                                                                                    ACCEPTED
                                                                                04-15-00120-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                            9/4/2015 3:23:44 PM
                                                                                 KEITH HOTTLE
                                                                                         CLERK

                         NO. 04-15-00120-CV
       ______________________________________________________
                                                             FILED IN
                 IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS
                                                    SAN ANTONIO, TEXAS
                      OF THE STATE OF TEXAS
                                                   09/4/2015 3:23:44 PM
       ______________________________________________________
                                                         KEITH E. HOTTLE
                                                              Clerk
                UNIVERSITY OF THE INCARNATE WORD,
                                        Defendant – Appellant,

                                  V.

                      VALERIE REDUS, ET AL.,
                                          Plaintiffs – Appellees.
       ______________________________________________________

           APPEAL FROM 150TH JUDICIAL DISTRICT COURT
                     OF BEXAR COUNTY, TEXAS
       ______________________________________________________

                     APPELLANT’S RESPONSE TO
              APPELLEES’ MOTION TO ISSUE MANDATE
       ______________________________________________________


Laurence S. Kurth                   BEIRNE, MAYNARD & PARSONS, L.L.P.
State Bar No. 11768450              112 East Pecan Street, Suite 2750
                                    San Antonio, TX 78205
Matthew F. Wymer                    (210) 582-0220 - Telephone
State Bar No. 24005234              (210) 582-0231 – Facsimile
                                    E-mail – lkurth@bmpllp.com
                                    E-mail – mwymer@bmpllp.com

                                    Attorneys for Defendant/Appellant
                                    University of the Incarnate Word
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Appellant the University of the Incarnate Word (“UIW”)

and files this Response to Appellees’ Opposed Motion to Issue Mandate. In

support thereof, UIW would show the Court the following:

                           FACTS AND ARGUMENT

      Appellees have failed to advise this court of the pertinent fact UIW has

conferred with them and informed them it is presently preparing a Petition for

Review to the Supreme Court of Texas. UIW will not file a Motion for Rehearing

or Motion for En Banc Reconsideration in this Court, because this matter has been

fully preserved for disposition in the Supreme Court of Texas. UIW does not

presently intend to seek an extension of time to file its Petition for Review, unless

its efforts and resources are substantially diverted by motions practice or other

efforts spurred by the Appellees. See TEX. R. APP. P. 53.7(f).

      Furthermore, Appellees have wholy failed to meet their burden of

demonstrating “good cause” for the issuance of the mandate — indeed, Appellees

fail to state any cause whatsoever for why this court should issue the mandate

before the “appeal is finally disposed of.” See TEX. R. APP. P. RULE 18.1(C), 18.6.

      A Petition for Review in the Supreme Court of Texas may be filed

regardless of whether a motion for rehearing or motion for en banc reconsideration

is filed. TEX. R. APP. P. 49.9. If neither a motion for rehearing nor a motion for en



                                          1
banc reconsideration is filed in the court of appeals, UIW’s Petition for Review is

due 45 days from the August 26, 2015 Opinion of the court of appeals. TEX. R.

APP. P. 53.7(a)(1). Therefore, because no motions will be filed in this court of

appeals, UIW’s Petition for Review will be due in the Supreme Court on October

12, 2015. (The 45th day is on Saturday October 10, so the deadline is the following

Monday).

      Texas Rule of Appellate Procedure 18.6 provides:

             18.6 Mandate in Accelerated Appeals. --The appellate court’s
             judgment on an appeal from an interlocutory order takes effect
             when the mandate is issued. The court may issue the mandate
             with its judgment or delay the mandate until the appeal is
             finally disposed of. If the mandate is issued, any further
             proceeding in the trial court must conform to the mandate.

TEX. R. APP. P. 18.6 (emphasis added); see also TEX. CIV. PRAC. & REM. CODE §

51.014(b)(“An interlocutory appeal under Subsection (a) … stays the

commencement of a trial in the trial court pending resolution of the appeal.”).

      This court of appeals did not issue the mandate with its August 26, 2015

Opinion. In view of that, Appellees conferred with the undersigned and requested

the parties agree to the issuance of the mandate under Texas Rule of Appellate

Procedure 18.1(c). Rather Appellee was informed Appellant opposes issuance of

Mandate. Notably, Appellees fail to cite that rule to this court of appeals now,

because they cannot show good cause for the issuance of the mandate – Appellees

fail in their motion to this court to address their burden.

                                           2
            Agreement to Issue. --The mandate may be issued earlier if the
            parties so agree, or for good cause on the motion of a party.
TEX. R. APP. P. RULE 18.1(C) (emphasis added).

      Appellees argue incorrectly that “This Court’s judgment substantively ends

UIW’s interlocutory appeal ….”, while simultaneously citing two cases that

expressly hold this proposition is incorrect, William Marsh Rice Univ. v. Refaey,

459 S.W.3d 590, 592 (Tex. 2015) and Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex.

2010). See Motion at 2.

      In Refaey, the Texas Supreme Court quoting Klein held:

            As a threshold inquiry, we first consider whether the Court has
            jurisdiction over this interlocutory appeal, as such appeals are
            generally final in the courts of appeals. See Klein v. Hernandez,
            315 S.W.3d 1, 3 (Tex. 2010); see also TEX. GOV’T CODE §
            22.225(b)(3). “[W]e always have jurisdiction to determine
            whether the court of appeals correctly applied its jurisdiction.”
            Klein, 315 S.W.3d at 3 (citations omitted). We therefore have
            jurisdiction to consider whether the court of appeals’ dismissal
            for lack of jurisdiction was proper. See id.
Refaey, 459 S.W.3d at 592.

      Appellees have failed to satisfy the requirement of good cause required by

rule 18.1(c) for the early issuance of the mandate. “An appellate court can issue a

mandate earlier than the rules ordinarily prescribe if it has good cause for making

its judgment more immediately final and enforceable.” Edwards Aquifer Auth. v.

Chem. Lime, Ltd., 291 S.W.3d 392, 416 (Tex. 2009) (Willett, J., concurring). Here,

this Court has no need to make its judgment more immediately final and


                                        3
enforceable. When a party represents to the court of appeals that it intends to file a

petition for review in the Supreme Court of Texas, that representation is due

mindful consideration and respect. See City of Cresson v. City of Granbury, 245

S.W.3d 61, 70 (Tex. App.—Fort Worth 2008, pet. denied). Otherwise, this Court

would risk interfering with the jurisdiction of the Texas Supreme Court. See In re

Jerry F., 294 S.W.3d 297, 300 n.1 (Tex. App.—Fort Worth 2009, orig.

proceeding) (explaining that the court of appeals would not interfere with the

jurisdiction of the supreme court by granting relief while petition for review was

pending).

      Accordingly, Appellees’ Motion to Issue the Mandate should be denied.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, for these reasons, UIW

respectfully requests this honorable court of appeals deny Appellees’ Motion to

Issue the Mandate, and further prays for such other legal and equitable relief to

which Appellant may be entitled.




                                          4
Respectfully submitted,

BEIRNE, MAYNARD & PARSONS, L.L.P.
The Weston Centre
112 East Pecan Street, Suite 2750
San Antonio, TX 78205
(210) 582-0220 - Telephone
(210) 582-0231 – Facsimile


By:   /s/ Matthew F. Wymer
      Laurence S. Kurth
      State Bar No. 11768450
      E-mail – lkurth@bmpllp.com
      Matthew F. Wymer
      State Bar No. 24005234
      E-mail – mwymer@bmpllp.com

ATTORNEYS FOR RELATOR THE
UNIVERSITY OF THE INCARNATE WORD




        5
                     CERTIFICATE OF CONFERENCE

      The undersigned conferred with opposing counsel on September 2, 2015,

wherein he stated to opposing counsel:

            We do not agree to the early issuance of the mandate or the
            commencement of discovery before the final resolution of this
            appeal. We are presently drafting a Petition for Review to the
            Texas Supreme Court. We have been quite open about our
            intention to do this. As you know, CPRC 51.014(b) provides
            our appeal “stays the commencement of a trial in the trial court
            pending resolution of the appeal.” This appeal will be resolved
            in the Texas Supreme Court. This question of the status and
            immunity of a TECOLE established private university police
            department must be resolved by our highest court before
            substantial police department resources are expended
            responding to a suit, which the Court may later dismiss based
            on these same immunity issues.



                                             /s/ Matthew F. Wymer
                                             Matthew F. Wymer

                                     Dated: September 4, 2015




                                         6
                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing has been
forwarded to the following counsel of record in accordance with the Texas Rules
of Civil Procedure this 4th day of September, 2015:

        Brent C. Perry
        Law Office of Brent C. Perry, PC
        800 Commerce Street
        Houston, Texas 77002
        brentperry@brentperrylaw.com

        Mason W. Herring
        Herring Law Firm
        4640 Banning Drive
        Houston, Texas 77027
        mherring@herringlawfirm.com

        Jorge Herrera
        Herrera Law Firm
        111 Soledad, Suite 1900
        San Antonio, Texas 78205
        jherrera@herreralaw.com

        Robert A. Valadez
        Javier T. Duran
        Shelton & Valadez
        600 Navarro Street, Suite 500
        San Antonio, Texas 78205
        rvaladez@shelton-valadez.com and jduran@shelton-valadez.com


                                               /s/ Matthew F. Wymer
                                               Matthew F. Wymer




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