Opinion issued July 30, 2019




                                       In The

                               Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                               NO. 01-19-00201-CV
                            ———————————
     IN RE THE UNIVERSITY OF TEXAS MD ANDERSON CANCER
                        CENTER, Relator



            Original Proceeding on Petition for Writ of Mandamus


                          MEMORANDUM OPINION

      Relator the University of Texas MD Anderson Cancer Center (MDA) seeks a

writ of mandamus to compel the trial court to rule on MDA’s plea to the jurisdiction.1

We conditionally grant the petition.




1
      The underlying case is David Deville v. The University of Texas MD Anderson
      Cancer Center, cause number 2017-46576, pending in the 165th District Court of
      Harris County, Texas, the Honorable Ursula A. Hall presiding.
                                    Background

      The underlying case is a disability discrimination and retaliation claim against

relator MDA. MDA filed a plea to the jurisdiction on November 8, 2017. Real party

in interest, David Deville responded and an oral hearing was held on December 7,

2017. No ruling issued. On May 1, 2018, MDA sent a letter to the trial court,

asserting that MDA’s legal assistant had telephoned the trial court twice in March

2018, but received no reply. MDA stated that the plea was ripe for a ruling and that

MDA would provide additional briefing if the trial court required.

      On May 24, 2018, MDA filed a motion to stay discovery in the trial court

pending a ruling on the plea to the jurisdiction. Deville responded, asserting that the

trial court should permit him to conduct discovery to respond to the evidence

presented by MDA before ruling on the plea. The trial court did not rule on the

motion to stay discovery.

      Deville filed a supplemental brief in support of its response to the plea in July

2018, and MDA replied to this response in August 2018. MDA wrote to the trial

judge again on August 30, 2018, requesting a ruling on the plea. A week later,

Deville’s counsel wrote a letter to the judge asking that she postpone ruling on the

plea so that he could conduct discovery to present evidence in opposition to the plea.

No ruling issued on the plea or on the motions or requests of the parties.




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      On November 8, 2018, MDA filed an opposed motion for a ruling on its plea

to the jurisdiction. Deville responded, stating that MDA and Deville had agreed to

postpone discovery until the trial court ruled on the motion to stay discovery, but

that no ruling had issued. As a result, Deville stated that no discovery had yet been

conducted. Moreover, Deville asserted that he now asked the trial court to deny

MDA’s motion to stay discovery and he filed an opposed motion to reopen

discovery. No ruling issued on these requests. Relator subsequently filed this petition

for writ of mandamus.

                                   Failure to Rule

      To be entitled to mandamus relief, a petitioner must show both that the trial

court abused its discretion and that there is no adequate remedy by appeal. In re

Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). “A

trial judge has a legal, nondiscretionary duty to consider and rule on properly filed

motions within a reasonable time.” In re Ramirez, 994 S.W.2d 682, 683 (Tex.

App.—San Antonio 1998, orig. proceeding) (citing In re Henry, No. 04-05-00588-

CV, 2005 WL 2085242, at *1 (Tex. App.—San Antonio Aug. 31, 2005, orig.

proceeding) (per curiam) (mem. op.)). To show an abuse of discretion in refusing to

rule, the relator must show (1) the trial court had a “legal duty to perform a

nondiscretionary act;” (2) the relator made a demand for performance; and (3) the

trial court refused the request. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—


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Houston [1st Dist.] 1992, orig. proceeding) (per curiam). Once a motion is properly

filed and pending, the act of considering and ruling on that motion is a ministerial

one and an appellate court may grant mandamus relief to compel the trial judge to

act. See Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.—San

Antonio 1997, orig. proceeding).

      MDA filed its plea to the jurisdiction more than a year ago, and it was

considered during a hearing held more than a year ago. MDA has periodically

reiterated its request for a ruling on the plea, and the trial court still has not ruled.

The plea was properly filed and continues to be pending. Therefore, the trial court

had a duty to act. MDA continued to request a ruling and the trial court has not ruled.

      Deville responds that there was no abuse of discretion in failing to rule on the

plea because no discovery had been conducted. In support of this argument, Deville

cites Campos v. Texas Dept. of Criminal Justice, 385 S.W.3d 35, 42 (Tex. App.—

Corpus Christi-Edinburgh 2009, no pet.) and Thurman v. Harris County, No. 01-07-

00235-CV, 2009 WL 1635430, at *7 (Tex. App.—Houston [1st Dist.] June 11, 2009,

pet. denied). In both of these cases, the trial court had granted the pleas to the

jurisdiction. See Campos, 385 S.W.3d at 38–39; Thurman, 2009 WL 1635430, at *1.

In Campos, the appellate court reversed and remanded in part because, under the

facts of that case, resolution of the jurisdictional issue was best resolved after

discovery had been conducted. Campos, 385 S.W.3d at 42. In Thurman, the appellate


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court reversed and remanded because the defendant’s refusal to comply with

discovery requests prevented the appellant from proving facts that might waive

immunity. See Thurman, 2009 WL 1635430, at *7.

      In the trial court, Deville opposed MDA’s motion to stay discovery pending a

ruling on the plea to the jurisdiction. Deville argued that the trial court should permit

him to conduct discovery to respond to the evidence presented by MDA before ruling

on the plea. Deville filed a supplemental brief in support of his response to the plea.

And Deville’s counsel wrote a letter to the judge asking that she postpone ruling so

that he could conduct discovery, but the trial court has never ruled on any of these

motions or requests. Deville asserts that MDA has refused to respond to discovery,

because it is waiting for the trial court to rule on its motion to stay discovery.

      Because MDA has allegedly not responded to discovery, the trial court cannot

be holding her ruling for discovery to be conducted, as the Campos court stated was

required under the facts of that case. 385 S.W.3d at 42. Instead, little is occurring in

the trial court while the parties wait for the trial court to rule. Relator has not asked

this Court to grant relief concerning the trial court’s refusal to rule on the motion to

stay discovery. Relator has asked this Court to review the trial court’s failure to rule

on the plea to the jurisdiction.

      A delay of more than 12 months in ruling on a plea to the jurisdiction is an

abuse of discretion. See City of Galveston v. Gray, 93 S.W.3d 587, 592–93 (Tex.


                                           5
App.—Houston [14th Dist.] 2002, orig. proceeding). In Gray, the trial court had

refused to rule for thirteen months on pleas to the jurisdiction filed by the city and

county. Id. at 589. The city and county filed an interlocutory appeal, claiming

implicit denial of their pleas, and a petition for writ of mandamus, challenging the

trial court’s failure to rule. See id. at 590. The appellate court dismissed the appeal

finding no “implicit” denial of the plea, and instead, granted mandamus relief. See

id. at 590, 593. The appellate court found that the city and county had no adequate

remedy by appeal and stood to “lose their substantial rights to an interlocutory appeal

specifically provided by the Legislature with the purpose of avoiding the expense of

pretrial discovery and attending mediation.” Id. at 592. The policy for an

interlocutory appeal of an order granting or denying a plea to the jurisdiction was to

prevent the expense to the State in trying a case if it were immune from suit. See id.

      In this case, as in Gray, more than a year has passed with no ruling on the plea

to the jurisdiction and MDA has no adequate remedy by appeal until the trial court

rules. Because it did not rule on the plea after it was presented and after MDA

repeatedly requested a ruling, the trial court abused its discretion.

                         No Adequate Remedy by Appeal

      Although Deville argues that MDA has an adequate remedy because it can

appeal if the trial court denies the plea after discovery is complete, no appeal can

occur until the trial court rules on the plea. Moreover, Deville does not state what


                                           6
steps he has taken to obtain the discovery responses he claims to need, other than to

respond to MDA’s filings.

      As the court stated in Gray, if MDA must go to trial without a ruling on its

plea, it will “lose [its] substantial rights to an interlocutory appeal specifically

provided by the Legislature with the purpose of avoiding the expense of pretrial

discovery and attending mediation.” Id. at 592. Thus, MDA has no adequate remedy

by appeal because, without a ruling, it is unable to avail itself of the statutory right

to an interlocutory appeal. See id; TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).

                                     Conclusion

      Because the trial court has abused its discretion in refusing to rule on the plea

to the jurisdiction, and MDA has no adequate remedy by appeal, we conditionally

grant the petition for writ of mandamus. The writ will issue only if the trial court

fails to rule on MDA’s plea to the jurisdiction within 30 days of the date of this

opinion.

                                   PER CURIAM

Panel consists of Justices Keyes, Kelly, and Goodman.




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