2018 and at that time set a hearing

to revisit the status of these parallel proceedings.” (Emphasis added). Abating the “civil

proceedings against them” seems to encompass more than simply staying certain

aspects of discovery.

          Nonetheless, Becker/Matthews believe themselves entitled to such relief because

if they



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               respond to the civil discovery and provide discovery and
               depositions, they jeopardize their Fifth Amendment privilege
               against self-incrimination because their answers will be used
               against them in the coming prosecution. If they invoke their
               Fifth Amendment privilege in the civil lawsuit, they risk severe
               prejudice that could amount to a forfeiture of their due process
               rights to properly and adequately defend this case. Either
               alternative will damage a constitutional right.

       As we learned years ago in law school, conditioning the exercise of a constitutional

right upon relinquishing another may be impermissible, see Simmons v. United States,

390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968) (stating that “we find it

intolerable that one constitutional right should have to be surrendered in order to assert

another”), and that seems to be the premise underlying Becker/Matthews request here.

The constitutional rights in play here are apparently the right to invoke the Fifth

Amendment privilege against incriminating oneself and the right to a fair trial inherent in

due process.

       While it is true that Becker/Matthews have a constitutional right to avoid

incriminating themselves in both civil and criminal proceedings, Tex. Dept. of Pub. Safety

Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995); In re V.J.G., No. 07- 12-

00541-CV, 2013 Tex. App. LEXIS 3493, at *8 n.3 (Tex. App.—Amarillo Mar. 26, 2013, no

pet.) (mem. op.), they fail to clearly explain how invoking that right prejudices their right

to due process and a fair trial. Admittedly, they may lose the opportunity to present a

viable defense if they invoke the Fifth Amendment because their defense is founded upon

facts that somehow incriminate themselves. But, we know of no authority holding that a

defendant has the right to insulate himself from civil damages in a civil suit because his

defense would implicate him in criminal conduct; nor did Becker/Matthews cite us to such




                                              4
authority. Indeed, the defendant still gets his day in court, and the plaintiff remains

obligated to prove its claims even though the defendant may wish to invoke the Fifth.

       Nor do we know of authority holding that a person has a constitutional right to avoid

being placed in the position of having to decide whether to plead the Fifth in a civil

proceeding. And, again, Becker/Matthews failed to fill that void.

       Moreover, the primary authority they did cite to suggests they are entitled to

mandamus relief is quite inapposite. The two opinions to which we refer are Wehling v.

Columbia Broadcasting Sys., 608 F.2d 1084 (5th Cir. 1979), and Tex. Dept. of Pub. Safety

Officers Ass’n v. Denton, supra. Becker/Matthews would have us read them as requiring

the trial court to abate a civil suit as long as a potential criminal investigation or

prosecution pends. Neither opinion so mandates, however.

       Both Wehling and Denton involved situations wherein the trial court dismissed a

suit as a sanction for the plaintiff’s offensive (as opposed to defensive) use of the Fifth

Amendment to avoid responding to discovery. See Tex. Dep’t of Pub. Safety Officers

Ass’n v. Denton, 897 S.W.2d at 759 (observing that the “trial court dismissed Lane

Denton’s cause of action when Denton asserted his Fifth Amendment privilege in

response to discovery requests”); Wehling, 608 F.2d at 1085 (noting that “[i]n this diversity

case plaintiff appeals from the dismissal of his libel action under Rule 37, Fed.R.Civ.P.,

for refusing to answer certain questions posed by CBS during plaintiff’s oral deposition”).

Both courts recognized that the plaintiff had a constitutional right to invoke their Fifth

Amendment privilege against self-incrimination in a civil proceeding. Tex. Dep’t Pub.

Safety Officers Ass’n v. Denton, 897 S.W.2d at 760; Wehling, 608 F.2d at 1086. And,

both held that in lieu of simply imposing death penalty sanctions such as dismissing the



                                             5
suit, other less drastic alternatives should be considered such as staying the action until

the threat of criminal prosecution is over. Tex. Dep’t Pub. Safety Officers Ass’n v. Denton,

897 S.W.2d at 763; Wehling, 608 F.2d at 1089.

       We do not have an either/or situation before us. The trial court did not threaten

Becker/Matthews with death penalty sanctions if they invoked their privilege to forgo

incriminating themselves.     Indeed, the record reveals that the trial court actually

endeavored to address their concerns by staying discovery in the past. Despite this,

Becker/Matthews want to continue postponing resolution of the suit for a period equal to

whatever length of time some federal agencies care to take in conducting their own

nondescript criminal investigations.

       Nor do we have before us a situation wherein either Becker/Matthews actually

invoked their Fifth Amendment privilege to avoid answering particular discovery requests.

That too distinguishes our situation from those in Denton and Wehling. The questions

Amarillo seeks to propound via interrogatories and depositions may be such that expose

Becker/Matthews to potential criminal penalty if they choose to answer. Or, there may be

many relevant inquiries which pose no such criminal risk to them. And, even if asked

potentially hazardous questions, Becker/Matthews still have the right to invoke the Fifth

Amendment. While doing so may have its own consequence since negative inferences

may arise from the decision, see, e.g., Tex. Dep’t Pub. Safety Officers Ass’n v. Denton,

897 S.W.2d at 760 (stating that “[b]ecause of the difference between the civil and criminal

context, the United States Supreme Court has allowed juries in civil cases to make

negative inferences based upon the assertion of the privilege”), such is not the type of

penalty deemed impermissible in Wehling. Indeed, the penalties to which it referred



                                             6
consisted of “any sanction which makes assertion of the Fifth Amendment privilege

‘costly,’” such as dismissing the party’s suit. See Wehling, 608 F.2d at 1088, (quoting

Spevack v. Klein, 385 U.S. 511, 515, 87 S. Ct. 625, 628, 17 L. Ed .2d 574 (1967)) (stating

that “[i]n this context ‘penalty’ is not restricted to fine or imprisonment. It means . . . the

imposition of any sanction which makes assertion of the Fifth Amendment privilege

‘costly.’”) (Emphasis added). We reject the notion that permitting a civil jury to take

negative inferences from the assertion of a Fifth Amendment privilege is any type of

sanction for invoking the Fifth Amendment, especially since the United States Supreme

Court expressly has approved of such inferences. Baxter v. Palmigiano, 425 U.S. 308,

318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976); In re V.J.G., 2013 Tex. App. LEXIS 3493,

at *8 n.3 (referring to Baxter and reiterating that the Fifth Amendment does not forbid

inferences against parties to civil actions when they invoke the Fifth Amendment).

       Finally, no one must forget that Amarillo and the other plaintiffs also have a due

process right to a fair adjudication of their claims. The Wehling court itself recognized the

competing rights to due process of the litigants involved in a suit. Just as a civil plaintiff

has no absolute right to both his silence and his lawsuit, and neither does a civil defendant

have an absolute right to have the action dismissed anytime a plaintiff invokes his

constitutional privilege, Wehling, 608 F.2d at 1088, a civil defendant has no right to

indefinitely postpone the adjudication of a civil suit because his conduct may have also

implicated a criminal statute.

       Given the circumstances at bar, the rights being balanced by the trial court, and

the duties imposed on a trial court, we cannot say that Becker/Matthews carried its burden

here. They did not prove that the trial court clearly abused its discretion in denying their



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motion to abate and permitting discovery to proceed on July 10, 2018 in preparation of a

January 2019 two-week special trial setting. The trial court has not made them forfeit

either their Fifth Amendment protections or their rights to a fair trial in the civil action.

       We deny the petition for writ of mandamus.



                                                           Brian Quinn
                                                           Chief Justice




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