                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-18-00241-CV
                              _________________

IN RE LAMAR UNIVERSITY, KENNETH EVANS, CATHERINE
         BLANCHARD, JEFF BELL, AND MARCO BORN
________________________________________________________________________

                               Original Proceeding
                 60th District Court of Jefferson County, Texas
                           Trial Cause No. E-201,876
________________________________________________________________________

                           MEMORANDUM OPINION

      In this original mandamus proceeding, Relators, Lamar University, Kenneth

Evans, Ph.D., Catherine Blanchard, Jeff Bell, and Marco Born, contend: (1) the trial

court abused its discretion by allowing discovery that is irrelevant and not reasonably

calculated to lead to admissible evidence; and (2) the trial court also abused its

discretion by granting the discovery motion before deciding the jurisdictional

challenges raised in response to the motion for expedited discovery and the pending

plea to the jurisdiction. The real parties in interest, Holly Bruder and Allison

Honkofsky, contend that the trial court has not ruled on the plea to the jurisdiction


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because Relators failed to provide proper notice of the hearing, and that the trial

court acted within its discretion when it ordered limited discovery in response to

issues raised by the plea to the jurisdiction. We stayed further proceedings in the trial

court and, after considering the petition and response, the parties’ arguments, and

the law applicable to this mandamus proceeding, we conditionally grant mandamus

relief.

                                      Background

          Lamar University is a member institution of the Texas State University

System under the management and control of the System’s board of regents. See

Tex. Educ. Code Ann. § 96.701 (West 2002). Bruder and Honkofsky were the head

coach and assistant head coach for Lamar’s softball team. Lamar’s Athletic Director,

Marco Born, placed Bruder on administrative leave on April 27, 2018, and notified

Bruder that her employment was terminated as of May 11, 2018. On May 17, 2018,

Honkofsky was notified that her employment was terminated effective August 31,

2018.

          On May 16, 2018, Real Parties sought to initiate grievances and appeals with

Lamar’s Director of Human Resources. Bruder complained that she was not

provided notice of the decision to put her on leave or to terminate her employment

pursuant to section 5.6.8 of Lamar University’s policy. In her letter, Bruder stated

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that Born failed to articulate a rational basis for terminating her employment and that

the conduct of Born and other Lamar employees violated her due process rights as a

public employee. Additionally, Bruder stated that she believed this conduct was

discriminatory based upon her gender and sexual orientation. Honkofsky

complained that she was not provided notice of the decision to terminate her

employment pursuant to section 5.6.8 of Lamar University’s policy. Honkofsky

stated that Born failed to articulate a rational basis for terminating her employment

and that the conduct of Born and other Lamar employees violated her due process

rights as a public employee. Additionally, Honkofsky stated that she believed this

conduct was discriminatory based upon her gender and sexual orientation. On May

23, 2018, Honkofsky supplemented her previous complaint to add that Born created

a hostile work environment by his repeated threats to her employment and to the

employment of others. On May 31, 2018, Lamar’s Human Resources Director, Jeff

Bell, notified Bruder that Chapter V, section 2.15 of the Texas State University

System rules and regulations applied and a hearing officer had been appointed.

      On June 6, 2018, Real Parties sued Lamar, seeking a declaratory judgment

that section 5.6 of the Lamar University Human Resources Policy Manual provides

the applicable grievance and appeal procedures. Real Parties amended their petition

to add what they describe as “ultra vires claims” against Born, Bell, Lamar

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University President Kenneth Evans, and Associate Vice-President for Human

Resources Catherine Blanchard, in their official capacities. Real Parties allege that

the government officials are refusing to follow Lamar’s policy manual with respect

to grievances and appeals, and that the refusals constitute ultra vires acts because

they are unlawful and directly contrary to Lamar’s official policy. As relief, Real

Parties sought a temporary restraining order prohibiting Lamar and its employees

from taking any further action under the Texas State University System rules and a

mandatory permanent injunction compelling Lamar to follow section 5.6 of the

Lamar University Human Resources Policy Manual with respect to Real Parties’

grievances and appeals. In a separate motion, Real Parties requested expedited

discovery to occur before the scheduled temporary injunction hearing.

      On June 8, 2018, Relators filed a plea to the jurisdiction in which they alleged

that, as at-will employees, Real Parties have no right to a grievance or appeal for

employment termination in accordance with the Texas State University System’s

Rules and Regulations, which govern Lamar’s actions and supersede Lamar

University’s Policies and Procedures in accordance with the conflict provision of the

System’s Rules and Regulations. Relators alleged that Real Parties failed to plead a

valid cause of action to overcome Lamar’s sovereign immunity. On June 8, 2018,

Relators gave notice of a hearing on their plea to the jurisdiction to be held on

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Monday, June 11, 2018. Real Parties objected to having less than three days’ notice

and requested a continuance until they could conduct discovery and develop the case

on their ultra vires claims.

      The trial court conducted a hearing on June 11, 2018. The trial court granted

Real Parties’ motion for a continuance on the plea to the jurisdiction. Arguing

against a temporary restraining order, Relators also argued that no further “adverse

actions” could occur because the Real Parties’ employment with Lamar had already

been terminated. The parties ultimately agreed on the record to the entry of a

temporary restraining order holding the Texas State University System’s procedure

as contained in the TSUS Rules and Regulations in abeyance until the temporary

injunction hearing set for July 9, 2018. The trial court held a telephone conference

on June 13, 2018, in which Relators objected to including some additional language

in the Order that included a prohibition of adverse employment action in the

temporary restraining order because they had not agreed to it. On June 14, 2018, the

trial court signed a temporary restraining order that prohibited Relators from

conducting any grievance proceedings or meetings with respect to Real Parties,

under the System’s Rules and Regulations, and from “taking any further adverse

employment actions” against them. Rejecting Relators’ argument that the plaintiffs

were not entitled to discovery prior to a ruling on the plea to the jurisdiction because

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the requested discovery was unnecessary to resolve the plea, on June 15, 2018, the

trial court granted Real Parties’ motion for expedited discovery and ordered Relators

to file their objections to discovery by June 19, 2018, and serve their discovery

responses by June 29, 2018. Relators filed a Petition for Mandamus relief on June

19, 2018. We stayed all discovery and all further proceedings in the trial court and

denied the Real Parties’ request to lift the stay to allow a contempt hearing to

proceed. The Real Parties filed a response, Relators then filed a reply, and the Real

Parties filed a sur-reply.

                                  Mandamus Review

      Mandamus will issue only to correct a clear abuse of discretion when there is

no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-

36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.

1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if

it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt.,

L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). “Mandamus relief is

available when a trial court compels production beyond the permissible bounds of

discovery.” In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex. 2009) (orig.

proceeding). “If an appellate court cannot remedy a trial court’s discovery error, then

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an adequate appellate remedy does not exist.” In re Dana Corp., 138 S.W.3d 298,

301 (Tex. 2004) (orig. proceeding).

       When a plea raises jurisdictional issues, “[t]he trial court must determine at

its earliest opportunity whether it has the constitutional or statutory authority to

decide the case before allowing the litigation to proceed.” Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A trial court abuses its

discretion when it subjects a governmental unit to pre-trial discovery and the costs

incident to litigation without ruling on a plea to the jurisdiction. City of Galveston v.

Gray, 93 S.W.3d 587, 591-92 (Tex. App.—Houston [14th Dist.] 2002, orig.

proceeding). The trial court’s refusal to rule on the plea to the jurisdiction deprives

the governmental unit of its substantial right to an accelerated appeal. Id. at 592.

       A trial court has discretion to permit the parties to conduct limited discovery

on jurisdictional issues. In re CMM Const. Co., Inc., No. 09-05-096-CV, 2005 WL

913438, at *2 (Tex. App.—Beaumont Apr. 21, 2005, orig. proceeding). In this case,

however, the trial court ordered expedited discovery on matters unrelated to

jurisdiction. The trial court’s decision to allow expedited discovery that is unrelated

to the jurisdictional issue that is before the trial court was an abuse of the trial court’s

discretion to control discovery in the case. See City of Galveston, 93 S.W.3d at 591-

92.

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      Real Parties argue the trial court granted a continuance of the plea to the

jurisdiction because Relators filed the plea less than three days before the June 11th

hearing, and as a result the trial court has not refused to rule on the plea to the

jurisdiction. However, the trial court conducted another hearing on June 13th, more

than three days after the plea to the jurisdiction was filed, then granted merits-based

discovery without considering and ruling on Relators’ challenge to the trial court’s

subject matter jurisdiction. Because the trial court’s order subjects Relators to the

burden and expense of litigation before their claims of immunity from suit have been

determined and Relators have been deprived of their right to an accelerated appeal,

Relators lack an adequate remedy by appeal. Id. at 592.

      Accordingly, we lift our stay order and conditionally grant the petition for a

writ of mandamus. We are confident the trial judge will vacate its order of June 15,

2018, granting expedited discovery and rule on the plea to the jurisdiction. A writ

shall issue only if the trial court fails to act in accordance with this opinion.

      PETITION CONDITIONALLY GRANTED.

                                                              PER CURIAM


Submitted on July 2, 2018
Opinion Delivered August 16, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.

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