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In re Torres

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 21, 2017

IN RE KANDI TORRES, KEISHA COLLINS, OLIVER BELL, JENNIFER SMITH, AND JANET SALLAS

         On Petition for Writ of Mandamus.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice [1]

         Relators Kandi Torres, Keisha Collins, Oliver Bell, Jennifer Smith, and Janet Sallas filed a petition for writ of mandamus and emergency motion for temporary relief in the above cause on April 3, 2017. Through this original proceeding, relators, who are prison officials, seek to compel the trial court to vacate an order requiring them to respond to discovery requests propounded by the real party in interest, inmate Michael A. McCann.[2]Relators contend that the trial court has abused its discretion in requiring them to respond to discovery pertaining to the merits of McCann's lawsuit while their jurisdictional plea remains pending. We conditionally grant the petition for writ of mandamus.

         I. Background

         On August 23, 2013, McCann filed suit against multiple prison employees [3]alleging that they had retaliated against him for utilizing the prison grievance system and alleging that they had stolen his postal stamps, withheld and destroyed his mail, and fraudulently identified his mail and legal work as prohibited "offender to offender mail" or as prohibited sexually explicit materials. McCann alleged that the defendants violated his constitutional right to freedom of speech and committed fraud, conspiracy to commit fraud, theft, conspiracy to commit theft, retaliation, and violations of RICO. See 15 U.S.C.A. §78j(b) (West, Westlaw through P.L. 115-22) (comprising the Racketeering Influenced and Corrupt Organizations Act). McCann sought declaratory and injunctive relief and the recovery of his court costs.

         On June 9, 2016, this Court considered an interlocutory appeal arising from this cause and affirmed in part and reversed in part the trial court's denial of summary judgment regarding the prison officials' assertions of immunity. See Torres v. McCann, No. 13-15-00187-CV, 2016 WL 3225880, at *7 (Tex. App.-Corpus Christi June 9, 2016, no pet.) (mem. op.). We affirmed the trial court's denial of summary judgment regarding McCann's claims concerning theft, conspiracy to commit theft, fraud, conspiracy to commit fraud, and RICO violations, and we reversed the trial court's denial of summary judgment as to McCann's First Amendment and retaliation claims and rendered judgment in appellants' favor on these claims. See id.

         On September 23, 2016, following remand, Torres, Collins, and Bell filed a motion to dismiss the case for lack of jurisdiction on grounds that McCann's causes were barred by sovereign and statutory immunity.

         On October 10, 2016, McCann filed a first amended petition in which he eliminated some defendants and added some defendants.[4] In this amended pleading, McCann expanded the factual allegations underlying his causes of action against the prison officials and added a request for punitive damages and prejudgment and postjudgment interest.

         On October 14, 2016, Torres, Collins, Bell, Smith, and Sallas, relators herein, filed an amended motion to dismiss the case for lack of jurisdiction. Relators again asserted that McCann's claims were barred by sovereign immunity and statutory immunity under the Texas Torts Claims Act.

         In November of 2016, McCann propounded requests for admissions, interrogatories, and requests for production to relators. These discovery requests generally address the litigation and McCann's substantive claims against relators. [5]Relators did not respond to the discovery requests, and some time thereafter, McCann filed a motion to compel.

         On January 26, 2017, Torres, Collins, Smith, Sallas, and Bell filed objections to McCann's motion to compel and a motion for a protective order. They asserted that McCann's motion to compel was premature because their motion to dismiss was still pending, and a resolution of the motion to dismiss would potentially dismiss all of McCann's claims. These defendants sought a protective order against all discovery until the trial court ruled on their amended motion to dismiss for lack of jurisdiction.

         The trial court set the defendants' amended motion to dismiss for hearing on February 1, 2017. The defendants filed a bench brief in support of their amended motion to dismiss on January 31, 2017.

         At the February 1, 2017 hearing, the parties discussed the defendants' motion to dismiss, but also discussed the status of McCann's pending discovery requests. Counsel for the defendants requested a ruling on their motion to dismiss because, if meritorious, "there would be no reason to engage in discovery because the case would be dismissed." In turn, McCann alleged that the defendants' counsel had failed to give him "any discovery whatsoever." In discussing this issue, the trial court acknowledged having held a previous hearing on discovery and stated that "there's no discovery since the last order, " and acknowledged that McCann had filed "a motion to compel the discovery that was agreed to and/or authorized that we talked about at our last hearing." At the hearing, the trial court appears to have agreed with McCann that the defendants had agreed to produce discovery at a previous hearing: "There's no doubt in my mind. They've reneged on their deal." The trial court stated that "[t]hey've reneged on my order" and "effectively violated my order." At the conclusion of further discussions, the trial court ...


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