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In re Nichol

Court of Appeals of Texas, Eighth District, El Paso

September 20, 2019



          Before Palafox, J., Barajas, C.J. (Senior Judge), and Larsen, J. (Senior Judge)


          Gina M. Palafox, Justice.

         Relator Ralph Nichol, Jr., has filed a petition for a writ of mandamus against the Honorable Angie Juarez Barill, Judge of the 346th District Court of El Paso County, Texas, challenging an order compelling him-over his assertion of the Fifth Amendment privilege against self-incrimination-to answer an interrogatory question posed to him in a civil case that arises out of the same set of facts as an ongoing criminal case in which Nichol is the defendant. We conditionally grant mandamus relief.


         This case involves parallel criminal and civil proceedings arising out of a car wreck involving relator Nichol and real parties in interest David Sepulveda, Mona Sepulveda, Bernadette Sepulveda, and Noah Sepulveda (the Sepulvedas).

         On September 24, 2017, Nichol was arrested by the El Paso Police Department for driving while intoxicated in connection with the collision that is the subject of the Sepulvedas' civil lawsuit. On March 22, 2018, Nichol was indicted on four charges of aggravated assault with a deadly weapon in connection with the collision. Nichol's criminal case was set for trial on December 14, 2018, then reset to May 3, 2019, then reset again. The mandamus record shows his criminal trial is now set to begin October 4, 2019.

         Separately, the Sepulvedas filed a civil action against Nichol on December 6, 2018, alleging (1) negligence; (2) negligence per se based not only on statutory violations of the Transportation Code but also provisions of the Penal Code that criminalize driving while intoxicated, intoxication assault, and aggravated assault; (3) gross negligence; and (4) intoxication assault.[1] Simultaneously with their petition, the Sepulvedas served discovery on Nichol pertaining to the car collision, including requests for disclosure, requests for admissions, interrogatories, and requests for production. In responding to each discovery question or request, Nichol asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and refused to provide answers to any of the questions propounded by the Sepulvedas.

         On April 3, 2019, Nichol filed an opposed motion to stay proceedings in the civil case pending resolution of the parallel criminal case. The trial court initially granted the stay on June 4, 2019. However, on July 16, 2019, the Sepulvedas filed a motion for reconsideration of the trial court's ruling on Nichol's motion to stay which included a request for a protective order to preserve and protect certain documents, information, testimony, and/or material produced during the discovery phase of the proceeding. The Sepulvedas asserted they recognized the severity of the consequences of Nichol's criminal case and were willing to wait until it was resolved to complete discovery. The Sepulvedas sought a reconsideration of the court's stay of discovery, nonetheless, because of the extreme prejudice that resulted from the stay. The Sepulvedas asserted that they were prejudiced by the stay order because the statute of limitations for bringing claims related to the car collision was set to expire on September 24, 2019, and they believed there were more claims to be made against other parties.

         The Sepulvedas explained that they "believe[d] that the defendant was drinking at a bar or establishment before the crash, entitling [The Sepulvedas] to bring a Dram Shop action against the owner of the bar who overserved and [sic] obviously intoxicated Defendant to the point that he was a danger to himself and others as evidenced by the crash caused by Defendant." Because of the stay, the Sepulvedas asserted they were being forced to forgo their additional action in violation of Article 1, Section 13 of the Texas Constitution. The Sepulvedas explained, "[t]he Plaintiffs in this case will have no forum, Court or remedy, should the Court decide to continue on with this Stay. Plaintiffs are entitled just as any other litigant to investigate all potential causes of action and bring them to Court." As an alternative to a stay, the Sepulvedas proposed a protective order which they attached to their motion for reconsideration. They asserted they "would be willing to wait until the criminal case is resolved if Plaintiffs have the ability to discover the location where the defendant was consuming alcohol and be allowed to amend their petition for these claims before the Statute of Limitations runs." The Sepulvedas proposed that the trial court issue a protective order on the civil case which would prohibit any information obtained or provided by either side from being released to any other parties outside the case, including but not limited to the El Paso County District Attorney's Office. On September 9, 2019, Nichol's responded by asserting, among other arguments, that lifting the stay and utilizing the Sepulvedas' proposed solution of protecting discovery could not be practically executed without violating his Fifth Amendment privilege.

         On September 11, 2019, the trial court granted, to a limited extent, the Sepulvedas' motion to reconsider the trial court's ruling on Nichol's motion to stay civil proceedings by lifting the stay on a single interrogatory propounded on Nichol. Central to this mandamus action, the trial court ordered Nichol to answer the following interrogatory:

7. State where you had been just prior to the wreck, where you were going, and the purpose of the trip.

         The trial court's order was formally signed on September 13, 2019. In pertinent part, the trial court's order provides as follows:

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the STAY OF PROCEEDINGS ordered on June 4th, 2019 IS LIFTED solely with regard to Plaintiffs' Interrogatory Number 7 that was propounded on the Defendant RALPH NICHOL, JR. on December 6th, 2018 along with the Plaintiff's Original Petition in this matter and accordingly due for response on or before January 25th, 2019.
AND IT IS FUTHER ORDERED that the said Defendant, RALPH NICHOL, JR., provide a full and complete answer to the aforementioned single interrogatory question – Plaintiff's Interrogatory Number 7 – in writing and hand delivered before the close of business at 5:00 p.m. Mountain Standard Time on Monday, September 16th, 2019 to the Court for in camera review and appropriate safeguarding of the information provided pursuant to the Protective Order outlined below – including dissemination to Plaintiff's Counsel by having the said information read to counsel [NAME OMITTED] over the phone and subsequently sealed by the Court thereafter.
AND TO PRESERVE THE DEFENDANT'S RIGHTS UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION and it's [sic] analogue in the Texas Constitution, the COURT HEREBY ORDERS, ADJUDGES and DECREES . . . that a Protective Order IS ENTERED with regard to the limited discovery answer and information to be ...

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