Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE KANDI TORRES, KEISHA COLLINS, OLIVER BELL, JENNIFER SMITH, AND JANET SALLAS
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Rodriguez and Hinojosa
V. RODRIGUEZ Justice 
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.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.
August 23, 2013, McCann filed suit against multiple prison
employees 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.
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.
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.
October 10, 2016, McCann filed a first amended petition in
which he eliminated some defendants and added some
defendants. 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.
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.
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.
Relators did not respond to the discovery
requests, and some time thereafter, McCann filed a motion to
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.
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.
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