Petition for Writ of Mandamus Denied and Memorandum Opinion and
Concurring Memorandum Opinion filed January 28, 2020.




                                       In The

                     Fourteenth Court of Appeals

                                 NO. 14-19-00691-CV



              IN RE VALERO REFINING TEXAS, L.P., Relator


                          ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                               295th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2018-36172

               CONCURRING MEMORANDUM OPINION

      I concur in the denial of the mandamus at this time because Valero has not
established that it is entitled to extraordinary relief. This case does not come to us
on cross-motions for summary judgment. The plaintiffs and intervenors argued
below that Valero has waived its right to assert the exclusive-remedy provision of
the Texas Worker’s Compensation Act. (Waiver is generally a fact question although
they seemed to argue waiver as a matter of law.) They also argued below that fact
issues precluded Valero’s permissive interlocutory appeal. The trial court denied
both motions presumably because the court found a fact issue.

      Valero asserts as a ground for extraordinary relief that waiting for an appeal
after a minimum of three trials on the merits of the case for what it characterizes as
a mass tort is extraordinary. Valero also argues that it will be prejudiced by having
to try the immunity defense with the merits of the case. These issues can be remedied
by asking for a separate trial on the immunity issue on remand. This trial should take
place before the trial on the merits. Valero notes (in footnote 5 of its petition for
mandamus) that the court can avoid prejudice through this separate trial procedure.
Yet Valero provided no excuse for not seeking this method before a petition for
mandamus. If the trial court had denied such a motion, then my review of this
mandamus would have been quite different.

      I respectfully concur in the denial at this time.




                                        /s/       Tracy Christopher
                                                  Justice


Panel consists of Justices Christopher, Spain, and Poissant. (Christopher, J.,
concurring). (Poissant, J., joining both the Memorandum Opinion and Concurring
Memorandum Opinion).




                                              2
