CONDITIONALLY GRANT; and Opinion Filed December 19, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01226-CV

                          IN RE ASHLEY SCOTT ECHOLS, Relator

                 Original Proceeding from the 116th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-17-13626

                                           OPINION
                       Before Justices Lang-Miers, Fillmore, and Stoddart
                                Opinion by Justice Lang-Miers
       In this original proceeding, relator contends the trial court clearly abused its discretion by

permitting real parties in interest to designate an unknown criminal as a responsible third party

without complying with the requirements of section 33.004(j), Texas Civil Practice and Remedies

Code. Relator requests a writ of mandamus directing the trial court to vacate its order allowing the

designation. Real parties in interest have responded, arguing that the trial court correctly

interpreted section 33.004(j). For the reasons that follow, we conditionally grant the writ.

                                          BACKGROUND

       Relator Ashley Scott Echols sued real parties in interest Bryan Buchanan, M.D., Beacon

Emergency Services Team, P.A., and Integrative Emergency Services, LLC, alleging they were

negligent in treating him when he presented at a local hospital with a gunshot wound to the head

on May 28, 2016. Echols filed suit on October 3, 2017, contending real parties in interest (together,
“Buchanan”) failed to properly treat him and allowed him to return home with a bullet still lodged

in his head.

       Buchanan timely filed an original answer on October 9, 2017, but he did not allege that an

unknown person committed a criminal act that was a cause of Echols’s injury until June 27, 2018,

when he filed a motion for leave to designate “the Unknown Gunman who shot Ashley Scott

Echols as a responsible third party.” Echols objected, contending that the designation was not

timely under subsection (j), section 33.004 of the civil practice and remedies code. See TEX. CIV.

PRAC. & REM. CODE ANN. § 33.004(j). After a hearing, the trial court granted Buchanan’s motion

for leave in an order dated August 23, 2018.

       In his petition for writ of mandamus, Echols argues that Buchanan’s designation, filed more

than sixty days after he filed his original answer, was not timely, and the trial court should have

denied leave to designate the unknown gunman who shot Echols.

                                      MANDAMUS STANDARD

       To obtain mandamus relief, a relator must show both that the trial court has clearly abused

its discretion and that relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion if it

clearly fails to correctly analyze or apply the law. See Walker v. Packer, 827 S.W.2d 833, 839–40

(Tex. 2008) (orig. proceeding). A trial court has no discretion in determining what the law is or in

applying the law to the facts. See In re Prudential, 148 S.W.3d at 135; Walker, 827 S.W.2d at 840.

The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus

review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.

proceeding) (citing Prudential Ins. Co. of Am., 148 S.W.3d at 136). In evaluating benefits and

detriments, we consider whether mandamus will preserve important substantive and procedural

rights from impairment or loss. Id.

                                                –2–
                                         APPLICABLE LAW

       Designation of responsible third parties is governed by section 33.004 of the civil practice

and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a)–(l). A defendant may

seek to designate a person as a responsible third party by filing a motion for leave to designate “on

or before the 60th day before the trial date unless the court finds good cause to allow the motion

to be filed at a later date.” Id. § 33.004(a). A court “shall grant leave to designate the named person

as a responsible third party” unless another party files an objection to the motion “on or before the

15th day after the date the motion is served.” Id. § 33.004(f). If an objection is timely filed, the

court “shall grant leave to designate the person as a responsible third party” unless the objecting

party establishes that the defendant did not plead sufficient facts concerning the alleged

responsibility of the person to satisfy the pleading requirements of the rules of civil procedure after

having been granted leave to replead. See id. § 33.004(g). The person named in the motion is

designated as a responsible third party without further action by the court when the court grants a

motion for leave to designate. Id. § 33.004(h).

       If the defendant alleges that an unknown person committed a criminal act that was a cause

of the plaintiff’s injury, subsection (j) of section 33.004 applies. Subsection (j) provides:

       Notwithstanding any other provision of this section, if, not later than 60 days after
       the filing of the defendant’s original answer, the defendant alleges in an answer
       filed with the court that an unknown person committed a criminal act that was a
       cause of the loss or injury that is the subject of the lawsuit, the court shall grant a
       motion for leave to designate the unknown person as a responsible third party if:

               (1) the court determines that the defendant has pleaded facts sufficient for
               the court to determine that there is a reasonable probability that the act of
               the unknown person was criminal;

               (2) the defendant has stated in the answer all identifying characteristics of
               the unknown person, known at the time of the answer; and

               (3) the allegation satisfies the pleading requirements of the Texas Rules of
               Civil Procedure.


                                                  –3–
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(j). The parties’ dispute arises from their conflicting

interpretations of subsection (j).

        We review issues of statutory construction de novo. City of Rockwall v. Hughes, 246

S.W.3d 621, 625 (Tex. 2008). In construing statutes, we ascertain and give effect to the

Legislature’s intent as expressed in the language of the statute. Id. We “presume that the

Legislature chooses a statute’s language with care, including each word chosen for a purpose,

while purposefully omitting words not chosen.” City of Laredo v. Laredo Merchants Ass’n, 550

S.W.3d 586, 597 (Tex. 2018) (footnote and internal quotation omitted). We “read statutes

contextually to give effect to every word, clause, and sentence.” Melden & Hunt, Inc. v. E. Rio

Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017). We apply the plain meaning of the

text as expressing legislative intent unless a different meaning is supplied by legislative definition

or is apparent from the context, or the plain meaning leads to absurd results. Gunn v. McCoy, 554

S.W.3d 645, 672 (Tex. 2018).

        Case authority interpreting and applying subsection (j) of section 33.004 is scant. But in In

re Unitec Elevator Services Co., a sister court concluded that the trial court did not abuse its

discretion in denying the relators’ motion to designate unknown vandals as responsible third

parties. 178 S.W.3d 53, 61 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). In Unitec,

the relators did not file an answer containing the allegations against the unknown vandals “until

well after sixty days after filing their original answer.” Id. The court rejected the relators’ argument

that the language “[n]otwithstanding any other provision of this section” at the beginning of

subsection (j) “should be construed to mean that in addition to the other available timetables and

means to designate responsible third parties under . . . section 33.004, subsection (j) affords a

defendant an independent means to designate unknown individuals within sixty days of a

defendant’s answer to preclude a plaintiff’s right to object.” Id. at 60. The court also rejected the

                                                  –4–
relators’ argument “that subsection (j), which prescribes a strict pleading requirement for

designating unknown persons, does not provide the exclusive means for designating the unknown

vandals and that plaintiffs’ interpretation of the statute is contrary to the statute’s liberalization of

rights afforded to defendants under the revised section 33.004.” Id.

           The court in Unitec concluded that applying the plain language of subsection (j) and section

33.004 as a whole, “the statute clearly and unambiguously requires a defendant seeking to

designate an unknown person as a responsible third party, based on the person’s commission of

criminal acts causing the loss or injury that is the subject of the lawsuit, to file an answer containing

such allegations no later than sixty days from filing its original answer.” Id. at 61. And because

the relators did not timely file an answer containing the required allegations, they were precluded

from designating the unknown vandals as responsible third parties. Id.

                                                                DISCUSSION

           Subsection (j) of civil practice and remedies code section 33.004 required Buchanan to file

a motion to designate the unknown gunman as a responsible third party “not later than 60 days

after the filing of the defendant’s original answer.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.004(j). He did not do so. He filed his answer on October 9, 2017, a motion for leave to

designate a responsible third party on June 27, 2018,1 and a second amended answer on August

21, 2018, alleging for the first time that an unknown person had committed a criminal act that was

a cause of Echols’s injury. Nonetheless, Buchanan argues the trial court did not abuse its discretion

because subsection (j) cannot be read in isolation. He argues that subsection (j)’s 60-day deadline

is not mandatory, “but rather it is an option to the defendant—in other words, if the defendant

wants to circumvent plaintiff’s ability to object to the designation, then the defendant can provide



      1
        In his response to the petition for writ of mandamus, Buchanan alleges his motion was filed on June 27, 2018; the certificate of service on
the copy included in the mandamus record is dated May 27, 2018. In either event, more than 60 days had elapsed since the filing of his answer.

                                                                      –5–
the notice required by (j) in an amended answer in the first 60 days.” (Emphasis Buchanan’s). He

contends that if the defendant does not provide notice under subsection (j), he may choose to

provide notice “on or before the 60th day before the trial date” under subsection (a). He explains

that there is mandatory language:

              in subsection (a) that the motion “must be filed” on or before the 60th day before
               trial;

              in subsection (f) that the trial court “shall grant leave” to designate unless a timely
               objection is filed; and

              in subsection (j) that the trial court “shall grant a motion for leave” if the criteria in
               subsections (1), (2), and (3) are met.

He contrasts this mandatory language with subsection (j)’s clause “if, not later than 60 days after

the filing of the defendant’s original answer,” the defendant files an answer alleging an unknown

person committed a criminal act that was a cause of the plaintiff’s injury. He concludes that

Echols’s “contention that Subsection (j) is a mandate is contrary to the plain language of the code,

and unsupported when Subsection (j) is read in combination with the remainder of CRPC 33.004.”

       The court in Unitec rejected a similar argument, concluding,

       Relators’ argument, that subsection (j) merely affords a defendant an additional and
       independent means to designate unknown persons as responsible third parties,
       would render the pleading deadlines imposed in subsection (j) meaningless. A
       defendant would never have an incentive to comply with the pleading requirement
       in subsection (j) when it could simply wait to designate the unknown person sixty
       days before trial, and obtain a strategic advantage not intended by the legislature.

Unitec, 178 S.W.3d at 61. Further, the court contrasted subsection (j), which “expressly applies to

the designation of unknown persons, and, even absent an objection, requires a defendant seeking

to designate an unknown person to satisfy specific pleading requirements before a trial court may

grant a motion for leave to designate,” with subsection (f), which “expressly applies to the

designation of named persons, and compels a trial court to grant a motion to designate a named

person unless an objection is filed.” Id. at 61 n.8. The court concluded, “[t]he structure of section


                                                 –6–
33.003 indicates that the legislature intended to prescribe different procedures for designating

named and unnamed persons. Our holding recognizes and enforces these differing procedures.”

Id.

       Buchanan also contends that Echols’s interpretation of subsection (j) is neither reasonable

nor fair. He argues that 60 days after answering a lawsuit is insufficient time for a defendant to

conduct discovery to determine “if a criminal meets the definition of a ‘responsible third party.’”

Further, defendants would have only one opportunity to designate an unknown criminal as a

responsible third party. Buchanan argues this result would be especially unfair in cases alleging a

healthcare liability claim, given the stay of discovery by a defendant until a plaintiff has provided

an expert report. And he argues that a defendant would have no opportunity to correct a defective

pleading, in contrast to the mechanism for objection and repleading under subsection (g). But

subsection (j) requires a pleading that (1) includes “facts sufficient for the court to determine that

there is a reasonable probability that the act of the unknown person was criminal,” (2) includes

“all identifying characteristics of the unknown person, known at the time of the answer,” and

(3) satisfies the pleading requirements of the rules of civil procedure. Consequently, Buchanan

was required to plead facts and characteristics he knew at the time he answered. Those included

the undisputed fact that the unknown person shot Echols in the head. Expert medical reports and

further discovery were not necessary to support an allegation that this act, in “reasonable

probability,” was criminal.

       Buchanan also contends that mandamus relief is not appropriate because Echols has an

adequate remedy by appeal. We have concluded, however, that a trial court’s improper decision

applying section 33.004 to determine responsible third parties “may not be adequately addressed

by appeal.” In re Oncor Elec. Delivery Co., LLC, 355 S.W.3d 304, 306 (Tex. App.—Dallas 2011,

orig. proceeding). Buchanan distinguishes In re Oncor on the ground that it “stands for the

                                                 –7–
proposition that appeal is ordinarily an inadequate remedy when a trial judge erroneously denies a

motion for leave to designate a responsible third party without granting leave to replead.”

(Emphasis Buchanan’s). But in In re Oncor, we quoted In re Brokers Logistics, Ltd., 320 S.W.3d

402, 408 (Tex. App.—El Paso 2010, orig. proceeding), for the proposition that denial of leave to

designate a responsible third party “‘would skew the proceedings, potentially affect the outcome

of the litigation, and compromise the presentation of Relators’ defense in ways unlikely to be

apparent in the appellate record.’” In re Oncor, 355 S.W.3d at 306. We conditionally granted

mandamus, ordering the trial court to withdraw its previous order “and to render a new order either

granting relator leave to replead facts supporting the designation or granting the motion for leave

to designate.” Id. Our ruling was not limited to granting leave to replead. See id.; see also In re

Smith, 366 S.W.3d 282, 288–89 (Tex. App.—Dallas 2012, orig. proceeding) (following In re

Oncor and concluding that relators showed no adequate appellate remedy for trial court’s

erroneous denial of motion for leave to designate responsible third party).

       In In re Bustamante, the San Antonio court of appeals explained that it would “join the

majority of our sister courts and hold that there is no adequate remedy by appeal from the trial

court’s denial of Bustamante’s timely motion for leave to designate responsible third parties.” In

re Bustamante, 510 S.W.3d 732, 739 (Tex. App.—San Antonio 2016, orig. proceeding) (citing In

re Smith, 366 S.W.3d at 288–89, and opinions from several other sister courts). The court cited

factors including “when the denial of mandamus relief would result in an ‘irreversible waste of

judicial and public resources,’” id. (quoting In re Prudential Ins. Co., 148 S.W.3d at 137), and

“when an order skews the procedural dynamics of the case.” Id. (citing In re Prudential Ins. Co.,

148 S.W.3d at 136). The court conditionally granted mandamus directing the trial court “to grant

the motion for leave to designate responsible third parties.” Id. at 739. And the supreme court has

noted that “a majority of our intermediate appellate courts have held that when a timely filed

                                               –8–
motion to designate a responsible third party is erroneously denied, no adequate remedy by appeal

ordinarily exists.” In re Coppola, 535 S.W.3d 506, 509 (Tex. 2017) (orig. proceeding). The court

in In re Coppola concluded, “[a]ccordingly, we hold that, ordinarily, a relator need only establish

a trial court’s abuse of discretion to demonstrate entitlement to mandamus relief with regard to a

trial court’s denial of a timely-filed section 33.004(a) motion.” Id. at 510.

       Recently the San Antonio court of appeals considered whether there was an adequate

remedy at law when a trial court erroneously granted, rather than denied, a motion for leave to

designate a responsible third party. In re Maconori Enters., Ltd., No. 04-18-00086-CV, 2018 WL

3039934, at *1–3 (Tex. App.—San Antonio Jun. 20, 2018, orig. proceeding). The court noted that

there was no mandamus case discussing the issue. Id. at *1. Distinguishing cases holding that there

is no adequate remedy at law when a trial court erroneously denied a motion for leave, the court

concluded that “the granting of a RTP designation may be addressed at multiple stages of trial,”

including a motion to strike the designation under subsection 33.004(l), after “adequate time for

discovery,” or at a jury charge conference under section 33.003(b) of the civil practice and

remedies code. Id. at *3 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(b), prohibiting

submission to jury of question regarding conduct by any person without sufficient evidence to

support the submission). Because “there are other opportunities for relators to oppose the RTP

designation,” the relators did not “carr[y] their heavy burden to show they have no adequate

remedy at law.” Id. Accordingly, the court denied the petition for writ of mandamus. Id.

       Maconori Enterprises, however, did not address the untimely designation of an unknown

person under subsection (j) of section 33.004. See id. at *1 (trial court granted motion to designate

lawyer and law firm that negotiated lease and partnership agreement). As we have discussed, the

designation of an unknown person whose criminal act was a cause of the plaintiff’s loss may be

made only under subsection (j), and only “not later than 60 days after the filing of the defendant’s

                                                 –9–
original answer.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(j). If we determined there were

the same “opportunities for relators to oppose the RTP designation” discussed in Maconori

Enterprises, 2018 WL 3039934, at *3, we would “render the pleading deadlines imposed in

subsection (j) meaningless.” Unitec, 178 S.W.3d at 61. And we would permit a party making a late

designation to “obtain a strategic advantage not intended by the legislature.” Id.

       We conclude the trial court abused its discretion by granting Buchanan’s motion for leave

to designate the “unknown gunman” as a responsible third party, and Echols has no adequate

remedy by appeal. Accordingly, we conditionally grant the writ of mandamus. We direct the trial

court to vacate its August 23, 2018 order granting Buchanan’s motion for leave to designate a

responsible third party. The writ will issue only if the trial court fails to comply.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE




181226F.P05




                                                 –10–
