IN RE THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Relator
Original Proceeding on Petition for Writ of Mandamus
Panel
consists of Justices Keyes, Kelly, and Goodman.
MEMORANDUM OPINION
PER
CURIAM
Relator
the University of Texas MD Anderson Cancer Center (MDA) seeks
a writ of mandamus to compel the trial court to rule on
MDA's plea to the jurisdiction.[1]We conditionally grant the
petition.
Background
The
underlying case is a disability discrimination and
retaliation claim against relator MDA. MDA filed a plea to
the jurisdiction on November 8, 2017. Real party in interest,
David Deville responded and an oral hearing was held on
December 7, 2017. No ruling issued. On May 1, 2018, MDA sent
a letter to the trial court, asserting that MDA's legal
assistant had telephoned the trial court twice in March 2018,
but received no reply. MDA stated that the plea was ripe for
a ruling and that MDA would provide additional briefing if
the trial court required.
On May
24, 2018, MDA filed a motion to stay discovery in the trial
court pending a ruling on the plea to the jurisdiction.
Deville responded, asserting that the trial court should
permit him to conduct discovery to respond to the evidence
presented by MDA before ruling on the plea. The trial court
did not rule on the motion to stay discovery.
Deville
filed a supplemental brief in support of its response to the
plea in July 2018, and MDA replied to this response in August
2018. MDA wrote to the trial judge again on August 30, 2018,
requesting a ruling on the plea. A week later, Deville's
counsel wrote a letter to the judge asking that she postpone
ruling on the plea so that he could conduct discovery to
present evidence in opposition to the plea. No ruling issued
on the plea or on the motions or requests of the parties.
On
November 8, 2018, MDA filed an opposed motion for a ruling on
its plea to the jurisdiction. Deville responded, stating that
MDA and Deville had agreed to postpone discovery until the
trial court ruled on the motion to stay discovery, but that
no ruling had issued. As a result, Deville stated that no
discovery had yet been conducted. Moreover, Deville asserted
that he now asked the trial court to deny MDA's motion to
stay discovery and he filed an opposed motion to reopen
discovery. No ruling issued on these requests. Relator
subsequently filed this petition for writ of mandamus.
Failure
to Rule
To be
entitled to mandamus relief, a petitioner must show both that
the trial court abused its discretion and that there is no
adequate remedy by appeal. In re Prudential Ins.
Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding). "A trial judge has a legal,
nondiscretionary duty to consider and rule on properly filed
motions within a reasonable time." In re
Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio
1998, orig. proceeding) (citing In re Henry, No.
04-05-00588-CV, 2005 WL 2085242, at *1 (Tex. App.-San Antonio
Aug. 31, 2005, orig. proceeding) (per curiam) (mem. op.)). To
show an abuse of discretion in refusing to rule, the relator
must show (1) the trial court had a "legal duty to
perform a nondiscretionary act;" (2) the relator made a
demand for performance; and (3) the trial court refused the
request. Barnes v. State, 832 S.W.2d 424, 426 (Tex.
App.- Houston [1st Dist.] 1992, orig. proceeding) (per
curiam). Once a motion is properly filed and pending, the act
of considering and ruling on that motion is a ministerial one
and an appellate court may grant mandamus relief to compel
the trial judge to act. See Safety-Kleen Corp. v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.-San Antonio 1997,
orig. proceeding).
MDA
filed its plea to the jurisdiction more than a year ago, and
it was considered during a hearing held more than a year ago.
MDA has periodically reiterated its request for a ruling on
the plea, and the trial court still has not ruled. The plea
was properly filed and continues to be pending. Therefore,
the trial court had a duty to act. MDA continued to request a
ruling and the trial court has not ruled.
Deville
responds that there was no abuse of discretion in failing to
rule on the plea because no discovery had been conducted. In
support of this argument, Deville cites Campos v. Texas
Dept. of Criminal Justice, 385 S.W.3d 35, 42 (Tex. App.-
Corpus Christi-Edinburgh 2009, no pet.) and Thurman v.
Harris County, No. 01-07-00235-CV, 2009 WL 1635430, at
*7 (Tex. App.-Houston [1st Dist.] June 11, 2009, pet.
denied). In both of these cases, the trial court had granted
the pleas to the jurisdiction. See Campos, 385
S.W.3d at 38-39; Thurman, 2009 WL 1635430, at *1. In
Campos, the appellate court reversed and remanded in
part because, under the facts of that case, resolution of the
jurisdictional issue was best resolved after discovery had
been conducted. Campos, 385 S.W.3d at 42. In
Thurman, the appellate court reversed and remanded
because the defendant's refusal to comply with discovery
requests prevented the appellant from proving facts that
might waive immunity. See Thurman, 2009 WL 1635430,
at *7.
In the
trial court, Deville opposed MDA's motion to stay
discovery pending a ruling on the plea to the jurisdiction.
Deville argued that the trial court should permit him to
conduct discovery to respond to the evidence presented by MDA
before ruling on the plea. Deville filed a supplemental brief
in support of his response to the plea. And Deville's
counsel wrote a letter to the judge asking that she postpone
ruling so that he could conduct discovery, but the trial
court has never ruled on any of these motions or requests.
...