                                                                                     ACCEPTED
                                                                                13-14-00481-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                           1/23/2015 5:39:15 PM
                                                                              DORIAN RAMIREZ
                                                                                         CLERK

                         No. 13-14-000481-CV

                                                       FILED IN
            IN THE THIRTEENTH COURT OF   13th COURT OF APPEALS
                                         APPEALS
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                    CORPUS CHRISTI, TEXAS 1/23/2015 5:39:15 PM
                                                  DORIAN E. RAMIREZ
                                                       Clerk
    BRETT WILLIAM BOSTIAN, LYNDA ANN DE LEON, RYAN
           ELIZONDO, AND DOYNE SCOTT ELLIFF,
          CORPUS CHRISTI INDEPENDENT SCHOOL
                 DISTRICT EMPLOYEES,
                                   Appellants
                                  v.

                        JOSEPHINE LIMON,
                                               Appellee


 On Appeal from Nueces County Court of Law No. 4, Nueces County, Texas
                   Cause Number 2013CCV-61773-4


REPLY BRIEF OF APPELLEE’S RESPONSE BRIEF TO APPELLANTS
          BRETT WILLIAM BOSTIAN, LYNDA ANN
   DE LEON, RYAN ELIZONDO, AND DOYNE SCOTT ELLIFF

                                    Philip Fraissinet
                                    State Bar No. 00793749
                                    Bradley J. Domangue
                                    State Bar No. 24065156

                                    Thompson & Horton LLP
                                    3200 Southwest Freeway, Suite 2000
                                    Houston, Texas 77027
                                    Telephone: (713) 554-6743
                                    Telecopy: (713) 583-9668
                                    pfraissinet@thompsonhorton.com

                                    ATTORNEYS FOR APPELLANTS
                                         TABLE OF CONTENTS

                                                                                                                Page(s)
TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iii

I.      Standard of Review ..................................................................................... 1-4

        A. A ruling regarding Rule 202 depositions is reviewed
           de novo when it involves the immune status of a party
           raised in a plea to the jurisdiction .......................................................... 1-3

        B. Limon relies on an incorrect discretionary review standard ................. 3-4

II.     The trial court failed to properly consider immunity
        issues in granting the Rule 202 Depositions ............................................... 5-11

        A. Contrary to Limon’s contention, a party’s assertion
            of immunity is very much relevant to whether a trial court
            has jurisdiction to order Rule 202 depositions ...................................... 5-9

        B. Cases relied on by Limon support immunity
            protections under Rule 202 proceedings ............................................. 9-11

III. Limon did not carry her burden to demonstrate that
     Rule 202 depositions are necessary.......................................................... 11-15

PRAYER .................................................................................................................. 16

CERTIFICATE OF SERVICE ................................................................................ 17

CERTIFICATE OF COMPLIANCE ......................................................................... 1




                                                            ii
                                   TABLE OF AUTHORITIES

                                                                                                      Page(s)

Cases
City of Dallas v. Dallas Black Fire Fighters Ass’n,
   353 S.W.3d 547 (Tex. App. 2011, no pet.)...............................................1, 2, 3, 8
City of Houston v. U.S. Filter Wastewater Group, Inc.,
   190 S.W. 3d 242 (Tex. App. – Houston [1st Dist.] 2006) ..........................2, 9, 10
Cnty. of Cameron v. Brown,
  80 S.W.3d 549 (Tex. 2002)................................................................................... 2

Combs v. Texas Civil Rights Project,
  410 S.W.3d 529 (Tex. App. – Austin 2013, rev. denied) ............................passim
In re East,
    No. 13-14-00317-CV, 2014 WL 4248018 (Tex.App. – Corpus
    Christi, August 22, 2014)..............................................................................12, 14
In re Jorden,
    249 S.W. 3d 416 (Tex. 2008) ............................................................................. 12

M.D. Anderson Cancer Center v. Tcholakian,
  No. 01—11—00754—CV 2012 WL 4465349 (Tex. App. –
  Houston [1st Dist.] Sept. 27, 2012, no pet.) ...............................................2, 9, 10
Mission Consolidated Indep. Sch. Dist. v. Garcia,
  253 S.W.3d 653 (Tex. 2008) .............................................................................. 15

Office Employees International Union Local 277 v. Southwestern
   Drug Corporation,
   391 S.W. 2d 404 (Tex. 1965) ............................................................................... 3

Patton Boggs LLP v. Mosely,
   394 S.W.3d 565 (Tex. App. – Dallas, 2011) ..............................................3, 4, 12

Prairie View A&M Univ. v. Chatha,
   381 S.W.3d 500 (Tex. 2012) .............................................................................. 15




                                                       iii
In re Reassure America Life Ins. Co.,
    421 S.W. 3d 165 (Tex. App. – Corpus Christi, 2013) ........................................ 12

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
   852 S.W.2d 440 (Tex. 1993) ................................................................................ 3

Tex. Dep’t of Transp. v. Jones,
   8 S.W.3d 636 (Tex. 1999)..................................................................................... 3

Tex. Dept. of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004) ................................................................................ 2

Tex. Natural Res. Conservation Comm’n v. IT—Davy,
   74 S.W.3d 849 (Tex. 2002)................................................................................... 2

Walker v. Packer,
  827 S.W. 2d 833 (Tex. 1992) ............................................................................... 4

In re Wolfe,
    341 S.W.3d 932................................................................................................... 12

Statutes
TEX. GOV’T CODE § 552.001, et seq. ....................................................................... 15

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 ............................................7, 10, 12

TEX. CIV. PRAC. & REM. CODE, § 101.051 ................................................................. 8
TEX. CIV. PRAC. & REM. CODE, § 51.014 ............................................................... 1, 4

TEX. R. CIV. P. 202 ............................................................................................passim
TEX. R. APP. P. 9.4 ................................................................................................... 17




                                                           iv
                                        ARGUMENT

    I.   Standard of Review
         A.    A ruling regarding Rule 202 depositions is reviewed de novo when
               it involves the immune status of a party raised in a plea to the
               jurisdiction
         This is an interlocutory appeal of the trial court’s denial of the CCISD

Employees’ Plea to the Jurisdiction under Section 51.014 of the Texas Civil

Practice and Remedies Code.             Although the trial court granted the Rule 202

depositions sought by Limon, the granting of the depositions was possible only

because the trial court denied the CCISD Employees’ Plea to the Jurisdiction.

(CR p.58)1

         Appellate courts reviewing pleas to the jurisdiction related to the granting or

denial of Rule 202 petitions consistently apply a de novo standard of review.

See, e.g., Combs v. Texas Civil Rights Project, 410 S.W.3d 529, 533 (Tex. App. –

Austin 2013, rev. denied) (appellate court, in interlocutory appeal regarding the

granting of Rule 202 depositions stated, “Whether a trial court has subject-matter

jurisdiction is a matter of law we review de novo”); City of Dallas v. Dallas Black

Fire Fighters Ass’n, 353 S.W.3d 547, 551 (Tex. App. 2011, no pet.)(another

appellate court, similarly reviewing the granting of a Rule 202 petition in an

interlocutory appeal involving an immunity defense also stated, “Whether a trial


1
 “CR” shall be used to refer to the Clerk’s Record in this case, and “RR” shall be used to refer to
the Reporter’s Record in this case.

                                                 1
court has subject matter jurisdiction is a matter of law that is reviewed de novo”).

A de novo review was applied in the very cases cited in Limon’s brief that

involved a party’s immunity claim raised in a plea to the jurisdiction. See M.D.

Anderson Cancer Center v. Tcholakian, No. 01—11—00754—CV 2012 WL

4465349, * 2 (Tex. App. – Houston [1st Dist.] Sept. 27, 2012, no pet.)(“Because

subject-matter jurisdiction represents a legal question, we review the trial court’s

ruling on a plea to the jurisdiction de novo”); City of Houston v. U.S. Filter

Wastewater Group, Inc., 190 S.W. 3d 242, 244-45 (Tex. App. – Houston [1st

Dist.] 2006) (reviewed trial court’s decision of a plea to the jurisdiction of a Rule

202 petition under de novo standard of review).

      As such, it is well established that when a lower court denies a respondent’s

plea to the jurisdiction as part of its ruling on a Rule 202 petition, the reviewing

principles are the same as those generally applicable to jurisdictional pleas.

Whether the trial court has subject matter jurisdiction is a matter of law that is

reviewed de novo by the appellate court. Tex. Dept. of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004); Tex. Natural Res. Conservation

Comm’n v. IT—Davy, 74 S.W.3d 849, 855 (Tex. 2002); City of Dallas, 353 S.W.3d

at 551. In reviewing the issue de novo, the appellate court does not look to the

merits of the case, but considers only the pleadings and evidence relevant to the

jurisdictional inquiry. See Miranda, 133 S.W.3d at 227; Cnty. of Cameron v.


                                         2
Brown, 80 S.W.3d 549, 555 (Tex. 2002); see also City of Dallas, 353 S.W.3d at

551.

       Moreover, the plaintiff (or in this case, the petitioner) has the burden of

alleging facts that affirmatively demonstrate the court’s jurisdiction to hear the

cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993). If a plaintiff fails to plead a cause of action for which immunity has been

waived, the court has no jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d

636, 637 (Tex. 1999).

       B.    Limon relies on an incorrect discretionary review standard

       Limon argues that the standard of review is an “abuse of discretion”

standard. See “Reply Brief of Appellee Josephine Limon” at p.3. However, the

“abuse of discretion” standard applies to mandamus relief regarding a trial court’s

Rule 202 ruling that does not involve a jurisdictional issue. The cases cited by

Limon in support of her contention involve private, non-immune parties seeking or

contesting Rule 202 decisions against other private entities and do not involve

governmental entities, claims of immunity, or pleas to the jurisdiction. See, e.g.,

Office Employees International Union Local 277 v. Southwestern Drug

Corporation, 391 S.W. 2d 404 (Tex. 1965)(Union seeks Rule 202 depositions of

private corporation; Supreme Court rules that it does not have jurisdiction to hear

the case because the order of the trial court is not appealable.); Patton Boggs LLP

                                        3
v. Mosely, 394 S.W.3d 565 (Tex. App. – Dallas, 2011)(Former employee seeks

Rule 202 depositions from former employer, a law firm; court grants writ of

mandamus and denies Rule 202 depositions because the former employee did not

provide enough evidence and the trial court abused its discretion).

      Cases cited by Limon specifically state that mandamus is only appropriate

when no other remedy is available through the appellate process.           Walker v.

Packer, 827 S.W. 2d 833 (Tex. 1992) (Parents seek Rule 202 depositions from

private hospital; court denies parents’ writ of mandamus because an available

appellate procedure is available); Patton Boggs LLP, 394 S.W.3d at 569 (Writ of

Mandamus is appropriate if the relator has no adequate appellate remedy).

      In the case before this Court, the CCISD Employees are expressly appealing

the lower court’s denial of a plea to the jurisdiction, and under § 51.014 of the

TEXAS CIVIL PRACTICE AND REMEDIES CODE, an interlocutory appeal is appropriate

when a county or district court has denied a party’s plea to the jurisdiction.

(“A person may appeal from an interlocutory order of a district court, county court

at law, statutory probate court, or county court that . . . grants or denies a plea to

the jurisdiction by a governmental unit.”). Because the CCISD Employees have

exercised their right to a direct interlocutory appeal, mandamus relief is not at

issue. As such, a de novo rather than discretionary review standard is appropriate.




                                          4
II.    The trial court failed to properly consider immunity issues in granting
       the Rule 202 Depositions

       A.     Contrary to Limon’s contention, a party’s assertion of immunity
              is very much relevant to whether a trial court has jurisdiction to
              order Rule 202 depositions

       Limon states that “Appellants’ claims of immunity are irrelevant to the trial

court’s analysis” concerning the propriety of Rule 202 depositions.      See “Reply

Brief of Appellee Josephine Limon” at p.3.         This assertion, fundamental to

Limon’s arguments, flies directly in the face of cases cited by both the CCISD

Employees and Limon herself. Those cases consistently hold that governmental

immunity applies to Rule 202 proceedings unless the subject matter presented in

the Rule 202 petition would support claims that are not barred by immunity. See,

e.g., Combs, 413 S.W.3d at 537 (“Nevertheless, because the Plaintiffs have failed

to sufficiently allege facts demonstrating that any relief sought would not be barred

by sovereign immunity, we cannot conclude that the purpose of the depositions of

the State Defendants, even in part, is to investigate a potential ultra vires claim

over which the trial court would have jurisdiction.”)        Without affirmatively

pleading elements showing a trial court has jurisdiction over Rule 202 proceedings

involving a governmental entity and its officials, the trial court does not have the

ability to consider the proceedings because it is outside the trial court’s

jurisdiction. Id.




                                         5
       In Combs, petitioners sought to take Rule 202 depositions of the Texas

Comptroller and another state official concerning an alleged breach of security

regarding private information held by the Comptroller’s office. Combs, 410 S.W.

3d at 531. As in this case, the trial court denied the Comptroller’s assertion of

immunity and granted the petition.        Id.   The Comptroller, like the CCISD

Employees, filed an interlocutory appeal concerning the denial of their plea to the

jurisdiction. Id. The Austin Court of Appeals overturned the trial court’s order

because the petitioners failed to identify any claims, evidence or parties that would

overcome the Comptroller’s assertion of immunity. Id. at 539. In so ruling, the

court made clear that “when discovery from a governmental entity is sought under

rule 202, the petition must also set forth specific facts demonstrating that, at least

potentially, the petitioner has been injured by actions that would amount to a claim

which would not be barred by sovereign immunity.” Id. at 536. Combs, as well as

other rule 202 cases that turn on the immunity of a governmental entity, undercut

Limon’s claim that the immunity status of CCISD and its employees is irrelevant

to this case.

       Limon seems to misread Combs when she asserts in her brief that the Combs

court “concluded that pre-suit depositions of governmental entities are not barred

by immunity.” See “Reply Brief of Appellee Josephine Limon” at p.6. What the

court in Combs actually says is that a Rule 202 petition is not necessarily barred by


                                          6
governmental immunity if the petition alleges facts or identifies parties that would

survive a plea to the jurisdiction. Id. at 536. (“[W]e recognize that, while pre-suit

depositions under rule 202 are not necessarily barred by sovereign immunity,

governmental entities are protected from pre-suit depositions to the same extent

they would be protected from the same depositions in the contemplated suit

underlying the proceedings.”).       The Combs court then concluded that the

petitioners had failed to identify any claims that could survive the Comptroller’s

assertion of immunity.

      Similarly, Limon has wholly failed to identify any claims or parties that she

could pursue that would not be barred by immunity. From a plain reading of her

petition, it is evident that Limon’s entire focus of potential liability is on CCISD or

its employees. In fact, Limon explicitly stated in her petition that the reasons

behind the Rule 202 depositions were because “CCISD and its agents, servants,

and employees may be liable to Plaintiff under § 101.021 et seq. of the TEXAS

CIVIL PRACTICE & REMEDIES CODE because Cameron’s injuries and death were

proximately caused by a condition or use of tangible personal or real property and

CCISD would be personally liable to Plaintiff under Texas Law, were it a private

person.” (CR p. 13)(emphasis added) The amended petition went on to allege

Cameron’s death was “proximately caused by the negligent conduct of Defendant

CCISD.” (CR p. 13)(emphasis added) The amended petition did not identify any


                                          7
potential defendant or liable party other than CCISD and/or its agents, servants,

and employees.

      The CCISD Employees have repeatedly demonstrated that Section 101.051

of the Texas Civil Practices and Remedies Code (the “Texas Torts Claims Act”),

which is a limited waiver of immunity “does not apply to a school district or to a

junior college district,” unless the incident involves the operation of a motor

vehicle. TEX. CIV. PRAC. & REM. CODE, § 101.051; (CR pp. 34-35). The CCISD

Employees also demonstrated that outside of the Texas Tort Claims Act, tort

claims cannot be sought against a school district, or its government officials,

specifically because of the District’s governmental immunity. (CR pp. 34-38)

Limon has not directly responded to these issues or corrected her failure to allege

any feasible cause of action over which the trial court could have jurisdiction.

      A plea to the jurisdiction is proper when the Rule 202 petition does not

describe subject matter or raise claims that would overcome the political

subdivision’s governmental immunity protections. Combs, 410 S.W.3d at 529;

City of Dallas, 353 S.W.3d at 553.         “To determine whether a plaintiff has

affirmatively demonstrated the trial court’s subject matter jurisdiction to hear a

case, we consider the facts alleged in the petition along with any evidence

submitted by the parties, to the extent such evidence is relevant to the

jurisdictional issue.” Combs, 410 S.W. 3d at 533 (emphasis added). “[I]f the


                                          8
pleadings affirmatively negate jurisdiction, then the plea to the jurisdiction should

be granted.” Id. The subject matter affirmatively pled by Limon negates the

possibility of any potential prospective relief, therefore, the “trial court [does] not

have subject-matter jurisdiction over the rule 202 proceedings.” See Id. at 538.

      B.     Cases relied on by Limon support immunity protections under
             Rule 202 proceedings

      Limon repeatedly cites two appellate court cases as support for her

contention that immunity does not apply to governmental entities under Rule 202

petitions; however, even these cases only grant Rule 202 depositions because the

petitioners identified viable claims against specifically named third parties in their

petitions. City of Houston, 190 S.W.3d 242; see also M.D. Anderson Cancer

Center, 2012 WL 4465349.

      Both City of Houston and M.D. Anderson Cancer Center support the

premise that a trial court lacks jurisdiction over Rule 202 proceedings if the

petitioner does not affirmatively allege facts demonstrating the trial court’s

jurisdiction of a potential cause. City of Houston, 190 S.W. 3d at 244. In City of

Houston, the court only permitted the depositions to go forward because the

petitioners made a claim in their petition against a specifically named third party

over which the trial court would have jurisdiction to review. Id. at 245 (“Because a

portion of the claim under investigation – a claim against Altivia [named third


                                          9
party] – is under the jurisdiction of the state district court, the court did not err in

denying the City’s plea to the jurisdiction.”)

      The same is true under M.D. Anderson, which relies on the City of Houston

ruling. See generally M.D. Anderson Cancer Center, 2012 WL 4465349. The

M.D. Anderson Court does not state that the trial court ultimately has jurisdiction

over all Rule 202 proceedings, but instead, the Court states that the petitioner

explicitly mentioned in his Rule 202 petition his expressed intent to investigate

claims against a specifically named party who was “non-immune” to the alleged

actions. Id. at *5. Because the petition identified a valid party under which the

state court may have jurisdiction, M.D. Anderson’s plea to the jurisdiction was

denied. Id.

      Unlike the petitioners in the City of Houston or M.D. Anderson cases, Limon

fails to identify ANY parties other than CCISD or its employees who she believes

may be liable. She also fails to identify ANY facts that would give rise to a claim

against anyone other than CCISD or its employees. In fact, Limon expressly

mentions more than once in her Amended Petition that it is “CCISD and its

agents, servants, and employees” that “may be liable to Plaintiff under § 101.021

et seq. of the TEXAS CIVIL PRACTICE & REMEDIES CODE because Cameron’s

injuries were proximately caused by a condition or use of tangible personal or real




                                          10
property of CCISD and would be personally liable to Plaintiff under Texas Law,

were it a private person.” (CR p. 38).2    2




       To the extent that there may be claims against yet to be named private

parties or nongovernmental entities, Section 101.021 cannot apply because this

statute and its subsequent sections are only applicable to governmental entities.

Therefore, Limon’s petition fails to identify any facts or basis under which any

non-immune party could be liable.              “[I]f the pleadings affirmatively negate

jurisdiction, then the plea to the jurisdiction should be granted.” Combs, 410 S.W.

3d at 533 (emphasis added).

III.   Limon did not carry her burden to demonstrate that Rule 202
       depositions are necessary.

       Limon’s pleadings are void of the necessary elements and evidence to

demonstrate that the benefit of the requested depositions outweighs the burden. In

re Reassure America Life Ins. Co., 421 S.W. 3d 165, 174 (Tex. App. – Corpus

Christi, 2013)(“[Petitioner] had the burden to show either that allowing him to take

the depositions would prevent a failure or delay of justice, or that the likely benefit


22
   As more fully addressed in the CCISD Employees’ principal brief, Limon’s reliance on
Section 101.021 of the Texas Civil Practices and Remedies Code (the “Texas Torts Claims Act”)
is misplaced. Although Section 101.021 and the subsequent sections of the Texas Torts Claims
Act waive governmental immunity for some tort claims, Section 101.051 expressly does not
waive immunity for school districts unless the tort arises from the use of a motor vehicle. See
TEXAS CIV. PRAC. & REM. CODE ANN. §§ 101.021 and 101.051. Limon has failed completely to
articulate how CCISD or its employees could be liable under the Texas Tort Claims Act, or any
other law.

                                               11
of allowing him to take the requested depositions to investigate a potential claim or

suit outweighs the burden or expense of the procedure”). The Texas Supreme

Court has clearly established that “Rule 202 depositions are not now and never

have been intended for routine use.”          In re Jorden, 249 S.W. 3d 416, 423

(Tex. 2008). In fact, the Texas Supreme Court has specifically ruled that Rule 202

depositions are not merely discovery because there is a potential for abuse and

Rule 202 depositions must be “strictly limited,” which is why it is necessary for the

petitioner to articulate subject matter that supports some anticipated action against

viable parties. See generally In re Jorden, 249 S.W.3d 416; In re Wolfe, 341

S.W.3d 932; Combs, 410 S.W.3d 529.

        In determining whether or not Rule 202 depositions should be granted, there

is an evidentiary requirement to show that the Rule 202 depositions are necessary,

and “sworn, verified pleadings are generally not considered competent evidence to

prove the facts asserted in the pleading.” In re East, No. 13-14-00317-CV, 2014

WL 4248018, *6 (Tex.App. – Corpus Christi, August 22, 2014). Moreover, the

trial court is required to make findings that the benefit of the depositions outweighs

the burden.     Patton Boggs LLP, 394 S.W. 3d at 571 (“The trial court had no

discretion to order depositions under rule 202 without the required finding under

rule 202.4(a)(2)”)(citing In re Wolfe, 341 S.W. at 933; In re Jorden, 349 S.W. 3d at

420).


                                         12
      Both in her petition and at a July 29, 2014, hearing, Limon failed to present

any evidence or allege any facts as to why the Rule 202 depositions were necessary

to prevent the failure or delay of justice or to demonstrate that any benefit from the

depositions would outweigh the burden. (RR pp. 4-11) The trial court would not

consider arguments from the CCISD Employees on why CCISD Employees were

protected under governmental immunity from the requested Rule 202 depositions.

(RR pp. 4-11)      According to the trial court, “[e]verybody gets [Rule 202

depositions] when they ask for them.” (RR p. 8) The court went on to say, “[t]his

discovery business is broad. And you can take depositions of all kinds of people,

you know, in a lawsuit, even if they’re not liable . . . [I]f you look at discovery

ordinarily in a case and the latitude which you can go, the same thing applies to

this.” (RR p. 5) The trial court “assumed that” it had the authority to grant

Rule 202 depositions without requiring the petitioner to provide evidence

regarding whether or not the depositions were necessary to prevent a failure or

delay of justice or to demonstrate that any benefits from the depositions would

outweigh the burden or expense, and the court failed to make required findings on

these issues. (CR p. 58); See TEX. R. CIV. P. 202.4(a).


      Limon argues that “Appellants exaggerate their purported burden by

suggesting a considerable amount of funds meant to educate students would be

lost, thus they have the heavier burden.” See “Reply Brief of Appellee Josephine


                                         13
Limon” at p.6. But Limon ignores the point that it is the Petitioner’s burden to

demonstrate that the benefit of rule 202 depositions outweighs the burden.

East, 2014 WL 4248018 at *6 (“[t]he law is clear that a petitioner seeking a presuit

deposition must present evidence to meet its burden to establish facts necessary to

obtain the deposition.”)

      There is no argument that the death of Cameron Espinosa is a tragedy

beyond belief, and the pain and suffering for his family must continue to be

extraordinary. The relevant question in this case, however, is not whether this

horrible accident has caused a heavy burden for Ms. Limon – about that there can

be no dispute.    Rather, the issue here is whether the benefit of taking these

depositions at this time outweighs the burden. Limon simply has failed to carry

her burden to demonstrate any benefit, given that the potential parties she choose

to identify (CCISD and its employees) and the claims she chose to articulate (tort

claims) are plainly barred by governmental immunity. Given that Limon has failed

to demonstrate a benefit, then the very real burden on CCISD and its employees

(including time and the abrogation of immunity principles), regardless of how

significant one thinks that to be, clearly outweighs the benefit. Limon’s Amended

Petition is simply not enough to show that the Rule 202 deposition should be

permitted, and granting Limon’s Rule 202 depositions without necessary evidence

would violate the immunities granted to local governments in order to avoid costly


                                        14
litigation that hamper governmental functions.            See generally Mission

Consolidated Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008);

Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012).

      Limon now argues that she should be entitled to take the Rule 202

depositions to find out whether there are other potential responsible parties.

However, this argument contradicts her own petition, which identifies potential

claims against only CCISD and its employees. She also failed to bring forth any

evidence suggesting the possibility of claims against potential third parties. As

such, at most, Limon now is simply saying she is entitled to conduct a fishing

expedition to try to find out whether other claims or parties exist. As the cases

discussed previously make clear, when seeking Rule 202 depositions from an

immune governmental entity, the petitioner must at least be able to demonstrate

other claims or identify other parties not subject to the immunity defense.

Moreover, to the extent Limon wishes to find out certain factual information from

which she might be able to identify other potential parties or claims, she has other

less burdensome avenues available, such as the Texas Public Information Act. See

generally TEX. GOV’T CODE § 552.001, et seq. Such open government laws

provide a mechanism to obtain information that is less burdensome and does not

negate the immunity protections afforded CCISD and its employees under law.




                                        15
                                  PRAYER

      For the reasons stated herein and in CCISD Employees’ Appellant Brief,

CCISD Employees ask this Court to overturn the trial court’s order, grant the

CCISD Employees’ plea to the jurisdiction, deny Limon’s request for Rule 202

depositions, and grant such other relief to which the CCISD Employees may show

themselves entitled.

                                      Respectfully submitted,

                                      THOMPSON & HORTON LLP


                                      By:    /s/ Philip Fraissinet

                                       Philip Fraissinet
                                       State Bar No. 00793749
                                       Southwest Freeway, Suite 2000
                                       Houston, Texas 77027
                                       Telephone: (713) 554-6743
                                       Facsimile: (713) 583-9668
                                       pfraissinet@thompsonhorton.com

                                      Bradley J. Domangue
                                      State Bar No. 24065156
                                      Southwest Freeway, Suite 2000
                                      Houston, Texas 77027
                                      Telephone: (713) 554-6742
                                      Facsimile: (713) 583-5295
                                      bdomangue@thompsonhorton.com

                                      ATTORNEYS FOR APPELLANTS




                                     16
                        CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing document was served by the Court’s electronic filing system, CM/ECF,
on January 23, 2014 to the following counsel of record by electronic mail:

                        Mr. Greggory A. Teeter
                        Email: gteeter@thomasjhenrylaw.com


                                    /s/ Philip Fraissinet
                                 Philip Fraissinet



                     CERTIFICATE OF COMPLIANCE

      The undersigned hereby certifies that the foregoing document has 3,856
words and fully complies with TEXAS RULES OF APPELLATE PROCEDURE 9.4(i).
The word processing software used to prepare this filing, and calculate the word
count, is Microsoft Word 2010.


                                    /s/ Philip Fraissinet
                                 Philip Fraissinet




647603
9C3705.000178




                                      17
