                                                                                          ACCEPTED
                                                                                      12-15-00216-CV
                                                                         TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                  9/3/2015 2:56:56 PM
                                                                                            Pam Estes
                                                                                               CLERK

                       NO. ________________________

                                                                      FILED IN
                               IN THE                          12th COURT OF APPEALS
                                                                    TYLER, TEXAS
                         COURT OF APPEALS                       9/3/2015 2:56:56 PM
                              FOR THE                                 PAM ESTES
                      TWELFTH DISTRICT OF TEXAS                         Clerk




                IN RE THOMAS LYTLE AND ELLEN LYTLE,
                                        Relators,

                                        v.

                THE HONORABLE TERESA DRUM, JUDGE
                  PRESIDING 294TH JUDICIAL DISTRICT
                COURT OF VAN ZANDT COUNTY, TEXAS,
                                          Respondent,


                             Real Parties in Interest:

                              David C. Petruska
                              Sandra L. Petruska
                            Helmuth K. Gutzke and
                              Zackiann Gutzke,
                                                 Defendants.

                          APPENDIX TO PETITION
                         FOR WRIT OF MANDAMUS
                            PART 2

Barbara L. Emerson, Esq.
Texas State Bar No. 06599400
BELLINGER & SUBERG, LLP                      ORAL ARGUMENT REQUESTED
10,000 N. Central Expy., Suite 900
Dallas, TX 75231
214.954.9540 – Telephone
214.954.9541 – Facsimile
bemerson@bd-law.com
                                                                                                    Filed 2/12/2015 11 :41 :54 AM
                                                                                                                 Karen L. Wilson
                                                                                                                    District Clerk.
                                                                                                       Van Zand~~Ps'1tyc~~~~~

                                                                                                             Holly Spindle

                                                        CAUSE NO. 14-00172

        THOMAS LYTLE AND ELLEN LYTLE                             §       IN THE DISTRICT COURT
                                                                 §
        v.                                                       §
                                                                 §
        DAVID C. PETRUSKA, SANDRA L.                             §       294TH JUDICIAL DISTRICT
        PETRUSKA, COMPASS BANK,                                  §
        HELMUTH K. GUTZKE AND                                    §
        ZACKIANN GUTZKE                                          §     VAN ZANDT COUNTY, TEXAS


                                       PLAINTIFFS' FIRST AMENDED PETITION

        TO THE HONORABLE JUDGE OF SAID COURT:

                 NOW COME Thomas Lytle and Ellen Lytle, hereinafter called Plaintiffs, and file

        Plaintiffs' First Amended Petition, complaining of and about David C. Petruska, Sandra L.

        Petmska, Helmuth K. Gutzke, and Zackiarm Gutzke, hereinafter called Defendants, and for cause

        of action would show unto the Court the following:

                                          DISCOVERY CONTROL PLAN LEVEL

                  1.       Plaintiffs intend that discovery be conducted under Discovery Level2.

                                                       PARTIES AND SERVICE

                  2.       Plaintiff, Thomas Lytle, is an individual whose address is 1603 VanZandt County

        Road 2319, Canton, Texas 75103.

                  3.       Plaintiff, Ellen Lytle, is an individual whose address is 1603 Van Zandt County

        Road 2319,Canton, Texas 75103 .

                  4.       Defendant David C. Petruska has appeared in this case and no service of process

        is necessary at this time.

                  5.       Defendant Sandra L. Petmska has appeaTed in this case and no service of proc~_ss ....

        is necessary at this time.



        PLAINTIFFS' FIRST Ai\1ENDED PETITION
        \\Bdnt-fs I \wpprolaw\3 19! .002\267954.docx


                                                                                                   APPENDIX 23
TAB 4
         6.      Defendant Helmuth K.. Gutzke has appeared in this case and no service of process

is necessary at this time.

        7.       Defendant Zackiann Gutzke has appeared in this case and no service of process is

necessary at this time.

                                      JURISDICTION AND VENUE

         8.      The court has jurisdiction over this action to quiet title pursuant to Article V,

Section 8 of the Texas Constitution and Section 26.043(8) of the Texas Government Code.

         9.      Venue in VanZandt County is proper in this cause under Section 15.011 of the

Texas Civil Practice and Remedies Code because this action involves real property located in

VanZandt County.

         10.     The damages sought herein are within the jurisdictional limits of this Court.

         11 .    This suit seeks monetary relief of $100,000 or less and non-monetary relief.

                                               FACTS

         12.     This is an action to quiet title on real property, hereafter referred to as "the

Property", and for damages for a fraudulent claim filed against real property in violation of

Texas Civ. Prac. & Rem. Code§ 12.002. The Property is described as follows:

                 Roadway situated in Van Zandt County, State of Texas, on the M. V. Lout
                 Survey, A-468 and being a part of the called 68.78 acre tract conveyed to
                 Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General
                 Warranty Deed recorded in Volume 1771, Page 609, of the Van Zandt
                 County Real Records and a part of the called 1.1 0 acre tract conveyed to
                 Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General
                 Warranty Deed recorded in Volume 1771, Page 629, of the Van Zandt
                 County Real Records.

         13.     Plaintiffs are the rightful owners, entitled to possession of the Property by virtue



Real Property Records of VanZandt County, Texas.


PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fsl\wpprolaw\3191.002\267954.docx
                                                                                        APPENDIX 24
         14.      On May 16, 2008, Plaintiffs were wrongfully dispossessed of the Property when a

General Warranty Deed with Vendor's Lien was executed by Helmuth K. Gutzke and Zackiann

Gutzke (collectively, "Gutzke") purporting to convey to David C. Petruska and Sandra L.

Petruska (collectively, "Petruska") an easement on the Property (the "Deed"). Said easement

never existed and was never granted by the Plaintiffs or their predecessors-in-interest.

         15.      The Deed was filed of record May 20, 2008, as Document No. 2008-004602 in

the Real Property Records ofVan Zandt County, Texas.

         16.      On May 16, 2008, Plaintiffs were further wrongfully dispossessed of the Property

when Petruska executed a Deed of Trust which purported to convey the easement for the benefit

of Compass Bank. That Deed of Trust was filed of record May 20, 2008 as Document No. 2008-

004603 in the Real Property Records of VanZandt County, Texas.

         17.      Defendants Petruska purport to have an adverse claim or interest in the Property

that operates as a cloud on Plaintiffs' title to the Property and through pleadings before this Court

continue to assert that on May 16, 2008 they acquired an interest in the Property. The nature of

the interest asserted by Petruska in the Property is an easement on Plaintiffs Property.

         18.      The claim or interest purportedly conveyed to Petruska is invalid, unenforceable

or without right against Plaintiffs because no easement ever existed. Gutzke did not have any

easement or rights to convey. The Deed of Trust signed by Petruska lists an easement that never

existed and was never granted. In order for Plaintiffs to enjoy title to the Property, the adverse

estate or interest claimed and still claimed by Petruska and as set forth in the Deed and Deed of

Trust must be removed.




PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fsl\wpprolaw\3191 .002\267954.docx
                                                                                        APPENDIX 25
         19.      At the time of the conveyance from the Defendants Gutzke to Defendants

Petruska, all parties to the transaction knew no such easement existed and knowingly created a

false and fraudulent interest in the Property of Plaintiffs.

         20.      At the time of the conveyance in the Deed of Trust for the benefit of Defendant

Compass Bank, Petruska knew no such easement existed and knowingly created a false and

fraudulent interest in the Property of Plaintiffs.

         21.      In executing and causing to have the Deed and the Deed of Trust to be filed,

Defendants knowingly participated in creating a false claim in the Property with the intent to

cause Plaintiffs financial injury by imposing burdens and encumbrances on the real property of

Plaintiffs.

         22.      Any claim that an easement in the Property existed at any time is invalid and

unenforceable. In order for Plaintiffs to enjoy title to the Property, any claim that an easement

existed or was conveyed by the Deed and Deed of Trust must be removed and declared null and

void.

         23.      Petruska has taken actions to assert his rights to the easement, including coming

onto Plaintiffs' property and threatening Plaintiff Thomas Lytle with an assault rifle, and

continuing to assert an easement existed in his pleadings before this Court. Plaintiffs have been

forced to retain an attorney who sent a demand for release of any claim for an easement to

Petruska and Compass Bank. While Petruska refused to consent, Compass Bank ultimately

executed a Release of Easement and Petruska continues to seek a declaration that he held a valid

easement and conveyed a valid easement under the Deed of Trust. Plaintiffs have been forced to

incur the cost and expense of seeking to clear title to their property.




PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fs 1\wpprolaw\3191 .002\267954.docx
                                                                                      APPENDIX 26
                                        DECLARATORY JUDGMENT

         24.       Pursuant to Section 37.001 et seq. of the Texas Civil Practice and Remedies Code,

Plaintiffs request a declaratory judgment that Plaintiffs are the sole and rightful owners of the

Property and declaring all claims to an easement at any time or currently are null and void.


         25.       Plaintiffs further request that Defendants be required to execute a correction deed

for the General Warranty Deed with Vendor's Lien and Deed of Trust, and file it with the Real

Property Records in Van Zandt County.

                                              CLAIM FOR DAMAGES

         26.       The alleged conveyance of the easement was a fraudulent interest in Plaintiffs'

Property.

         27.      Pursuant to Section 12.002(b) of the Texas Civil Practice and & Remedies Code,

Plaintiffs seek recovery of damages, court costs and attorneys ' fees.

                                               ATTORNEYS' FEES

         28.       Pursuant to Section 37.001 et seq. of the Texas Civil Practice & Remedies Code,

Plaintiffs seek recovery of court costs and attorneys' fees as are equitable and just.



                                                   PRAYER

         WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Thomas Lytle and Ellen

Lytle, respectfully requests that Defendants be cited to appear and answer, and that on the final

trial, the court grant Plaintiffs judgment quieting title to the Property and removing cloud on

Plaintiffs' title; declaratory judgment; damages; attorney fees; award of costs, and any other relief

at law or in equity to which Plaintiffs are entitled.




PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fs l \wpprolaw\3 191.002\267954.docx
                                                                                         APPENDIX 27
                                              Respectfully submitted,

                                              BELLINGER & SUBERG, L.L.P.




                                              By:
                                                     BARBARA L. EMERSON
                                                     Texas State Bar No. 06599400
                                                     10,000 N. Central Expy, Suite 900
                                                     Dallas, Texas 75231
                                                     Telephone: 214/954-9540
                                                     Facsimile: 214/954-9541
                                                     bemerson@bd-law.com

                                              ATTORNEY FOR PLAINTIFFS,
                                              THOMAS LYTLE AND ELLEN LYTLE


                                      CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of foregoing has been forwarded to
all counsel via eservice and email on the 12th day of February, 2015 as provided below.

Ralph E. Allen                                      Michael F. Pezzulli
Attorney and Counselor at Law                       M. Ellen Skinner
100 East Ferguson, Suite 901                        Christopher L. Barnes
Tyler, Texas 75702                                  Pezzulli Barnes, LLP
(903) 593-9727 Telephone                            17300 Preston Road, Suite 220
rallen@tyler .net                                   Dallas, TX 75252-5476
                                                    (972) 713-1300 Telephone
                                                    michael@courtroom.com
                                                    Ellen@courtroom.com
                                                    Chris@courtroom.com




                                              Barbara L. Emerson




PLAINTIFFS' FIRST AMENDED PEIDION
\\Bdnt-fsl\wpprolaw\3191.002\267954.docx
                                                                                    APPENDIX 28
 U.S. v. Little AI, 712 F.2d 133 (1983)
 37 Fed .R.Serv.2d 482




 ~Original Image of 71 2 F.2d 133 (PDF)
    KeyCite Ye llow Flag- Negative Treatment
 Distinguished by U.S. v. Gieger Transfer Service, Inc.,               121
 S.D.Miss., August 18, 1997                                                  Action
                        712 F.2d 133                                           Nature and subject matter of actions in
               United States Court of Appeals,                               general
                        Fifth Circuit.
                                                                             A district court may stay a civil proceeding
       UNITED STATES of America, Plaintiff-Appellee,                         during pendency of a parallel criminal
                            v.                                               proceeding.
         LITTLE AL, a/k/a Texas Ranger, Etc., et al.,
                       Defendants,
        Charles Thomas Pollard, Claimant-Appellant.                          31 Cases that cite this headnote

  No. 82-2300 I Summary Calendar. I Aug. 15, 1983.


 Claimant of vessels that Government sought to have                    131   Controlled Substances
 forfeited appealed fi·om a summary judgment of the                            Time for proceedings
 United States Dish-ict Court for the Southem DistTict of
 Texas, Hugh Gibson, J., in favor of the Government. The                     Affidavit of counsel of claimant of ownership
 Court of Appeals, Reavley, Circuit Judge, held that: (1)                    interest in vessels for which United States
 district court did not abuse its discretion in denying                      sought forfeiture seeking continuance of
 claimant' s motion for a continuance during pendency o:f}                   forfeitme proceeding during pendency of
 claimant's appeal fi·om a criminal conviction that                          individual's appeal from a criminal conviction
 stemmed fi·om his pmt in marijuana importation scheme                       that stemmed from his part in marijuana
 dming which vessels were seized, giving rise to forfeiture                  importation scheme which resulted in anest of
 action, and (2) in absence of any exercise by claimant of                   individual and seizme of vessels amounted to
 right to come forward and show that facts constituting                      nothing more than blanket assettion of Fifth
 probable cause, that is, that reasonable grounds existed to                 Amendment privilege against compulsory
 believe that claimant's vessels were used or intended to                    self-incrimination in light of lack of explanation
 be used for prohibited pmposes, did not actually exist,                     as to how filing of affidavit in response to
 Government was entitled to forfeiture of vessels.                           forfeiture proceeding would have prejudiced
                                                                             criminal appeals of claimant, and, as such, did
 Affirmed.                                                                   not present type of circumstances or prejudice
                                                                             that required a stay. U.S .C.A. Const.Amend. 5;
                                                                             Fed.Rules Civ.Proc.Rule 56(t), 28 U.S.C.A.


  West Headnotes (7)                                                         37 Cases that cite this headnote


 [II       Federal Courts
             Continuance and stay
                                                                      141    Controlled Substances
           Moving for a continuance invokes discretion of                      Grounds
           district comt, and only an abuse of that
           discretion will justify reversal. Fed.Rules                       Under forfeiture statutes, prope1ty is subject to
           Civ.Proc.Rule 56(t), 28 U.S.C.A.                                  forfeiture if it was used in any manner to
                                                                             facilitate sale or transportation of controlled
                                                                             substances. Tariff Act of 1930, §§ 596, 615, as
           4 Cases that cite this headnote                                   amended, 19 U.S.C.A. §§ 1595a, 1615;
                                                                             Comprehensive Drug Abuse Prevention and

                                                   No claim to original U S. Government Works .
                                                                                                         APPENDIX 29
TAB 5
U. S. v. Little AI, 712 F.2d 133 (1983)
37 Fed.R.Serv.2d 482

        Control Act of 1970, §§ 511 , 5ll(b)(4), 21                  511, 5ll(b)(4), 21 U.S.C.A. §§ 881 , 881(b)(4);
        U.S.C.A. §§ 881 , 881(b)(4); Conh·aband Seizure              Contraband Seizme Act, §§ 1, 2, 4, 49 U.S.C.A.
        Act,§§ 1, 2, 4, 49 U.S.C.A. §§ 781, 782, 784.                §§ 781, 782, 784.


        2 Cases that cite this headnote                              47 Cases that cite this headnote




(5(
        Forfeitures
          Presumptions and Bmden of Proof                    Attorneys and Law Firms

        Any claimant of prope1ty sought to be forfeited      *134 Michael A. Maness, Mark Vela, Houston, Tex., for
        must establish either that prope1ty is not subject   claimant-appellant.
        to forfeiture, or that a defense to forfeiture
        applies. Tariff Act of 1930, §§ 596, 615, as         Frances H. Stacy, Jack Shepherd, Asst. U.S. Attys.,
        amended, 19 U.S.C.A. §§ 1595a, 1615;                 Houston, Tex., for plaintiff-appellee.
        Comprehensive Drug Abuse Prevention and
                                                             Appeal from the United States District Comt for the
        Control Act of 1970, §§ 511 , 5ll(b)(4), 21
                                                             Southem District of Texas.
        U.S.C.A. §§ 881 , 881(b)(4); Conh·aband Seizure
        Act, §§ 1, 2, 4, 49 U.S.C.A. §§ 781 , 782, 784.      Before REAVLEY, GARWOOD and JOLLY, Circuit
                                                             Judges.
        2 Cases that cite this headnote
                                                             Opinion

                                                             REAVLEY, Circuit Judge:

(6(
        Forfeitures                                          This case concerns the forfeitme of three vessels allegedly
          Probable or Reasonable Cause                       used in a scheme to impmt marijuana. Appellant Charles
                                                             Pollard, who claims an ownership interest in the vessels,
        lfunrebutted, a showing of probable cause alone      appeals from the entry of judgment in favor of the
        will suppmt a forfeiture .                           gove1nment. e argues that the district comt punished his
                                                             exercise of the privilege against self-incrimination by
        31 Cases that cite this headnote                     refusing to continue the action dming the pendency o~
                                                                ollard's appeal from a criminal conviction that stemmed
                                                             [from his art in the im mtation scheme. We affmn.

                                                             The factual background of the seizure of the three vessels
(7(
        Forfeitures                                          appears in detail in United States v. Scott, 678 F.2d 606
           Automobiles and other vehicles; means of          (5th Cir.1982) cert. denied, 459 U.S. 972, 103 S.Ct. 304,
        transpmt                                             74 L.Ed.2d 285 (1982). We reiterate the *135 essential
                                                             facts. The U.S. Coast Guard boarded the unmanned
        ln absence of any exercise by claimant of            fishing vessel LITTLE AL on April 6, 1981 and
        property which Government sought to have             discovered over fifteen tons of marijuana aboard. The
        forfeited under forfeiture laws of right to come     coast guard, based on prior surveillance, stopped the other
        forward and show that facts constituting             two vessels, TYRANT Ill and DORADO, and arrested
        probable cause on issue of whether claimant's        their crews and passengers. The twelve men found on
        vessels were used or intended to be ·used for        board, including appellant Pollard, were convicted of
        prohibited purposes did not actually exist,          conspiring to impmt and to possess with intent to
        Government was entitled to forfeitme of vessels.     distribute the marijuana found on LITTLE AL. We
        Tariff Act of 1930, §§ 596, 615, as amended, 19      affmned Pollard's conviction, but reversed the
        U.S.C.A. §§ 1595a, 1615; Comprehensive Drug          convictions of seven of his codefendants.
        Abuse Prevention and Control Act of 1970, §§
  -- l 1: Nexr © 201 5 Th omson Reutet·s. No claim to original U.S. Governm ent W orks.                              2
                                                                                                APPENDIX 30
U.S. v. Little AI, 712 F.2d 133 (1983)
37 Fed.R.Serv.2d 482

The government filed this forfeiture action on October 13,       recently:
 1981. While the convictions were awaiting appellate
review, the government filed a motion for summary                            [W]hile the assertion of the Fifth
judgment in the forfeitme action and supported the                           Amendment        privilege    against
motion with affidavits by coast guard personnel who had                      compulsory self-incrimination may
pmticipated in the seizme of the three vessels. Pollard                      be a valid ground upon which a
filed no opposing affidavits.                                                witness ... declines to answer
                                                                             questions, it has never been thought
Pollard, however, did invoke the continuance procedme                        to be in itself a substitute for
under Fed.R.Civ.P. 56(f), which empowers the district                        evidence that would assist in
comt to continue or deny a summary judgment motion                           meeting a bmden of production.
when the nonmoving mty cannot present o osing                                We think the view of the Cowt of
affidavits. Pollard's counsel avened that he could not                       Appeals [that invocation of the
obtain affidavits from Pollard or his codefendants for fear                  privilege satisfies a burden of
of "substantial rejudice" to their criminal a eals. The                      production] would conve1t the
affidavit did not specify the nature of the prejudice or the                 privilege fi·om the shield against
nature of the evidence that might become available if the                    compulsory         self-incrimination
comt granted the continuance.                                                which it was intended to be into a
                                                                             sword whereby a claimant asserting
The district court granted summary judgment, noting that                     the privilege would be fi·eed fi·om
Pollard had not made a sufficient showing of inability to                    adducing proof in suppmt of a
present facts. The affidavit of Pollard's counsel, in the                    bmden which would otherwise
court's view, merely evinced reluctance to oppose the                        have been his. None of our cases
motion dming the pendency of the criminal appeals.                           suppmt this view.

                                                                 United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548,
                                                                 1552-53, 75 L.Ed.2d 521 (1983). Accordingly, a blanket
1. Denial of the Continuance                                     assertion of the privilege neither excuses the burden under
Ill Moving for a continuance under Rule 56(f) invokes the        rule 56(e) of controve1ting the government's affidavits
discretion of the district court, and only an abuse of that      nor canies the burden under rule 56(f) of explaining
discretion will justify reversal. American Lease Plans v.        either the *136 inability to respond or the benefit to be
Silver Sand Co., 637 F.2d 311, 317- 18 (5th Cir.l981).           derived fi·om postponement.
The party seeking the continuance bears the bmden of
demonstrating the need for a continuance. As we have             The affidavit submitted by Pollard's counsel amounts to
observed:                                                        nothing more than blanket assertion of the privilege. No
                                                                 explanation appears conceming how the filing of an
  Because the bmden on a pmty resisting summary                  affidavit would have prejudiced the criminal appeals of
  judgment is not a heavy one, one must conclusively             Pollard or his codefendants. No explanation appem·s
  justify his entitlement to the shelter of rule 56(f) by        concerning what the affidavits could have disclosed. No
  presenting specific facts explaining the inability to          explanation appears concerning why affidavits would
  make a substantive response as required by rule 56(e)          have been any more available after termination of the
  and by specifically demonstrating "how postponement            criminal appeal.
  of a ruling on the motion will enable him, by discovery
  or other means, to rebut the movant's showing of the            2
                                                                       Certainly, a district comt may stay a civil proceeding
                                                                 1 1 [JJ
  absence of a genuine issue of fact." The nonmovant             during the pendency of a parallel criminal proceeding. See
  may not simply rely on vague asse1tions that additional        SEC v. First Financial Group of Texas, Inc., 659 F.2d
  discovery will produce needed, but unspecified facts .         660, 668 (5th Cir.l981 ). Such a stay contemplates
                                                                 "special circumstances" and the need to avoid "substantial
SEC v. Spence & Green, 612 F.2d 896, 901 (5th Cir.l980)
                                                                 and irreparable prejudice." Jd. The very fact of a parallel
(citations omitted), cert. denied, 449 U.S. 1082, 10 1 S.Ct.
                                                                 criminal proceeding, however, did not alone undercut
866,66 L.Ed.2d 806 (1981).
                                                                 Pollard 's privilege against self-incrimination, even though
                                                                  he pendency of the criminal action "forced him to choose
Pollard does not diminish this bmden by resting his
                                                                 between        preserving      hi s     privilege     against
request for a continuance on the privilege against
                                                                 self-incrimination and losing the civil suit." Hoover v.
self-incrimination. As the Supreme Comt has noted

 1!!S [- .>~ N exr   © 2015 Thomson Reuters. No cl aim to original U.S. Governm ent Works.                                 3
                                                                                                     APPENDIX 31
U.S. v. Little AI, 712 F.2d 133 (1983)
37 Fed.R.Serv.2d 482

Knight, 678 F.2d 578, 581 (5th Cir. l982). This case
hardly presents the txne of circumstances or rejudice thaV        2
                                                                         The district court ordered the forfeiture under four
·e uire a stay.                                                          statutes, 19 U.S.C. § 1595a; 49 U.S.C. §§ 781 , 782; and
                                                                         21 U.S.C. § 881. The procedures under these statutes
                                                                         are substantially similar; a showing of probable cause
                                                                         likewise shifts the burden of proof. See 19 U.S.C. §
2. Propriety of Summary Judgment                                         1615; 49 U.S.C. § 784.
Pollard argues, altematively, that the comt ened by
entering summary judgment even if its procedures did not
infringe the privilege against self-incrimination. In             161 l?J Ifunrebutted, a showing of probable cause alone will
Pollard's view, the government's affidavits do not                support a forfeiture. See United States v. One 1975 Ford
demonstrate that the vessels were used or intended to be          Pickup Truck, 558 F.2d 755, 756- 57 (5th Ci.r.1977)
used to smuggle marijuana. Pollard argues that the                (upholding forfeiture based on unrebutted showing of
affidavits depend upon conflicting inferences that the            probable cause). If Pollard had *137 controve1ted facts
court could have drawn and that entry of judgment                 upon which the probable cause showing relied, summary
contravened the principle of drawing all inferences               judgment would have been improper. United States v.
favorable to the nonmoving pa1ty.                                 One 1944 Steel Hull Freighter, 697 F.2d 1030, 1031 - 32
                                                                  (llth Cir.I983). As the Comt of Appeals for the Sixth
The govemment affidavits do depend on inferences from             Circuit, however, has noted:
these facts : (1) the LITTLE AL contained over fifteen
tons of marijuana; (2) coast guard smveillance established                    While we cannot agree with the
that the TYRANT III had been alongside LITTLE AL                              government's      insistance     that
early in the day and that TYRANT III, in turn, had been                       probable cause is all that is needed
alongside DORADO; ' (3) the fingerprints of two                               by way of proof to justify a
passengers on board TYRANT III were discovered on                             forfeitme even in the face of
nautical maps found on board LITTLE AL; (4) the coast                         overwhelming proof that the cause,
guard had observed someone on board TYRANT III pass                           though     probable,     was      not
a roll of plastic wrap to someone on board DORADO; and                        ultimately sustained, it is apparent
(5) no other vessels were observed in contact with                            to us that a showing of probable
LITTLE AL, TYRANT III or DORADO.                                              cause is sufficient to warrant a
                                                                              forfeitme and that summary
       Under 19 U .S.C. § 1615(3), the contact among the                      judgment was properly entered in
       vessels provides prima facie evidence of " visits" among               the absence of any exercise by the
       the vessels.                                                           claimant of her right to come
                                                                              forward and show that the facts
                                                                              constituting probable cause did not
141 lSI If the government bore the bmden of proving by a                      actually exist.
preponderance of the evidence that the vessels were used
or intended to be used in importing the marijuana, the            United States v. One 1975 Mercedes 280S, 590 F.2d 196,
judgment as to these vessels might be in question. The            199 (6th Ci.r. l978); see United States v. One 1974
forfeiture statutes, however, place the government' s             Porsche 91 1-S, 682 F.2d 283, 285- 86-(lst Cir.1982).
burden at a lower threshold . It must establish only that
reasonable grounds exist to believe that the vessels were         Even drawing inferences favorable to Pollard, we
used or intended to be used for prohibited purposes. 21           perceive no genuine issue of material fact as to probable
U.S .C.A. § 88l(b)(4) (West 1981)/ See United States v.           cause. He has not undercut the factual basis shown by the
 1964 Beechcraft Baron Aircraft, 691 F.2d 725, 727 (5th           govemment.
Cir.1982), cert. denied, 461 U.S. 914, I 03 S.Ct. 1893, 77
L.Ed.2d 283 (1983). The property is subject to forfeiture         AFFIRMED.
if it was used "in any manner" to facilitate sale or
transpmtation. ld. Any claimant of the property must
establish either that the prope1ty is not subject to
forfeiture, or that a defense to the forfeiture applies. See      All Citations
United States v. $364,960.00 in U.S. Currency, 661 F.2d
                                                                  712 F.2d 133, 37 Fed.R.Serv.2d 482
319, 325 (5th Ci.r.1981).

  "'· rl=;~; Nexr © 2 01 5 Tl1omson Reuters. No cl aim to ori ginal U.S. Government Works.                                    4
                                                                                                       APPENDIX 32
U.S. v. Little AI, 712 F.2d 133 (1983)
37 Fed.R.Serv.2d 482



End of Document                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                                                                         5
                                                                                    APPENDIX 33
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)




~Original Image of 625 F.Supp.2d 391      (PDF)
   KeyCite Yellow Flag- Negative Treatment
                                                                  West Headnotes (12)
Distinguished by Klein v. Silversea Cruises, Ltd ., N.D. Tex.,
December 16, 2014
                   625 F.Supp.2d 391
                                                                 Ill    Action ·
               United States District Court,
                       S.D. Texas,                                        Nature and Subject Matter of Actions in
                    Laredo Division.                                    General

             Cynthia ALCALA, et al., Plaintiffs,                        Whether to stay civil action pending resolution
                                v.                                      of parallel criminal prosecution is not matter of
       TEXAS WEBB COUNTY, et al., Defendants.                           constitutional right, but rather one of cowt
                                                                        discretion exercised in interests of justice; there
    Civil Action No. L-08-0128. I May 1, 2009. I                        exists no general constitutional, statutory, or
  Opinion Denying Emergency Motion June 1, 2009.                        common-law prohibition against prosecution of
                                                                        parallel criminal and civil actions, even where
                                                                        such actions proceed simultaneously.
Synopsis
Background: Former employees of county tax assessor's                   5 Cases that cite this headnote
office brought § 1983 action against county, assessor, and
other officials within office, alleging that employees had
been required to participate in assessor's political
campaigns and in raffles benefiting assessor as conditions
of employment. Tax assessor and one defendant official           121    Action
moved for stay pending resolution of related criminal                   \?Another Action Pending
charges against official/movant.
                                                                        District cowt' s discretionary authority to stay
                                                                        proceeding pending resolution of parallel
                                                                        proceeding stems from its inherent authority to
Holdings: The District Court, J. Scott Hacker, United
                                                                        conh·ol disposition of cases on its own docket.
States Magistrate Judge, held that:

   official/movant's interests weighed against grant of
[ IJ                                                                    Cases that cite this headnote
complete stay;

 2
[ 1 former
         employees ' interests also weighed against grant
of complete stay;
                                                                        Action
Pl Cowt's own interests weighed against grant of                          Nature and Subject Matter of Actions in
complete stay;                                                          General
 4
[ 1interests of public and third parties also weighed                   Complete stay of pending civil action unti
against grant of complete stay; and                                     conclusion of related criminal proceeding is
                                                                        considered an extraordinary remedy.
[SJ per Micaela Alvarez, J., on tax assessor's emergency
motion, indictment of tax assessor in state court for
organized gambling promotion did not warrant complete                   Cases that cite this headnote
stay of employees' § 1983 action.


Motion granted in part and denied in part.
                                                                 141    Action
                                                                          Nature and Subject Matter of Actions in
     'o= L-NNexr © 2015 Th omson Reuters. No claim to original U.S. Government Works.
                                                                                                    APPENDIX 34
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



       General                                                     To warrant complete stay of civil action pending
                                                                   resolution of parallel criminal proceeding,
       In civil case, there is strong presumption in               post-indictment, defendant must make strong
       favor of discovery, and party who moves for                 showing that two proceedings will so overlap
       stay pending resolution of related criminal                 that either: (1) he cannot protect himself in civil
       proceeding     has   burden    to   overcome                proceeding by selectively invoking his Fifth
       presumption.                                                Amendment privilege, or (2) effective defense
                                                                   of both cases IS impossible. U.S.C.A .
                                                                   Const.Amend. 5.
       5 Cases that cite this headnote

                                                                   5 Cases that cite this headnote


lSI    Action
         Nature and Subject Matter of Actions in
       General                                               181   Action
                                                                   = Nature and Subject Matter of Actions in
       District court should stay civil case pending               General
       resolution of related criminal proceeding only
       upon showing of special circumstances, to                   In § 1983 action against county tax assessor and
       prevent defendant from suffering substantial and            against official within assessor's office, alleging
       irreparable prejudice.                                      that office's former employees had been
                                                                   required to participate in assessor' s political
                                                                   campaigns and in raffles benefiting assessor,
       9 Cases that cite this headnote                             assessor's and official's interests weighed
                                                                   against grant of complete stay pending
                                                                   resolution of state criminal case against official
                                                                   for gambling promotion; cases did not
161
                                                                   significantly overlap since alleged wrong in civil
       Action                                                      case was mandating of employee participation
         Nature and Subject Matter of Actions in                   and retaliation, not taking/holding of raffle ticket
       General                                                     money, state was not party to civil action, and
                                                                   neither defendant would be burdened in civil
       Factors in whether stay of civil action is                  suit through selective invocation of right against
       wananted pending resolution of related criminal             self-incrimination. U.S.C.A. Const.Amend. 5;
       proceeding are: (1) extent to which issues in               42 U.S.C.A. § 1983 ; V.T.C.A., Penal Code §§
       criminal case overlap with those presented in               47.03(a)(3), 71.02(a)(2).
       civil case; (2) status of criminal case, including
       whether defendant has been indicted; (3) private
       interests of plaintiff in proceeding expeditiously,         Cases that cite this headnote
       weighed against prejudice to plaintiff caused by
       delay; (4) private interests of and burden on
       defendant; (5) interests of courts; and (6) public
       interest.
                                                             191   Action
                                                                     Nature and Subject Matter of Actions in
       18 Cases that cite this headnote                            General

                                                                   In § 1983 action against county tax assessor and
                                                                   against official within assessor's office, alleging
171
                                                                   that office' s former employees had been
       Action                                                      required to participate in assessor's political
         Nature and Subject Matter of Actions in                   campaigns and in raffles benefiting assessor,
       General                                                     former employees' interests weighed against

      : Nexr © 201 5 Th omson Reuters . No claim to origin al U.S. Government Works.                                 2
                                                                                                APPENDIX 35
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



        grant of complete stay pending resolution of                  resolving case with minimal delay, there was no
        state criminal case against official for gambling             significant overlap between cases and thus no
        promotion; most evidence in civil case would                  demonstrated risk to defendants' rights, and
        consist of witness testimony couched in                       current employees as well as county also had
        memory, and integrity of such testimony was in                interest in prompt resolution. 42 U.S.C.A. §
        danger of degrading fmther in event of stay of                1983 ; V.T.C.A., Penal Code §§ 47.03 (a)(3),
        uncertain duration. 42 U.S.C.A. § 1983;                       71.02(a)(2).
        V.T.C.A., Penal       Code      §§ 47 .03 (a)(3),
        71.02(a)(2).
                                                                      3 Cases that cite this headnote

        1 Cases that cite this headnote

                                                               (12)
                                                                      Action
                                                                      \?Nature and Subject Matter of Actions in
(!OJ
        Action                                                        General
          Nature and Subject Matter of Actions in
        General                                                       Indictment of county tax assessor in state court
                                                                      for    organized gambling promotion,            in
        In § 1983 action against county tax assessor and              connection with raffles in county assessor's
        against official within assessor's office, alleging           office that benefited assessor's election
        that office's former employees had been                       campaigns and that former employees were
        required to participate in assessor's political               allegedly forced to patticipate in, did not
        campaigns and in raffles benefiting assessor,                 wanant complete stay of employees' § 1983
        federal district court's interests weighed against            action against county tax assessor and official
        grant of complete stay pending resolution of                  within her office arising out of forced
        state criminal case against official for gambling             participation in raffles, although there was some
        promotion; there was no significant overlap                   overlap between the prosecution and the civil
        between cases, and district court was unlikely to             action; 60-day stay of discovery in § 1983 action
        expend significant effmt on claims of privilege               was sufficient to pennit assessor to understand
        against self-incrimination given defendants'                  criminal charges against her and respond
        admissions as to existence of raffles. U.S.C.A.               appropriately to civil suit, plaintiffs in § 1983
        Const.Amend. 5; 42 U.S.C.A. § 1983 ; V.T.C.A.,                action would be prejudiced by complete stay, as
        Penal Code§§ 47.03 (a)(3), 71.02(a)(2).                       they had already waited eight months to begin
                                                                      discovery, and public had interest in timely
                                                                      resolution of dispute. 42 U.S.C.A. § 1983 ;
        2 Cases that cite this headnote                               V.T.C.A. , Penal Code§ 71.02(a)(2).


                                                                      Cases that cite this headnote

(III    Action
          Nature and Subject Matter of Actions in
        General

        In § 1983 action against county tax assessor and      Attorneys and Law Firms
        against official within assessor's office, alleging
        that office's former employees had been               *393 Albert M. Gutienez, Ill, Matthew Fisher Wymer,
        required to pmticipate in assessor's political        Gutienez Wymer, P .C., San Antonio, TX, for Plaintiffs.
        campaigns and in raffles benefiting assessor,
        interests of public and third parties weighed         Kyle Cledys Watson, Goode Casseb et al. , Albert Lopez,
        against grant of complete stay pending                Attorney at Law, San Antonio, TX, Juan Ramon Flores,
        resolution of state criminal case against official    Murray Edward Malakoff, Yohana Saucedo, Attorney at
        for gambling promotion; public bad interest in        Law, Alberto J. Alarcon, Hall Quintanilla & Alarcon,
                                                              Laredo, TX, for Defendants.
       ~:,~Nexr   © 2015 Thom son Reuters. No claim to origin al U.S. Government Works.                               3
                                                                                                  APPENDIX 36
Alcala v. Texas Webb Co unty, 625 F.Supp.2d 391 (2009)



                                                                      statement:    "Patricia     Barrera,   Webb       County
                                                                      Tax- Assessor-Collector, not printed at taxpayer
                                                                      expense." (Diet. No . 12 at~ 29) (emphasis in original).

      MEMORANDUM OPINION AND ORDER
                                                               All WCTAC employees, including Plaintiffs, were
J. SCOIT HACKER, United States Magistrate Judge.               allegedly recruited by Defendants to sell a specific
                                                               number of raffle booklets for each raffle. (!d. at ~~ 22,
Pending before the Cowt is Defendants Mary Ethel               25-28). Plaintiffs assert that patticipation in the selling of
Novoa and Patricia Barrera's "Motion to Stay Civil             tickets was mandatory and a condition of employment
Proceedings in this Case" (Dkt. Nos. 45, 56). Defendants       with the WCTAC. (!d. at~~ 25, 27). Raffle tickets were
move the Cowt to issue a complete stay of this civil           purpmtedly sold openly at the WCTAC during regular
action until the conclusion of Novoa's pending state cowt      business hours. (!d. at~~ 20, 30). According to Plaintiffs,
trial. Plaintiffs have filed a response to Defendants'         WCTAC employees who were issued tickets were
Motion and are opposed to a stay. (Dkt. No. 46). After         required to sell those tickets, both during work hours and
having considered the parties' arguments and the               non-work hours, to both WCT AC patrons and to their
applicable case law, the Comt holds that a complete stay       own family members. (See id. at ~ 20). Allegedly,
of these civil proceedings is unwarranted. However, the        employees themselves had to purchase any tickets that
Cowt will GRANT a limited stay to continue as to               were issued to them but remained unsold by the raffle
Defendant Novoa only until May 24, 2009. As such, and          deadlines. (!d. at ~~ 27- 28). Plaintiffs aver that
as detailed below, Defendants' Motion (Dkt. Nos. 45, 56)       Defendants "enforced participation in the raffles by verbal
is DENIED in part and GRANTED in pmt.                          threats, intimidation and open hostility, including, but not
                                                               limited to, the threat of termination, the threat that
                                                               terminated employees would be black-balled fiom other
                                                               government and non-government jobs, or other
                                                               unspecified retaliation." (!d. at ~ 23). The money
                       Background                              WCTAC employees collected fi·om the sale of raffle
                                                               tickets was allegedly paid directly to Barrera or one of the
In January of 1993, Barrera took elected office as Webb
                                                               Defendant-supervisors. (!d. at ~ 34). Plaintiffs also claim
County Tax Assessor/Collector and cunently serves
                                                               that drawings for these raffles occwTed openly at the
Webb County in that capacity. (Dkt. No. 12 at ~ 18).
                                                               WCTAC. (!d. at~ 35).
Defendants Novoa, Rosa Hernandez, and Dora Jimenez
are   supervisors     for   the     Webb      County Tax
                                                               Apart from these raffles, Plaintiffs assett that in 2000,
Assessor/Collector' s Office (the "WCTAC"). (!d. at ~~         Defendants began mandating WCTAC employee
13- 15). Each of the ten Plaintiffs, at one time or another,
                                                               pmticipation in football pots (or betting pools). (!d. at ~
was an employee with the WCTAC, but either resigned or
                                                               36). Supposedly, these pots centered on the outcomes of
was tenninated.                                                football games like the Dallas Cowboys' annual
                                                               Thanksgiving Day game and the Super Bowl. (!d.).
According to Plaintiffs, beginning in 1994, the WCTAC          Plaintiffs allege that each square (or stake in the pot) cost
began to hold a series of raffles sanctioned by Banera.        twenty dollars, and that each WCTAC employee was
(!d. at~~ 19, 21). Allegedly, the "Employee Fund Raffle"       required, as a condition of employment, to either purchase
became an annual event used to raise money for the
                                                               one square for him or herself, or to sell two squares. (Jd.
WCTAC Christmas party. (Jd. at ~ 19). Plaintiffs also
assert that, by 1996, a separate raffle, the "Rifa Entre
                                                               atn   37, 40). Like patticipation in the raffles, Defendants
                                                               purpmtedly enforced patticipation in these football pots
Amigos " (or the "Raffle Among Friends"), was being            through threats of termination and retaliation. (!d. at~ 39).
held at the WCTAC three times a yem·. (Jd. at~~ 21- 22).
Plaintiffs claim that this patticular raffle was for the       Mandating pmticipation in these raffles and football pots
benefit of Banera, as the money derived there from was
                                                               is not the only objectionable activity alleged by Plaintiffs
used, in pmt, to fund Banera's re-election campaigns
                                                               against Defendants. Plaintiffs claim that mandatory
*394 and to pay for calendars bearing Barrera's name and
                                                               re-election campaigning on behalf of Barrera was another
title, which were given away annually to WCTAC                 condition of employment at the WCTAC. (!d. at ~~
patrons.' (!d. at~ 29).                                        70- 82). According to Plaintiffs, Barrera required that
                                                               WCTAC employees place Ban·era campaign bumper
       Apparently, these calendars contained the following     stickers on their cars, maintain a Barrera campaign sign

                                                                                                                           4
                                                                                                    APPENDIX 37
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



outside their homes, and volunteer at Barrera campaign
headquarters. (Jd. at~~ 71, 73, 75). These activities were                   This involves a violation of Texas Penal Code §
supposedly enforced, in pmi, by threats of termination for                   71.02(a)(2), which provides that " [a] person commits
failure to comply. Several Plaintiffs claim that they were                   an offense if, with the intent to establish, maintain, or
indeed fired for refusing to engage in campaign activity                     participate in a combination or in the profits of a
for Barrera. (Jd. atn71, 76- 77).                                            combination or as a member of a criminal street gang,
                                                                             he commits or conspires to commit .. . any gambling
After whistle-blowing by then and former WCTAC                               offense punishable as a Class A misdemeanor .... "
                                                                             Because Novoa is also charged with engaging in
employees, including by two of the Plaintiffs, the
                                                                             organized criminal activity, the offense of gambling
Attorney General of the State of Texas began to                              promotion becomes a state jail felony. Texas Penal
investigate the activities at the WCTAC. (!d. at~~ 43, 53).                  Code § 71.02(b ). A Texas state jail felony is
On October 11 , 2007, pursuant to a search wanant, the                       punishable, in part, by "confinement in a state jail for
Attorney General's office conducted a raid of the                            any term of not more than two years or less than 180
WCTAC, which resulted in the seizure of evidence. (!d. at                    days" and a fine of not more than $10,000. TEXAS
~~ 44--45; Dkt. No. 45, Ex. B). In *395 the following                        PENAL CODE§ 12.3 5(a), (b).
months, investigators with the Attorney General
conducted interviews of WCT AC employees, and some
employees were subpoenaed to testifY before a Grand
Jury. (Dkt. No. 1 at ~~ 48, 59, 66). Plaintiffs allege that              ... did unlawfully with intent to establish, mairitain, and
WCTAC employees were threatened with retaliation by                      participate iri a combiriation and iri the profits of a
Barrera and the Defendant-supervisors if they spoke to                   combination, said combination consisting of defendant
investigators. (Jd. at n 49- 52, 54-57). Those employees,                and two or more other persons, commit the Class A
including one Plaintiff, who testified or were suspected of              misdemeanor offense of Gambling Promotion, and in
testifYing before the Grand Jury, were purpmiedly                        furtherance of said combination, DEFENDANT, on or
terminated. (!d. at~~ 67-68).                                            about and between May 24, 2006 and May 24, 2007
                                                                         pmsuant to one scheme and continuing course of
By early September of 2008, the last of all the                          conduct, did then and there intentionally and knowingly
above-captioned Plaintiffs had either resigned or had been               for gain become the custodian of a thing of value bet or
te1minated from the WCT AC. On September 24, 2008,                       offered to be bet, to-wit: money for raffle tickets.
Plaintiffs filed the instant federal civil action against                (Jd.). While Novoa is accused of acting with two or
Webb County, Texas, Banera (in her individual and                        more other persons, she is currently the only defendant
official capacities), and the Defendant-supervisors,                     in this case who has been indicted.
Novoa, Hernandez, and Jimenez (also in their respective               Eventually,      Banera,      Novoa,     and     the     other
individual and official capacities). (Dkt. No . 1). Plaintiffs        Defendant-supervisors all filed separate answers to
bring suit, inter alia, pmsuant to 42 U.S.C. § 1983,                  Plaintiffs' complaint. With respect to Plaintiffs' claims
alleging civil rights violations under the First and                  regarding raffles at the WCTAC, in her answer, Novoa
Fomieenth Amendments of the United States                             generally admits that raffles, sanctioned by Barrera, took
Constitution. (Dkt. No. 12 at~ 155). Plaintiffs also allege           place. (Dkt. No . 28 at~~ 4, 6-7, 9). She also admits that it
that Defendants violated various state law offenses.                  was known to WCTAC employees that some of the
                                                                      money collected from the "Raffle Among Friends" was
The same day Plaintiffs filed their lawsuit, Defendant                used for Barrera's campaigns and for "giveaways" to
Novoa was indicted in Webb County on state charges of                 *396 patrons of the WCT AC. (!d. at ~ 12). However,
gambling romotion 2 and engaging in organized criminal                Novoa denies that these raffles constituted "gambling"
activity. 3 (Dkt. No . 45, Ex. C). The indictment charges             and that any pmiicipation by WCTAC employees was
that Novoa:                                                           mandatory. (Id. at ~~ 4, 9). She also denies that raffle
                                                                      ticket money collected by the WCT AC employees was
2       More specifically, Novoa is charged with a violation of       paid directly to her. (!d. at~ 13).
        Texas Penal Code § 47.03 (a)(3), which provides that
        "[a] person commits an offense if he intentionally or         In the case of Banera, she too admits that raffles occmTed
        knowingly ... for gain, becomes a custodian of anything       amongst the WCTAC employees. (Dkt. No. 36 at ~ 7).
        of value bet or offered to be bet .... " An offense under §   Banera also admits that she would, on occasion, conduct
        47.03 is a Class A misdemeanor. TEXAS Penal Code§             ceremonial drawings for the "Raffle Among Friends," and
        47.03 (b).                                                    that part of the monies collected from that raffle "were
                                                                      utilized to pay for calendars and materials which were

        •JNexr © 2015 Thom son Reuters. No claim to m iginal U.S. Government Works.                                                5
                                                                                                            APPENDIX 38
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



considered to be promotional in nature." (Id. at ~ 9).            to stay proceedings stems fi·om its inherent authority to
However, Banera denies that mandatory gambling was a              control the disposition of the cases on its own docket
condition of employment at the WCTAC. (Id. at ~ 6).               "with economy of time and effort for itself, for counsel,
Barrera also denies that raffle ticket money collected by         and for litigants." Landis v. North American Co. , 299 U.S.
the WCTAC employees was paid directly to her. (!d. at~            248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). These same
8).                                                               principles apply where, as in the present case, a state
                                                                  criminal prosecution and a federal civil action are
Hernandez and Jimenez deny that raffles ever took place           involved. See, e.g., St. Martin v. Jones, 2008 WL
at the WCTAC. (Dkt. No. 30 at ~ 5; No. 34 at ~ 2).                4534398 (E.D.La. Oct. 2, 2008); Agueros v. Vargas, 2008
Jimenez also objects to Plaintiffs' framing of this activity      WL 2937972 (W.D.Tex. July 21, 2008).
as "gambling" and "sanctioned." (Dkt. No. 34 at~ 2). As
to most of the rest of Plaintiffs' claims, Jimenez has           *397 There are several reasons why a court may wish to
invoked her privilege against self-incrimination due to the      exercise its discretion and stay a parallel civil case. One
Texas Attorney General's ongoing criminal investigation          primary goal of a stay, when a stay is indeed wananted, is
into the WCTAC. (Id. at ~ 5). Jimenez is the only                to preserve a defendant's Fifth Amendment right against
defendant to have invoked her Fifth Amendment rights             self-incrimination and to resolve the conflict he would
thus far.                                                        face between asse1ting this right and defending the civil
                                                                 action. See SEC v. Dresser Industries, Inc. , 628 F.2d
On January 22, 2009, Novoa and Banera filed this motion           1368, 1376 (D.C.Cir.1980) (en bane), cert. denied, 449
requesting that the Court stay the civil proceedings in this     U.S . 993, I 01 S.Ct. 529, 66 L.Ed.2d 289 (1980); see also
case pending completion of the ongoing state criminal            Trustees of Plumbers and Pipejitters Nat '/ Pension Fund
action against Novoa. (Dkt. No. 45 at ~ 3). None of the          v. Transworld Mech. , Inc., 886 F.Supp. 1134,
other Defendants joined in this motion, nor did they file a       1138(S.D.N.Y.1995); see also Heller Healthcare Fin.,
separate request for a stay. Plaintiffs filed their response     Inc. v. Boyes, 2002 WL 1558337, at *3 (N.D.Tex. July 15,
in opposition to the stay on January 26, 2009. (Dkt. No.         2002). Furthermore, a stay may be justified in order to
46).                                                             prevent extending criminal discovery beyond the limits of
                                                                 Federal Rule of Criminal Procedure 16(b), exposing the
                                                                 defense's theory to the prosecution in advance of trial, or
                                                                 otherwise prejudicing the criminal case. Dresser, 628
                                                                 F.2d at 1376; Plumbers and Pipejitters, 886 F.Supp. at
                          Discussion                             1138. The Fifth Circuit has advised that when handling a
                                                                 motion to stay a civil case, a cowt should be sensitive to
                                                                 the differences between the civil and criminal rules of
I. Legal Standard
11 1 121 t is not altogether uncommon that a defendant will      discovery, noting that "[w]hile the Federal Rules of Civil
                                                                 Procedure have provided a well-stocked battery of
find himself or herself facing separate civil and criminal
                                                                 discovery procedures, the rules governing criminal
  rosecutions stemming from the same transaction or
                                                                 discovery are far more restrictive." Campbell v. Eastland,
occurrence. For instance, this occurs quite often in the
                                                                 307 F.2d 478, 487 (5th Cir.l962). Given these
securities field, where parallel actions may be brought at
                                                                 differences:
the same time by different agencies of the federal
government. However, the Supreme Cowt has established
that there exists no general constitutional, statutory, or                    Judicial discretion and procedural
common law prohibition against the prosecution of                             flexibility should be utilized to
   m·allel criminal and civil actions, even where sue                         harmonize the conflicting rules and
actions proceed simultaneously. SEC v. First Fin. Group                       to prevent the rules and policies
of Texas, Inc., 659 F.2d 660, 666-67 (5th Cir.1981)                           applicable to one suit from doing
(citing United States v. Kordel, 397 U.S. 1, 11, 90 S.Ct.                     violence to those pe1iaining to the
763, 25 L.Ed.2d 1 (1970)). Thus, whether to stay a civil                      other. In some situations it may be
action pending resolution of a parallel criminal                              appropriate to stay the civil
  rosecution is not a matter of constitutional right, but,                    proceeding. In others it may be
rather, one of cowt discretion, that should be exercised                      preferable for the civil suit to
when the interests of justice so require. Kordel, 397 U.S.                    proceed- unstayed. In the proper
at 12 n. 27, 90 S.Ct. 763; Dominguez v. Hartford Fin.                         case the trial judge should use his
Set-vs. Group, Inc., 530 F.Supp.2d 902, 905                                   discretion to nan·ow the range of
(S.D.Tex.2008). A district cowt's discretionary authority                     discovery.

Vk - l-   ·~Nexr   © 201 5 Tllomson Reuters. No claim to origin al U S . Governm ent Works.                               6
                                                                                                     APPENDIX 39
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



ld (internal citation omitted).                                    lee Cream Co., Inc. v. Deerfield Specialty Papers, Inc., 87
                                                                   F.R.D. 53 (E.D.Pa.1980). In Golden Quality, the comt
131  egardless, "[i]t 'is the rule, rather than the exce tion'     held that whether to stay a civil action by reason of a
that civil and criminal cases roceed together." United             pending criminal action involved a balancing of the
States ex rei. Gonzalez v. Fresenius Med Care N. Am.,              ifollowing interests : (1) the p laintiffs interest in
571 F.Supp.2d 758, 761 (W.D.Tex.2008) (quoting IBMv.               proceeding expeditiously in the civil case, balanced
Brown, 857 F.Su . 1384, 1387 C.D .Cal.l994 ). And the              against the potential prejudice to the plaintiff caused by a
complete stay of a pending civil action until the                  delay; (2) the defendant's interest and the burden which
conclusion of a related criminal proceeding is considered          any particular aspect of the proceedings may impose on
to be an "extraordinary remedy." In re Piperi, 137 B.R.            him; (3) the coutt's interest in the management of its
644, 646-47 (Bankr.S.D.Tex.1991) (citing Wei! v.                   cases and the efficient use of judicial resources; (4) the
Markowitz, 829 F.2d 166, 174 (D.C.Cir.1987)); see also             interests of persons not parties to the civil litigation; and
Plumbers and Pi efitters, 886 F .Supp. at 1139. One                (5) the public's interest in the ending civil and criminal
reason for this is that a complete stay is tantamount to a         litigation. Golden Quality, 87 F.R.D. at 56. Over time,
defendant's "blanket assertion" of the Fifth Amendment,            this test has been adopted by other comts and has
which is itself im ro er. SEC v. Incendy, 936 F.Supp.              evolved-some factors have been dropped and others
952, 957 (S.D.Fla.1996); see United States v. Little A!,           added. Compare Golden Quality Ice Cream Co., Inc. v.
712 F .2d 133 134-136 Q.th Cir.1983); see also First               Deerfield Specialty Papers, Inc. , 87 F.R.D. 53, 56
Financial, 659 F.2d at 668-69; see also United States v.           (E.D.Pa.1980), with Arden Way Assocs. v. Boesky, 660
Goodwin, 625 F.2d 693 , 70 I (5th Cir.1980). Generally, a          F.Supp. 1494, 1497-98 (S.D.N.Y.1987) (citing Golden
party is required to selectively invoke the privilege              Quality, 87 F.R.D. at 56), with Volmar Distribs., Inc. v.
against self-incrimination and object with specificity to          Ne·w York Post Co., Inc., 152 F.R.D . 36, 39
the information sought from him. First Financial, 659              (S.D .N.Y.1993) (citing Arden Way, 660 F.Supp. at
F.2d at 668. This allows a district coutt to conduct a             1497-98), with Trustees of Plumbers and Pipefitters Nat'/
particularized inquiry, deciding in connection with each           Pension Fund v. Transrvorld Mech. , Inc., 886 F.Supp.
specific area that the questioning pmty seeks to explore,          1134, 1139 (S.D.N.Y.1995) (citing Volmar Distribs., 152
whether or not the privilege is well-founded . !d. (quoting        F.R .D. at 39; Parallel Civil and Criminal Proceedings,
United States v. Melchor Moreno, 536 F.2d 1042, 1049               129 F .R.D. 201 (Pollack, J.)), with Heller Healthcare
(5th Cir.1976)) (quotation marks omitted). Whether a               Fin., Inc. v. Boyes, 2002 WL 1558337, at *2 (N.D.Tex.
party is entitled to the protection of the privilege is for the    July 15, 2002) (citing Plumbers and Pipefitters, 886
court to decide, not the invoking party. Jd                        F.Supp. at 1139).

l41 rsJ As far as the civil case is concerned, there is a strong   161 The test (or a variation thereof) that is generally used
presumption in favor of discovery, and it is the party who         today was first articulated by District Judge Denny Chin
*398 moves for a stay that bears the burden o                      in Trustees of Plumbers and Pipefitters Nat 'l Pension
overcoming this presum tion. Fresenius Medical, 571                Fund v. Transworld Mech., Inc., 886 F.Supp. 1134
F.Supp.2d at 761 (citing United States v. Gieger Transfer          (S.D .N.Y .1995). In Plumbers and Pipefitters, the court
Serv., Inc., 174 F.R.D . 382, 385 (S .D.Miss .l997)). A            modified the traditional "balancing of the interests" test
district comt should stay the civil case only upon a               developed by the Golden Quality coutt by weighing two
showing of "special circumstances," so as to prevent the           additional factors as pmt of the analysis: the extent to
defendant from suffering substantial and ine arable                which the issues in the criminal case overlap with those
 rejudice. First Financial, 659 F.2d at 668 (citing Kordel,        presented in the civil case; and the status of the criminal
397 U.S . at 11 - 13, 90 S.Ct. 763); Dresser, 628 F.2d at          case, including whether the defendants have been
1377.                                                              indicted . ~ Id at 1139. District comts in the Fifth Circuit
                                                                   who apply the Plumbers and Pipefitters test consider or
In determining whether "special circumstances" wanant a            weigh the six following factors : (1 ) the extent to which
stay, a court must measure the relative weights of                 the issues in the criminal case overlap with those
competing constitutional and procedural interests. See               resented in the civil case; (2) the *399 status of the
First Financial, 659 F.2d at 668 ; see also Wehling v.             criminal case, including whether the defendant has been
Columbia Broadcasting System, 608 F.2d 1084, 1088 (5th             indicted; (3) the private interests of the plaintiff in
Cir.1979); see also LeBouef v. Global X- Ray, 2008 WL                roceeding expeditiously, weighed against the prejudice
239752, at *2 (E.D .La. Jan. 29, 2008). Those interests            to the plaintiff caused by a delay; (4) the private interests
were mticulated by Dish·ict Judge Louis H. Pollak and              of and burden on the defendant; (5) the interests of the
Magish·ate Judge William F. Hall, Jr. in Golden Quality            comts; and (6) the ublic interest. See, e.g, St. Martin v.

W2_;L [- : •.Nexr © 20 15 Thom so n Re ute rs. No cl aim to original U S. Govern men t W orks.                               7
                                                                                                        APPENDIX 40
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



Jones, 2008 WL 4534398, at * 1 (E.D .La. Oct. 2, 2008);             the patties, the Court, third miies, and the public will be
United States ex rei. Gonzalez v. Fresenius Med. Care N.            weighed against each other. 6 In other *400 words, because
Am., 571 F.Supp.2d 758, 762 (W.D .Tex.2008); Agueros v.             factors like overlap and the status of the criminal case
Vargas, 2008 WL 2937972, at *1 (W.D.Tex. July 21 ,                  may substantially impact the interests of the parties, the
2008); Akuna Matata Invs., Ltd. v. Texas Nom Ltd.                   Comi, third parties, and the public, these two factors
P 'ship, 2008 WL 2781198, at *2 (W.D.Tex. April 14,                ·should be analyzed within the framework of those
2008); SEC v. Offill, 2008 WL 958072, at *2 (N.D.Tex.               interests. "This balancing-of-the-interests approach
Apr. 9, 2008); United States v. Simcho, 2008 WL                     ensures that the rights of both [the defendant and the
2053953 , at *3 (N.D.Tex. Mar. 31 , 2008); SEC v.                   plaintiff] are taken into consideration before the court
AmeriFirst Funding, Inc., 2008 WL 866065, at *2                     decides whose rights predominate." Wehling, 608 F.2d at
(N.D .Tex. Mar. 17, 2008); LeBouef v. Global X-Ray,                 1088.
2008 WL 239752, at *I (E.D.La. Jan. 29, 2008);
Dominguez v. Hartford Fin. Servs. Group, Inc., 530                 6
                                                                          The Court is well aware that its own understanding of
F.Supp.2d 902, 905 (S .D.Tex.2008); Whitney Nat '/ Bank                   this six-factor test may differ slightly from that of other
v. Air Ambulance ex rei. B & C Flight Mgmt., Inc., 2007                   district courts. However, the Court views as
WL 1468417, at *2 (S .D.Tex. May 18, 2007); Shaw v.                       problematic the balancing of concepts like "overlap of
Hardberger, 2007 WL 1465850, at *2 (W.D.Tex. May                          issues" and "status of the criminal case," with concepts
16, 2007); Holden Roofing, Inc. v. All States Roofing,                    like "defendant's interests," "plaintiffs' interests," and
Inc., 2007 WL 1173634, at *I (S .D.Tex. Apr. 18, 2007);                   the Court's own interests in this matter. In Golden
                                                                          Quality, this test was originally viewed as a balancing
State Farm Lloyds v. Wood, 2006 WL 3691115, at *I
                                                                          of competing interests. Whether there is significant
(S.D.Tex. Dec. 12, 2006); Lewis v. City of Garland, 2005                  overlap of the issues between the civil and criminal
WL 2647956, at *2 (N .D.Tex. Oct. 14, 2005); SEC v.                       case is an important aspect of the analysis- maybe,
Mutuals.com, Inc., 2004 WL 1629929, at *3 (N.D.Tex.                       even, the most important. But only because it and the
July 20, 2004); Frierson v. City of Terrell, 2003 WL                      "status of the criminal case" will affect how much
22479217, at *2 (N .D.Tex. Aug. 4, 2003); Librado v. MS.                  weight to accord to the competing interests and how
Carriers, Inc., 2002 WL 31495988, at* 1 (N .D.Tex. Nov.                   those interests are ultimately balanced against each
5, 2002); Heller Healthcare Fin., Inc. v. Boyes, 2002 WL                  other. Simply stated, the overlap of the criminal and
1558337, at *2 (N.D.Tex. July 15, 2002).5 Although not                    civil cases is not something to "balance," per se, but,
                                                                          rather, something to consider in determining how the
usually considered by district comis in the Fifth Circuit,
                                                                          balancing of the various interests in a case will play
another important factor atiiculated by the Golden Quality                out. Regardless, while the Court's analysis of this test
comi involves balancing the interests of persons not                      may be different, its application should yield the same
parties to the civil litigation.                                          result. Arguably, the Court's understanding of this test
                                                                          aligns more closely with the test applied by the Ninth
       The Plumbers and Pipejillers court also dropped one                Circuit Court of Appeals, whose test derives directly
       factor, the interests of persons not party to the civil            from the source- the Golden Quality case. See Federal
       litigation, because it was deemed inapplicable by the              Sav. and Loan Ins. C01p. v. Molinaro, 889 F.2d 899
       court and had not been raised by the parties. Plumbers             (9th Cir.1989) (citing Golden Quality, 87 F.R.D. at 56);
       and Pipejillers, 886 F.Supp. at 1139 n. 7.                         see also Keating v. Office ofThrift Supervision, 45 F.3d
                                                                          322 (9th Cir.l995) (citing Molinaro, 889 F.2d at
                                                                          902-03); see also Lizarraga v. City ofNogales Arizona,
                                                                          2007 WL 215616 (D.Ariz. Jan. 24, 2007) (citing
       Plumbers and Pipefitters is the genesis of this test. All          Keating, 45 F.3d at 324-25).
       the cases cited here either cite Plumbers and Pipejillers
       directly, or cite a case that cites Plumbers and
       Pipejillers.

                                                                   II. Analysis
The Court agrees that all of these factors are impmiant in         After having balanced the above-referenced competing
determining whether the stay of a civil case should be             interests and how overlap and the status of the criminal
granted. However, the Comi believes that the two                   case impacts those interests, the Cowi holds that a
additional factors miiculated rn Plumbers and                      complete stay of these proceedings is not wan·anted.
Pi efitters-namely, the overlap between the civil and
criminal cases and the status of the criminal case-are not
independent factors for the Cowi to consider. Rather, they
are factors im ortant in determining how the interests of          A. The Balancing of Interests

                                                                                                                                  8
                                                                                                          APPENDIX 41
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



1. Defendants' Interest                                               1139 (citing Parallel Proceedings, 129 F.R.D. at 203) ("If
In deciding whether to issue the stay, the Comt first                 there is no overlap, there would be no danger of
considers the interests of the moving defendants .' As                self-incrimination and accordingly no need for a stay.").
previously stated, the Court evaluates those interests                As such, a comt should consider whether, by allowing the
primarily by analyzing how overlap and the status of the              civil case to continue, the defendant can effectively
criminal case may affect those defendants.                            defend the civil lawsuit without being pressured into
                                                                      waiving his Fifth Amendment rights.
        Because neither Jimenez nor Hernandez seeks to stay
        this case, the Court will not address the propriety of        Furthermore, the status of the criminal case is imp01tant
        according such relief as to these particular defendants.      in evaluating a defendant's interest in obtaining a stay in
                                                                      the civil proceedings. In fact, status ofthe criminal case is
                                                                      pivotal to determining the degree of overlap. Analysis
Overlap can be particularly imp01tant to a defendant's                centers upon whether the criminal case is pre-indictment
interests.8 For example, a defendant has an interest in               in the investigation stage or post-indictment with a set
preventing a parallel civil action from prejudicing his               trial date .
criminal defense. As noted above, if a comt does not stay
a parallel civil action, then the civil case might undermine          Prior to an indictment, whether the issues will even
the defendant's Fifth Amendment privilege against                     overlap is a mere "matter of speculation." United States
                                                                      e.;~: rei. Shank v. Lewis Enters., Inc., 2006 WL 1064072, at
self-incrimination by expanding rights of criminal
discovery beyond the limits of Federal Rule of Criminal               *4 (S.D.Ill. Apr. 21, 2006); see SquareD Co. v. Sho·wmen
Procedme 16(b), by exposing the basis of the defense to               Supplies, Inc., 2007 WL 1430723, at *4 (N.D.Ind. May
the prosecution in advance of criminal trial, or by                   14, 2007). Accordingly, courts generally decline to
prejudicing the criminal case through other means. See                impose a stay where the defendant is under criminal
Dresser, 628 F.2d at 1376. Simply stated, a defendant                 investigation, but has yet to be indicted. In re CFS, 256
may be burdened by liberal civil discovery on the same                F.Supp.2d 1227, 1237 (N.D.Okla.2003) (citing Sterling
issues as those in the pending criminal case, where                   Nat. Bank v. A- / Hotels /nt 'I, Inc. , 175 F.Supp.2d 573,
discovery would be otherwise limited. See Whitney, 2007               576 (S.D.N.Y.2001)); Fresenius Medical, 571 F.Supp.2d
WL 1468417, at *3; see also Campbell, 307 F.2d at 487;                at 763 (citing Shank, 2006 WL 1064072, at *3). Indeed, a
see also Dresser, 628 F.2d at 1376.                                   "pre-indictment motion to stay can be denied on this
                                                                      ground alone." Citibank, NA . v. Hakim, 1993 WL
                                                                      481335, at* 1 (S.D.N.Y. Nov. 18, 1993).
        It is said that self-incrimination is more likely to occur
        the more significant the overlap. See Plumbers and             171 Post-indictment is when the degree of overlap between
        Pipefitters, 886 F.Supp. at 1139. Whether there is
        overlap between the issues in a criminal and civil action      a criminal and civil case can most readily be determined.
        "demands a common-sense, fact-bound analysis."                 Fresenius Medical, 571 F.Supp.2d at 762. The criminal
        Fresenius Medical, 571 F.Supp.2d at 762 (citing In re          indictment helps clarifY the alleged conduct at issue and
        Ramu Corp., 903 F.2d 312, 320 (5th Cir.l990)). A               can be easily compared against the civil complaint. As
        comt must read the criminal indictment and the civil         · such, " [t]he ' strongest case' for a stay exists where a patty
        complaint side-by-side and determine whether the               is indicted for a serious offense and must defend a civil
        wrong/iii conduct alleged in both cases is similar.            action involving the same matter." 9 Lizarraga v. City of
        Plumbers and Pipefitters, 886 F.Supp. at 1139. Comts           Nogales Arizona, 2007 WL 215616, at *3 (D.Arizona,
        caution, however, that "a mere relationship between
                                                                       January 24, 2007) (citing Dresser, 628 F.2d at 1377). It is
        civil and criminal proceedings and the prospect that
        discovery in the civil case could prejudice the criminal       important to note, however, that even after an indictment
        proceeding does not necessarily warrant a stay."               has issued, courts are generally split as to the propriety of
        Fresenius Medical, 571 F.Supp.2d at 762 (citing In re          granting a stay. In re CFS, 256 F.Supp.2d at 1238; see In
        Ramu C01p., 903 F.2d 312, 320 (5th Cir.1990)).                 re Worldcom, Inc. Sec. Litig., 2002 WL 31729501, at *4
                                                                       (S.D.N.Y. Dec. 5, 2002 . In summary, to warrant a stay, a
                                                                       defendant must make a strong showing that the two
A defendant also has an interest in avoiding the quandary              proceedings will so overlap that either ( 1) he cannot
of choosing between waiving his Fifth Amendment rights                 protect himself in the civil proceeding by selectively
and effectively forfeiting the civil case. Plumbers and                invoking his Fifth Amendment privilege, or (2) effective
Pipejitters, 886 F.Supp. at 1140. A defendant is more                  defense of both [the criminal and civil cases] is
likely to face this quandary where the subject matter of               'm ossible. Koester v. American Republic Investments,
*401 both cases overlaps to a significant degree. !d. at               Inc., 11 F .3d 818, 823 (8th Cir. l993).

W=>~t t "':JNexr   © 2 015 Thom son Reuters. No claim to origin al U.S. Governm ent Works.                                        9
                                                                                                            APPENDIX 42
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



                                                                   WCTAC was conditioned on the rmsmg of money
9
        A stay is even more appropriate when the federal           through the raffle and the participation in various
        government has initiated both the civil and criminal       campaign activities. The differences between the
        proceedings. Brock v. Tolkow, 109 F.R.D. 116, 119          wrongful conduct alleged in the civil and criminal cases
        (E.D.N.Y.1985); see Square D Co. v. Showmen                demonstrates a lack of significant overlap between the
        Supplies, Inc., 2007 WL 1430723, at *4 (N.D.Ind. May       two.
        14, 2007); see also Sterling Nat. Bank v. A-1 Hotels
        lnt'l, Inc., 175 F.Supp.2d 573, 578- 79 (S.D.N.Y.2001).    The degree of overlap is further reduced by the fact that
        Again, this is quite common in the field of securities     the prosecutor in the criminal case, namely the State of
        regulation. There is likely to be complete overlap
                                                                   Texas, is not a party to the civil action. In fact, the
        betv<een a civil suit by the SEC and a parallel criminal
        prosecution by the DOJ.                                    potential for prejudice to a criminal defense is diminished
                                                                   where private parties, and not the government, are the
                                                                   p laintiffs in the civil action. Hakim, 1993 WL 481335, at
                                                                   *2. Quite possibly the strongest case for a stay occurs
                                                                   when the federal government has initiated both the civil
                                                                   and criminal proceedings. Brock v. Tolkow, 109 F.R.D.
                          a. Novoa                                 116, 119 (E.D.N.Y.l985); see SquareD Co. v. Showmen
                                                                   Supplies, Inc. , 2007 WL 1430723, at *4 (N.D.Ind. May
181 In the case of defendant Novoa, an indictment has been         14, 2007); see also Sterling Nat. Bank v. A-I Hotels Int '/,
issued, and it is possible to pinpoint the issues at stake         Inc. , 175 F.Supp.2d 573, 578- 79 (S.D.N.Y.2001). "In
with some cettainty. At first glance, there does appear to         such circumstances, there is a special danger that the
be some degree of overlap between Novoa's criminal                 govemment can effectively undermine rights that would
prosecution in state comt and the instant federal civil            exist in a criminal investigation by conducting a de facto
action. Novoa is being prosecuted for organized *402               criminal investigation using nominally civil means."
gambling promotion. This allegedly involved Novoa                  Sterling, 175 F.Supp.2d at 579; see Square D, 2007 WL
becoming, for gain, the custodian of a thing of value bet          1430723, at *4 (citing United States ex ref Shank v. Lewis
or offered to be bet- specifically, money for raffle               Enters., Inc. , 2006 WL 1064072, at *4 (S.D.Ill. Apr. 21,
tickets. In tetms of the civil action, Plaintiffs claim, in        2006)) ("The comt' s concem is the risk of the
patt, that they were wrongfully required as a condition of         govemment's use of the broad scope of civil discovery to
employment at the WCTAC to patticipate in this                     obtain information for use in the criminal prosecution.");
organized scheme whereby Novoa became the custodian                see also Campbell, 307 F.2d at 487. Arguably, the risks to
of the thing of value, or the money for the raffle tickets.        a defendant's constitutional rights are magnified in such a
Furthermore, Plaintiffs claim that they were then                  situation. Sterling, 175 F.Su p.2d at 579. However, the
retaliated against for cooperating with the Attorney               instant civil case has been brought by private entities and
General ' s investigation into this supposed scheme.               is not one "in which the government itself has an
Overlap between the two cases would occur, then, with              oppmtmtity to escalate the pressure on defendants by
respect to any facts related to Novoa's supposed                   manipulating        simultaneous     civil   and    criminal
collection of raffle-ticket money from WCTAC                       proceedings, both of which it controls." !d. The private
employees.                                                         plaintiffs here have interests distinct fi·om those of the
                                                                   Texas government, and "[t]here is no reason to assume
However, a closer comearison of the criminal indictment            that [Plaintiffs'] civil case is simply a stalking horse for
and the civil complaint reveals that the wrongful conduct           he government's criminal inquiry, rather than a good
alleged in the civil case is at least one step removed fi·om       faith effmt *403 to obtain con1J2ensation for [their] own
the wrongful conduct alleged in the criminal case.                   rivate injuries." !d.
Whereas in the criminal case, the alleged wrongful
conduct centers around the taking and holding of raffle            Because there is no significant overlap between the civil
ticket money, the alleged wrongful conduct in the civil            and criminal cases, little concem is raised regarding
case centers around whether WCTAC employment was                   Novoa's Fifth Amendment rights and her ability to defend
conditioned on the raising of money through the raffle             the civil and criminal actions. First in terms of the civil
and the participation in various campaign activities.              case, if Novoa is indeed asked during discove1y whether
Liability in the civil case is also based upon an even more        any raffles took place at the WCTAC, or whether she
tangentially related scenario: whether WCTAC                       collected any raffle monies, she can admit or deny this, or
employees were retaliated against for cooperating in an            invoke her Fifth Amendment right not to incriminate
investigation regarding whether employment at the                    erself. Selective invocation of the Fifth Amendment as

    "''" l '.\INexr © 201 5 Thomson Reuters. No cl aim to ori ginal U.S. Governm ent Works.                               10
                                                                                                       APPENDIX 43
Alcala v. Texas Webb Co unty, 625 F.Supp.2d 391 (2009)



to such a uestion would not burden her civil defense.            As for Barrera, she has yet to be indicted. The degree of
Whether these raffles occurred at the WCTAC, or                  overlap is thus speculative at this point. See Shank, 2006
whether Novoa was the custodian of the raffle monies, is         WL 1064072, at *3; SquareD Co., 2007 WL 1430723, at
not the wrongful conduct alleged by Plaintiffs. Instead,         *4. Even assuming that Banera were to be indicted as one
Plaintiffs would have to prove, in part, for purposes of the     of the individuals alleged to have acted in combination
civil suit, that Novoa furthered the policy of mandatory         with Novoa, again, there would be no significant overlap
participation in these raffles. And even if Novoa were           ofthe issues. Fmthermore, Banera would not be burdened
indeed asked whether this was the case, her civil defense        in the civil suit through selective invocation of her Fifth
would not be unduly burdened through her selective               Amendment right. Like Novoa, *404 Banera has the
invocation of the Fifth Amendment in response. If the            benefit of dozens of witnesses, current and former
evidence in this case simply consisted of one pmty's word        WCTAC employees, who have seen and experienced
against the other's, the defendant's invocation of the Fifth     what occmTed at the WCTAC. Therefore, Banera cannot
Amendment privilege would have the potential to hamper           show that selective invocation of her Fifth Amendment
the civil defense. But here, there are literally dozens of       right would significantly prejudice her civil case. Also,
witnesses, cunent and former WCTAC employees, who                like Novoa, Banera did not invoke her Fifth Amendment
have seen and experienced what occmTed at the WCTAC.             right in her answer. She too generally admits that raffles
(Dkt. No. 45, Exhibit A, Initial Disclosures) . As such, if      occmTed at the WCT AC and denies that participation in
she were to selectively invoke the Fifth Amendment,              these raffles was mandatory or that a lack of pmticipation
Novoa's hands will not be tied because there may be any          in the raffles and other campaign activities led to
number of witnesses willing to testifY on her behalf and         terminations. Therefore, Ban·era, like Novoa, is able to
support any claims she may make in defense of her suit.          testifY that no retaliation occurred and that there were
                                                                 legitimate reasons for any terminations. Finally, Barrera is
!Regardless, there seems to be little reason to believe that     unable to show that the government is using the civil suit
Novoa would selectively invoke her Fifth Amendment               as a means of aiding its prosecution of a criminal action,
privilege against self-incrimination as to any questions         both because the government is not a party to the civil suit
whatsoever. In her answer to Plaintiffs' complaint, Novoa        and, in Banera's case, because no criminal action has yet
generally admits that raffles occwTed at the WCTAC, and          been initiated.
she denies any facts that would give rise to the true basis
of liability in this civil action-whether participation in       The Comt does note that an investigating officer with the
these raffles was mandatory and whether she furthered            Texas Attorney General Office, Sergeant Alfonso
this policy tlu·ough any number of means.' 0 Simply put,         Cavalier, executed an affidavit in suppmt of the WCTAC
   ovoa has denied all of Plaintiffs ' allegations as to         search wanant, swearing, in part, that Barrera committed
,·etaliation or wrongful termination alleged by the fonner       the following offense:
   CTAC employees. Therefore, there does not seem to be                      Texas Penal Code, Chapter 39.02
anything incriminating about Novoa testifYing regarding                      Abuse of Official Capacity [by]
the legitimate reasons as to why a former employee was                       allowing county employees to
terminated or denying any alleged instances of retaliation.                  participate in football pots on
    summary, Novoa has failed to show that she would be                      county property during the course
burdened in the civil suit through selective invocation of                   of their normal work day, by
  er Fifth Amendment right, or that it would be impossible                   mandating that county employees
to simultaneously defend the criminal and civil actions.                     sell raffle tickets during business
                                                                             hours while being paid by the
10
       Whether Novoa has already waived her Fifth                            county, by allowing the sale of
       Amendment privilege by even making these admissions                   these raffle tickets during business
       and denials in her answer is a question not presently                 hours while being paid by the
       before the Court. Barrera also makes similar admissions               county, by allowing the sale of
       and denials in her respective answer to Plaintiffs'                   these raffle tickets in a county
       complaint.                                                            facility workplace, and personally
                                                                             profiting from the sale of these
                                                                             football pots and raffle tickets
                                                                             being sold by said county
                                                                             employees."

                        b. Barrera                               II
                                                                        Section 39.02(a) of the Texas Penal Code provides that

                                                                                                                          11
                                                                                                      APPENDIX 44
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



       "a public servant commits an offense if, with intent to    to expeditiously pursue his claim,' " Whitney, 2007 WL
       obtain a benefit or with intent to harm or defraud         1468417, at *3 (citing In re Adelphia Commc 'ns Sec.
       another, he intentionally or knowingly: (1) violates a     Litig., 2003 WL 22358819, at *4 (E.D.Pa. May 13,
       law relating to the public servant's office or             2003)), comis recognize that delay can lead to the loss of
       employment; or (2) misuses government property,            evidence and duly fi"ustrate a plaintiff's ability to put on
       services, personnel, or any other thing of value           an effective case. Fresenius Medical, 571 F.Supp.2d at
       belonging to the government that has come into the         763 ; Sidari v. Orleans County, 180 F.R.D. 226, 230
       public servant's custody or possession by virtue of the
                                                                  (W.D.N.Y.1997); SEC v. Brown, 2007 WL 4192000, at
       public servant's office or employment." TEXAS
       PENAL CODE§ 39.02(a).
                                                                  *2 (D.Minn. July 16, 2007); Hakim, 1993 WL 481335, at
                                                                  *2. With the passage of time, witnesses become
                                                                  unavailable, memories of conversations and dates fade,
                                                                  and documents can be lost or destroyed. Brown, 2007 WL
(Dkt. No. 54, Ex. B at pg. 9). While an indictment based          4192000, at *2.
on this statement appears to overlap with the civil suit to a
greater degree than the conduct alleged in Novoa's                This case was filed back in September of2008; and due to
indictment, the Court points out that the search warrant          delays, discovery has yet to begin. Of particular concern
was executed back in October 2007- about eighteen                 here, then, is the possibility that further postponing
months ago. When the State of Texas initiated a                   discovery by staying this case will prevent Plaintiffs from
prosecution approximately one year after the execution of         obtaining information related to whether employee
that search wanant, it did not indict Ban·era on the              participation in raffles was mandatory at the WCTAC and
offense stated in the search warrant. Instead, it indicted        whether any of the plaintiffs were terminated for any of
Novoa on a separate offense, diminishing the likelihood           the wrongful reasons asse1ied. The Court expects that if
that Banera will be indicted based on the conduct stated          information exists as to the alleged culture or environment
in the affidavit. If Barrera is indicted and the conduct          of intimidation at the WCT AC, it will most likely have to
alleged in that indictment significantly overlaps with the        be elicited through written intenogatories and oral
conduct alleged in the civil suit, the Cowi will reevaluate       depositions of the plaintiffs and others who took pmi in or
whether a stay is warranted. At this time, however, the           witnessed any liability-creating transactions. Because
degree of overlap is too speculative to wanant a stay of          such information is couched in memory, the integrity of
Barrera's case. "                                                 this information is in danger of degrading over time, and
                                                                  here, considerable time has already elapsed since the
12
       The Court also notes that Barrera requests a stay until    alleged events that gave rise to this suit took place. 13 The
       the conclusion of the criminal case against Novoa. But     last of the plaintiffs to have worked at the WCTAC were
       it is unclear to the Court how the conclusion ofNovoa' s   terminated in early-September, over six months ago. Most
       case would impact Barrera, who has yet to be indicted      of the other plaintiffs resigned or were terminated in
       and who could face prosecution even after Novoa' s
                                                                  early-to-mid 2008, and some in 2007. Thus, because most
       criminal case has concluded .
                                                                  of the evidence in this case will consist of witness
                                                                  testimony, continued delay will only serve to further
                                                                  prejudice Plaintiffs' ability to obtain discovery.

                                                                  13
2. Plaintiffs' Interests                                                 The Court notes that while there is also a danger of
                                                                         losing documentary evidence due to the delay, th.is
191 Overlap, or the lack thereof, is also a concern for
                                                                         would probably not be of great consequence to
Plaintiffs' interests. Because *405 the Plaintiffs are not               Plaintiffs ' case. Any documents would most likely be
parties to the criminal case, a delay in their civil case                relevant only for purposes of establishing that raffles
could be prejudicial. When the government is a party to                  actually took place at the WCTAC. But as already
both the civil and criminal actions, a delay in the civil                discussed, whether raffles occurred at the WCTAC
case may not be as significant. For the most pari, the                   would not, of itself, establish Defendants' liability in
government is able to preserve its interests in the civil                the civil case. Furthermore, Novoa and Barrera
case through its prosecution of the criminal case. Such                  generally admit in their answers to the complaint that
may not be the case when the plaintiffs, as they are here,               raffles took place.
are private parties.

While "[n]ormally, ' in evaluating the plaintiffs burden          Regarding the issuance of an indictment against Novoa, it
resulting from the stay, courts may insist that the plaintiff     could be argued that "the prejudice to the plaintiffs in the
establish more prejudice than simply a delay in his right         civil case [would be] reduced since the criminal case

                                                                                                                             12
                                                                                                        APPENDIX 45
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



[would] likely be quickly resolved due to Speedy Trial             such interest is injudicial efficiency. "The conviction of a
Act considerations." See Plumbers and Pipefitters, 886             civil defendant as a result of the entry of a plea or
F.Supp. at 1139. However, such an argument may not                  ollowing a trial can contribute significantly to the
have as much force when the criminal defendant faces               nanowing of issues in dispute in the overlapping civil
indictment by the State of Texas versus the federal                case and promote settlement of civil litigation not only by
government. Under the Speedy Trial Act, it is generally             hat defendant but also by co-defendants who do not face
required that a federal criminal trial begin within 70 days        criminal charges." Worldcom, 2002 WL 31729501 at *8.
after a defendant is indicted *406 or makes an initial             A cowt, then, must analyze whether, and to what extent,
appearance. See 18 U.S.C. § 316l(c)(1). Thus, after                the outcome of the criminal proceeding would serve to
indictment by the federal government, the Speedy Trial             simplifY or "streamline" the issues and any possible
Act effectively limits the ·duration of a stay in a parallel       discovery disputes. Of course, this all depends on the
civil case. The State of Texas, on the other band, has no          degree of overlap between the criminal and civil cases.
Speedy Trial Act. " Accordingly, where a defendant has
been indicted by the State of Texas, there is no statutory            ere, there would be little "streamlining." Were the State
mechanism by which to set the possible durational limits           of Texas to establish Novoa's guilt, this civil case would
of a parallel civil action in federal comt. 15                     a·emain unresolved. Perhaps a criminal conviction against
                                                                   Novoa would establish to some extent, and merely as a
14
       In 1987, the Texas CoUJt of Criminal Appeals held that      threshold matter, that gambling did occur at the WCTAC
       the Texas Speedy Trial Act was unconstitutional             and that Novoa collected any raffles monies. However,
       because it violated principles of separation of powers      such a conviction would not speak to the actual bases of
       under the Texas Constitution. Meshell v. State, 739         liability in this civil action. Coercing participation in an
       S. W.2d 246 (Tex.Crim .App.l987).                           organized gambling scheme through threats of retaliatory
                                                                   termination, for example, is not the wrongful conduct for
                                                                   which Novoa has been charged. As such, it would not be
15                                                                 addressed by the State in proving its criminal case, nor
       The Sixth Amendment itself is not effective in defining
       such limits. " It is ... impossible to determine with
                                                                   would it be adjudicated by the criminal tribunal.
       precision when the [Sixth Amendment right to a speedy
       trial] has been denied." Barker v. Wingo, 407 U.S. 514,     The Court does realize that by proceeding with the civil
       522, 92 S.Ct. 2182, 33 L.Ed.2d I 01 ( 1972). Whether a      case, there is a possibility that the Comt will have to rule
       defendant has been deprived of this right requires the      on selective claims of Fifth Amendment privilege and
       consideration of several factors, including the length of   objections to specific information requests dming the
       the delay and whether the defendant has asserted his        discovery process. *407 However, Novoa and Banera, the
       rights. !d. at 530, 92 S.Ct. 2182 . A presumption of        only two defendants moving for a stay, have not shown
       prejudice against the accused does not trigger until at
                                                                   the Court, thus far, that they would selectively invoke
       least one year from arrest or indictment. Doggett v.
       United States, 505 U.S. 647, 652 n. I, 112 S.Ct. 2686,
                                                                   their Fifth Amendment privilege. As already discussed, in
       120 L.Ed.2d 520 (1992).                                     their respective answers to the complaint, these
                                                                   defendants have generally admitted that raffles occmTed
                                                                   at the WCTAC, and they have denied all other
                                                                   accusations that provide for the true basis of liability in
Here, because Novoa has been indicted by the State of
                                                                   this civil case. Therefore, it does not appear, at this time,
Texas, it is difficult for the Cowt to dete1mine the               that the Court will have to expend any significant amount
duration of a possible stay in this civil case. In fact, the
                                                                   oftime and effort ruling on any claims of privilege.
indictment against Novoa was issued more than six
months ago, and the Comt takes judicial notice that
                                                                   Another interest for the Cowt to consider is judicial
Novoa's pending trial, which is currently set for May 18,
                                                                   expediency, whether staying the civil case will interfere
2009, has already been reset twice before. As for Banera,
                                                                   with its management of the docket. A comt "has an
there is no telling when, or even if, she will be indicted.        obligation to move its docket, and not let cases languish
Plaintiffs may have already been prejudiced by the delay           before it." In re Scrap Metal Antitrust Litig. , 2002 WL
that bas occurred thus far, Jet alone by any further delay
                                                                   31988168, at *7 (N.D.Obio Nov. 7, 2002). But that is
of an indefinite duration.                                         precisely the danger where, as here, a stay could be of
                                                                   indefmite duration. As discussed above, Novoa has been
                                                                   indicted by the State of Texas, which has no speedy trial
                                                                   act. Moreover, no indictment has even been issued in
3. The Court's Interests
IIOI ifhe Court must also balance its own interests. One
                                                                   Barrera's case. Postponement of this suit until the

                                                                                                                            13
                                                                                                        APPENDIX 46
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



conclusion of Banera's criminal prosecution, if any,                 As such, the Court DENIES Novoa's and Barrera's
"would require this court either to 'rely upon fmtuitous             request to stay this case in its entirety. *408 All parties
events to manage its docket,' or to guess what criminal              should begin discovery immediately. A stay order will be
acts [she] might be charged with, and consequently which             reversed when found to be immoderate or of an indefinite
limitations periods apply to those criminal acts .... "              duration. McKnight v. Blanchard, 667 F.2d 477, 479 (5th
Hakim, !993 WL 481335, at *2 (internal citation                      Cir.1982). As such, a district comt should carefully
omitted).                                                            consider the time reasonably expected for the resolution
                                                                     of the criminal case. See Wedgeworth v. Fibreboard
                                                                     Corp., 706 F.2d 541 , 545 (5th Cir.1983). Since Novoa's
                                                                     next state court date is set for May 18, 2009, the Comt
4. The Public's and Third-Parties' Interests                         will GRANT a limited stay to continue as to Defendant
1111 Finally, the interests of the public and third parties
                                                                     Novoa only until May 24, 2009. During this period, no
must be considered.16 The public bas an interest in the              party should serve intenogatories, requests for
resolution of disputes with minimal delay, but only to the           admissions, or a notice of deposition on Novoa until May
extent that the integrity of the defendant's rights can be           25, 2009. All other requests for relief in Novoa and
maintained. St. Martin, 2008 WL 4534398, at *3; State                Ban·era's motion are DENIED.
Farm L/oy ds, 2006 WL 369 1115, at *3; Frierson v. City
of Terrell, 2003 WL 21355969, at *4 (N.D.Tex. June 6,                IT IS SO ORDERED.
2003). The degree of overlap is an impmtant
consideration in weighing the public's interests. As
already discussed, there is no significant overlap between
Novoa's criminal prosecution and the civil case, so her
rights are not at risk. The status of Banera's criminal case                          OPINION AND ORDER
is also an impmtant consideration. Banera bas not been
indicted. Thus, the risk to her rights is presently unclear,
and it is impossible to predict exactly when an indictment           MICAELA ALVAREZ, District Judge.
will be handed up against her, if at all. Here then, because         On May 25, 2009, Defendant Patricia A. Barrera
the integrity of Novoa and Banera's rights can be                    ("Banera") through her counsel filed an Emergency
maintained without a stay, the public's interest in                  Motion in this cause of action. 1 [Dkt. No. 77V In this
resolving the case with minimal delay weighs against a               Motion, Banera moves the Comt to (1) handle all futme
stay. St. Martin, 2008 WL 4534398, at *3.                            pre-trial matters in these cases; (2) vacate Judge Hacker's
                                                                     Opinions of May 1, 2009 and May 15, 2009; and (3) stay
16
                                                                     all discovery in this case for eleven months. Plaintiff filed
             Typically, district courts have analyzed these two
                                                                     a response on May 28, 2009. [Dkt. No. 81]. For the
             factors separately. Whether these two interests are
             considered independently or together is immaterial in
                                                                     following reasons, the Comt DENIES Defendant's
             the overall balancing of interests.                     Motion ofMay 25, 2009.

                                                                            The full title of this Motion is "Defendant, Patricia A.
Third pmties may also have an interest in resolving this                    Barrera's Opposed Emergency Motion for Stay of
                                                                            Proceedings Pendiente Lite Directed to United States
case with minimal delay. Defendants are currently
                                                                            District Judge and Motion to Reconsider Magistrate
employed at the WCTAC. If Plaintiffs' allegations are                       Judge's Denial of Motion to Stay Proceedings, Motion
true, the other WCTAC employees, who are not plaintiffs                     for Vacation of Magistrate Judge's May 15, 2009 Order
in this case, have an interest in not being the victims of                  and Amended Schedu ling Order and Motion for
threats, retaliation, wrongful termination, or pressure to                  Protective Order and for Rule 26 Scheduling
leave their employment. If Plaintiffs' allegations are false,               Conference." [Dkt. No. 77].
then Webb County and the WCTAC employees have an
interest in exposing the truth promptly.
                                                                     2
                                                                            "Dkt. No." refers to the docket number entry for the
                                                                            Court's electronic filing system. The Comt will cite to
                                                                            the docket number entries rather than the title of each
                                                                            filing.
                              Conclusion

After considering the various interests in this case, the
Comt finds that a stay of the entire case is not warranted.
     ~,.   [-.·.Nexr   © 2015 Thom son Reuters. No cl aim to ·original U.S . Government Works .                                 14
                                                                                                           APPENDIX 47
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



I. BACKGROUND AND PROCEDURAL HISTORY
                                                                        All ten Plaintiffs had either resigned or been terminated
In January 1993, Defendant Banera assumed elected                       from WCTAC at the time they filed this federal civil
office as Webb County Tax Assessor/Collector. [Dkt. No.                 suit.
12 at~ 18]. Plaintiffs allege that soon thereafter the Webb
County Tax Assessor/Collector's Office ("WCTAC"),
where they worked, began to hold a series of raffles to
                                                                 On December 16, 2008, Banera answered Plaintiffs'
raise money. [Id. at~~ 19- 22]. According to Plaintiffs, the
                                                                 Complaint. [Dkt. No. 36]. In her answer, Banera admits
pmpose of one tri-annual raffle, the "Rifa Entre Amigos "
                                                                 that raffles occun·ed between the WCTAC employees.
("Raffle Among Friends") was, in part, to benefit
                                                                 [Id at ~ 7]. Banera also states that "part of the monies
Barrera's re-election campaign. [Id. at ~ 29]. Plaintiffs
                                                                 collected from the ["Rifa entre Amigos" ] were utilized to
aver that all employees had to sell a specific number of
                                                                 pay for calendars and materials which were considered
raffle tickets for the Rifa Entre Amigos. [Id. at ~~ 22,
                                                                 promotional in natme." [!d. at~ 9].
25-28]. WCTAC employees had to sell these tickets
during both work and non-work hours. According to
                                                                 On January 22, 2009, Barrera along with Defendant Mary
Plaintiffs, participation was mandatory and a condition of
                                                                 Ethel Novoa, filed a Motion requesting that the Cornt stay
employment. [Id. at ~~ 25, 27]. Defendants, including
                                                                 the civil proceedings in this case pending completion of
Banera, purportedly enforced participation in these raffles
                                                                 the ongoing state criminal action against Novoa. [Dkt.
through threats of termination and retaliation. [Id. at~ 23] .
                                                                 No. 45 at ~ 3]. A state grand jrny indicted Novoa with
                                                                 gambling promotion and engaging in organized criminal
Apart from participation in these raffles, Plaintiffs aver
                                                                 activity the same day Plaintiffs filed their civil complaint
that Defendants began in 2000 requiring WCT AC
                                                                 in this lawsuit. [Dkt. No. 45, Ex. C]. On May 1, 2009, in a
employee participation in football pots (or betting pools).
                                                                 lengthy, well-reasoned opinion, Magistrate Judge J. Scott
[!d. at~ 36]. Allegedly, WCTAC employees also had to
                                                                 Hacker analyzed whether the Cornt in its discretion
campaign on behalf of Banera in her re-election
                                                                 should stay all civil proceedings until the conclusion of
campaigns. [Id. at ~~ 70- 82]. According to Plaintiffs
Banera required WCTAC employees place campaig~
                                                                 Novoa's criminal case. [Dkt. No. 67]. Judge Hacker
                                                                 balanced the interests of the Defendants, the Plaintiffs, the
bumper stickers on their cars, maintain a campaign sign
                                                                 Court, and the public. [/d.]. Judge Hacker focused
outside their house, and volunteer at her campaign
                                                                 pmticularly on whether defendants would be unfairly and
headquarters. [Id. at~~ 71, 73, 75]. *409 These required
                                                                 unduly prejudiced defending this civil action. The
campaign activities and football pots allegedly also were
                                                                 simultaneous Texas Attomey General investigation might
enforced by threats of termination and retaliation. [Id. at
                                                                 force them to assert their Fifth Amendment privilege
~~ 39, 71, 76-77]. Indeed, several Plaintiffs claim they
                                                                 against self-incrimination during discovery. Based on the
were fired for refusing to engage in these activities. [Id. at
                                                                 balancing interests, Judge Hacker, however, determined
~~ 71, 77].
                                                                 that a total stay of the case was not wananted. [Id.]. Judge
                                                                 Hacker did grant a limited stay to continue as to
In 2007, the State of Texas Attorney General began to
                                                                 Defendant Novoa until May 24, 2009 as she had been
investigate the activities at the WCTAC based on
                                                                 criminally indicted. [!d. at 26]. As to all other Defendants
"whistle-blowing" by WCTAC employees, including two
                                                                 Judge Hacker ordered that discovery begin immediately:
of the Plaintiffs. [!d. at~~ 43 , 53]. Investigators with the
                                                                 [Id.]. Indeed, that same day Judge Hacker issued a
Attorney General conducted interviews and issued Grand
                                                                 proposed scheduling order with deadlines for all pre-trial
Jmy subpoenas to WCTAC employees. [!d. at~~ 48, 59,
                                                                 events, including a discovety deadline. [Dkt. No. 68].
66]. Plaintiffs allege that Banera and the other individual
                                                                 Judge Hacker ordered that the pmties make any objections
Defendants threatened them with retaliation if they spoke
                                                                 to the proposed deadlines by May 8, 2009. [Id.].
to the investigators. [Id at ~~ 49- 52, 54-57]. According
to Plaintiffs, those employees who testified or were
                                                                 On May 8, 2009, Barrera filed a Motion entitled
suspected of testifying before the Grand Jmy were
                                                                 "Objection to Entry of Scheduling *410 Order, Advisory
terminated. [Id. at~~ 67- 68].
                                                                 to Court, and Motion for Rule 26 Scheduling
In September 2008, Plaintiffs, ten former employees of           Conference." [Dkt. No 69]. In this motion Banera
WCTAC, filed this instant federal civil cause of action.)        advised the Cornt that criminal proceedings had been
Pmsuant to 42 U.S.C. § 1983, Plaintiffs allege Defendants        initiated against her fom days earlier, on May 4, 2009.
violated their First and Fourteenth Amendments civil             [Id. at~ 3] . State prosecutors had extended a plea deal to
rights . [Id at~ 155]. Plaintiffs also allege that Defendants    her. [Id at ~ 4]. Based on these changed circumstances,
committed several state law offenses. [/d. at~~ 175- 194].       Ban·era also asked the Cornt to hold a Rule 26 Scheduling

  a5 1-!.vNexr   © 201 5 Tll orn son Reuters. No claim to ori ginal U.S. Governm ent Works.                                  15
                                                                                                       APPENDIX 48
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



Conference. [Jd. at ~ ~]. At this conference, Barrera             Factual findings are clearly enoneous when "the
asserted that the Comt should consider oral argument on a         reviewing court upon examination of the entire evidence
second motion to stay proceedings. [Jd.]. Judge Hacker            is left, with the defmite and firm conviction that a mistake
denied Barrera's objections and entered the previously            has been committed." Bolding v. Comm 'r of Internal
proposed scheduling order. [Dkt. No. 72].                         Revenue, 117 F.3d 270, 273 (5th Cir.1997) (citation
                                                                  omitted); Lahr v. Fulbright & Jaworski, L.L.P., 164
Then, on May 25, 2009, Barrera filed the Emergency                F.R.D. 204, 208 (N.D.Tex.1996). The Court turns to
Motion currently before the Coutt. [Dkt. No. 77]. In this         analyzing Defendant Banera's individual objections to
Motion, Banera first moves the Court "to stay all                 the Magistrate Judge's Opinions of May 1 and May 15,
discovery in the matter for an eleven month period of             2009.
time." [Id. at 1]. This request appears to be a Motion for
Reconsideration of Judge Hacker's May 1, 2009 Order
denying a complete stay of the civil action as well as a
new Motion to Stay Proceedings. On May 15, 2009, the              1. May 1, 2009 Opinion and Order
Webb County District Attorney filed a formal three-count
Criminal Information and Complaint against Banera. [Id ,          The Magistrate Judge's May 1, 2009 Opinion denied
Ex. A]. This Criminal Information and Complaint charges           Banera's first Motion to *411 completely sfay civil
that Barrera knowingly (1) used or permitted another to           proceedings. [Dkt. No. 67]. Barrera's primary objection to
use a building or room for gambling; (2) owned,                   the Opinion is that Judge Hacker has ignored the criminal
manufactured, or possessed gambling paraphernalia; and            investigation and subsequent proceedings against Banera.
(3) possessed for transfer or did transfer a card, stub,          Banera contends that Judge Hacker found "the impending
ticket, or check designed to serve as evidence of                 criminal proceeding[ s] were too speculative" to stay the
participation in a lottery. [Jd.]. Second, Barrera requests       case. [Dkt. No. 77 at 7]. This is a self-serving
that all "pre-trial matters be handled by the Honorable           simplification of the Opinion's analysis of one balancing
United States District Judge due to the procedural history        factor, Barrera's private interest, in a four-part balancing
of this cause ... and the actions of the Magistrate Judge ... "   test. 4 What Judge Hacker found was that the criminal
[Id. at 1- 2]. Specifically, BarTera objects to Judge             investigation of Barrera had been ongoing since October
Hacker's Opinions of May 1 and May 15, 2009. [Id at               2007 and BmTera had not been indicted as of May 1,
5-6]. Barrera further asks that the Coutt to vacate these         2009. [Dkt. No. 67 at 403-404] . Thus, it was
Orders. The Court will take up this second matter first.          "speculative" to assume that the criminal investigation
                                                                  would significantly overlap with the civil case at that
                                                                  time. Judge Hacker could not have predicted that BmTera
                                                                  would be indicted on May 15, 2009. And for that reason,
II. DISCUSSION                                                    Judge Hacker added, "If Barrera is indicted and the
                                                                  conduct alleged in that indictment significantly overlaps
                                                                  with the conduct alleged in the civil suit, the Coutt will
A. MOTION FOR DISTRICT COURT TO HANDLE                            reevaluate whether a stay is warranted"- an analysis this
ALL PRE-TRIAL MATTERS                                             Court will undertake in the second part of this Opinion.
                                                                  [Id. at 404]. More importantly, Judge Hacker determined
In her Motion, Defendant Banera asks this Court to                that Barrera had not established that she could not protect
conduct all future pre-trial matters instead of Magistrate        herself by selective invocation of her Fifth Amendment
Judge J. Scott Hacker because the "Magistmte Judge 's             privilege. [Id]. Finally, these were Judge Hacker' s
May 1, and May 15, 2009 Memoranda and Opinions                    conclusions as to only one factor in a four-part test. Judge
clearly demonstrate his inability to handle pre-trial." [Dkt.     Hacker also weighed the Plaintiffs', the Court's, and the
No. 77 at 5-6]. As permitted under 28 U.S.C. § 636 and            public's interests in a stay.
Southern District of Texas Local Rule 72, the Coutt
referred all pre-trial non-dispositive matters in this case to    4
                                                                         Barrera does not appear to dispute the applicable legal
Judge Hacker. 28 U.S.C. § 636(b)(1)(A) (2006) (stating
                                                                         standards set forth by Judge Hacker. BruTera quotes the
that a "designated magistrate may hear and determine                     six-factor test recited in State Farm Lloyds v. Wood,
pretrial matters pending before a district court" with                   Civ. No. H-06-503 , 2006 WL 3691115, at *I
limited exceptions); S.D. TEX. LOCAL R. 72. When a                       (S.D.Tex. Dec. l2, 2006), but makes no specific
magistrate judge decides a non-dispositive matter, the                   objections to Judge Hacker's four-part balancing of
district judge "must consider timely objections and                      interests test. Judge Hacker's four-part balancing of
modify or set aside any part of the order that is clearly                interest test incorporates all six factors recited in State
erroneous or contrary to law." FED. R. CIV. P. 72(a).                    Farm Lloyds.

W.e:;tl : Nexr © 2015 Th omson Reuters. No claim to origina l U S. Government Works.                                            16
                                                                                                         APPENDIX 49
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)




Barrera also objects that the May I, 2009 Opinion focuses           Ban·era also insinuates that Judge Hacker should have
too much "upon the factor of the potential (and                     granted her renewed motion to stay proceedings as a
speculative) prejudice to the Plaintiffs from the potential         result of the Webb County District Attorney filing a
loss of testimony and evidence." [Dkt. No. 77 at 12]. The           Criminal Information and Complaint against her on May
May 1, 2009 Opinion, however, does not focus primarily              15, 2009. [Dkt. No. 77 at 7]. BmTera contends that Judge
on the prejudice Plaintiffs may suffer by a stay in the civil       Hacker should have known of these events based on the
case. It applies equal weight and analysis to Defendants',          local media's coverage of the criminal case. (Jd.] . Indeed,
Plaintiffs', the Cowt's, and the public's interests in a stay.      Banera asks, whether " ... Barrera's subsequent anest on
[Dkt. No. 67]. Based on its review of the May 1, 2009               the May 15, 2009 criminal information escapes Hacker' s
Opinion, the Court finds that this Opinion is not clearly           attention? Does Hacker live in a cocoon in spite of the
erroneous or contrary to law.                                       plethora of publicity swTounding Banera's anest and
                                                                    booking? Is Hacker completely out of sync with the
                                                                    course of proceedings in the State Criminal Justice
                                                                    System given this publicity?" [Id.]. It is a bedrock
2. May 15, 2009 Opinion and Order                                   principle that it is the pmties' obligation to bring fmth
                                                                    whatever evidence it wants the Court to consider. It is not
Judge Hacker's May 15, 2009 Opinion entered a                       Judge Hacker's obligation to follow the daily occunences
Scheduling Order for this case and denied Banera's                  in a parallel state criminal case. As the Seventh Circuit
renewed request to stay this cause of action. [Dkt. No.             has so aptly stated, "Judges are not like pigs, hunting for
72]. Banera asserts Judge Hacker's "entire basis" for               truffles" or events affecting cases before them. See United
denying this renewed request "was the absence of any                States v. Dunkel, 927 F.2d 955, 956 (7th Cir.l991). Any
criminal proceedings against her." [Dkt. No. 77 at 7].              evidence that Defendant Banera wanted the Court to
Barrera continues on to state that "a proffered plea                consider should have been filed with the Court. Moreover,
atTangement does not suffice for Hacker to grant a stay of          a cowt should not rely upon local newspaper articles and
discovery and proceedings. Hacker requires a formal                 news programs, both forms of hearsay, to keep abreast of
criminal charge." [Id.]. This argument fails to understand          events affecting a case before it. 6 These media sources are
the nuances of Judge Hacker's May 15, 2009 Opinion. In              hearsay evidence that a court cannot properly consider for
the May 15, 2009 Opinion, Judge Hacker acknowledged                 the truth of the matters asserted. See Pan-Islamic Trade
Banera's statement that the Texas Attomey General had               Corp. v. Exxon C01p., 632 F.2d 539, 556-57 (5th
contacted her about a potential plea agreement. [Dkt. No.           Cir.l980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70
72 at 1]. 5 Judge Hacker just *412 found that Barrera had           L.Ed.2d 236 (1981).
not established that "she would suffer 'substantial and
ineparable prejudice' if the civil case were allowed to             6
                                                                           Under Federal Rule of Evidence 201 , a Comi may take
proceed." [Id. uoting SEC v. First Fin. Grou of Texas,
                                                                           judicial notice of facts " not subject to reasonable
Inc., 659 F.2d 660, 668 (5th Cir.l981))]. Banera had not                   dispute in that it is either (1) generally known within
demonstrated that she could not protect herself by                         the territorial jurisdiction of the trial court or (2)
selectively invoking her Fifth Amendment privilege in the                  capable of accurate and ready determination by resort
civil proceeding or that she could not defend both her                     to sources whose accuracy cannot reasonably be
civil and potential criminal cases simultaneously. [Id. at                 questioned." FED.R.EVID. 201(b); Taylor v. Charter
1- 2]. Judge Hacker's denial ofBanera's renewed request                    Med. Corp., 162 F.3d 827, 831 (5th Cir. l998). Courts
was not just because of the absence of criminal                            have taken judicial notice of official court records and
proceedings against Banera.                                                proceedings in other state or federal comi cases. United
                                                                           States v. Capua, 656 F.2d I 033, 1038 n. 3 (5th
                                                                           Cir. l 98 1). But the determination whether to take
        At one point, BaiTera claims that she filed a copy of the          judicial notice of a fact is discretionary. FED.R.EVID.
        proffered plea agreement in the state case under seal for          201(c). A cou1i only has to take notice of an
        the Court's in camera review. [Diet. No. 77 at 6].                 adjudicative fact when requested by a party and
        Barrera's counsel gave the Clerk's Office documents                supplied with the necessary information. FED.R.EVID.
        which the Clerk's Office then gave to the Court. The               20 I (d). That did not occur here.
        Court, however, did not review them as they were
        improperly filed . Indeed, the Comi handed them back
        to Counsel at a May 15, 2009 Show Cause Hearing.
        [Min. Entry of May 13, 2009].                               Amidst these substantive objections, the Motion attacks
                                                                    Judge Hacker's personal character. At various points,
  "5 l :l.'.INexr   © 2015 Thom son Reuters. No claim to origin al U S. Government Works.                                      17
                                                                                                          APPENDIX 50
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



Banera avers that "[t]his case has become unmanageable           cowts; and 6) the ublic interest. See, e.g., United States
for Hacker;" "this former prosecutor is the last Magistrate      e.x ref. Gonzalez v. Fresenius Merj. Care N. Am., 571
Judge who should be handling the pretrial" as well as            F.Supp.2d 758, 762 (W.D.Tex.2008) (citations omitted);
"[d]oes Judge Hacker live in a cocoon." [Dkt. No. 77 at 4,       Dominguez v. Hartford Fin. Servs. Group, Inc. , 530
7]. The Motion also refers to Judge Hacker as just               F.Supp.2d 902, 905 (S.D.Tex.2008); Holden Roofing, Inc.
"Hacker." [!d.]. The Court reminds Counsel to direct             v. All States Roofing, Inc., Civ. No. H-06-3406, 2007 WL
objections to an opinion or order to the *413 merits of the      1173634, at* I (S.D.Tex. Dec. Apr. I 8, 2007); State Farm
opinion or order. Counsel should conduct himself                 Lloyds v. Wood, Civ. No. H-06-503, 2006 WL 369I I 15,
befitting the profession. S.D. TEX. LOCAL R. OF                  at *I (S.D.Tex. Dec. l2, 2006).
DISCIPLINE 1 ("Lawyers who practice before this Cowt
are required to act as matme and responsible                     Banera's request for a stay has been thoroughly addressed
professionals, and the minimum standard of practice shall        by Judge Hacker's well-reasoned Opinion of May I,
be the Texas Disciplinary Rules of Professional                  2009. [Dkt. No. 67]. To the extent that Banera's pending
Conduct."). Counsel is also reminded that the Texas              request serves as an objection to the May 1, 2009
Lawyer's Creed mandates that a lawyer "demonstrate [ ]           Opinion, the Cowt finds that the 0 inion is not clearly
respect for the Court ... " TEXAS LAWYER'S CREED: A              en·oneous or contrary to law and therefore, adopts it as
MANDATE FOR PROFESSIONALISM (Sup.Ct. of Tex.                      his Court's Opinion. The Court also adopts the May I,
and Tex.Crim.App. Nov. 1989).                                    2009 Opinion as it relates to the requested stay following
                                                                 Banera's indictment, with the additional rationale as
In sum, Defendant Banera has not established that any            follows.
part of Judge Hacker's May 1, 2009 or May 15, 2009
Opinions are clearly erroneous or contrary to law. These         (IZJ Banera first argues that her personal interests favor a
Opinions do not "clearly demonstrate [Judge Hacker's]            complete stay in the civil case, now that she has been
inability to handle pre-trial" matters as Banera asserts. To     indicted. According to Banera, the criminal and civil
the contrary, they are meticulously and well-reasoned            complaints overlap. [Dkt. No. 77 at I0-12]. The Webb
opinions. Thus, the Court will not withdraw its refenal to       County District Attorney indicted Banera on May 15,
Judge Hacker of non-dispositive pretrial matters in this         2009 for organized gambling promotion. [Dkt. No. 77,
case. Accordingly, Banera' s Motion for the district court       Ex. A]. The Cowt agrees that there is *414 a degree of
to handle all pre-trial matters is DENIED.                       overlap between Barrera's criminal prosecution in state
                                                                 cowt and the instant federal civil action. Both cases
                                                                 involve pmpmted gambling activities that allegedly
                                                                 occwTed at the WCTAC office. The Cowt, however,
B. THIRD RENEWED MOTION FOR STAY OF                              believes the sixty-day stay in discovery against Barrera
CIVIL CASE                                                       granted on May 27, 2009 serves Banera's ersonal
                                                                 interests. [Dkt. No. 80]. A complete stay is not necessary
Ban·era next moves for a complete stay of this civil case         1ere. The Cowt does not know how long the state
until the criminal case against Ban·era has concluded, a         criminal case against Barrera will last. Texas does not
period of eleven months by Barrera's estimation. A               have a Speedy Trial Act as in the federal system. A
dish·ict court has the discretionary authority to stay a civil   sixty-day stay also permits Barrera to investigate her
case pending resolution of a parallel criminal case if the       ability and need to invoke the Fifth Amendment privilege
interests of justice require. SEC v. First Fin. Grou of          during discovery. The Fifth Circuit has advised that a stay
Texas, Inc. , 659 F.2d 660, 666- 67 5th Cir.1981) (citing        order will be reversed when found to be of an indefinite
United States v. Kordel, 397 U.S. 1, 11 , 90 S.Ct. 763, 25       or inlmoderate duration. McKnight v. Blanchard, 667
L.Ed.2d I (1970)). A stay is not a constitutional right.         F.2d 477, 479 (5th Cir.I98I); see also Landis v. N. Am.
Korde/, 397 U.S. at 12 n. 27, 90 S.Ct. 763 . istrict Comts       Co., 299 U.S. 248, 257, 57 S.Ct. I63, 81 L.Ed. 153
within the Fifth Circuit traditionally have applied a            (I 936).
six-factor test to determine whether the interests of justic
require a stay. These factors are: (I) the extent to which       Second, Banera contends that Plaintiffs will not be
the issues in the criminal case overlap with those               prejudiced by waiting until the conclusion of the criminal
presented in the civil case; (2) the status of the criminal      case against Banera. Ban·era states the trial "will be
case i11cluding whether the criminal Defendant has been          transcribed and there will simply be no loss of testimony
indicted; (3) the private interests of the plaintiff in          or documents." [Dkt. No. 72 at 12-13]. Banera also
proceeding expeditiously, weighed against the prejudice          implies that Plaintiffs' interests should not be considered:
to the plaintiff caused by a delay; (4) the private interests    Plaintiffs "were the whistleblowers whose actions
of and burden on the defendant; (5 the interests of th
   ,. l-wNexr © 2015 Thom son Reuters . No claim to original U.S. Government Works.                                      18
                                                                                                     APPENDIX 51
Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)



culminated in a well-timed civil complaint" filed                      1:02-0844, 2002 WL 31988168, at *7 (N.D.Obio Nov.?,
concurrently with the criminal actions. [!d.]. The Court               2002). The public also bas in interest in the resolution of
disagrees and believes that Plaintiffs will be prejudiced by           disputes in a timely manner and the fair treatment of all
a complete stay. Plaintiffs here are not patties to the                parties. St. Martin v. Jones, Civ. No. 08-1047, 2008 WL
criminal case. They do not have the ability to preserve                4534398, at *3 (E.D.La. Oct.2, 2008).
their interests in the civil case through the prosecution o
the criminal case, as the Government might. Moreover,                  Based on its analysis of the Defendant's, Plaintiffs',
Plaintiffs have already waited over eight months in this               Court's, and public's interests, the Court believes that a
case to begin discovery. A long delay can lead to a loss o             stay of the entire case is not necessmy or warranted. The
evidence--documents can be misplaced or destt·oyed an                  Comt believes that a 60-day stay in all discovery as to the
witnesses ' memories can fade. In tmn, a loss of evidence              individual defendants is appropriate. This 60-day stay
can frustrate Plaintiffs ' abilities to put forth an effective         will permit the individual defendants to understand *415
case. Therefore, Plaintiffs ' interests militate against a             the criminal charges against them and how to respond
com tete stay in this case.                                            appropriately in this civil suit.

Third, Banera avers that the Comt's and public's interests
weigh in favor of a stay. According to Barrera, the Court
will have to "frequently intervene in the discovery process            III. CONCLUSION
to make rulings on claims of Fifth Amendment privileges
to now be asse1ted by Defendant Banera during the                      The Court DENIES Defendant Barrera's Motion that this
pendency of the parallel state criminal action." [Dkt. No.             Court (1) handle all future prett·ial matters in this case; (2)
72 at 13]. Banera believes these interventions will be a               vacate Judge Hacker's Opinions of May 1, 2009 and May
"burdensome task given this court's heavily congested                  15, 2009; and (3) stay all discove1y in this case for eleven
criminal docket." [!d.]. The Comt realizes that it may                 months.
have to rule on selective claims of Fifth Amendment
privilege and objections to specific requests during the               IT IS SO ORDERED.
discovery process. But Ban·era fails to show the Comt
how she would invoke her Fifth Amendment privilege.
Moreover, in her answer, Banera has already admitted
                                                                       All Citations
that raffles occuned at the WCTAC. The need for the
Court's possible intervention does not outweigh the                    625 F.Supp.2d 391
Court's desire for judicial expediency. A comt "has an
obligation to move its docket, and not let cases languish
before it." In re Scrap Metal Antitrust Lilig., Civ. No.
End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




Wctl v Nexr © 2015 Thom so n Reuters. No claim to origina l U.S. Government Works.                                                19
                                                                                                             APPENDIX 52
In re Messervey Trust, Not Reported in S.W.3d (2001)
2001 WL 55642



                                                               limit the discovery of information and witriesses vital to
                    2001 WL 55642                              the prosecution of the pending federal criminal
   Only the Westlaw citation is currently available.           prosecution. On June 2, 1998, the trial comt stayed all
                                                               discovery in the civil case for 90 days. On June 16, 1998,
NOTICE: NOT DESIGNATED FOR PUBLICATION.                        the trial court lifted the stay. On July 28, 1998, the trial
 UNDER TX R RAP RULE 47.7, UNPUBLISHED                         court abated the civil proceeding, this time at the request
 OPINIONS HAVE NO PRECEDENTIAL VALUE                           of Messervey based on his asse1tion of 5th Amendment
BUT MAY BE CITED WITH THE NOTATION "(not                       rights. On September 9, 1998, the abatement was lifted;
         designated for publication)."                         however, the pmties disagree about the extent of the
                                                               comt's order. Messervey claims the abatement was lifted
       Court of Appeals of Texas, San Antonio.                 only to allow discovery to proceed; Nmthbrook contends
                                                               the proceeding was allowed to go forward in its entirety. 1
   In re Charles D. MESSERVEYTrust, Charles D.
            Messervey d/b j a Art Images.
                                                                      Neither party provided a copy of the court order lifting
        No. 04-00-00700-CV. I Jan. 24, 2001.                          the abatement on September 28, 1998. We have only
                                                                      copies of the proposed orders submitted to the trial
                                                                      court, reflecting the parties' disagreement over the
Original Proceeding, Related Trial Court Nos.                         scope of the court's ruling.
97-CI-06922 & 97-CI-14613. From the 225th Judicial
District Comt, Bexar County, Texas, John J. Specia, Jr.,
Judge Presiding.                                               On August II, 1999, Messervey was convicted by a jury
                                                               on all counts of the federal indictment, two of which
STONE, GREEN and DUNCAN, JJ.                                   relate to his claim under the olicy with NorthbrooK. At
                                                               the time this mandamus action was filed, Messervey was
Opinion                                                        still awaiting sentencing on the convictions.
GREEN.
                                                               On June 19, 2000, Nmthbrook filed a motion for
                                                               smnmary judgment. Messervey filed a motion for
*1 In this mandamus action, we are asked to vacate the         continuance, objections, special exceptions, a motion to
order of the trial court abating the underlying state civi     strike the hearing, and a motion for leave to file a late
 awsuit pending the outcome of a federa l criminal             response. Messervey also sent notices of deposition for
prosecution. Because we find the abatement overbroad,          Assistant United States Attorneys Jack Stick and
we conditionally grant the writ in art.                        Margaret Embry and FBI Special Agent Jeff Allovio.
                                                               Messervey argued recently discovered evidence of
                                                               government threats and coercion made it necessary to
                                                               depose Stick, Embry and Allovio, in addition to certain
                                                               witnesses who testified in the federal criminal trial.
                      Background
                                                               Following a July 14 hearing, the trial court entered an
The underlying trial court case arises out of an insurance     order (the July 27 order) with the following provisions:
dispute. In 1996, Charles Messervey made a claim for
insurance benefits based on losses from a theft of ce1tain          I) the summary judgment and all related objections,
mt from his residence. The defendant insurance company,             special exceptions, etc., were taken under
Nmthbrook Prope1ty and Casualty Insurance Company                   advisement;
(Northbrook), denied the claim, alleging Messervey
committed fraud by attempting to recover for more items             2) Messervey's motion for continuance was denied;
than he actually owned. On May 12, 1997, Messervey
filed suit against Northbrook.                                     3) the motion to extinguish abatement 2 would be
                                                                   reset for hearing at an unspecified later date;
On April 23, 1998, Messervey was indicted in federal
                                                               2
comt on several counts of mail fi·aud stemming in part                This motion is not in the record before this court.
fi·om the alleged theft and insurance claim. The United
States intervened in the civil case on August 8, 1998, to

V.,:.; l a,-.Nexr © 2015 Thomson Reuters. No cl aim to origin al U.S. Governm ent Wo rks.

                                                                                                      APPENDIX 53
In re Messervey Trust, Not Reported in S.W.3d (2001)
2001 WL 55642

     4) the U.S. need not produce Jack Stiff, Jeff Allovio,      566-67 (Tex.1985); Coastal Oil & Gas Corp. v. Flores,
     or Margaret Embry or respond to any discovery until         908 S.W.2d 517, 518 & n. I (Tex.App .-San Antonio
     further order of the court; and                             1995, orig. proceeding). However, an abatement order
                                                                 may be reviewed in special circumstances, such as when
            *2 5) the case was abated pending the trial          the abatement is for an indefinite period or effectively
            court's ruling on the summary judgment.              vitiates a patty's ability to present a claim or defense.
On August 24, Messervey filed a motion for leave to file a       Gebhardt v. Gallardo, 891 S.W.2d 327, 332-33
   otion to lift the abatement and to file a motion for ruling   (Tex.App.-San Antonio 1995, orig. proceeding). The
on the special exce tions, objections, and the motion for        grant or denial of an abatement is within the discretion of
summary judgment. After some procedural wrangling, the           the trial court and will not be disturbed absent an abuse of
trial cowt set all pending motions for September 8, 2000.        discretion. Gebhardt, 891 S.W.2d at 332.
It also modified the July 27 abatement order. he new
order, signed Se tember 1:

     1) abates the entire case for 6 months or until the
     criminal case becomes fina l, whichever is sooner;                                 Discussion
     and

     2) requires all parties to obtain leave of cornt to file    A. Messervey's complaints
     any further pleadings or set any hearings.                  In his first two issues, Messervey challenges the validity
                                                                 of the abatement orders of July 27 and September 1. In his
Messervey filed yet another motion to lift the abatement.        third issue, he complains the trial court abused its
He attempted to have it set for hearing on September 18          discretion by not ruling on the motion for summary
but the court refused. Subsequently, Messervey filed a           judgment. The fomth issue is not a separate ground for
motion for leave to request findings of fact and                 mandamus but presents Messervey's argument that
conclusions of law, a motion for leave to file an                mandamus is allowed because there is no adequate
interlocutory appeal, and a request for preparation of the       remedy on appeal. Because it impacts our jurisdiction, we
clerk's record and reporter's record. The trial court            elect to address Messervey's fourth issue first.
refused to file findings of fact and conclusions of law, but
granted the other motions.

                                                                 B. Ade uate Remedy by A '?Peal
                                                                 *3 Mandamus has been allowed:

                    Standard of Review                             (1) when the trial comt's order of abatement is for an
                                                                   indefinite period oftime. Gebhardt, 891 S.W.2d at 333 .
Mandamus issues only to correct a clear abuse of
discretion or a violation of a duty imposed by law when            (2) when a blanket stay of all discovery effectively
there is no other adequate remedy at law. Walker v.                :vitiates or severely compromises a at 's ability to
Packer, 827 S.W.2d 833, 839-40 (Tex.1992). The trial               present a claim or defense. In re R.R., 26 S.W.3d 569,
cowt abuses its discretion when it fails to properly apply         573-74 (Tex.App. -Dallas 2000, no pet. h.) ; Underwood
the law to the undisputed facts, when it acts arbitrarily or       v. Bridewell, 931 S.W.2d 645, 646-47 (Tex.App.-Waco
unreasonably, or when its ruling is based on factual               1996, orig. proceeding).
assettions unsuppmted by the record . In re Doctors'
Hasp. of Laredo, 2 S.W.3d 504, 506 (Tex.App.-San                   (3) when the tt·ial cowt refuses to rule on a motion
Antonio 1999, orig. proceeding). In applying the abuse of          within a reasonable time. In re Ramirez, 994 S.W.2d
discretion standard, we defer to the ttial court' s factual        682, 683 (Tex.App.-San Antonio 1998, orig.
determinations, so long as they are properly suppmted by           proceeding).
the record, while reviewing its legal determinations de
novo. Pony Express Courier Corp. v. Morris, 921 S.W.2d           All of Messervey's complaints fall into one of the above
                                                                 categories. Therefore, if he can show the trial comt
817, 820 (Tex.App .-San Antonio 1996, no writ).
                                                                 abused its discretion, he bas no adequate remedy by
Generally, there is no interlocutory appeal of the trial         appeal and is entitled to mandamus relief.           ·
comt's decision to abate a case because the order may be
reviewed on appeal. See Abor v. Black, 695 S.W.2d 564,

                                                                                                                          2
                                                                                                     APPENDIX 54
In re Messervey Trust, Not Reported in S.W.3d (2001)
2001 WL 55642

C. The July 27 Order                                              discretion of the trial comt and, by its own tenns, was not
We have no jurisdiction to issue a writ of mandamus               a complete abatement of the case. The language of the
based on the July 27 order because it has been superceded         order clearly contemplated further action by the trial court
by the September 1 order, rendering the earlier stay moot.        and the trial judge retained authority to modifY his own
See In re Taylor, 28 S.W.3d 240, 245-46 (Tex.App. -Waco           docket control order. See id. at 525 (abatement order may
2000, orig. proceeding). However, because part of                 allow for fu1ther proceedings); Lumbermen's Mut. Cas.
Messervey's complaint about the September 1 order is              Co. v. Garza, 777 S.W.2d 198, 199 (Tex.App.-Corpus
based on an eiToneous interpretation of the July 27 order,        Christi 1989, orig. proceeding) (same). The September 1
we briefly address the nature of the earlier stay.                order was not prohibited by the July 27 order.

There is a distinction between a fmmal plea in abatement          *4 Having determined the trial comt had the authority to
and a discretionary stay based on considerations of docket        modifY or lift the July 27 stay, we reach the validity of the
control, comity, or inconsistent rulings. See Evans v.            September 1 abatement order. Some courts have stated a
Evans, 186 S.W.2d 277, 279 (Tex.Civ.App.-San Antonio              protective order is preferable to abatement as a means of
 1945, no writ). The trial comt has inherent authority to         limiting discovery where the government seeks to restrict
manage its own docket. Ho v. Univ. of Tex. at Arlington,          civil discovery because disclosure could interfere with a
984 S.W.2d 672, 693-94 (Tex.App.-Amarillo 1998, pet.              criminal case based on the same facts . Underwood, 931
denied) (no abuse of discretion for trial court to continue       S.W.2d at 647;Texas Attorney General 's Office v. Adams,
trial date sua sponte pending ruling on summary                   793 S.W.2d 771, 776-77 (Tex.App.-Fort Worth 1990,
judgment). The power to temporarily stay a lawsuit "is            orig. proceeding). The trial comt should not stay the
incidental to the power inherent in every court to control        entire lawsuit because to do so prevents the party
the disposition of the causes on its docket with economy          opposing the stay from proceeding on its claims or
of time and effmt for itself, for counsel, and for                defenses. In re R.R. , 26 S.W.3d at 574;Underwood, 931
litigants."Landis v. North Am. Co., 299 U.S. 248, 254, 57         S.W.2d at 647.We hold the appropriate remedy in this
S.Ct. 163, 166, 81 L.Ed. 153 (1936).                              case is for the trial comt to fashion individual protective
                                                                  orders.
It is clear the July 27 abatement was a discretionary
docket control order. The case had been stayed in the past        The September 1 order is not indefmite because it
and one of the motions before the trial court on July 14          terminates when the criminal case becomes final or in
(as noted in the order) was a motion to lift the stay. The        months, whichever is sooner, a maximum time of 6
trial judge, who is specially assigned to this designated         months. However, we hold it is overbroad because it
complex case, is familiar with the pending criminal matter        abates the entire case. The better course for the trial cowt
and the overall status of the lawsuits. He has the authority      at this time is to fashion individual protective orders to
to stay the case temporarily while he considers the motion        protect the interests of the United States and the
for summary judgment and determines whether the                   continuing prosecution of the criminal matter without
discovery sought by Messervey is relevant and necessary           com letely cwtailing rosecution of the civil case. 3We
for Messervey to contest the issues raised by Nmthbrook.          conditionally grant the petition for writ of mandamus with
See Ho, 984 S.W.2d at 694.                                        regard to the September 1 order to allow the trial court to
                                                                  vacate the order in accordance with this opinion. 4

                                                                         By this opinion, we do not foreclose the possibility that
D. The September 1 Order                                                 a complete abatement of the civil suit might be
Messervey claims the September 1 order is void or, in the                appropriate at some future date.
alternative, is an abuse of discretion.

Messervey says the September I order is void because the
                                                                  4
trial court could not act while the July 27 abatement was                Because we conditionally grant the petition with regard
in effect. We disagree. First, the July 27 stay is not a                 to the September I order, we need not reach the issue of
statutorily mandated abatement which prevents the trial                  whether it was error for the trial court to refuse to enter
                                                                         findings of fact and conclusions of law regarding the
court fi·om proceeding in the case. Cf In re Kimball Hill
                                                                         September 1 order.
Homes Te;r,as, Inc., 969 S.W.2d 522, 526-27
(Tex.App.-Houston [14th Dist.] 1998, orig. proceeding)
(pursuant to statute, neither court nor parties could
proceed until mandatory period of stay expired). Second,
the July 27 docket control order was entered at the
~ "'::; -1:,~Nexr   © 2015 Thom son Reuters . No claim to origin al U. S. Governm ent Works.                                     3
                                                                                                         APPENDIX 55
In re Messervey Trust, Not Reported in S.W.3d (2001)
2001 WL 55642

E. Failure to Rule on tlte Motion for Summmy                                   evidence in the civil court record, there is a question of
Judgment                                                                       fact to be determined by a jury. This is not inconsistent
Messervey complains the trial court has no discretion to                       with the federal jmy verdict, which is not yet even
refuse to rule on the motion for summary judgment. We                          final, based on evidence jn the criminal trial, which
agree. "When a motion is properly filed and pending                            may or may not be the same as what is finally presented
before a trial cowt, the act of giving consideration to and                    in the civil trial.
ruling upon that motion is a ministerial act, and
mandamus may issue to compel the trial judge to act." In
re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio
I 998, orig. proceeding) (citing Safety Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio
1997, orig. proceeding)). However, the trial court has                                           Conclusion
considerable discretion regarding the time it takes to
rule .Zalta v. Tennant, 789 S.W.2d 432, 433                            We deny the petition for writ of mandamus based on the
(Tex.App.-Houston [lst Dist.] 1990, orig. proceed ing)                 July 27 order for lack of jurisdiction. Because we presume
(eighteen month delay not abuse of discretion).                        the trial court will act in a reasonable time on all pending
                                                                       motions, we deny the petition for writ of mandamus with
We will not rush the trial cowt's decision nor will we                 regard to the motion for summary judgment. We
direct the substance of the ruling.5 We presume the trial              conditionally grant the petition in part to allow the trial
court will act on the motion for summary judgment within               court to vacate its September 1order in accordance with
a reasonable time after it vacates the September 1 order.              this opinion. The writ will issue if the trial court fails to
The petition for writ of mandamus is denied with regard                vacate its order within twenty days of the date of this
to the trial comt's ruling on the motion for summary                   opinion.
judgment.

       We note, however, the parties' concern about the effect         All Citations
       of a summary judgment ruling on the federal conviction
       is irrelevant at this time. If Judge Specia grants the          Not Repmted in S.W.3d, 2001 WL 55642
       summary judgment, the entire dispute goes away. If he
       denies the summary judgment, he has done no more
       than rule that based upon the summary judgment

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




  B.:il l .vNexr © 2015 Th omson Reuters. No cl aim to ori ginal U. S. Governm ent W orks.                                            4
                                                                                                               APPENDIX 56
In re Gore, 251 S.W.3d 696 (2007)




1m'
I     Original Image of 251 S.W .3d 696 (PDF)
                                                                   121    Pretrial Procedure
                          251 S.W.3d 696
                     Court of Appeals of Texas,                             Discretion of Court
                           San Antonio.
                                                                          A trial court abuses its discretion in scheduling
                        In re Kevin GORE.                                 discovery when it acts in an unreasonable or
                                                                          arbitrmy manner, or when it acts without
          No. 04-07-00597-CV. I Dec. 12, 2007.                            reference to guiding rules and principles.


                                                                          Cases that cite this headnote
Synopsis
Background: State brought a civil action seeking
forfeiture of personal property the state seized as
contraband in a related criminal case, in which anestee
                                                                   (3(
was indicted on felony drug charges. The 224th District                   Mandamus
Cowi, Bexar County, David A Berchelmann, Jr., J.,                          Matters of Discretion
abated proceedings and stayed discovery until the
resolution of the criminal case. Anestee petitioned for                  In seeking mandamus review of a trial court's
writ of mandamus.                                                        resolution of factual issues, a relator must
                                                                         establish that the cowt could reasonably have
                                                                         reached only one decision.
Holdings: The Comi of Appeals, Steven C. Hilbig, J.,
held that:                                                               Cases that cite this headnote

Ill trial court abused its discretion by arbitrarily and
indefmitely abating civil forfeiture case, but
                                                                   (4(
121 issue of whether arrestee was entitled to discovery in               Mandamus
civil forfeiture action was not ripe.                                     Matters of Discretion

                                                                         A trial cowi has no discretion in determining
Writ conditionally granted in pmi.                                       what the law is or applying the law to the facts,
                                                                         and thus, a clear failure by the trial cowt to
                                                                         analyze or apply the law conectly will constitute
                                                                         an abuse of discretion, and may result in
                                                                         appellate reversal by extraordinary writ of
    West Headnotes (15)                                                  mandamus.


Ill        Mandamus                                                      Cases that cite this headnote
            Remedy at Law
           Mandamus
            Nature of Acts to Be Commanded
                                                                   (51
           A writ of mandamus will issue only to cmTect a                Controlled Substances
           clear abuse of discretion for which the relator                 Proceedings
           lacks an adequate remedy by appeal.
                                                                         Trial court abused its discretion by arbitrarily
                                                                         and indefmitely abating civil forfeiture case
           Cases that cite this headnote                                 against anestee until the resolution of related
                                                                         drug prosecution; abatement order halted all

          :,~ Nexr   © 2015 Thomson Reute1·s. No claim to ori gin al U.S. Government Works.
                                                                                                     APPENDIX 57
In re Gore, 251 S.W.3d 696 (2007)



       proceedings in the case, denied anestee his right            resolution ofthe criminal matter.
       to full discovery, severely compromised his
       ability to develop his defenses, and denied
       anestee any effective method of challenging the              1 Cases that cite this headnote
       trial comt's ruling for an indefmite period by
       suspending     the    proceedings.     Vernon ' s
       Ann.Texas C.C.P. art. 59.05 .
                                                             (9)
                                                                    Abatement and Revival
       I Cases that cite this headnote                               Nature of Other Action or Proceeding

                                                                    Statute providing an exemption from disclosure
                                                                    for certain law enforcement and prosecutorial
                                                                    records under the Public Information Act did not
(6(
       Mandamus                                                     mandate abatement of civil forfeiture case until
        Proceedings in Civil Actions in General                     the resolution of a related drug prosecution.
                                                                    V.T.C.A., Government Code§ 552.108.
       A trial court abuses its discretion for purposes of
       mandamus when it arbitrarily abates a civil case
       for an indefinite period of time.                            Cases that cite this headnote


       I Cases that cite this headnote

                                                             JIOJ   Abatement and Revival
                                                                      Nature of Other Action or Proceeding
                                                                    Pretrial Procedure
171    Action                                                         Objections and Protective Orders
         Course of Procedure in General
       Pretrial Procedure                                           State's interest in protection from civil
         Right to Discovery and Grounds for                         discovery in civil forfeiture action did not entitle
       Allowance or Refusal                                         state to abatement of action until the resolution
       Pretrial Procedure                                           of a related drug prosecution; although
         Sequence and Timing; Condition of Cause                    disclosure could interfere with prosecution, the
                                                                    proper remedy was an individually tailored
       The parties in the civil case are entitled to full           protective order. Vernon's Ann.Texas Rules
       discovery within a reasonable time, to develop               Civ.Proc., Rules 192.6, 193.3- 193.4.
       their claims and defenses, and to have the case
       tried.
                                                                    2 Cases that cite this headnote

       I Cases that cite this headnote


                                                             Jill   Pretrial Procedure
                                                                      Sequence and Timing; Condition of Cause
(8)
       Abatement and Revival                                        Pretrial Procedure
         Identity of Causes and Issues                                Objections and Protective Orders
       Pretrial Procedure
         Sequence and Timing; Condition of Cause                    It is not good public policy to deny civil litigants
                                                                    their entitlement to a fully authorized discovery
       The pendency of a criminal investigation,                    to assist in preparation of the civil lawsuit
       indictment, or other proceeding does not affect a            merely because criminal matters may be
       contemporaneous civil proceeding based on the                pending; rather, the proper remedy IS an
       same facts or parties and does not justify abating           individually tailored protective order.
       or staying all discovery in the civil case until
  e.s l awNexr © 2015 Th omson Reuters. No claim to ori gin al U.S. Government Works.                                 2
                                                                                                 APPENDIX 58
In re Gore, 251 S.W.3d 696 (2007)



                                                               [IS[
                                                                       Motions
          1 Cases that cite this headnote                              €?Determination

                                                                       A trial comt has a ministerial duty to act upon
                                                                       motions properly filed and pending before it.
[12)
          Pretrial Procedure
            Objections and Protective Orders                           Cases that cite this headnote
          Privileged Communications and
          Confidentiality
             Waiver of Objections

          Failure to timely plead and prove entitlement to     * 697 Original Mandamus Proceeding. '
          protection from discovery can result in waiver of           This    proceeding arises out of Cause No .
          any objection or claimed privilege. Vernon 's               200~I--05009,     styled The State of Texas v. Six
          Ann .Texas Rules Civ.Proc., Rules 193 .2- 193.4.            Thousand Four Hundred Four Dollars ($6,404.00)
                                                                      United States Currency; One (1) 2002 Kawasaki
                                                                      Motorcycle, VIN JKB VNCA112B509107; and Certain
          2 Cases that cite this headnote                             Property. The record indicates the cause was assigned
                                                                      to the 224th Judicial District Court, Bexar County,
                                                                      Texas, in which the Honorable Gloria Saldana is the
                                                                      presiding judge. However, the challenged order was
                                                                      signed by the Honorable David A. Berchelmann, Jr.,
[ 13)                                                                 the presiding judge of the 37th Judicial District Court,
          Pretrial Procedure                                          Bexar County, Texas. The reporter' s record indicates
            Objections and Protective Orders                          the hearing was presided over by Judge Berchelmann
                                                                      sitting in the 224th Judicial District Comt, Bexar
          When properly raised, a trial court has an                  County, Texas.
          obligation to weigh each discovery request and
          apply the law for discovery or protection to each
          request by determining the least restrictive way
          to protect both cases and the defendant's right to   Attorneys and Law Firms
          defend himself in the suit.
                                                               Markes E. Kirkwood, Law Offices of Markes E.
                                                               Kirkwood, San Antonio, TX, for Appellant.
          Cases that cite this headnote
                                                               Troy L. Meinke, Assistant Criminal Dish·ict Attorney, San
                                                               Antonio, TX, for Appellee.

[14[
                                                               Sitting: KAREN ANGELINI, Justice, PHYLIS                     J.
          Mandamus                                             SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
           Mandamus Ineffectual or Not Beneficial

          Issue of whether arrestee was entitled to
          discovery in civil forfeitme action was not ripe
          for appellate court to address in mandamus                                    OPINION
          proceeding, since trial court had not addressed
          the merits of citizen's discovery motion when it
          ordered the action abated pending resolution of      Opinion by STEVEN C. HILBIG , Justice.
          related drug prosecution.
                                                               Kevin Gore seeks a writ of mandamus to compel the h·ial
                                                               comt to (1) vacate its *698 order abating a civil forfeiture
          1 Cases that cite this headnote                      action until several criminal prosecutions are com leted
                                                               and (2) order the State to provide discovery. We hold the
                                                               trial court abused its discretion by abating the case and
                                                               therefore conditionally grant the requested writ in part.


  <5    l=wNexr © 2015 Thom son Reute1·s . No claim to origina l U.S . Government Works.                                   3

                                                                                                    APPENDIX 59
In re Gore, 251 S.W.3d 696 (2007)



                                                               for a hearing on May 8. During the hearing, again before
                                                               Judge Berchelmann, the State orally moved to continue
                                                               the abatement. At the conclusion of the hearing, the trial
 FACTUALANDPROCEDURALBACKGROUND                                comt denied Gore's motion to compel without reaching
                                                               the merits of the motion and ordered the case "abated in
In March 2006, the State of Texas filed a civil action         its entirety until the criminal case is resolved." Gore seeks
against Gore pmsuant to Chapter 59 of the Texas Code of        relief fl'om this last order, requesting this court to order
Criminal Procedme seeking forfeiture of personal               Judge Berchelmann to "lift his abatement," allow Gore to
property the State seized as contraband. The civil case        conduct depositions, and order the State to "properly
apparently arises from events that led to Gore's anest and     answer discovery" propounded by Gore.
subsequent indictment for felony drug offenses. The State
served Gore with various discovery requests together with
the original petition. Gore responded to the discovery in
May 2006 and also served requests for written discovery
and notices of deposition upon the State. On June 8, 2006,        PREREQUISITES FOR MANDAMUS RELIEF
the State filed a motion seeking abatement of the civil
forfeiture lawsuit until the resolution of related criminal    liJ 12 1 lJJ 141 A writ of mandamus will issue only to conect a
charges. The Honorable Joe Frazier Brown, Jr., ordered         clear abuse of discretion for which the relator lacks an
the State to respond to all outstanding requests for written   adequate remedy by appeal. See *699 Walker v. Packer,
discovery, but otherwise ordered the forfeiture action         827 S.W.2d 833, 839-40 (Tex.l992). A "trial comt
abated until December 31, 2006. The abatement order            abuses its discretion when it acts in an umeasonable or
provided that Gore could file a motion to compel               arbitrary manner or, stated differently, when it acts
discovery after December 31, 2006; Gore could depose           without reference to guiding rules and principles." In re
two deputy sheriffs and a representative of the State and      Colonial Pipeline Co., 968 S. W.2d 938, 941 (Tex.l998).
could file a motion for summary judgment after January         "With respect to resolution of factual issues," " [t]he
1, 2007; and the case was set for trial on the February 12,    relator must establish that the trial court could reasonably
2007 jury docket. Pursuant to Judge Brown's order, the         have reached only one decision." Walker, 827 S.W.2d at
State filed its disclosures and responses to Gore's            840. However, "[a] trial court has no ' discretion' in
discovery requests on June 20, 2006. The State objected        dete1mining what the law is or applying the law to the
to two requests for production, one as inelevant and the       facts. Thus, a clear failure by the trial comt to analyze or
other as calling for work product. The State did not           apply the law correctly will constitute an abuse of
interpose any other any objections or claims of privilege.     discretion, and may result in appellate reversal by
All of the State's unverified answers to intenogatories        extraordinary writ." ld
and most of its disclosures and responses to requests for
production consisted of advising Gore to see the attached
file .

In January 2007, Gore served the State with his notices of                           ABATEMENT
intent to depose two deputy sheriffs and a designated
                                                               JSJ 161 We have repeatedly held that a trial comt abuses its
representative of the sheriffs department, and attempted
to confer with the State about purported inadequacies in       discretion when it arbitrarily abates a civil case for an
the State's responses to discovery. The State responded        indefinite eriod of time. See In re Sims, 88 S.W.3d 297,
by filing a motion to continue the abatement. The motion       306 (Tex.A .-San Antonio 2002, orig. eroceeding);
was heard January 29, 2007, by the Honorable Karen             Gebhardt v. Gallardo, 891 S.W.2d 327, 330- 32
Pozza, who continued the abatement until May 7, 2007.           Tex.A .-San Antonio 1995, orig. roceeding); In re
Judge Pozza also ruled that Gore could file and pursue a       Messervey Trust, No. 04-00-00700- CV, 2001 WL
motion challenging the adequacy of the State's                 55642, at *4 (Tex.App.-San Antonio, Jan.24, 2001 , orig.
disclosures and responses to discovery. Gore then filed a      proceeding)      (not     designated      for   publication).
                                                               Nevettheless, the State argued in the trial court that
motion to compel and for sanctions. The motion was
heard by the Honorable David A. Berchelmann, Jr., who          because there were pending criminal proceedings, it was
denied it without prejudice to Gore remging the motion         "absolutely entitled to a full abatement on everything."
after the abatement was lifted.                                Gore disagrees, arguing a writ of mandamus should issue
                                                               because there is no legal basis for abating the case and the
The abatement ordered by Judge Pozza expired May 7,            trial comt's indefmite abatement violates the open courts
2007, and Gore set his motion to compel and for sanctions      provision in article I, section 13 of the Texas Constitution.

Wastl v.Nexr © 20 15 Th omson Reuters . No claim to origina l U S. Governm ent Worl<s.                                     4

                                                                                                    APPENDIX 60
In re Gore, 251 S.W.3d 696 (2007)



                                                                 Supp.2007). While courts have concluded this section
    8
171 1 1 The parties in the civil case are entitled to full       creates a "law enforcement investigation" privilege/ the
discovery within a reasonable time, to develop their             State has not pointed to a single case nor has our research
claims and defenses, and to have the case tried. See             disclosed any authority for treating such language as
Colonial Pipeline, 968 S.W.2d at 941--42 (holding that           mandating abatement upon request of the State.
order abating discovery fi·om all but small group of
plaintiffs until that group's claims were resolved                         See Hobson v. Moore, 734 S.W.2d 340, 340--41
umeasonably interfered with defendants' ability to                         (Tex. l987).
prepare a defense and was abuse of discretion); In re R.R.,
26 S.W.3d 569, 574 (Tex.App.-Dallas 2000, orig.
proceeding) (holding blanket order staying discovery on
                                                                 The State argues the trial coutt acted within its discretion
main issue because of related criminal proceeding was
                                                                 and did not run afoul of our holding in Gebhardt because
abuse of discretion because it vitiated defendant's ability
                                                                 the abatement will end when the criminal case is resolved
to prepare defense in civil case); Trapnell v. Hunter, 785
                                                                 and therefore is not "indefmite." The order at issue in
S.W.2d 426, 429 (Tex.App.-Corpus Christi 1990, orig.
                                                                 Gebhardt abated the case until the latter of the rumting of
  roceeding) (holding that refusal to proceed to trial by
                                                                 the statute of limitations for any crime relevant to the civil
 rbit:rarily abating case violates article I section 13 of the
                                                                 pleadings or the fmal dis osition of any criminal charges
Texas Constitution). "The pendency of a criminal
                                                                 that might be brought. 891 S.W.2d at 329. We held that
investigation, indictment, or other proceeding does not
                                                                 given the evidence before the cowt, it was impossible to
affect a contemporaneous civil proceeding based on the
                                                                 detennine when the abatement would end and thus
same facts or patties" and does not justify abating or
                                                                 indefmitely denied plaintiff the ability to develop her case
staying all discovery in the civil case until resolution of
                                                                 and a forum to tJy her case 'Jd. at 331- 33. Likewise, there
the criminal matter. Gebhardt, 891 S.W.2d at 330; see
                                                                 is nothing in this record that enables us to determine when
Underwood v. Bridewell, 931 S.W.2d 645, 64 7--48
                                                                 the abatement will end. Moreover, whether the n·ial
(Tex.App.-Waco 1996, orig. proceeding) (abuse of
                                                                 cowt's order exceeded its discretion does not turn solei
discretion to abate civil forfeiture action until criminal
                                                                 on whether the abatement is "indefinite." In Messervey
prosecution completed); Mcinnis v. State, 618 ~.W.2d
                                                                 we considered an order that abated a civil case for a
389 392- 93 (Tex.Civ.App. -Beaumont 1981, wnt refd
n.r.~.) (upholding trial court's refusal to continu~ c_ivil      period of six months or until the criminal case was
                                                                 concluded, whichever occun·ed earlier. 200 1 WL 55642,
disbarment case until fmal disposition of related cnmmal
                                                                 at *2 Recognizing that the abatement was not indefinite,
case), cert. denied, 456 U.S. 976, 102 S.Ct. 2242, 72
                                                                 we nevettheless conditionally granted a writ of mandamus
L.Ed.2d 851 (1982); Messervey, 2001 WL 55642 at *4
                                                                 to vacate the abatement order because by completely
(abuse of discretion to completely abate civil case for six
                                                                 curtailing prosecution of the entire case, it was
months solely because related criminal case is pending).
                                                                     ermissibly overbroad. Jd., at *4.
9
1 1 A forfeiture proceeding is a civil case that "shall          10
                                                                 1 1 The State also argues this case is distinguishable from
proceed to trial in the same manner as in other civil
                                                                 those cited above because it has provided Gore
cases." TEX.CODE CRIM. PROC. ANN. art. 59.05(b)
                                                                 "extensive" discoveiy and any fuither discovery would
(Vernon 2006). Accordingly, absent authority to :h_e
                                                                 interfere with confidentiality in law enforcement
contrary, Gore has the same right as any other CIVIl
                                                                 activities. The State provided disclosures and responses to
litigant to obtain full discovery *700 within a rea_sonable
                                                                 Gore's written discovery requests in June 2006 . However,
time, develop his defenses, and proceed to trial. See
                                                                 Gore has contended for more than a year and a half that
Underwood, 931 S.W.2d at 646--47; see also Mcinnis,
                                                                 the responses are inadequate and he has been unable to
618 S.W.2d at 393 ("We find no constitutional or
                                                                 obtain a hearing to test their adequacy. He has also been
statutory provisions granting this appellant the right to
                                                                 denied his right to depose the State's primary witnesses.
choose the case, either criminal or civil, which he desires
to first proceed to trial."). In its response to the petition         12   13
                                                                 1111 1 1 1 1 We recognize the State may have a legitimate
for a writ of mandamus, the State asserts it is entitled to
                                                                  interest in seeking some protection from civil discovery
abatement of the civil case "as a matter of statute."
                                                                  because disclosure could interfere with a criminal
However, the State cites only to § 552.108 of the
                                                                 .prosecution based on the same facts . See Te.xas Attorney
Government Code, which on its face only creates an
                                                                  General's Office v. Adams, 793 S.W.2d 771, 776
exemption from disclosure for ceitain Ia~ enforcem~nt
                                                                  (Tex.App.-Fort Wmth, 1990, no pet.). But it is "not good
and prosecutorial records under the Pubhc InformatiOn
                                                                  public policy to deny civil litigants their entitlement to a
Act. See TEX. GOV'T CODE ANN. § 552. 108 (Vernon
                                                                  fully authorized discovety to assist in preparation of the

W'E:. =l,,.N exr © 2015 Th omson Reuters. No claim to ori ginal U.S. Governm ent Works .                                    5

                                                                                                      APPENDIX 61
In re Gore, 251 S.W.3d 696 (2007)



civil lawsuit merely because criminal matters may be                                   MOTION TO COMPEL
pending." !d. at 777. Rather, the proper remedy is an
                                                                     1141 1151 Gore also complains the trial comt abused its
individually tailored protective order. See Undetwood,
931 S.W.2d at 647; Messervey 2001 WL 55642, at *4.                   discretion in denying his motion to compel discovery.
The State, just as other civil litigants, must timely plead          However, a fair reading of the record reveals that the trial
and prove its entitlement to *701 protection from                    court did not address the merits of the motion, but denied
discovery. See TEX.R. CIV. P. 192.6, 193.2, 193 .3,                  it solely because it granted the State' s motion to abate.
193.4. Failure to do so can result in waiver of any                  Accordingly, the issue is not ripe and we decline to
objection or claimed privilege. See Hobson, 734 S.W.2d               address it. The trial comt has a ministerial duty to act
at 340--41 ; Scrivner v. Casseb, 754 S.W.2d 354, 358                 upon motions properly filed and pending before it. In re
(Tex.App.- San Antonio 1988, no pet.). When properly                 Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio
raised, "the trial comt has an obligation to weigh each              1998, orig. proceeding). We have confidence the trial
discovery request and apply the law for discovery or                 comt will consider and rule on the merits of the motion to
protection to each request by determining the least                  compel within a reasonable period of time after the
resh·ictive way to protect both cases and the defendant' s           abatement order is vacated.
right to defend himself in this suit." In re R.R., 26 S.W.3d
at 574. The record does not disclose that the State timely
pled and proved a "law enforcement investigation"
privilege from discovery.
                                                                                            CONCLUSION
We conclude the trial court abused its discretion in
                                                                     We conditionally grant Gore 's petition for a writ of
abating the case until the criminal proceedings are
                                                                     mandamus regarding the trial comt's abatement of the
resolved. Because the order halts all proceedings in the
                                                                     forfeiture suit. The writ of mandamus will issue if the trial
case, denies Gore his right to full discovery, and severely
                                                                     court fails to vacate the abatement order within twenty
compromises his ability to develop his defenses, Gore has
                                                                     days of the date of this court's order.
no adequate remedy by appeal. See Colonial Pipeline, 968
S.W.2d at 942; Messervey, 2001 WL 55642, at *3 .
Moreover, by arbitrarily and indefinitely suspending the
proceedings, the h·ial comt denied Gore any effective                All Citations
method of challenging the trial comt's ruling for an
indefmite eriod. Sims, 88 S.W.3d at 306; Gebhardt, 891               251 S.W.3d696
S.W.2d at 332-33. Accordingly, Gore has no adequate
remedy by appeal and is entitled to mandamus relief.



End of Document                                                © 2015 Thomson Reu ters. No claim to origina l U.S. Government Works.




V\"'5 h'V'Nexr © 201 5 Thom so n Reuters. No claim to ori ginal U.S. Governm ent Wo rks.                                          6

                                                                                                            APPENDIX 62
Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)




l;w'l
.1:     Original Image of 891 S.W.2d 327 (PDF)
                                                                           1 Cases that cite this headnote
                          891 S.W.2d 327
                    Court of Appeals ofTexas,
                          San Antonio.
                                                                    121    Mandamus
                   Shay GEBHARDT, Relator,
                                  v.                                        Matters of Discretion
             Ron. Juan GALLARDO, Respondent.
                                                                           Although appellate comt rarely interferes with
             No. 04-94-00690-CV. I Jan. 9, 1995.                           trial court's exercise of discretion, clear abuse of
                                                                           discretion wanants correction by mandamus
                                                                           when comt issues decision without basis or
Republican candidate brought negligence and civil                          guiding principles oflaw.
conspiracy claims against Democratic party officials and
members concerning filing of Democratic candidate's
nominating petition. The 150th District Court, Bexar                       Cases that cite this headnote
County, Juan Gallardo, J., severed and abated negligence
claim pending possibility of or pursuance of criminal
charges against any of the defendants, and plaintiff sought
review by mandamus. The Court of A peals, Blair
                                                                    131    W itnesses
Reeves, C.J. (Retired), held that: (1) defendants ' asse1tion
of privilege against self-incrimination alone did not                        Proceedings to Which Privilege Applies
present legal basis for severance and abatement oii
negligence claim; (2) negligence claim was improperly                      Party does not lose Fifth          Amendment right
severed from civil conspiracy claim since the two claims                   against self-incrimination in      civil suit, whether
were based upon same facts and circumstances; and (3)                      or not criminal indictment is      pending. U .S.C.A.
where term of abatement of negligence claim was                            Const.Amend. 5; Vernon ' s         Ann.Texas Const.
indefinite, Republican candidate had no adequate remedy                    Art. 1, § 10.
at law for pmposes of determining whether mandamus
should issue.
                                                                           6 Cases that cite th is headnote
Writ of mandamus conditionally granted.


                                                                    141    Witnesses
                                                                            Waiver of Privilege
 West Headnotes (18)
                                                                           Witnesses
                                                                            Claim ofPrivi lege
 Jl l        Mandamus
                                                                           Each      assertion     of     privilege   against
               Remedy by Appeal or Writ ofEnor
                                                                           self-incrimination rests on its own circumstances
             Mandamus
                                                                           and must be raised in response to each specific
               Exercise of Judicial Powers and Functions in
                                                                           inquiiy or it is waived; blanket asse1tions of the
             General
                                                                           privilege     are   not    permitted.    U.S.C.A.
             Mandamus
                                                                           Const.Amend. 5; Vernon ' s Ann.Texas Const.
               Matters of Discretion
                                                                           Art. 1, § 10.
             Pmty    seeking      mandamus      relief  must
             demonstrate that trial court has committed clear              4 Cases that cite this headnote
             abuse of discretion or violated duty imposed by
             law, and that party has no adequate remedy on
             appeal.


      "'~ll-wNexr    © 20 '15 Thomson Reuters . No cla im to origina l U.S. Government Works.
                                                                                                       APPENDIX 63
Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)



(5(                                                              (8(
          Abatement and Revival                                         Action
            Identity of Causes and Issues                                 Severance of Actions
          Action
            Severance of Actions                                        Claim is properly severable only if controversy
                                                                        involves more than one cause of action, severed
          Assertion of privilege against self-incrimination             claim is one that would be proper subject of
          alone did not present legal basis for severance               lawsuit if independently asse1ted, and severed
          and abatement of negligence claim against                     claim is not so interwoven with remaining action
          defendant while criminal investigation of                     that they involve same facts and issues.
          defendant arising out of same facts was pending,              Vernon ' s Ann .Texas Rules Civ.Proc. , Rule 4 I.
          even though, if defendant asserted privilege at
          trial, plaintiff might request instruction on res
          ipsa loquitur; abatement would be akin to                     I Cases that cite this headnote
          impermissible blanket assertion of the privilege.
          U.S.C.A. Const.Amend. 5; Vernon's Ann.Texas
          Const. Art. 1, § 10.
                                                                 (91
                                                                        Action
          5 Cases that cite this headnote                                 Severance of Actions

                                                                        Trial court is afforded broad discretion in matter
                                                                        of severance. Vernon ' s Ann .Texas Rules
                                                                        Civ.Proc., Rule 41 .
(61
          Abatement and Revival
            Identity of Causes and Issues
                                                                        1 Cases that cite this headnote
          Pendency of criminal investigation, indictment
          or   other proceeding does not affect
          contemporaneous civil proceeding based on
          same facts or pmties.                                  JIOJ   Action
                                                                          Severance of Actions
          2 Cases that cite this headnote
                                                                        Controlling reasons for severance are to do
                                                                        justice, avoid prejudice and further convenience.
                                                                        Vernon ' s Ann.Texas Rules Civ.Proc., Rule 41.

171       W itnesses
            Effect of Refusal to Answer                                 Cases that cite this headnote

          Although it is constitutional error under Fifth
          Amendment to instruct jury in criminal case that
          it may draw inference of guilt from defendant' s       Jill
          failure to testify about facts relevant to his case,          Action
          Fifth Amendment does not forbid adverse                         Severance of Actions
          inferences against parties to civil actions when
          they refuse to testify in response to probative               Negligence claim by Republican candidate
          evidence offered against them. U.S .C.A.                      against Democratic pa1ty officials and members
          Const.Amend. 5.                                               concerning filing of Democratic candidate ' s
                                                                        nominating petition was improperly severed
                                                                        from Republican candidate's civil conspiracy
          6 Cases that cite this headnote                               claim against same pmties, since the two claims
                                                                        were based upon same facts and circumstances,
                                                                        and the concerns advanced by Democratic pa1ty
                                                                        officials in support of imposing restrictions on
                                                                        proceeding with negligence claim while grand
      :; hvNexr © 2015 Thom son Reuters. No claim to ori ginal U.S. Government Works.                                   2
                                                                                                    APPENDIX 64
Gebhardt v. Gallardo, 891 S.W.2d 327 {1995)



       jury investigation was pending would in large               defendants' testimony through oral deposition
       measure also be present in conspiracy trial.                on negligence issues while abatement order was
       Vernon's Ann.Texas Rules Civ.Proc., Rule 41.                in effect, so that evidence might become
                                                                   unavailable.

       Cases that cite this headnote
                                                                   3 Cases that cite this headnote



1121   Mandamus
        Proceedings in Civil Actions in General             J16J   Abatement an d Revival
                                                                     Identity of Causes and Issues
       Abatement is generally incidental ruling not
       susceptible to mandamus relief.                             Abatement of negligence claim by Republican
                                                                   candidate against Democratic pmty officials and
                                                                   members concerning Democratic candidate's
       Cases that cite this headnote                               filing of nominating petition, pending possibility
                                                                   of or pursuance of criminal charges against any
                                                                   of the defendants, was improper because term of
                                                                   abatement was indefinite due to impossibility of
JI3J
                                                                   determining which statutes of limitation might
       Pretrial Procedure                                          apply and when they might expire. Vernon' s
         Discretion of Court                                       Ann .Texas Const. Art. 1, § 13 ; Vernon' s
                                                                   Ann .Texas C.C.P. art. 12.05 .
       Trial courts generally      have   discretion   in
       abatement decisions .
                                                                   1 Cases that cite this headnote
       Cases that cite this headnote


                                                            1171   Mandamus
)14)
                                                                    Proceedings in Civil Actions in General
       Mandamus
         Modification or Vacation of Judgment or                   Revision of statute concerning authority of
       Order                                                       cowts of appeal to issue writs of mandamus
                                                                   ordering trial judges to go to tTial placed
       Appeal is not appropriate remedy, for purposes              abatement under general principles of law
       of determining whether mandamus should issue,               applicable to mandamus. V.T.C.A., Government
       where ability to present viable claim was                   Code § 22.221 .
       vitiated by pretrial order.

                                                                   1 Cases that cite this headnote
       1 Cases that cite this headnote



                                                            JIB)
JISJ
                                                                   Mandamus
       Mandamus                                                      Acts and Proceedings of Courts, Judges, and
        Proceedings in Civil Actions in General                    Judicial Officers
       Abated negligence claim was vitiated, for                   Indefmiteness of abatement of Republican
       purposes of determining whether mandamus                    candidate's    negligence action    against
       should issue as to abatement order, where                   Democratic pmty officials and members
       claimant was prohibited from preserving                     concerning filing of Democratic candidate's
       wNexr © 2015 Thom son Reuters. No cla im to orig ina l U.S. Government Works.                               3
                                                                                               APPENDIX 65
Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)



        nominating petition rendered remedy at law             petition for the Democratic candidate and seeks actual and
        inadequate, so that mandamus was appropriate.          exemplary damages . Relator alleged that the Democratic
        V.T.C.A. , Government Code§ 22.221.                    candidate did not meet minimum filing standards because
                                                               a number of the required 250 signatures on his petition
                                                               were forgeries and/or had been added to the petition after
        Cases that cite this headnote                          the deadline had expired.

                                                               The h·ial court severed and abated the negligence claim
                                                               pending the possibility of or pursuance of criminal
                                                               charges against any of the defendants.' Relator seeks a
                                                               writ of mandamus to order Visiting Dish·ict Judge Juan
Attorneys and Law Firms
                                                               Gallardo to rescind the order which severed and abated
*328 John E. Clark, Goode, Casseb & Jones, San                 petitioner's negligence claim on grounds it was an abuse
Antonio, for appellant.                                        of discretion . Real party argues that his federal and state
                                                               constitutional rights will be violated if plaintiff is allowed
Steven P. Price, Enrique G. Serna Martinez, The Law            to explore matters in this civil action which are also
Offices of Steven P. Price, Randall C. Jackson, Jr. ,          subject to a grand jury investigation. Neither the transcript
Speiser, Krause, Madole & Mendelsohn, Dwight P.                nor the statement of facts reveals any source for the
Mosher, Robert A. Valdez, San Antonio, for appellee.           court's fmding. We are unable to fmd any legal basis for
                                                               this mling. We hold that the order of severance and
*329 Before JAMES F. ONION, Judge, (Ret.), CARLOS              abatement constitutes a clear abuse of discretion for
C. CADENA and BLAIR REEVES, C.JJ. (Ret.).                      which relator has no adequate remedy on appeal. Writ of
                                                               mandamus is conditionally granted for the reasons set
                                                               forth below.

                                                                      The order, dated October 4, 1994, states in pertinent
                        OPINION                                       pati:
                                                                        After considering the evidence, the arguments of
                                                                        counsel, and the post-hearing briefs filed by the
BLAIR REEVES, Chief Justice, (ret.).l                                   parties, the court finds that the plaintiffs allegations
                                                                        could be read as a claim that the candidate 's petition
       Judge Onion, Justice Cadena and Justice Reeves were              was altered while in the exclusive possession of
       assigned to this case by the Chief Justice of the                some of the defendants, and that such allegations
       Supreme Court of Texas pursuant to TEX. GOV 'T                   raise the possibility that the plaintiff may rely upon
       CODE ANN. § 74.003(b) (Vernon 1988).                             and may seek an instruction on the doctrine of res
                                                                        ipsa loquitur; therefore, the court enters the following
                                                                        order:
                                                                        The plaintiff having advised the co uti that she elects
Shay Gebhardt seeks review by mandamus of an order                      not to amend her pleadings to exclude the claim for
entered by the Hon. Juan Gallardo, visiting district judge,             negligence comprising paragraph IV of her original
which severed and abated her negligence claim from an                   petition, it is ORDERED that all of the allegations of
alternative claim of civil conspiracy.2                                 paragraph IV of plaintiffs original petition, and all
                                                                        allegations of damage by reason of negligence in
                                                                        paragraph V of plaintiff's original petition be, and
       The original lawsuit is styled and numbered Shay                 the same are hereby, SEVERED from this cause of
       Gebhardt v. Leo G. Pacheco, John W. Reynolds,                    action and assigned separate docket number
       Dwight Mosher, and Ramon G. Flores, Sr., No.                     94- CI-14910.
       94-CI-05455, in the 150th District Court of Bexar                It is FURTHER ORDERED that after severance, the
       County, Texas.                                                   severed cause number 94-CI-14910 shall be, and it
                                                                        is hereby, ABATED pending the final disposition of
                                                                        any criminal charges that may be brought against any
Relator, the Hon. Shay Gebhardt, the Republican                         of the defendants based on the allegations of fact
candidate for judge of County Court-at-Law No. 3 of                     contained in the severed paragraph IV of plaintiffs
                                                                        original petition, or until the expiration of the statute
Bexar County, sued real party, John Reynolds, and three
                                                                        of limitations for any criminal offense with which
other Democratic party officials or members. The lawsuit                any of the defendants could be charged on the basis
alleges civil conspiracy and, in the alternative, negligence            of the allegations contained in the severed paragraph
in promoting and certifying the filing of the nominating
Watl -JNNexr © 201 5 Thomson Reuters. No claim to original U.S. Govern ment Wo rks.                                           4
                                                                                                      APPENDIX 66
Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)



          N of the plaintiff' s original petition, whichever   attomey, Reynolds did not want to be subjected to the
          occurs last.                                         intense light of civil discovery while the criminal
                                                               investigation was pending.

                                                               131 A pmty does not lose his Fifth Amendment right
                                                               against self-incrimination in a civil suit. Whether or not
                                                               an indictment is pending, a wimess is entitled to assert
 MANDAMUS AND THE ABUSE OF DISCRETION                          this fundamental constitutional right. See Maness v.
                                                               Mey ers, 419 U.S. 449,464, 95 S.Ct. 584, 594, 42 L.Ed.2d
111A patty seeking mandamus relief must demonstrate that       574, 587 (1975) (Fifth Amendment may be asserted in
the trial comt has committed a clear abuse of discretion or    any proceeding, civil or criminal, administrative or
violated a duty imposed by law. Johnson v. Fourth Court        judicial, investigatory or adjudicatory); Ex parte Butler,
of Appeals, 700 S.W.2d 916, 917 (Tex.1985). The                522 S. W.2d 196, 198 (Tex.1975) (Texas Constitution Art.
Supreme Comt emphasizes that the petitioner must also          I, sec. 10, guarantees privilege against self-incrimination,
show that she has no adequate remedy on appeal. Walker         "fact that the inquiry is made in the course of a civil
v. Packer, 827 S.W.2d 833, 842 (Tex.1992); State v.            proceeding does not interdict the wimess's privilege");
Walker, 679 S.W.2d 484,485 (Tex.1984).                         Burton      v.     West,   749     S.W.2d       505,    507
                                                               (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding)
121An appellate court rarely interferes with a trial court's   (defendant in drug proceeds forfeitme case permitted to
exercise of discretion. However, a clear abuse of              assert Fifth Amendment to discovery); Smith v. White,
discretion wanants *330 conection by mandamus when a           695 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.]
comt issues a decision which is without basis or guiding        1985, orig. proceeding) (defendants under indictment
principles of law. See Johnson v. Fourth Court of              entitled to assert Fifth Amendment rights in civil custody
Appeals, 700 S.W.2d at 917; Professional Microfilming,         dispute).
Inc. v. Houston, 661 S.W.2d 767, 769 (Tex.App.-Fort
                                                               141   151   6
Worth 1983, orig. proceeding). For example, a trial judge                  11The asse1tion of the privilege against
has no discretion in determining what the law is or in         self-incrimination must be raised in response to each
applying the law to the facts . Walker v. Packer, 827          specific inquiry or it is waived. Each asse1tion of the
S.W.2d at 840. On the contrary, if a judge, by placing a       privilege rests on its own circumstances. Blanket
particular construction on the law, deprives a citizen of an   asse1tions of the rivilege are not ermitted. See United
unquestioned legal right, and there is no other adequate       States v. White, 589 F.2d 1283, 1286- 87 (5th Cir.1979);
remedy, mandamus will lie to review his judgment or            Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex.1962). The
decision on the question. Womack v. Beny, 156 Tex. 44,         abatement of the negligence claim while the grand jury
291 S.W.2d 677, 683 (1956); State Farm v. Wilborn, 835         investigates potential criminal charges is akin to a blanket
S.W.2d 260, 261 (Tex.App.-Houston [14th Dist.] 1992,           assertion of the Fifth Amendment rivilege. The rationale
orig. proceeding); see also Joachim v. Chambers, 815           for reversals in White and Meyer v. Tunks would militate
S.W.2d 234, 240 (Tex.1991) (trial comt abused discretion       against severance and abatement on a vague assertion of
by misinterpreting the Code of Judicial Conduct); NCNB         constitutional privilege regarding res ipsa loquitur. The
Texas Nat '! Bank v. Coker, 765 S.W.2d 398, 400                pendency of a criminal investigation, indictment, or other
(Tex.1989) (trial court abused discretion by failing to        proceeding does not affect a contemporaneous civil
apply proper legal standard to motion to disqualify             roceeding based on the same facts or mties. See
counsel); Eanes Jndep. Sch. Dist. v. Logue, 712 S.W.2d         Mcinnis,     v.    State,    618    S.W.2d      389,    393
741 , 742 (Tex.1986) (trial comt abused discretion by          (Tex.App.- Beaumont         1981 ,   writ    refd     n.r.e.)
enoneously finding constitutional violation).                  (disbarment suit may proceed while indictment pending
                                                               against attomey on same grounds for same offense); see
                                                               also Meyer v. Tunks, 360 S.W.2d at 523 (no presumption
                                                               that attempt to take defendant's deposition in civil case is
                                                               impermissible attempt to develop evidence in concunent
      THE FIFTH AMENDMENT PRIVILEGE                            criminal proceeding). The Fifth Circuit has held that
                                                               putting a defendant to trial in a civil case while criminal
Defendant, John W. Reynolds, sought abatement of the           charges arising out of the same conduct were pending did
lawsuit on the ground that he was a target of a grand jmy      not unconstitutionally force him to choose between
investigation, that he had asse1ted his Fifth Amendment        preserving his Fifth Amendment privilege and losing his
right against self-incrimination in this suit and its          civil suit where there was *331 no indication that
predecessor biii of discovery, and, according to his
Wes =v N exr © 2015 Th omson Reuters. No claim to original U.S. Governm ent Works.                                       5
                                                                                                    APPENDIX 67
Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)



invocation of the Fifth Amendment would necessarily                   conspiracy claim are based upon the same factual
result in an adverse civil judgment. See United States v.             allegations. A claim is properly severable only if
White, 589 F.2d 1283, 1286-87 (5th Cir.1979 (decision
on whether to testify in civil case is matter of trial                             (1) the controversy involves more
strategy). The Mcinnis court stated: "We frnd no                                   than one cause of action, (2) the
constitutional or statutory provisions granting this                               severed claim is one that would be
appellant the right to choose the case, either criminal or                         the proper subject of a lawsuit if
civil, which he desires to first roceed to trial. " Mcinnis v.                     independently asserted, and (3) the
State, 618 S.W.2d at 393.                                                          severed claim is not so interwoven
                                                                                   with the remaining action that they
171 In this case, the comt severed and abated the                                  involve the same facts and issues.
negligence claim on the ground that plaintiffs pleadings
may be construed to support a theory of res ipsa loquitur."           Guaranty Fed. Sav. Bank v. Horseshoe Operating Co.,
One is left, at this early stage in the proceedings, to               793 S.W.2d 652, 658 (Tex.1990) (citing Saxer v. Nash
assume that if the defendant exercises his right to silence           Phillips-Copus Co. Real Estate, 678 S.W.2d 736, 739
under the Fifth Amendment, the plaintiff may, as a trial              (Tex.App .-Tyler        1984,      writ    refd       n.r.e.));
strategy, request an instruction on res ipsa loquitur on the          TEX.R.CIV.PROC. 41. Rule 41 affords the trial court
negligence theory. Be that as it may, the United States               broad discretion in the matter of severance. "The
Supreme Court distinguishes between a criminal and a                  controlling reasons for a severance are to do justice, avoid
civil case as to whether an inference of guilt may be                 prejudice and further convenience." Guaranty Fed. Sav.
drawn from a defendant's silence. It is clearly                       Bank, supra. In this case, the third prong of the severance
constitutional error under the Fifth Amendment to instruct            test is clearly missing. Relator has pled altemative
a jury in a criminal case that it may draw an inference of            theories ofrecovery. The severed claim is based upon the
guilt from a defendant's failure to testify about facts               same facts and circumstances as the remaining claim. The
relevant to his case. Griffin v. California, 380 U.S. 609,            parties are identical. While the elements of each claim are
615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965).                 necessarily different, the proof required is all to be drawn
However, "the Fifth Amendment does not forbid adverse                 from the same events. The severance order is
inferences against pmties to civil actions when they refuse           interlocutory and nonappealable while the abatement is in
to testify in response to probative evidence offered against          effect.
them." Baxter v. Palmigiano, 425 U.S . 308, 318, 96 S.Ct.
1551 , 1558, 47 L.Ed.2d 810, 821 (1976). The Amendment                Moreover, it is observed that the trial court's order leaves
"does not preclude the inference where the privilege is               the relator free to try her civil conspiracy claim based on
claimed by a party to a civil cause." 8 J. WIGMORE,                   the same factual allegations without the restrictions the
EVIDENCE 439 (McNaughton rev. 1961) (emphasis in                      trial court has placed on the severed and abated
original). The Baxter opinion lists a long line of cases              negligence claim. The concerns advanced by the
which recognize "that in proper circumstances silence in              respondent to the trial court would in large measure also
the face of accusation is a relevant fact not bmTed from              be present in the conspiracy trial. Severing claims into
evidence by the Due Process Clause." Baxter, 425 U.S. at              separate lawsuits without valid and sustaining reasons is
319, 96 S.Ct. at 1558, 47 L.Ed.2d at 822. Therefore, the              not in the interest of judicial economy.
asse1tion of the privilege against self-incrimination alone
does not present a legal basis for severance and abatement
of the negligence claim while a criminal investigation
proceeds.
                                                                                         *332 ABATEMENT
4
          The record before us does not reflect that this theory is
                                                                      The trial comt ordered the negligence claim abated
          alleged by the plaintiff below.
                                                                      pending final disposition of any criminal charges that may
                                                                      be brought against any of the defendants or until the
                                                                      statutes of limitation expire.

                                                                      ll2J JIJJ Abatement is generally an incidental ruling not
                                                                      susceptible to mandamus relief. E.g., Abor v. Black, 695
                         SEVERANCE
                                                                      S.W.2d 564, 567 (Tex.l985) (citing Pope v. Ferguson,
181 191 JIOJ Jill The severed negligence claim and the civil          445 S.W.2d 950, 954 (Tex.1969), cert. denied, 397 U.S.
                                                                      997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970)). Further, trial
~ =-;t   "'.' Nexr © 201 5 Th omson Reute1·s. No claim to origin al U.S. Governm ent Works.                                       6
                                                                                                            APPENDIX 68
Gebhardt v. Gallardo, 891 S.W.2d 327 (1995}



comts generally have discretion in abatement decisions.                A trial judge may not arbitrarily halt tr·ial roceedings."
E.g. , Dolenz v. Continental Nat 'l Bank of Fort Worth, 620            Jd., citing Clevelandv. Ward, 116 Tex. 1, 285 S.W. 1063 ,
S.W .2d 572, 575 (Tex.l981) .                                          1068 (1926); Greenberg, Benson, Fisk and Fielder v.
                                                                       Howell, 685 S.W.2d 694, 695 (Tex.A .- Dallas 1984,
1141 I1SI The trial couti should consider what effect, if any,         orig. roceeding) (citing the                   rovision of
the abatement of the negligence claim will have on the                 TEX. CONST. art. I, §.J..V.
plaintiff's ability to prosecute the remaining conspiracy
claim. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. l992)               [l?l The Texas Supreme Comt has also reasoned that
recognizes that appeal is not an appropriate remedy where              mandamus would issue to force a trial judge to go to tr·ial
the ability to present a viable claim was vitiated by a                because there was no remedy by agpeal. Cleveland v.
pretrial order. The negligence claim in this case is vitiated           Ward, 285 S.W. at 1068. At that time a statute authorized
because relator is prohibited from preserving defendants'              courts of appeal to issue writs of mandamus ordering tr·ial
testimony through oral deposition on the negligence                    judges to go to trial. Article 1824 was amended in 1984 to
issues while the abatement order is in effect. As time goes            eliminate the specific authority to order a trial judge to
on, memories will likely dim and evidence become                       proceed to tr·ial before it was codified into the cutTent
unavailable.                                                           statute providing our general mandamus jurisdiction. This
                                                                       revision places the abatement under the general principles
1161 Abating a case indefinitely, moreover, has been found             of law applicable to mandamus . See TEX. GOV'T CODE
to violate the o en comts provisions of the Texas                      § 22.221 (Vernon 1988). However, the Howell case cited
Constitution. See Trapnell v. Hunter, 785 S.W.2d 426,                  above, consh·ues this change to expand an appellate
429 (Tex.App.-Corpus Christi 1990, orig. proceeding).                  couti's power to order a judge to proceed to tr·ial in a
In Trapnell, survivors had filed a wrongful death suit                 pending case. Greenberg, Benson, Fisk and Fielder v.
against manufacturers of sulfite and foods containing it on            Howell, 685 S.W.2d at 695.
a themy of products liability. Several months later they
filed a second suit in federal couti against the Navy under            *333 I1BI The tenn of abatement in the present case is
the Federal Tmt Claims Act on theories of negligent food               indefinite. Statutes of limitations vary. The defendant
preparation and failure to warn. The federal case was                  testified that he did not know how long the abatement, if
stayed against the Navy pending completion of the                      granted, would last. He did not furnish the tr·ial judge with
products liability state case. However, the manufacturer               any information as to what crimes might be charged, so it
defendants obtained an order abating the state case so                 is impossible to tell what statutes of limitations might
they could seek intervention in the federal case. The                  apply. Moreover, statutes of limitations are tolled while
federal district court denied their motion to intervene,               an accused is absent from the state and tolled during the
nevertheless the state district comt repeatedly refused to             pendency of an indictment. TEX.CRIM.PROC.CODE
vacate his order of abatement. !d. at 427. The issue at the            ANN. art. 12.05 (Vernon 1979). It is, therefore,
mandamus proceeding was whether the state couti had a                  impossible to detennine when the abatement will end.
legal basis to abate the state cause in order to encourage             The indefiniteness of the abatement leads us to the
all pmties to settle their controversy in federal court. The           conclusion that the relator has no adequate remedy at law.
appellate comt held that the state comt abatement denied
the pmties their right to a forum under the "o en comts"               For these reasons we have concluded that relator is
clause of the Texas Constitution. ! d. at 429.                         entitled to a writ of mandamus to direct the trial court to
                                                                       rescind its order of severance and abatement. The writ
The opinion noted that article 1, section 13 of the                    will issue only in the event the trial court fails to act
constitution is generally not violated by abatement issued             accordingly.
in deference to a pending suit in another couti because the
plaintiff may still pursue her remedy in the second co mi.
Jd. In Trapnell, both forums had been indefinitely
foreclosed to the plaintiffs by court orders. "When the                All Citations
trial comt sustains a plea in abatement, ... the plaintiff is
effectively denied any other method of challenging the                 891 S.W.2d 327
court's action for an indefinite period of time during
which the cause of action remains in a suspended state ....
End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




'Y\=>::;tl -: N exr © 201 5 Thom son Reuters. No claim to original U.S Governm ent Works.                                         7

                                                                                                            APPENDIX 69
