                          In the
                     Court of Appeals
             Second Appellate District of Texas
                      at Fort Worth
                   ___________________________
                        No. 02-18-00323-CV
                   ___________________________

IN RE TIMOTHY K. WADE; ROBERT STEPHEN HAWK; GINA WADE; CELIA
 HAWK; 407 REAL PROPERTY MANAGEMENT, LLC; AND 407 GUN CLUB,
                            LLC



                          Original Proceeding
                     Trial Court No. 16-09166-367


              Before Sudderth, C.J.; Meier and Birdwell, JJ.
                      Opinion by Justice Birdwell
                                      OPINION

      Chapter 128 of the Texas Civil Practice and Remedies Code requires a plaintiff

who sues a sport shooting range or an owner or operator of a sport shooting range to

serve a report that summarizes an expert’s opinions about the standards of care for

operating the sport shooting range, how the defendant breached the standards, and

how that breach caused damages. If the plaintiff does not do so, the trial court must

dismiss the plaintiff’s claims and award attorney’s fees to the defendant.

      Lee Stinson and Anissa Stinson, the real parties in interest in this original

proceeding, sued relators Timothy K. Wade; Robert Stephen Hawk; Gina Wade; Celia

Hawk; 407 Real Property Management, LLC; and 407 Gun Club, LLC, each of whom

own or operate a sport shooting range. The Stinsons did not serve relators with a

chapter 128 expert report. We therefore hold that the trial court clearly abused its

discretion by denying relators’ motion to dismiss the Stinsons’ shooting-related claims.

We also hold that relators have no adequate appellate remedy from the trial court’s

error. We conditionally grant mandamus relief.

                                     Background

      According to the Stinsons’ pleadings, in 2006, they bought several acres of

residential property in Denton County. In 2007, the Hawks and the Wades jointly

bought property that adjoins the Stinsons’ property. The Hawks and the Wades




                                           2
eventually formed 407 Real Property Management, LLC to hold their interests in the

real property and 407 Gun Club, LLC to operate a shooting range at the property.1

      To build the shooting range, in 2014, relators placed two columns of shipping

containers across their property. The Stinsons claim that relators’ shipping containers

divert the flow of rainwater so that it impounds upon and damages the Stinsons’

property. Thus, the Stinsons assert a collection of claims (the Water Claims) against

relators, including seeking declarations that relators violated a provision of the Texas

Water Code and county flood plain regulations in constructing the shipping-container

structure and pleading common-law claims of trespass, negligence, and private

nuisance.

      The Stinsons also allege that relators’ operation of the shooting range causes

them fear, discomfort, annoyance, and inconvenience. They claim that they have

“lived . . . in fear that stray bullets may shoot them, their guests, or their livestock,”

that the shooting scares their horses and hinders their ability to ride them, and that

“on multiple occasions, [they] have had to leave the [p]roperty to get away from the

noise created by the shooting.” From these facts and similar allegations, the Stinsons




      1
        The Stinsons filed their original petition against the Hawks and the Wades in
November 2016. In March 2017, the 407 entities filed a petition to intervene in the
suit. The Stinsons added the 407 entities as defendants in subsequent pleadings. For
simplicity, we will refer to the Hawks, the Wades, and the 407 entities collectively as
“relators” even though some of the acts of which the Stinsons complain involved only
some of those parties or occurred before the creation of the 407 entities.

                                            3
plead a second group of claims (the Shooting Claims) against relators, including

negligence and private nuisance.

      From both groups of claims, the Stinsons seek monetary relief, including

damages caused by an alleged loss in the fair market value of their property. They also

seek injunctive relief, a declaratory judgment, and attorney’s fees.

      Several months after the Stinsons filed their lawsuit, relators filed a motion for

the trial court to dismiss the Shooting Claims.2 They contended that chapter 128 of

the civil practice and remedies code required the Stinsons to serve an expert report

supporting those claims, that the Stinsons had failed to do so, and that the statute

mandated dismissal of the claims. They acknowledged that the Stinsons had served a

report by Randall Pogue, a licensed professional engineer, to support the Water

Claims, but they argued that Pogue’s report did not qualify as an expert report under

chapter 128.

      The Stinsons responded to relators’ motion to dismiss. They argued that

Pogue’s report satisfied chapter 128’s requirements. Alternatively, they contended that

relators waived any complaint about the sufficiency of Pogue’s report by not timely



      2
        Relators also filed a traditional motion for partial summary judgment on the
Shooting Claims; they did not seek judgment on the Water Claims. Because we hold
below that the trial court abused its discretion by not granting relators’ motion to
dismiss the Shooting Claims, we express no opinion on the merits of relators’
traditional motion for partial summary judgment to the extent that the motion
asserted grounds for judgment other than dismissal for failure to serve an expert
report under chapter 128.

                                            4
objecting to it. They further asserted that section 128.053’s expert-report requirement

violated several state and federal constitutional provisions.3

       Relators filed a reply to the Stinsons’ response. They argued that Pogue is not

an “expert” as defined by chapter 128 and that he therefore could not submit an

expert report complying with the chapter. They also asserted that relators’

constitutional challenges to the expert-report requirement were frivolous.

       The trial court denied relators’ motion to dismiss. Relators filed this original

proceeding to challenge that ruling.

                                   Standard of Review

       Relators ask us to conditionally issue a writ of mandamus that directs the trial

court to grant their motion to dismiss and to award them attorney’s fees. Mandamus

relief is proper only to correct a clear abuse of discretion when there is no adequate

remedy by appeal. In re Fain, 514 S.W.3d 917, 918 (Tex. App.—Fort Worth 2017, orig.

proceeding). A trial court clearly abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id.; see

Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011) (“A trial court . . . abuses its discretion by

failing to analyze or apply the law correctly.”); In re Tex. Collegiate Baseball League, Ltd.,

367 S.W.3d 462, 465 (Tex. App.—Fort Worth 2012, orig. proceeding) (explaining that

       3
        The Stinsons also argued in the trial court that relators had not proven that
their property qualified as a “sport shooting range” subject to chapter 128’s
requirements. In this court, the Stinsons do not expressly contest relators’ assertion
that they operate a sport shooting range on their property. See Tex. Loc. Gov’t Code
Ann. § 250.001(a)(2) (West 2016) (defining “sport shooting range”).

                                              5
a “trial court’s erroneous legal conclusion, even in an unsettled area of law, is an abuse

of discretion”).

       Whether a clear abuse of discretion can be adequately remedied through an

appeal depends on a careful analysis of costs and benefits of mandamus review. In re

McAllen Med. Ctr., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). As this balance

depends heavily on circumstances, it must be guided by analysis of principles rather

than simple rules that treat cases as categories. Id. An appeal is inadequate for

mandamus purposes when parties are in danger of permanently losing substantial

rights, such as when the appellate court would not be able to cure the error or when

the party’s ability to present a viable claim or defense will be vitiated. In re J.R.J., 357

S.W.3d 153, 155 (Tex. App.—Fort Worth 2011, orig. proceeding).

The Stinsons Failed to Comply with Chapter 128’s Expert-Report Requirement

       In their mandamus petition, relators argue that the Shooting Claims should be

dismissed because the Stinsons failed to serve an expert report under section 128.053

of the civil practice and remedies code.4 Section 128.053 states that when a plaintiff


       In their reply filed in this court, relators clarify that they “do not seek any relief
       4

from this Court under section 128.052. Instead, [r]elators seek relief under . . . section
128.[053].” [Footnote omitted.] Therefore, we need not resolve the Stinsons’
contention that the Shooting Claims are permissible under section 128.052. See Tex.
Civ. Prac. & Rem. Code Ann. § 128.052 (West Supp. 2018) (limiting the scope of civil
actions that may be asserted against sport shooting ranges or owners or operators of
sport shooting ranges). And for the reasons explained below that require dismissal
because of the Stinsons’ failure to serve an expert report under section 128.053, we
also need not resolve whether section 250.001 of the local government code
forecloses the Shooting Claims. See Tex. Loc. Gov’t Code Ann. § 250.001(b)–(c).

                                             6
files a suit against a sport shooting range or the owner of property on which a sport

shooting range is operated, the plaintiff “shall, not later than the 90th day after the

date the original petition was filed, serve on each party . . . one or more expert reports,

with a curriculum vitae of each expert listed in the report for each defendant against

whom a claim is asserted.” Tex. Civ. Prac. & Rem. Code Ann. § 128.053(a) (West

Supp. 2018). If a plaintiff fails to do so, upon the motion of the affected defendant,

the trial court must dismiss the plaintiff’s claim with prejudice and must award the

defendant attorney’s fees and costs. Id. § 128.053(b)(1)–(2). If a plaintiff serves an

expert report, each “defendant whose conduct is implicated” must file and serve any

objection to the report’s sufficiency within twenty-one days after receipt, or the

objection is waived. Id. § 128.053(a). When a defendant asserts that an expert report is

inadequate, the trial court must determine whether the report represented an

“objective, good faith effort to comply with the requirements of an expert report.”

Id. § 128.053(e).

       Relators contend that the trial court clearly abused its discretion by denying

their motion to dismiss the Shooting Claims because the Stinsons never served an

expert report in accordance with section 128.053. The Stinsons respond by

contending that (1) service of Pogue’s report satisfied section 128.053’s requirements;

(2) section 128.053 required relators to complain about any insufficiency in Pogue’s

report within twenty-one days after receiving it, and they did not, resulting in waiver



                                            7
of any objections; and (3) on several grounds, section 128.053’s expert-report

requirement violates state and federal constitutional provisions.

Pogue’s report is “no report,” and relators did not waive their objections

       Pogue’s report did not satisfy section 128.053’s requirements. Section 128.051

specifies the contours of an “expert report” subject to section 128.053. See id.

§ 128.051 (West Supp. 2018). That section states that an expert report is a written

report “by an expert that provides a fair summary of the expert’s opinions . . . regarding

applicable standards of care for operation of a sport shooting range, the manner in which a

defendant failed to meet the standards, and the causal relationship between that

failure and the . . . damages claimed.” Id. § 128.051(4) (emphases added). The section

further defines “expert” to mean a person who gives

      opinion testimony about the appropriate standard of care for a sport
      shooting range, an owner or operator of a sport shooting range, or the owner of real
      property on which a sport shooting range is operated, or the causal relationship
      between the injury, harm, or damages claimed and the alleged departure
      from the applicable standard of care[.][5]

Id. § 128.051(3)(A) (emphasis added).

      Pogue, while perhaps qualifying under the rules of evidence as an “expert” who

is qualified to render professional engineering opinions 6—see Tex. R. Evid. 702—is


       This language belies the Stinsons’ argument in this court that chapter 128
       5

provides “no real guidance whatsoever as to what qualifications the expert must have
or specifically what must be contained in the expert report to render it sufficient.”

       The Stinsons contend that “it is beyond cavil that Mr. Pogue is qualified to
       6

render the opinions that he does regarding violations of . . . the Texas Water Code

                                               8
not an “expert” as defined by chapter 128. See Tex. Civ. Prac. & Rem. Code Ann.

§ 128.051(3)(A). He did not provide opinion testimony about the standard of care for

the operation of a sport shooting range or about the causation of harm from the

activities of a sport shooting range. See id. § 128.051(4). Rather, in his report, he

provided opinion testimony about the engineering and developmental impacts of

improvements made by relators to their property—impacts that may have been

similarly attributed to a sport shooting range or any structure 7—while discussing

matters such as topography, drainage, and water flow. His report does not refer in any

manner to the discharge of any type of firearm, i.e., to “shooting,” or to the alleged

harms pleaded by the Stinsons with respect to the Shooting Claims, all of which require

the discharge of a firearm. Furthermore, in a discovery response that appears in the

mandamus record, the Stinsons represented that they retained Pogue to testify about

water-related matters and that relators’ use of their property as a sport shooting range

was “irrelevant to determining” the water code violations that Pogue would testify

about. In a deposition, Pogue testified that none of his opinions depended upon

relators’ use of their land as a sport shooting range. Finally, Pogue signed a declaration

in which he expressed that his opinions concerned the “standards of care for


. . . . Mr. Pogue is a licensed Professional Engineer with years of experience related to
water diversion and impoundment cases.”
      7
        The Stinsons concede in this court that Pogue’s opinions about diversion and
impoundment of water would apply to any “structure, person[,] or business” and are
not tailored to relators’ sport shooting range.

                                            9
designing water drainage plans so that water is not improperly diverted or impounded

on adjoining properties.” In the declaration, he stated that the “standards of care

relating to water diversion and impoundment apply equally regardless of the building’s

use (i.e., regardless of whether a structure is to be used as a shooting range or for

some other purpose).”

       Because Pogue does not purport to have expertise about the appropriate

standards of care for discharging a firearm, let alone for operating a sport shooting

range, and because his report does not provide opinions about such standards, we

hold that Pogue is not an “expert” under section 128.051 and that his report is neither

an “expert report” under section 128.051 nor a good faith effort to constitute the

same. The Stinsons therefore failed to serve an “expert report” under section 128.053.

See id. §§ 128.051(3)(A), (4), .053(a), (e).

       Consequently, there is also no merit to the Stinsons’ argument that relators

waived their objections to Pogue’s report by not asserting them within twenty-one

days after they received it. Section 128.053(a) requires only that objections to an

expert report be filed and served within twenty-one days; because Pogue’s report

constituted no report at all under chapter 128, relators’ obligation to object was never

triggered. See id. §§ 128.051(3)(A), (4), .053(a); see also Villarreal v. Fowler, 526 S.W.3d

633, 634–35, 637–38 (Tex. App.—Fort Worth 2017, no pet.) (holding that under

chapter 74 of the civil practice and remedies code, which similarly requires service of

expert reports in healthcare liability claims, the twenty-one-day deadline to object was

                                               10
not triggered when a party served a “Clinical Review,” which was “no report at all”);

Haskell v. Seven Acres Jewish Senior Care Servs., 363 S.W.3d 754, 759 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (holding that if a chapter 74 report is so deficient as

to constitute no report at all, the twenty-one-day deadline to object is never triggered

and the trial court is “required to dismiss”); Francis v. Select Specialty Hosp., No. 01-04-

01186-CV, 2005 WL 2989489, at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2005,

no pet.) (mem. op.) (“[B]ecause there is no evidence in the record that Sharon filed

her expert report with the trial court or otherwise provided Select Specialty with an

expert report, the 21-day deadline by which a health care provider must file and serve

its objections to the sufficiency of such a report was not triggered.”).

       Similarly, because the Stinsons’ sole report was wholly insufficient to meet

section 128.053’s requirements, there is no merit to the Stinsons’ alternative argument

that dismissal was not required because relators received one sufficient report and

because section 128.053 requires a sufficient report on only one theory that a plaintiff

alleges against a defendant. Cf. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex.

2013) (holding that if a report “satisfies [the] requirements” of chapter 74 as to at least

one healthcare liability theory, the suit may proceed); SCC Partners, Inc. v. Ince, 496

S.W.3d 111, 115 (Tex. App.—Fort Worth 2016, pet. dism’d) (“[A] report that satisfies

the statutory elements . . . is sufficient to avoid dismissal of an entire case.” (emphasis

added)).



                                            11
Section 128.053 is not unconstitutional

      The Stinsons further contend that section 128.053’s expert-report requirement

violates several state and federal constitutional provisions. We generally presume that

a statute is constitutional. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d

659, 662 (Tex. 1996). The party challenging a statute’s constitutionality bears the

burden on that issue. See Edgewood ISD v. Meno, 917 S.W.2d 717, 725 (Tex. 1995).

      The Stinsons argue that the expert-report requirement violates the open-courts

guarantee of the Texas constitution8 and equal protection and due process guarantees

of our federal and state constitutions—contentions that we have previously rejected in

analyzing section 128.053 and that courts have consistently repudiated in analyzing the

similar expert-report requirement of section 74.351 of the civil practice and remedies

code. See U.S. Const. amend. XIV, § 1; Tex. Const. art. 1, §§ 3, 13, 19; Tex. Civ. Prac.

& Rem. Code Ann. § 74.351 (West 2017); Alpine Indus. v. Whitlock, 554 S.W.3d 174,

      8
        The Stinsons reason that section 128.053 violates the open-courts guarantee
because, in part, the section requires them to pay an expert to pursue a claim and
because it limits their discovery. See Tex. Civ. Prac. & Rem. Code Ann. § 128.053(f).
We note that although the Stinsons contend at length that section 128.053’s
procedural requirements may hypothetically create financial and logistical barriers
(including discovery limitations) to some plaintiffs’ suits against sport shooting ranges,
they do not establish that any such barriers actually prevented them from hiring an
expert on the operations of a sport shooting range or from serving a valid expert
report in this case. Cf. Moncrief v. Harvey, No. 05-90-01116-CV, 1991 WL 258684, at *7
(Tex. App.—Dallas Nov. 26, 1991, writ denied) (not designated for publication)
(“That [a statute] may be unconstitutional regarding others is not enough.”). We also
note that “while a statute that totally forecloses judicial review may violate the [open
courts] provision, one that merely presents hurdles to judicial review may withstand
scrutiny.” Abraham v. Greer, 509 S.W.3d 609, 615 (Tex. App.—Amarillo 2016, pet.
denied).

                                           12
179–85 (Tex. App.—Fort Worth 2018, pet. filed); Univ. of Tex. Health Sci. Ctr. at

Houston v. Joplin, 525 S.W.3d 772, 782–84 (Tex. App.—Houston [14th Dist.] 2017, pet.

denied); Hebert v. Hopkins, 395 S.W.3d 884, 898–902 (Tex. App.—Austin 2013, no

pet.); Broxterman v. Carson, 309 S.W.3d 154, 159 (Tex. App.—Dallas 2010, pet. denied)

(collecting cases). The Stinsons’ arguments do not persuade us to depart from these

decisions, so we hold that section 128.053’s expert-report requirement does not

violate open courts, due process, due course of law, or equal protection guarantees.

      The Stinsons also assert that section 128.053’s requirement is an impermissible

“special law” under the Texas constitution—see Tex. Const. art. III, § 56(a)(16)—

because, in the Stinsons’ words, the requirement applies to “particular persons” rather

than the general public and because the requirement seeks “to prohibit lawsuits . . .

against sport shooting ranges and their owners that would be . . . permitted against

any other private citizen in the public at large.” Article III, section 56 prevents

lawmakers from the practice of “trading votes for the advancement of personal rather

than public interests.” Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d

941, 945 (Tex. 1996). The constitutional provision does not prohibit the Legislature

from making reasoned classifications.9 See id. “The primary and ultimate test of



      9
         As we explained in Alpine Industries, three of the purposes of section 128.053
are to protect safe gun ranges from legal harassment, to “add a legislative hurdle to
the filing of frivolous lawsuits,” and to accommodate Texas’s liberalization of its gun
laws. 554 S.W.3d at 185.


                                          13
whether a law is general or special is [determined by] whether there is a reasonable

basis for the classification made by the law, and whether the law operates equally on

all within the class.” Rodriguez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950).

       The Stinsons contend that section 128.053 violates the “special law”

prohibition because the section requires plaintiffs who sue sport shooting ranges to

pass certain procedural and evidentiary hurdles that “other members of the general

public do not have” to pass. Courts have rejected similar arguments in the context of

considering section 74.351’s expert-report requirement, and because the Stinsons

articulate no reason for us to depart from those decisions here, we decline to do so.

See Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 520–21 (Tex. App.—Dallas

2011, pet. denied) (reciting the presumption of constitutionality of state statutes and

holding that although section 74.351 treated medical malpractice plaintiffs differently

than plaintiffs alleging other tort claims, the section was not an unconstitutional

special law); Smalling v. Gardner, 203 S.W.3d 354, 371 (Tex. App.—Houston [14th

Dist.] 2005, pet. denied) (holding similarly).

       The Stinsons also contend that section 128.053 is unconstitutionally vague

because it purportedly does not “define what an expert is, what qualifications are


       The Stinsons argue that absent their failure to file an expert report, chapter 128
would otherwise permit the Shooting Claims. Assuming, without deciding, that they
are correct, then like the plaintiffs in Alpine Industries, it is the Stinsons’ “failure to
timely serve the expert report—not the existence of the expert report requirement—
that [bars their claims].” See id.


                                            14
necessary to make the author an expert, what an expert report is deemed to be, or

what must be included in the expert report to make it sufficient.” The Stinsons are

incorrect. As described above, chapter 128 defines an “expert,” what the expert’s

qualifications must be, and the necessary contents of the expert report. Tex. Civ. Prac.

& Rem. Code Ann. § 128.051(3)–(4).

      Finally, the Stinsons compare chapter 128’s provisions to similar provisions

from other states with the apparent goal of showing that chapter 128’s provisions do

not accomplish their intended purposes or are simply unreasonable. But in a

constitutional analysis, we do not consider the wisdom or expediency of a law—that is

the Legislature’s job. See Alpine Indus., 554 S.W.3d at 181. Furthermore, although the

Stinsons rely on legislative history materials to contend that the text of chapter 128

does not serve its intended purposes, “the truest manifestation of what legislators

intended is what lawmakers enacted, the literal text they voted on.” HDSA Westfield

Lake, LLC v. Harris Cty. Appraisal Dist., 490 S.W.3d 558, 561 (Tex. App.—Houston

[14th Dist.] 2016, no pet.). The Stinsons’ arguments about chapter 128’s alleged flaws,

either in what the statute contains or what it omits, do not persuade us that they have

met their burden to establish the chapter’s unconstitutionality. See Alpine Indus., 554

S.W.3d at 181 (“We presume that the legislature has not acted unreasonably or

arbitrarily, and where reasonable minds could differ, a mere difference of opinion is

not a sufficient basis for striking down legislation as arbitrary or unreasonable.”); see

also BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017)

                                           15
(stating that appellate judges should be “sticklers” about adjudicating and not

legislating).

       For all of these reasons, we hold that the trial court clearly abused its discretion

by denying relators’ motion to dismiss the Shooting Claims for the Stinsons’ failure to

serve an expert report under section 128.053. See Tex. Civ. Prac. & Rem. Code Ann.

§ 128.053(a)–(b).

                    Relators Have No Adequate Appellate Remedy

       Relators contend that they have no adequate remedy by appeal from the trial

court’s failure to dismiss the Shooting Claims.

       Mandamus relief is appropriate when the “very act of proceeding to trial—

regardless of the outcome—would defeat the substantive right involved.” McAllen

Med. Ctr., 275 S.W.3d at 465. The application of section 128.053 in this case gives

relators substantive rights to dismissal of the Shooting Claims without a trial and to an

award of attorney’s fees. Requiring relators to litigate the Shooting Claims (and incur

further attorney’s fees to do so) despite the Stinsons’ noncompliance with section

128.053 would wholly defeat those substantive rights. Thus, we hold that relators do

not have an adequate remedy by appeal. See id. at 466–69 (holding that there was no

adequate remedy on appeal from a trial court’s erroneous decision to not dismiss a

healthcare liability claim when the plaintiffs failed to file an adequate expert report); see

also In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (holding

that when a party was entitled to dismissal under rule of civil procedure 91a,

                                             16
mandamus relief was “appropriate to spare the parties and the public the time and

money spent on fatally flawed proceedings”); In re Schmitz, 285 S.W.3d 451, 458–59

(Tex. 2009) (orig. proceeding) (holding there was no adequate remedy on appeal when

the defendant was statutorily entitled to dismissal and when allowing the case to

proceed to trial would therefore “defeat the substantive right the Legislature sought to

protect”).

                                      Conclusion

       For all of these reasons, we conclude that the trial court abused its discretion by

denying relators’ motion to dismiss the Stinsons’ Shooting Claims and that mandamus

relief is appropriate. See Tex. R. App. P. 52.8(c). We order the trial court to vacate its

March 21, 2018 order denying relators’ motion to dismiss, to grant relators’ motion to

dismiss the Shooting Claims, and to award attorney’s fees to relators to the extent that

those fees are attributable to relators’ litigation of the Shooting Claims. See Tex. Civ.

Prac. & Rem. Code Ann. § 128.053(a)–(b). A writ will issue only if the trial court fails

to do so. This court’s October 23, 2018 order staying the proceedings in the trial court

is hereby lifted.


                                                       /s/ Wade Birdwell

                                                       Wade Birdwell
                                                       Justice

Delivered: December 20, 2018



                                           17
