                                    Fourth Court of Appeals
                                            San Antonio, Texas

                                       MEMORANDUM OPINION
                                                No. 04-18-00573-CV

                              IN RE Brandon TORRES and Ernesto Rivera, Jr.

                                         Original Mandamus Proceeding 1

Opinion by:         Marialyn Barnard, Justice

Sitting:            Marialyn Barnard, Justice
                    Rebeca C. Martinez, Justice
                    Patricia O. Alvarez, Justice

Delivered and Filed: October 24, 2018

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           Relators, Brandon Torres and Ernesto Rivera, Jr., assert the trial court abused its discretion

by refusing to rule on their motion to dismiss pursuant to the Texas Tort Claims Act (the “TTCA”).

We conclude relators are entitled to mandamus relief; therefore, we conditionally grant the petition

for writ of mandamus.

                                                 BACKGROUND

           In the underlying litigation, Alissa Garcia and Jose Reynaldo Mendez Garcia (collectively,

the “plaintiffs”) sued the relators 2 for defamation, intentional infliction of emotional distress, and

malicious prosecution-abuse of process. At the time of the alleged acts, relators were Jim Wells


1
  This proceeding arises out of Cause No. 17-05-57235-CV, styled Alissa Garcia and Jose Reynaldo Mendez Garcia
v. Brandon Torres, Ernesto Rivera, Jr., and Coalition Against Insurance Fraud, pending in the County Court, Jim
Wells County, Texas, the Honorable Michael Ventura Garcia presiding.
2
    Plaintiffs sued a third defendant who is not the subject of this mandamus proceeding.
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County deputy sheriffs. Torres was Rivera’s immediate supervisor at the Jim Wells County

Sheriff’s Department. Plaintiffs alleged Torres publicly released false information that Alissa had

confessed she lied in her police report regarding a vehicle stolen from her. Plaintiffs alleged the

false information indicated Alissa had reported her vehicle as stolen and she was arrested for

insurance fraud and for filing a false police report. Plaintiffs also alleged Rivera made the same

false statements. According to plaintiffs, Rivera, acting alone or with Torres, made the accusations

to secure an arrest warrant for Alissa. 3 Both plaintiffs were later arrested. Relators filed their

answer subject to a plea to the jurisdiction pursuant to the TTCA.

         About a month after they filed their plea to the jurisdiction, relators filed a motion to

dismiss all claims against them. In their motion to dismiss, relators argued that because the

plaintiffs’ claims were based on their conduct while acting in the scope of their employment with

the sheriff’s department, they were entitled to dismissal of all claims against them under section

101.106(f) of the TTCA. 4 The trial court heard arguments on the motion to dismiss at a November

29, 2017 hearing. At the end of the hearing, the trial court allowed counsel about a week to file

additional briefing.

         On March 14, 2018, relators’ counsel wrote a letter to the trial court reminding the court it

still had not ruled on the motion to dismiss. The next day, plaintiffs wrote a letter to the trial court

stating the motion to dismiss could be carried with the case.




3
  Plaintiffs’ petition does not state why Jose is a party to the suit or the grounds for his arrest. However, in their
answer, relators stated Rivera swore out an arrest warrant affidavit for Jose based on the allegation that Jose made a
false report to a police officer.
4
 Section 101.106(f) states: “If a suit is filed against an employee of a governmental unit based on conduct within the
general scope of that employee’s employment and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the
employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings
dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the
motion is filed.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).

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       In the meantime, plaintiffs sent discovery requests, which relators resisted. Plaintiffs filed

motions to compel, and relators filed a motion to stay discovery pending a ruling on their motion

to dismiss. The trial court conducted a hearing on the motions on June 27, 2018. At the conclusion

of the hearing, the trial court allowed plaintiffs additional time to file a response to the motion to

stay discovery. Two days later, plaintiffs filed a request for a trial setting on the September-

October docket. On July 9, 2018, the trial court set a docket control conference for July 25, 2018.

Two days later, relators filed an objection to the trial setting request, arguing that the trial court

should first determine the jurisdictional issue. Following the July 25 scheduling conference, the

trial court issued a Scheduling Order and Pre-Trial Instructions.

       On August 1, 2018, the trial court notified the parties that jury selection would begin on

January 28, 2019; plaintiffs and relators are to designate experts by September 30, 2018 and

October 30, 2018, respectively; and the parties must complete all discovery by December 29, 2018.

       On August 15, 2018, relators filed their petition for writ of mandamus and a motion asking

this court to stay the trial court proceedings pending resolution of the petition. This court granted

the stay and requested a response. The plaintiffs filed a response, to which relators replied.

                                   STANDARD OF REVIEW

       Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623

(Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion

when there is no other adequate remedy at law. See 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). To satisfy the clear abuse of discretion standard, the relator must show

“that the trial court could reasonably have reached only one decision.” Liberty Nat’l Fire Ins. Co.

v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker, 827 S.W.2d at 840).



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The relator has the burden of establishing both prerequisites to mandamus relief, and this burden

is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam).

       Consideration of a motion that is properly filed and before the trial court is a ministerial

act, and mandamus may issue to compel the trial court to act. Safety-Kleen Corp. v. Garcia, 945

S.W.2d 268, 269 (Tex. App.—San Antonio 1997, orig. proceeding); In re Blakeney, 254 S.W.3d

659, 661 (Tex. App.—Texarkana 2008, orig. proceeding).

                                             ANALYSIS

       In their response to relators’ petition for writ of mandamus, plaintiffs devote most of their

briefing to their argument that relators were not acting within the course and scope of their

authority and they contend fact questions exist that must be resolved by the finder of fact. Relators

reply that even if this argument is correct—which they do not concede—then the trial court should

deny their motion to dismiss. Relators assert the narrow issue before this court is only whether the

trial court abused its discretion by refusing to rule on their motion. We agree with relators;

therefore, we next address whether relators satisfied their burden to obtain mandamus relief.

       To obtain mandamus relief for the trial court’s refusal to rule on a motion, a relator must

establish: (1) the motion was properly filed and has been pending for a reasonable time; (2) the

relator requested a ruling on the motion; and (3) the trial court refused to rule. In re Sarkissian,

243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding) (mem. op.); In re Hearn, 137

S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding).

       Relators filed their motion to dismiss on July 28, 2017. The trial court conducted a hearing

on the motion to dismiss on November 29, 2017. About three and one-half months later, on March

14, 2018, relators wrote a letter to the trial court reminding the court it still had not ruled on their

motion. On July 9, 2018, the trial court scheduled a docket control conference, and, a few days

later, relators filed an objection arguing the jurisdictional issue must first be determined. On
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August 1, 2018, the trial court scheduled jury selection to begin on January 28, 2019. We conclude

relators have demonstrated that their motion to dismiss was properly filed and presented to the trial

court, was brought to the trial court’s attention with a request for a ruling, and the trial court did

not rule. Therefore, the only remaining issue is whether the trial court had a reasonable time to act

on the motion given the specific circumstances of this case.

       A trial court is required to consider and rule upon a properly-filed motion within a

reasonable time. Safety-Kleen Corp., 945 S.W.2d at 269. Whether a reasonable time for the trial

court to act has lapsed is dependent upon the circumstances of each case. Blakeney, 254 S.W.3d

at 662. The test for determining what time period is reasonable is not subject to exact formulation,

and no “bright line” separates a reasonable time period from an unreasonable one. Id. We examine

a “myriad of criteria” including the trial court’s actual knowledge of the motion, its overt refusal

to act, the state of the court’s docket, and the existence of other judicial and administrative matters

that must be addressed first. In re Chavez, 62 S.W.3d 225, 228-29 (Tex. App.—Amarillo 2001,

orig. proceeding).

       At the November 29, 2017 hearing on the motion to dismiss, plaintiffs’ counsel did not

argue additional time was needed to develop evidence relevant to the resolution of the

jurisdictional issue. At the June 27, 2018 hearing on plaintiffs’ motion to compel and relators’

motion to stay, plaintiffs argued sufficient evidence was adduced at the hearing on the motion to

dismiss to show there are disputed facts the trier of fact, at a trial on the merits, should decide. In

other words, plaintiffs argued the trier of fact should decide the disputed jurisdictional issue of

whether relators were acting within the course and scope of their employment.

       Relators have not provided this court with a copy of the trial court’s docket or whether

there are other judicial and administrative matters that must be addressed first. However, we

should “consider the subject matter of the pending motion to be a pivotal factor in our analysis.”
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In re First Mercury Ins. Co., 13-13-00469-CV, 2013 WL 6056665, at *5 (Tex. App.—Corpus

Christi Nov. 13, 2013, orig. proceeding) (mem. op.) (considering failure to rule on plea to the

jurisdiction and motion to dismiss).      Here, relators’ pending motion to dismiss concerns a

“threshold issue” of whether plaintiffs’ claims should be brought against the governmental entity.

See id. (holding relator’s “pending plea to the jurisdiction and motion to dismiss concerned

threshold issues regarding standing and the trial court’s subject matter jurisdiction over the case”);

see Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993) (holding subject

matter jurisdiction is essential to trial court’s power to decide a case). “The Texas Supreme Court

has instructed us that jurisdictional determinations should be made ‘as soon as practicable.’” First

Mercury Ins., 2013 WL 6056665, at *5 (citing to Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 227 (Tex. 2004)).

                                          CONCLUSION

       We conclude relators satisfied their burden to establish: (1) their motion to dismiss was

properly filed and has been pending for a reasonable time; (2) they requested a ruling on the

motion; and (3) the trial court refused to rule. Therefore, we conditionally grant the petition for

writ of mandamus. The writ will issue only if the trial court fails to rule on relators’ “Motion to

Dismiss” within fifteen days from the date of this opinion.


                                                   Marialyn Barnard, Justice




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