                                         NO. 12-19-00151-CV
                                IN THE COURT OF APPEALS
                   TWELFTH COURT OF APPEALS DISTRICT
                                            TYLER, TEXAS


 IN RE:                                                     §

 CITY OF TATUM, TEXAS,                                      §       ORIGINAL PROCEEDING

 RELATOR                                                    §

                                         MEMORANDUM OPINION
        Relator, the City of Tatum, Texas, filed this original proceeding to challenge an order
authorizing pre-suit discovery under Texas Rule of Civil Procedure 202. 1 We deny the writ.

                                                  BACKGROUND
        In January 2019, Real Party in Interest, Linda C. Peterson, filed a verified amended petition
to perpetuate testimony, in which she sought to take oral depositions and the production of
documents to investigate a potential claim. 2 She specifically requested to take the depositions of
the City’s chief of police and the custodian of records for the City and/or the Tatum Police
Department. Peterson alleged that, on May 7, 2018, she called for an ambulance on behalf of an
ill friend. Peterson stated that when Tatum Police Officer Terry Dillon Loftis subsequently
arrived, he forced himself into her apartment, kissed her, and sexually assault her. She alleged that
(1) the City knew Loftis “exhibited indicators” of this type of behavior both before and after being
hired by the City, (2) the City hired, trained, controlled, supervised, and monitored Loftis, and was
negligent in doing so, (3) the City’s actions were based on an official policy or custom, or lack
thereof, the City actively or constructively knew that a policy or custom existed or did not exist


        1
            Respondent is the Honorable J. Clay Gossett, Judge of the 4th District Court in Rusk County, Texas.
        2
         In December 2018, this Court conditionally granted the City’s petition for writ of mandamus challenging a
2018 order granting Peterson’s request for pre-suit discovery under Rule 202. In re City of Tatum, 567 S.W.3d 800
(Tex. App.—Tyler 2018, orig. proceeding).
and because of the policy or custom, or lack thereof, her constitutional rights were violated, (4)
she anticipated being a party to a lawsuit involving the City, (5) she could not bring a lawsuit at
the time because she did not have the requested information and documents, (6) the City was
negligent in its background investigation before hiring Loftis and its failure to discover his
“proclivity for this behavior” after his hiring, (7) the City failed to perform adequate screening and
“reflected deliberate indifference to the risk posed by Loftis directly causing [Peterson’s] injury,”
(8) the City’s training or hiring procedures were inadequate and the City was “deliberately
indifferent in adopting adequate hiring and training policies,” which directly caused her injury, (9)
the City failed to institute procedures to adequately monitor Loftis and its continued indifference
directly caused her injury, (10) she has not brought or been a party to a suit arising out of the facts
the subject of her petition, and (11) the City, the Tatum Police Department, and Loftis may have
interests adverse to hers in the anticipated lawsuit.
          Peterson anticipated eliciting testimony regarding the Tatum Police Department’s policies
and procedures on the screening of applicants, background checks, qualifications for employment,
the requirement that more than one officer be present when entering a residence, and body cameras
and their availability, and the approximate number of qualified applicants per year. She alleged
that the likely benefit of being allowed to take the depositions to investigate a potential claim
outweighs the burden or expense of the procedure, and the information sought is essential to
deciding the proper forum for further action. She requested that Respondent order the witnesses
to produce discoverable information at the depositions, including any policy, procedure, or training
manuals of the Tatum Police Department, and any personnel records and background checks
regarding Loftis.
          At the hearing on Peterson’s petition, her counsel testified that Loftis was indicted for
sexually assaulting Peterson, and the trial court took judicial notice of the indictment against
Loftis.     During his testimony, counsel expressed that the primary reason for needing the
depositions was to investigate a potential claim or suit because numerous causes of action may or
may not be available, such as a Section 1983 claim in federal court. He explained that a Section
1983 claim requires that the officer acted under color of state law. Counsel testified as follows:


          …before a 1983 action can be sustained, the plaintiff needs to know if there’s any basis for it.
          Otherwise, it would be a waste of judicial resources and would be a burden on both sides and would
          prevent or delay justice if it was filed without a basis.

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         The taking of this deposition would allow a determination of whether or not there was a basis for a
         1983 action. If there is no basis of jurisdiction and all the costs associated with the requirements of
         a 1983 litigation or at least the additional cost to prepare and litigate a Section 1983 action could be
         avoided. The way that these go, my experience in both prosecuting and defending these cases is, is
         that some of the bases for federal jurisdiction include areas such as training deficiencies, inadequate
         background checks, and other matters that are coupled with a pattern or patterns of activity that
         would lead to a federal jurisdiction under a sustainable Section 1983 action.

         Because the federal courts tend to bifurcate discovery in Section 1983 actions involving state actors
         in due questions of first discovering the issue of qualified immunity. And so the federal courts, upon
         motion of defendant, which they always routinely file, will bifurcate the action and say, okay, well,
         first, discovery is going to be limited to the question of qualified immunity….


Counsel explained that the parties then conduct discovery and depositions solely as to qualified
immunity, which may include returning to court for resolution of whether a question relates to that
particular issue. He testified that upon resolution of the qualified immunity question, the parties
then conduct additional discovery and depositions. According to counsel, presuit depositions and
production of documents would allow him to determine whether federal jurisdiction exists and
avoid the “tens, if not hundreds, of thousands of dollars of expense on the defendant and all of that
burden and prevent a potential denial or delay of justice.”
         Regarding state law causes of action, counsel testified that the depositions are necessary to
an election of remedies issue under Section 101.106 of the civil practice and remedies code. 3
Counsel testified that:


         …And 101.106 says it is an election of remedies and that the filing of a suit under this chapter
         against a governmental unit constitutes an irrevocable decision by the plaintiff, and immediately
         and forever bars any suit of recovery by the plaintiff against any individual employee of the
         governmental unit regarding the same subject matter.

        …but if you file a suit against the governmental unit and the employee at the same time, then the
        employee is immediately dismissed on the filing of the motion by the governmental unit. And so as
        we sit here right now without knowing the questions of whether or not and to what extent there may
        be liability on the governmental unit, the plaintiff is put to an almost impossible election. If you file
        suit against both trying to be safe, the employee is immediately dismissed.




         3
          A suit against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding
the same subject matter. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (West 2019). A suit against any employee
of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit
or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental
unit consents. Id. § 101.106(b). If suit is filed against both the governmental unit and any of its employees, the
employees shall immediately be dismissed on motion by the governmental unit. Id. § 101.106(e).
                                                            3
       Then if it turns out, when you actually get to do discovery in the case, that there’s no liability on the
       governmental unit, the employee is gone, you can't then sue him. And so that is the exact definition
       of a denial of justice.

       If on the other hand, you sue only the employee, because you’re not sure that you can get and
       establish liability on the governmental unit, the minute you file suit on the employee alone, the city
       is released. And then when you go through discovery of that case and you get the discovery out that
       I’m seeking right now, you may find that there was tons of grounds for liability on the governmental
       unit, the one who has the insurance policy. But because you could not do that without having a basis
       to do it, you have forever released them when you file suit against the individual employee without
       adding them.

       So the plaintiff in that situation is put to an absolute Hobson’s choice….that is another grounds
       where allowing the taking of this deposition to investigate these claims outweighs the burden or
       expense of the procedure. This is going to take a morning. It will take the production of a limited
       number of records. And then those questions that will take tens or hundreds of thousands of dollars
       to litigate will be decided as to what route the plaintiff in this case needs to take.

On cross-examination, counsel acknowledged that Peterson pleaded that she anticipates being a
party to a lawsuit against the City. Additionally, the City presented an affidavit from the Chief of
Police, in which she stated that she is also the custodian of records and will make herself available
for a deposition upon reasonable notice if a lawsuit is filed against the City.
       Respondent granted Peterson’s amended petition to take presuit depositions, finding that
the likely benefit of allowing Peterson to take the requested depositions to investigate a potential
claim outweighs the burden or expense of the procedure. Respondent ordered that the depositions
of the chief of police and the custodian of records shall be taken within forty-five days. Respondent
further ordered the production of any policy, procedure, or training manuals of the Tatum Police
Department, and any personnel records and background checks regarding Loftis. On April 22, the
City filed this proceeding and a motion for emergency relief, in which it sought imposition of a
stay. This Court granted a stay of the Rule 202 depositions pending further order of this Court.


                                      PREREQUISITES TO MANDAMUS
       Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623
(Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no
adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator
has the burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex.
App.—Tyler 2014, orig. proceeding.). “Presuit deposition orders are appealable only if sought
from someone against whom suit is not anticipated[.]” In re Jorden, 249 S.W.3d 416, 419 (Tex.

                                                          4
2008) (orig. proceeding). Accordingly, an improper order under Rule 202 may be set aside by
mandamus when sought from an anticipated defendant. In re Wolfe, 341 S.W.3d 932, 933 (Tex.
2011) (orig. proceeding); Jorden, 249 S.W.3d at 419.


                                   AVAILABILITY OF MANDAMUS
        The City contends that Respondent abused his discretion by granting the Rule 202
depositions because (1) Peterson may not request presuit depositions for both reasons set forth in
Rule 202, (2) statements in Peterson’s verified petition affect the findings to be made, (3) Peterson
anticipates a lawsuit under Rule 202.1(a), which forecloses the need for depositions to investigate
a potential claim, (4) Respondent failed to make the required finding, and (5) the record does not
support the required finding.
Standard of Review and Applicable Law
        A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable
as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply
the law. Cerberus Capital, 164 S.W.3d at 382. This standard has different applications in different
circumstances. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When
reviewing the trial court’s resolution of factual issues or matters committed to its discretion, we
may not substitute our judgment for that of the trial court. Id. The relator must show that the trial
court could reasonably have reached only one conclusion. Id. at 840. Our review of the trial
court’s determination of the legal principles controlling its ruling is much less deferential. Id. This
is because a trial court has no discretion in determining what the law is or applying the law to the
facts. Id.
        Presuit discovery is not intended for routine use; it creates practical and due process
problems because discovery demands are made of individuals or entities before they are told what
the issues are. Jorden, 249 S.W.3d at 423. Thus, “[c]ourts must strictly limit and carefully
supervise presuit discovery[.]” Wolfe, 341 S.W.3d at 933. A person may petition the court for an
order authorizing the taking of a deposition on oral examination or written questions for either of
two purposes: (a) to perpetuate or obtain the person’s own testimony or that of any other person
for use in an anticipated suit; or (b) to investigate a potential claim or suit. TEX. R. CIV. P. 202.1(a)-
(b). Rule 202.1’s plain language indicates that a party may request presuit depositions for either
of these two distinct and separate reasons, but not both. In re City of Tatum, 567 S.W.3d 800,

                                                    5
805 n.3 (Tex. App.—Tyler 2018, orig. proceeding). “Which path a petitioner chooses dictates
what must be done in the case.” In re Denton, No. 10-08-00255-CV, 2009 WL 471524, at *1
(Tex. App.—Waco Feb. 25, 2009, orig. proceeding) (mem. op.).
       A trial court must order a pre-suit deposition to be taken only if it makes one of two
findings: (1) allowing the petitioner to take the requested deposition may prevent a failure or delay
of justice in an anticipated suit or (2) the likely benefit of allowing the petitioner to take the
requested deposition to investigate a potential claim or suit outweighs the burden or expense of
the procedure. TEX. R. CIV. P. 202.4(a); Jorden, 249 S.W.3d. at 423. If a party seeks presuit
depositions for use in an anticipated suit, she must show that allowing her to take the requested
depositions may prevent a failure or delay of justice in an anticipated suit. See TEX. R. CIV. P.
202.4(a)(1); see also In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374,
at *4 (Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem. op.). If a party seeks presuit
depositions to investigate a potential claim or suit, she must show that the likely benefit of allowing
her to take the requested depositions to investigate a potential claim outweighs the burden or
expense of the procedure. See TEX. R. CIV. P. 202.4(a)(2); see also In re Denton, 2009 WL 471524
at *2. Rule 202.4(a) “does not permit the findings to be implied from support in the record.” In
re Does, 337 S.W.3d 862, 865 (Tex. 2011). A trial court has no discretion to order presuit
discovery without the required findings and abuses its discretion by doing so. In re Cauley, 437
S.W.3d 650, 657 (Tex. App.—Tyler 2014, orig. proceeding).
Analysis
       We first must determine on which ground Peterson sought to take presuit depositions. In
her petition’s prayer for relief, Peterson asked Respondent to order presuit discovery and find that
“(l) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice
in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested
deposition to investigate a potential claim outweighs the burden or expense of the procedure.” The
plain language of Rule 202.1 indicates that Peterson could petition the court for an order
authorizing depositions on oral examination or written questions “either: (a) to perpetuate or obtain
the person’s own testimony or that of any other person for use in an anticipated suit; or (b) to
investigate a potential claim or suit.” TEX. R. CIV. P. 202.1 (emphasis added); see also City of
Tatum, 567 S.W.3d at 805 n.3. Accordingly, the City argues that Peterson cannot request presuit
depositions for both reasons, and that the record clearly demonstrates that Peterson seeks presuit

                                                  6
depositions for use in an anticipated suit. To support this contention, the City points to the
following: (1) statements in Peterson’s petition that she “needs to perpetuate the testimony of these
witnesses…,” “anticipates she will be a party to a lawsuit involving the City of Tatum,” and seeks
“permission to take a deposition by oral examination to perpetuate the testimony…,” (2) counsel’s
testimony during the hearing that “it is necessary to perpetuate the depositions of various persons,
in that the City of Tatum, Texas, has employees who were employed at the time of the hiring of
this police officer, one of whom has left and some others may leave before they’re able to be
deposed in this case and may be outside the subpoena range of this Court, and it’s necessary to
perpetuate that testimony[,]” (3) counsel’s testimony during the hearing that Peterson anticipates
being a party to a lawsuit involving the City, and (4) pleadings, testimony, and arguments that
outline the causes of action to be asserted against the City. 4 Thus, the City maintains that
Peterson’s anticipation of a law suit forecloses investigation of a potential claim. We disagree.
         Although the petition, as well as counsel’s statements and testimony, indicate some
intermingling of the two grounds set forth in Rule 202.1, the “nature of Rule 202 as an
investigatory tool necessitates some breadth of pleading and dictates that we liberally construe the
petition.” In re East, 476 S.W.3d 61, 66 (Tex. App.—Corpus Christi 2014, orig. proceeding).
Here, Peterson’s petition specifically alleged that the reason she sought oral depositions and the
production of documents was to “investigate a potential claim by Petitioner” and the “likely benefit
of allowing the petitioner to take the requested deposition to investigate a potential claim
outweighs the burden or expense of the procedure.” At the hearing, counsel expressly informed
Respondent that Peterson’s primary purpose for seeking presuit depositions is to investigate a
potential claim or suit. See TEX. R. CIV. P. 202.1(b). And while some of counsel’s testimony
addresses anticipation of a lawsuit, his testimony, as set forth above, clearly focused on the need
for presuit depositions to investigate potential claims and the burden or expense that would result
if not allowed to do so. Construing Peterson’s petition liberally, we conclude that she sought
presuit depositions to investigate a potential claim or suit. 5

         4
          The City also refers this Court to statements in pleadings and the reporter’s record from 2018, which predate
Peterson’s 2019 amended petition, the hearing on that petition, and Respondent’s order granting that petition. In the
current proceeding, this Court is only concerned with the 2019 petition, reporter’s record, and order. See Bos v. Smith,
556 S.W.3d 293, 306 (Tex. 2018) (“[a]mended pleadings supersede prior pleadings”).

         5
           Additionally, when presuit depositions are sought from an anticipated defendant, Rule 202 orders are
considered ancillary to the subsequent suit. In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding). If
Peterson’s petition did not allege anticipation of a suit against the City, the City’s petition for writ of mandamus would
                                                            7
        Accordingly, Peterson had the burden of showing that the likely benefit of allowing her to
take the requested depositions to investigate a potential claim outweighs the burden or expense of
the procedure. See TEX. R. CIV. P. 202.4(a)(2); see also Denton, 2009 WL 471524, at *2. In doing
so, Peterson was required to introduce evidence to support such a finding. See Contractor’s
Supplies, 2009 WL 2488374, at *5. And if presented with sufficient evidence, Respondent was
required to find that the likely benefit of allowing Peterson to take the requested deposition to
investigate a potential claim outweighs the burden or expense of the procedure, before granting
Peterson’s petition. See Cauley, 437 S.W.3d at 657; see also Denton, 2009 WL 471524, at *2;
TEX. R. CIV. P. 202.4(a)(2).
        As set forth above, Peterson presented counsel’s testimony as to the reasons why presuit
depositions are necessary to investigate a potential claim and would outweigh the burden or
expense of the procedure. Counsel explained that Rule 202 depositions would aid in determining
which claims to assert. For instance, with respect to a Section 1983 claim, conducting presuit
depositions would eliminate the lengthy process and expense associated with determining qualified
immunity, thereby avoiding a waste of judicial resources, and possibly eliminating the claim
altogether if there is no basis for it. Counsel also testified that Rule 202 depositions would aid a
determination of which parties to assert claims against, given the election of remedies identified
in Section 101.106 of the civil practice and remedies code. Thus, conducting presuit depositions
would assist in assessing liability and enable Peterson to choose the appropriate defendant without
the expense of later answering that question via litigation.
        In light of counsel’s testimony, we conclude that Peterson presented evidence from which
Respondent could reasonably conclude that “the likely benefit of allowing the petitioner to take
the requested deposition to investigate a potential claim outweighs the burden or expense of the
procedure.” See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (trial court does
not abuse discretion if some evidence reasonably supports court’s decision). This is particularly
true given that the Chief of Police is also the custodian of records; thus, any burden or expense
would be minimal and is certainly outweighed by the likely benefit of allowing presuit discovery
to investigate a potential claim. And, public policy favors the discovery of information. In re
Johnston, No. 06-10-00095-CV, 2010 WL 3930603, at *4 (Tex. App.—Texarkana Oct. 8, 2010,


not be appropriate for our review. See id. (presuit deposition orders are appealable if sought from someone against
whom suit is not anticipated).
                                                        8
orig. proceeding) (mem. op.) (denying petition for writ of mandamus challenging order granting
presuit deposition). Accordingly, we conclude that Respondent did not abuse his discretion when
finding that the likely benefit of allowing Peterson to take the requested depositions to investigate
a potential claim outweighs the burden or expense of the procedure, and acted within his discretion
when granting Peterson’s Rule 202 petition.


                                                  DISPOSITION
         Having determined that Respondent did not abuse his discretion by ordering the presuit
depositions requested by Peterson in her Rule 202 petition, we conclude that the City fails to
demonstrate an entitlement to mandamus relief. Therefore, we deny the writ. We lift our stay of
proceedings ordered on April 22, 2019.


                                                                GREG NEELEY
                                                                  Justice




Opinion delivered May 15, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)


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                                   COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT


                                              MAY 15, 2019

                                         NO. 12-19-00151-CV



                                    CITY OF TATUM, TEXAS,
                                            Relator
                                              V.

                                     HON. J. CLAY GOSSETT,
                                            Respondent


                                        ORIGINAL PROCEEDING

               ON THIS DAY came to be heard the petition for writ of mandamus filed by the
City of Tatum, Texas; who is the relator in appellate cause number 12-19-00151-CV and a party
in trial court cause number 2018-205, pending on the docket of the 4th Judicial District Court of
Rusk County, Texas. Said petition for writ of mandamus having been filed herein on April 22,
2019, and the same having been duly considered, because it is the opinion of this Court that the
writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said
petition for writ of mandamus be, and the same is, hereby denied. The stay of proceedings ordered
on April 22, 2019, is lifted.
                    By per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
                                                     10
