ACCEPTED 12-15-00216-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/3/2015 2:56:56 PM Pam Estes CLERK NO. ________________________ FILED IN IN THE 12th COURT OF APPEALS TYLER, TEXAS COURT OF APPEALS 9/3/2015 2:56:56 PM FOR THE PAM ESTES TWELFTH DISTRICT OF TEXAS Clerk

IN RE THOMAS LYTLE AND ELLEN LYTLE, Relators, v. THE HONORABLE TERESA DRUM, JUDGE PRESIDING 294TH JUDICIAL DISTRICT COURT OF VAN ZANDT COUNTY, TEXAS, Respondent,

Real Parties in Interest: David C. Petruska Sandra L. Petruska Helmuth K. Gutzke and Zackiann Gutzke, Defendants.

APPENDIX TO PETITION FOR WRIT OF MANDAMUS PART 2 Barbara L. Emerson, Esq.

Texas State Bar No. 06599400 BELLINGER & SUBERG, LLP ORAL ARGUMENT REQUESTED 10,000 N. Central Expy., Suite 900 Dallas, TX 75231 214.954.9540 – Telephone 214.954.9541 – Facsimile [email protected] Filed 2/12/2015 11 :41 :54 AM Karen L. Wilson District Clerk.

Van Zand~~Ps'1tyc~~~~~ Holly Spindle CAUSE NO. 14-00172 THOMAS LYTLE AND ELLEN LYTLE § IN THE DISTRICT COURT § v. § § DAVID C. PETRUSKA, SANDRA L. § 294TH JUDICIAL DISTRICT PETRUSKA, COMPASS BANK, § HELMUTH K. GUTZKE AND § ZACKIANN GUTZKE § VAN ZANDT COUNTY, TEXAS

PLAINTIFFS' FIRST AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COME Thomas Lytle and Ellen Lytle, hereinafter called Plaintiffs, and file Plaintiffs' First Amended Petition, complaining of and about David C. Petruska, Sandra L.

Petmska, Helmuth K. Gutzke, and Zackiarm Gutzke, hereinafter called Defendants, and for cause of action would show unto the Court the following: DISCOVERY CONTROL PLAN LEVEL 1. Plaintiffs intend that discovery be conducted under Discovery Level2.

PARTIES AND SERVICE 2. Plaintiff, Thomas Lytle, is an individual whose address is 1603 VanZandt County Road 2319, Canton, Texas 75103.

3. Plaintiff, Ellen Lytle, is an individual whose address is 1603 Van Zandt County Road 2319,Canton, Texas 75103 .

4. Defendant David C. Petruska has appeared in this case and no service of process is necessary at this time.

5. Defendant Sandra L. Petmska has appeaTed in this case and no service of proc~_ss ....

is necessary at this time.

PLAINTIFFS' FIRST Ai\1ENDED PETITION \\Bdnt-fs I \wpprolaw\3 19! .002\267954.docx

APPENDIX 23 TAB 4 6. Defendant Helmuth K.. Gutzke has appeared in this case and no service of process is necessary at this time.

7. Defendant Zackiann Gutzke has appeared in this case and no service of process is necessary at this time.

JURISDICTION AND VENUE 8. The court has jurisdiction over this action to quiet title pursuant to Article V, Section 8 of the Texas Constitution and Section 26.043(8) of the Texas Government Code. 9. Venue in VanZandt County is proper in this cause under Section 15.011 of the Texas Civil Practice and Remedies Code because this action involves real property located in VanZandt County.

10. The damages sought herein are within the jurisdictional limits of this Court.

11 . This suit seeks monetary relief of $100,000 or less and non-monetary relief.

FACTS 12. This is an action to quiet title on real property, hereafter referred to as "the Property", and for damages for a fraudulent claim filed against real property in violation of Texas Civ. Prac. & Rem. Code§ 12.002. The Property is described as follows: Roadway situated in Van Zandt County, State of Texas, on the M. V. Lout Survey, A-468 and being a part of the called 68.78 acre tract conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page 609, of the Van Zandt County Real Records and a part of the called 1.1 0 acre tract conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page 629, of the Van Zandt County Real Records.

13. Plaintiffs are the rightful owners, entitled to possession of the Property by virtue

Real Property Records of VanZandt County, Texas.

PLAINTIFFS' FIRST AMENDED PETITION \\Bdnt-fsl\wpprolaw\3191.002\267954.docx APPENDIX 24 14. On May 16, 2008, Plaintiffs were wrongfully dispossessed of the Property when a General Warranty Deed with Vendor's Lien was executed by Helmuth K. Gutzke and Zackiann Gutzke (collectively, "Gutzke") purporting to convey to David C. Petruska and Sandra L.

Petruska (collectively, "Petruska") an easement on the Property (the "Deed"). Said easement never existed and was never granted by the Plaintiffs or their predecessors-in-interest.

15. The Deed was filed of record May 20, 2008, as Document No. 2008-004602 in the Real Property Records ofVan Zandt County, Texas.

16. On May 16, 2008, Plaintiffs were further wrongfully dispossessed of the Property when Petruska executed a Deed of Trust which purported to convey the easement for the benefit of Compass Bank. That Deed of Trust was filed of record May 20, 2008 as Document No. 2008- 004603 in the Real Property Records of VanZandt County, Texas.

17. Defendants Petruska purport to have an adverse claim or interest in the Property that operates as a cloud on Plaintiffs' title to the Property and through pleadings before this Court continue to assert that on May 16, 2008 they acquired an interest in the Property. The nature of the interest asserted by Petruska in the Property is an easement on Plaintiffs Property.

18. The claim or interest purportedly conveyed to Petruska is invalid, unenforceable or without right against Plaintiffs because no easement ever existed. Gutzke did not have any easement or rights to convey. The Deed of Trust signed by Petruska lists an easement that never existed and was never granted. In order for Plaintiffs to enjoy title to the Property, the adverse estate or interest claimed and still claimed by Petruska and as set forth in the Deed and Deed of Trust must be removed.

PLAINTIFFS' FIRST AMENDED PETITION \\Bdnt-fsl\wpprolaw\3191 .002\267954.docx APPENDIX 25 19. At the time of the conveyance from the Defendants Gutzke to Defendants Petruska, all parties to the transaction knew no such easement existed and knowingly created a false and fraudulent interest in the Property of Plaintiffs.

20. At the time of the conveyance in the Deed of Trust for the benefit of Defendant Compass Bank, Petruska knew no such easement existed and knowingly created a false and fraudulent interest in the Property of Plaintiffs.

21. In executing and causing to have the Deed and the Deed of Trust to be filed, Defendants knowingly participated in creating a false claim in the Property with the intent to cause Plaintiffs financial injury by imposing burdens and encumbrances on the real property of Plaintiffs.

22. Any claim that an easement in the Property existed at any time is invalid and unenforceable. In order for Plaintiffs to enjoy title to the Property, any claim that an easement existed or was conveyed by the Deed and Deed of Trust must be removed and declared null and void.

23. Petruska has taken actions to assert his rights to the easement, including coming onto Plaintiffs' property and threatening Plaintiff Thomas Lytle with an assault rifle, and continuing to assert an easement existed in his pleadings before this Court. Plaintiffs have been forced to retain an attorney who sent a demand for release of any claim for an easement to Petruska and Compass Bank. While Petruska refused to consent, Compass Bank ultimately executed a Release of Easement and Petruska continues to seek a declaration that he held a valid easement and conveyed a valid easement under the Deed of Trust. Plaintiffs have been forced to incur the cost and expense of seeking to clear title to their property.

PLAINTIFFS' FIRST AMENDED PETITION \\Bdnt-fs 1\wpprolaw\3191 .002\267954.docx APPENDIX 26 DECLARATORY JUDGMENT 24. Pursuant to Section 37.001 et seq. of the Texas Civil Practice and Remedies Code, Plaintiffs request a declaratory judgment that Plaintiffs are the sole and rightful owners of the Property and declaring all claims to an easement at any time or currently are null and void.

25. Plaintiffs further request that Defendants be required to execute a correction deed for the General Warranty Deed with Vendor's Lien and Deed of Trust, and file it with the Real Property Records in Van Zandt County.

CLAIM FOR DAMAGES 26. The alleged conveyance of the easement was a fraudulent interest in Plaintiffs' Property.

27. Pursuant to Section 12.002(b) of the Texas Civil Practice and & Remedies Code, Plaintiffs seek recovery of damages, court costs and attorneys ' fees.

ATTORNEYS' FEES 28. Pursuant to Section 37.001 et seq. of the Texas Civil Practice & Remedies Code, Plaintiffs seek recovery of court costs and attorneys' fees as are equitable and just.

PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Thomas Lytle and Ellen Lytle, respectfully requests that Defendants be cited to appear and answer, and that on the final trial, the court grant Plaintiffs judgment quieting title to the Property and removing cloud on Plaintiffs' title; declaratory judgment; damages; attorney fees; award of costs, and any other relief at law or in equity to which Plaintiffs are entitled.

PLAINTIFFS' FIRST AMENDED PETITION \\Bdnt-fs l \wpprolaw\3 191.002\267954.docx APPENDIX 27 Respectfully submitted, BELLINGER & SUBERG, L.L.P.

By: BARBARA L. EMERSON Texas State Bar No. 06599400 10,000 N. Central Expy, Suite 900 Dallas, Texas 75231 Telephone: 214/954-9540 Facsimile: 214/954-9541 [email protected] ATTORNEY FOR PLAINTIFFS, THOMAS LYTLE AND ELLEN LYTLE

CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of foregoing has been forwarded to all counsel via eservice and email on the 12th day of February, 2015 as provided below.

Ralph E. Allen Michael F. Pezzulli Attorney and Counselor at Law M. Ellen Skinner East Ferguson, Suite 901 Christopher L. Barnes Tyler, Texas 75702 Pezzulli Barnes, LLP (903) 593-9727 Telephone 17300 Preston Road, Suite 220 rallen@tyler .net Dallas, TX 75252-5476 (972) 713-1300 Telephone [email protected] [email protected] [email protected]

Barbara L. Emerson

PLAINTIFFS' FIRST AMENDED PEIDION \\Bdnt-fsl\wpprolaw\3191.002\267954.docx APPENDIX 28 U.S. v. Little AI, 712 F.2d 133 (1983) Fed .R.Serv.2d 482

~Original Image of 71 2 F.2d 133 (PDF) KeyCite Ye llow Flag- Negative Treatment Distinguished by U.S. v. Gieger Transfer Service, Inc., 121 S.D.Miss., August 18, 1997 Action 712 F.2d 133 Nature and subject matter of actions in United States Court of Appeals, general Fifth Circuit.

A district court may stay a civil proceeding UNITED STATES of America, Plaintiff-Appellee, during pendency of a parallel criminal v. proceeding.

LITTLE AL, a/k/a Texas Ranger, Etc., et al., Defendants, Charles Thomas Pollard, Claimant-Appellant. 31 Cases that cite this headnote No. 82-2300 I Summary Calendar. I Aug. 15, 1983.

Claimant of vessels that Government sought to have 131 Controlled Substances forfeited appealed fi·om a summary judgment of the Time for proceedings United States Dish-ict Court for the Southem DistTict of Texas, Hugh Gibson, J., in favor of the Government. The Affidavit of counsel of claimant of ownership Court of Appeals, Reavley, Circuit Judge, held that: (1) interest in vessels for which United States district court did not abuse its discretion in denying sought forfeiture seeking continuance of claimant' s motion for a continuance during pendency o:f} forfeitme proceeding during pendency of claimant's appeal fi·om a criminal conviction that individual's appeal from a criminal conviction stemmed fi·om his pmt in marijuana importation scheme that stemmed from his part in marijuana dming which vessels were seized, giving rise to forfeiture importation scheme which resulted in anest of action, and (2) in absence of any exercise by claimant of individual and seizme of vessels amounted to right to come forward and show that facts constituting nothing more than blanket assettion of Fifth probable cause, that is, that reasonable grounds existed to Amendment privilege against compulsory believe that claimant's vessels were used or intended to self-incrimination in light of lack of explanation be used for prohibited pmposes, did not actually exist, as to how filing of affidavit in response to Government was entitled to forfeiture of vessels. forfeiture proceeding would have prejudiced criminal appeals of claimant, and, as such, did Affirmed. not present type of circumstances or prejudice that required a stay. U.S .C.A. Const.Amend. 5; Fed.Rules Civ.Proc.Rule 56(t), 28 U.S.C.A.

West Headnotes (7) 37 Cases that cite this headnote

[II Federal Courts Continuance and stay 141 Controlled Substances Moving for a continuance invokes discretion of Grounds district comt, and only an abuse of that discretion will justify reversal. Fed.Rules Under forfeiture statutes, prope1ty is subject to Civ.Proc.Rule 56(t), 28 U.S.C.A. forfeiture if it was used in any manner to facilitate sale or transportation of controlled substances. Tariff Act of 1930, §§ 596, 615, as Cases that cite this headnote amended, 19 U.S.C.A. §§ 1595a, 1615; Comprehensive Drug Abuse Prevention and No claim to original U S. Government Works .

APPENDIX 29 TAB 5 U. S. v. Little AI, 712 F.2d 133 (1983) 37 Fed.R.Serv.2d 482 Control Act of 1970, §§ 511 , 5ll(b)(4), 21 511, 5ll(b)(4), 21 U.S.C.A. §§ 881 , 881(b)(4); U.S.C.A. §§ 881 , 881(b)(4); Conh·aband Seizure Contraband Seizme Act, §§ 1, 2, 4, 49 U.S.C.A.

Act,§§ 1, 2, 4, 49 U.S.C.A. §§ 781, 782, 784. §§ 781, 782, 784.

2 Cases that cite this headnote 47 Cases that cite this headnote

(5( Forfeitures Presumptions and Bmden of Proof Attorneys and Law Firms Any claimant of prope1ty sought to be forfeited *134 Michael A. Maness, Mark Vela, Houston, Tex., for must establish either that prope1ty is not subject claimant-appellant. to forfeiture, or that a defense to forfeiture applies. Tariff Act of 1930, §§ 596, 615, as Frances H. Stacy, Jack Shepherd, Asst. U.S. Attys., amended, 19 U.S.C.A. §§ 1595a, 1615; Houston, Tex., for plaintiff-appellee.

Comprehensive Drug Abuse Prevention and Appeal from the United States District Comt for the Control Act of 1970, §§ 511 , 5ll(b)(4), 21 Southem District of Texas.

U.S.C.A. §§ 881 , 881(b)(4); Conh·aband Seizure Act, §§ 1, 2, 4, 49 U.S.C.A. §§ 781 , 782, 784. Before REAVLEY, GARWOOD and JOLLY, Circuit Judges.

2 Cases that cite this headnote Opinion REAVLEY, Circuit Judge: (6( Forfeitures This case concerns the forfeitme of three vessels allegedly Probable or Reasonable Cause used in a scheme to impmt marijuana. Appellant Charles Pollard, who claims an ownership interest in the vessels, lfunrebutted, a showing of probable cause alone appeals from the entry of judgment in favor of the will suppmt a forfeiture . gove1nment. e argues that the district comt punished his exercise of the privilege against self-incrimination by Cases that cite this headnote refusing to continue the action dming the pendency o~ ollard's appeal from a criminal conviction that stemmed [from his art in the im mtation scheme. We affmn.

The factual background of the seizure of the three vessels (7( Forfeitures appears in detail in United States v. Scott, 678 F.2d 606 Automobiles and other vehicles; means of (5th Cir. 1982) cert. denied, 459 U.S. 972, 103 S.Ct. 304, transpmt 74 L.Ed.2d 285 (1982). We reiterate the *135 essential facts. The U.S. Coast Guard boarded the unmanned ln absence of any exercise by claimant of fishing vessel LITTLE AL on April 6, 1981 and property which Government sought to have discovered over fifteen tons of marijuana aboard. The forfeited under forfeiture laws of right to come coast guard, based on prior surveillance, stopped the other forward and show that facts constituting two vessels, TYRANT Ill and DORADO, and arrested probable cause on issue of whether claimant's their crews and passengers. The twelve men found on vessels were used or intended to be ·used for board, including appellant Pollard, were convicted of prohibited purposes did not actually exist, conspiring to impmt and to possess with intent to Government was entitled to forfeitme of vessels. distribute the marijuana found on LITTLE AL. We Tariff Act of 1930, §§ 596, 615, as amended, 19 affmned Pollard's conviction, but reversed the U.S.C.A. §§ 1595a, 1615; Comprehensive Drug convictions of seven of his codefendants.

Abuse Prevention and Control Act of 1970, §§ -- l 1: Nexr © 201 5 Th omson Reutet·s. No claim to original U.S. Governm ent W orks. 2 APPENDIX 30 U.S. v. Little AI, 712 F.2d 133 (1983) 37 Fed.R.Serv.2d 482 The government filed this forfeiture action on October 13, recently: 1981. While the convictions were awaiting appellate review, the government filed a motion for summary [W]hile the assertion of the Fifth judgment in the forfeitme action and supported the Amendment privilege against motion with affidavits by coast guard personnel who had compulsory self-incrimination may pmticipated in the seizme of the three vessels. Pollard be a valid ground upon which a filed no opposing affidavits. witness ... declines to answer questions, it has never been thought Pollard, however, did invoke the continuance procedme to be in itself a substitute for under Fed.R.Civ.P. 56(f), which empowers the district evidence that would assist in comt to continue or deny a summary judgment motion meeting a bmden of production. when the nonmoving mty cannot present o osing We think the view of the Cowt of affidavits. Pollard's counsel avened that he could not Appeals [that invocation of the obtain affidavits from Pollard or his codefendants for fear privilege satisfies a burden of of "substantial rejudice" to their criminal a eals. The production] would conve1t the affidavit did not specify the nature of the prejudice or the privilege fi·om the shield against nature of the evidence that might become available if the compulsory self-incrimination comt granted the continuance. which it was intended to be into a sword whereby a claimant asserting The district court granted summary judgment, noting that the privilege would be fi·eed fi·om Pollard had not made a sufficient showing of inability to adducing proof in suppmt of a present facts. The affidavit of Pollard's counsel, in the bmden which would otherwise court's view, merely evinced reluctance to oppose the have been his. None of our cases motion dming the pendency of the criminal appeals. suppmt this view.

United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 1552-53, 75 L.Ed.2d 521 (1983). Accordingly, a blanket 1. Denial of the Continuance assertion of the privilege neither excuses the burden under Ill Moving for a continuance under Rule 56(f) invokes the rule 56(e) of controve1ting the government's affidavits discretion of the district court, and only an abuse of that nor canies the burden under rule 56(f) of explaining discretion will justify reversal. American Lease Plans v. either the *136 inability to respond or the benefit to be Silver Sand Co., 637 F.2d 311, 317- 18 (5th Cir.l981). derived fi·om postponement.

The party seeking the continuance bears the bmden of demonstrating the need for a continuance. As we have The affidavit submitted by Pollard's counsel amounts to observed: nothing more than blanket assertion of the privilege. No explanation appears conceming how the filing of an Because the bmden on a pmty resisting summary affidavit would have prejudiced the criminal appeals of judgment is not a heavy one, one must conclusively Pollard or his codefendants. No explanation appem·s justify his entitlement to the shelter of rule 56(f) by concerning what the affidavits could have disclosed. No presenting specific facts explaining the inability to explanation appears concerning why affidavits would make a substantive response as required by rule 56(e) have been any more available after termination of the and by specifically demonstrating "how postponement criminal appeal. of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the 2 Certainly, a district comt may stay a civil proceeding 1 [JJ absence of a genuine issue of fact." The nonmovant during the pendency of a parallel criminal proceeding. See may not simply rely on vague asse1tions that additional SEC v. First Financial Group of Texas, Inc., 659 F.2d discovery will produce needed, but unspecified facts . 660, 668 (5th Cir.l981 ). Such a stay contemplates "special circumstances" and the need to avoid "substantial SEC v. Spence & Green, 612 F.2d 896, 901 (5th Cir.l980) and irreparable prejudice." Jd. The very fact of a parallel (citations omitted), cert. denied, 449 U.S. 1082, 10 1 S.Ct. criminal proceeding, however, did not alone undercut 866,66 L.Ed.2d 806 (1981).

Pollard 's privilege against self-incrimination, even though he pendency of the criminal action "forced him to choose Pollard does not diminish this bmden by resting his between preserving hi s privilege against request for a continuance on the privilege against self-incrimination and losing the civil suit." Hoover v. self-incrimination. As the Supreme Comt has noted 1!!S [- .>~ N exr © 2015 Thomson Reuters. No cl aim to original U.S. Governm ent Works. 3 APPENDIX 31 U.S. v. Little AI, 712 F.2d 133 (1983) 37 Fed.R.Serv.2d 482 Knight, 678 F.2d 578, 581 (5th Cir. l982). This case hardly presents the txne of circumstances or rejudice thaV 2 The district court ordered the forfeiture under four ·e uire a stay. statutes, 19 U.S.C. § 1595a; 49 U.S.C. §§ 781 , 782; and 21 U.S.C. § 881. The procedures under these statutes are substantially similar; a showing of probable cause likewise shifts the burden of proof. See 19 U.S.C. § 2. Propriety of Summary Judgment 1615; 49 U.S.C. § 784.

Pollard argues, altematively, that the comt ened by entering summary judgment even if its procedures did not infringe the privilege against self-incrimination. In 161 l?J Ifunrebutted, a showing of probable cause alone will Pollard's view, the government's affidavits do not support a forfeiture. See United States v. One 1975 Ford demonstrate that the vessels were used or intended to be Pickup Truck, 558 F.2d 755, 756- 57 (5th Ci.r. 1977) used to smuggle marijuana. Pollard argues that the (upholding forfeiture based on unrebutted showing of affidavits depend upon conflicting inferences that the probable cause). If Pollard had *137 controve1ted facts court could have drawn and that entry of judgment upon which the probable cause showing relied, summary contravened the principle of drawing all inferences judgment would have been improper. United States v. favorable to the nonmoving pa1ty. One 1944 Steel Hull Freighter, 697 F.2d 1030, 1031 - 32 (llth Cir.I983). As the Comt of Appeals for the Sixth The govemment affidavits do depend on inferences from Circuit, however, has noted: these facts : (1) the LITTLE AL contained over fifteen tons of marijuana; (2) coast guard smveillance established While we cannot agree with the that the TYRANT III had been alongside LITTLE AL government's insistance that early in the day and that TYRANT III, in turn, had been probable cause is all that is needed alongside DORADO; ' (3) the fingerprints of two by way of proof to justify a passengers on board TYRANT III were discovered on forfeitme even in the face of nautical maps found on board LITTLE AL; (4) the coast overwhelming proof that the cause, guard had observed someone on board TYRANT III pass though probable, was not a roll of plastic wrap to someone on board DORADO; and ultimately sustained, it is apparent (5) no other vessels were observed in contact with to us that a showing of probable LITTLE AL, TYRANT III or DORADO. cause is sufficient to warrant a forfeitme and that summary Under 19 U .S.C. § 1615(3), the contact among the judgment was properly entered in vessels provides prima facie evidence of " visits" among the absence of any exercise by the the vessels. claimant of her right to come forward and show that the facts constituting probable cause did not lSI If the government bore the bmden of proving by a actually exist. preponderance of the evidence that the vessels were used or intended to be used in importing the marijuana, the United States v. One 1975 Mercedes 280S, 590 F.2d 196, judgment as to these vessels might be in question. The 199 (6th Ci.r. l978); see United States v. One 1974 forfeiture statutes, however, place the government' s Porsche 91 1-S, 682 F.2d 283, 285- 86-(lst Cir. 1982). burden at a lower threshold . It must establish only that reasonable grounds exist to believe that the vessels were Even drawing inferences favorable to Pollard, we used or intended to be used for prohibited purposes. 21 perceive no genuine issue of material fact as to probable U.S .C.A. § 88l(b)(4) (West 1981)/ See United States v. cause. He has not undercut the factual basis shown by the 1964 Beechcraft Baron Aircraft, 691 F.2d 725, 727 (5th govemment.

Cir. 1982), cert. denied, 461 U.S. 914, I 03 S.Ct. 1893, 77 L.Ed.2d 283 (1983). The property is subject to forfeiture AFFIRMED. if it was used "in any manner" to facilitate sale or transpmtation. ld. Any claimant of the property must establish either that the prope1ty is not subject to forfeiture, or that a defense to the forfeiture applies. See All Citations United States v. $364,960.00 in U.S. Currency, 661 F.2d 712 F.2d 133, 37 Fed.R.Serv.2d 482 319, 325 (5th Ci.r. 1981).

"'· rl=;~; Nexr © 2 01 5 Tl1omson Reuters. No cl aim to ori ginal U.S. Government Works. 4 APPENDIX 32 U.S. v. Little AI, 712 F.2d 133 (1983) 37 Fed.R.Serv.2d 482

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

APPENDIX 33 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

~Original Image of 625 F.Supp.2d 391 (PDF) KeyCite Yellow Flag- Negative Treatment West Headnotes (12) Distinguished by Klein v. Silversea Cruises, Ltd ., N.D. Tex., December 16, 2014 625 F.Supp.2d 391 Ill Action · United States District Court, S.D. Texas, Nature and Subject Matter of Actions in Laredo Division. General Cynthia ALCALA, et al., Plaintiffs, Whether to stay civil action pending resolution v. of parallel criminal prosecution is not matter of TEXAS WEBB COUNTY, et al., Defendants. constitutional right, but rather one of cowt discretion exercised in interests of justice; there Civil Action No. L-08-0128. I May 1, 2009. I exists no general constitutional, statutory, or Opinion Denying Emergency Motion June 1, 2009. common-law prohibition against prosecution of parallel criminal and civil actions, even where such actions proceed simultaneously.

Synopsis Background: Former employees of county tax assessor's 5 Cases that cite this headnote office brought § 1983 action against county, assessor, and other officials within office, alleging that employees had been required to participate in assessor's political campaigns and in raffles benefiting assessor as conditions of employment. Tax assessor and one defendant official 121 Action moved for stay pending resolution of related criminal \?Another Action Pending charges against official/movant.

District cowt' s discretionary authority to stay proceeding pending resolution of parallel proceeding stems from its inherent authority to Holdings: The District Court, J. Scott Hacker, United conh·ol disposition of cases on its own docket.

States Magistrate Judge, held that: official/movant's interests weighed against grant of [ IJ Cases that cite this headnote complete stay; [ 1 former employees ' interests also weighed against grant of complete stay; Action Pl Cowt's own interests weighed against grant of Nature and Subject Matter of Actions in complete stay; General [ 1interests of public and third parties also weighed Complete stay of pending civil action unti against grant of complete stay; and conclusion of related criminal proceeding is considered an extraordinary remedy. [SJ per Micaela Alvarez, J., on tax assessor's emergency motion, indictment of tax assessor in state court for organized gambling promotion did not warrant complete Cases that cite this headnote stay of employees' § 1983 action.

Motion granted in part and denied in part.

141 Action Nature and Subject Matter of Actions in 'o= L-NNexr © 2015 Th omson Reuters. No claim to original U.S. Government Works.

APPENDIX 34 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

General To warrant complete stay of civil action pending resolution of parallel criminal proceeding, In civil case, there is strong presumption in post-indictment, defendant must make strong favor of discovery, and party who moves for showing that two proceedings will so overlap stay pending resolution of related criminal that either: (1) he cannot protect himself in civil proceeding has burden to overcome proceeding by selectively invoking his Fifth presumption. Amendment privilege, or (2) effective defense of both cases IS impossible. U.S.C.A .

Const.Amend. 5.

5 Cases that cite this headnote Cases that cite this headnote

lSI Action Nature and Subject Matter of Actions in General 181 Action = Nature and Subject Matter of Actions in District court should stay civil case pending General resolution of related criminal proceeding only upon showing of special circumstances, to In § 1983 action against county tax assessor and prevent defendant from suffering substantial and against official within assessor's office, alleging irreparable prejudice. that office's former employees had been required to participate in assessor' s political campaigns and in raffles benefiting assessor, Cases that cite this headnote assessor's and official's interests weighed against grant of complete stay pending resolution of state criminal case against official for gambling promotion; cases did not significantly overlap since alleged wrong in civil Action case was mandating of employee participation Nature and Subject Matter of Actions in and retaliation, not taking/holding of raffle ticket General money, state was not party to civil action, and neither defendant would be burdened in civil Factors in whether stay of civil action is suit through selective invocation of right against wananted pending resolution of related criminal self-incrimination. U.S.C.A. Const.Amend. 5; proceeding are: (1) extent to which issues in 42 U.S.C.A. § 1983 ; V.T.C.A., Penal Code §§ criminal case overlap with those presented in 47.03(a)(3), 71.02(a)(2). civil case; (2) status of criminal case, including whether defendant has been indicted; (3) private interests of plaintiff in proceeding expeditiously, Cases that cite this headnote weighed against prejudice to plaintiff caused by delay; (4) private interests of and burden on defendant; (5) interests of courts; and (6) public interest.

191 Action Nature and Subject Matter of Actions in Cases that cite this headnote General In § 1983 action against county tax assessor and against official within assessor's office, alleging that office' s former employees had been Action required to participate in assessor's political Nature and Subject Matter of Actions in campaigns and in raffles benefiting assessor, General former employees' interests weighed against : Nexr © 201 5 Th omson Reuters . No claim to origin al U.S. Government Works. 2 APPENDIX 35 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

grant of complete stay pending resolution of resolving case with minimal delay, there was no state criminal case against official for gambling significant overlap between cases and thus no promotion; most evidence in civil case would demonstrated risk to defendants' rights, and consist of witness testimony couched in current employees as well as county also had memory, and integrity of such testimony was in interest in prompt resolution. 42 U.S.C.A. § danger of degrading fmther in event of stay of 1983 ; V.T.C.A., Penal Code §§ 47.03 (a)(3), uncertain duration. 42 U.S.C.A. § 1983; 71.02(a)(2).

V.T.C.A., Penal Code §§ 47 .03 (a)(3), 71.02(a)(2).

3 Cases that cite this headnote Cases that cite this headnote (12) Action \?Nature and Subject Matter of Actions in (!OJ Action General Nature and Subject Matter of Actions in General Indictment of county tax assessor in state court for organized gambling promotion, in In § 1983 action against county tax assessor and connection with raffles in county assessor's against official within assessor's office, alleging office that benefited assessor's election that office's former employees had been campaigns and that former employees were required to participate in assessor's political allegedly forced to patticipate in, did not campaigns and in raffles benefiting assessor, wanant complete stay of employees' § 1983 federal district court's interests weighed against action against county tax assessor and official grant of complete stay pending resolution of within her office arising out of forced state criminal case against official for gambling participation in raffles, although there was some promotion; there was no significant overlap overlap between the prosecution and the civil between cases, and district court was unlikely to action; 60-day stay of discovery in § 1983 action expend significant effmt on claims of privilege was sufficient to pennit assessor to understand against self-incrimination given defendants' criminal charges against her and respond admissions as to existence of raffles. U.S.C.A. appropriately to civil suit, plaintiffs in § 1983 Const.Amend. 5; 42 U.S.C.A. § 1983 ; V.T.C.A., action would be prejudiced by complete stay, as Penal Code§§ 47.03 (a)(3), 71.02(a)(2). they had already waited eight months to begin discovery, and public had interest in timely resolution of dispute. 42 U.S.C.A. § 1983 ; Cases that cite this headnote V.T.C.A. , Penal Code§ 71.02(a)(2).

Cases that cite this headnote (III Action Nature and Subject Matter of Actions in General In § 1983 action against county tax assessor and Attorneys and Law Firms against official within assessor's office, alleging that office's former employees had been *393 Albert M. Gutienez, Ill, Matthew Fisher Wymer, required to pmticipate in assessor's political Gutienez Wymer, P .C., San Antonio, TX, for Plaintiffs. campaigns and in raffles benefiting assessor, interests of public and third parties weighed Kyle Cledys Watson, Goode Casseb et al. , Albert Lopez, against grant of complete stay pending Attorney at Law, San Antonio, TX, Juan Ramon Flores, resolution of state criminal case against official Murray Edward Malakoff, Yohana Saucedo, Attorney at for gambling promotion; public bad interest in Law, Alberto J. Alarcon, Hall Quintanilla & Alarcon, Laredo, TX, for Defendants. ~:,~Nexr © 2015 Thom son Reuters. No claim to origin al U.S. Government Works. 3 APPENDIX 36 Alcala v. Texas Webb Co unty, 625 F.Supp.2d 391 (2009)

statement: "Patricia Barrera, Webb County Tax- Assessor-Collector, not printed at taxpayer expense." (Diet. No . 12 at~ 29) (emphasis in original).

MEMORANDUM OPINION AND ORDER All WCTAC employees, including Plaintiffs, were J. SCOIT HACKER, United States Magistrate Judge. allegedly recruited by Defendants to sell a specific number of raffle booklets for each raffle. (!d. at ~~ 22, Pending before the Cowt is Defendants Mary Ethel 25-28). Plaintiffs assert that patticipation in the selling of Novoa and Patricia Barrera's "Motion to Stay Civil tickets was mandatory and a condition of employment Proceedings in this Case" (Dkt. Nos. 45, 56). Defendants with the WCTAC. (!d. at~~ 25, 27). Raffle tickets were move the Cowt to issue a complete stay of this civil purpmtedly sold openly at the WCTAC during regular action until the conclusion of Novoa's pending state cowt business hours. (!d. at~~ 20, 30). According to Plaintiffs, trial. Plaintiffs have filed a response to Defendants' WCTAC employees who were issued tickets were Motion and are opposed to a stay. (Dkt. No. 46). After required to sell those tickets, both during work hours and having considered the parties' arguments and the non-work hours, to both WCT AC patrons and to their applicable case law, the Comt holds that a complete stay own family members. (See id. at ~ 20). Allegedly, of these civil proceedings is unwarranted. However, the employees themselves had to purchase any tickets that Cowt will GRANT a limited stay to continue as to were issued to them but remained unsold by the raffle Defendant Novoa only until May 24, 2009. As such, and deadlines. (!d. at ~~ 27- 28). Plaintiffs aver that as detailed below, Defendants' Motion (Dkt. Nos. 45, 56) Defendants "enforced participation in the raffles by verbal is DENIED in part and GRANTED in pmt. threats, intimidation and open hostility, including, but not limited to, the threat of termination, the threat that terminated employees would be black-balled fiom other government and non-government jobs, or other unspecified retaliation." (!d. at ~ 23). The money Background WCTAC employees collected fi·om the sale of raffle tickets was allegedly paid directly to Barrera or one of the In January of 1993, Barrera took elected office as Webb Defendant-supervisors. (!d. at ~ 34). Plaintiffs also claim County Tax Assessor/Collector and cunently serves that drawings for these raffles occwTed openly at the Webb County in that capacity. (Dkt. No. 12 at ~ 18).

WCTAC. (!d. at~ 35).

Defendants Novoa, Rosa Hernandez, and Dora Jimenez are supervisors for the Webb County Tax Apart from these raffles, Plaintiffs assett that in 2000, Assessor/Collector' s Office (the "WCTAC"). (!d. at ~~ Defendants began mandating WCTAC employee 13- 15). Each of the ten Plaintiffs, at one time or another, pmticipation in football pots (or betting pools). (!d. at ~ was an employee with the WCTAC, but either resigned or 36). Supposedly, these pots centered on the outcomes of was tenninated. football games like the Dallas Cowboys' annual Thanksgiving Day game and the Super Bowl. (!d.).

According to Plaintiffs, beginning in 1994, the WCTAC Plaintiffs allege that each square (or stake in the pot) cost began to hold a series of raffles sanctioned by Banera. twenty dollars, and that each WCTAC employee was (!d. at~~ 19, 21). Allegedly, the "Employee Fund Raffle" required, as a condition of employment, to either purchase became an annual event used to raise money for the one square for him or herself, or to sell two squares. (Jd.

WCTAC Christmas party. (Jd. at ~ 19). Plaintiffs also assert that, by 1996, a separate raffle, the "Rifa Entre atn 37, 40). Like patticipation in the raffles, Defendants purpmtedly enforced patticipation in these football pots Amigos " (or the "Raffle Among Friends"), was being through threats of termination and retaliation. (!d. at~ 39). held at the WCTAC three times a yem·. (Jd. at~~ 21- 22).

Plaintiffs claim that this patticular raffle was for the Mandating pmticipation in these raffles and football pots benefit of Banera, as the money derived there from was is not the only objectionable activity alleged by Plaintiffs used, in pmt, to fund Banera's re-election campaigns against Defendants. Plaintiffs claim that mandatory *394 and to pay for calendars bearing Barrera's name and re-election campaigning on behalf of Barrera was another title, which were given away annually to WCTAC condition of employment at the WCTAC. (!d. at ~~ patrons.' (!d. at~ 29). 70- 82). According to Plaintiffs, Barrera required that WCTAC employees place Ban·era campaign bumper Apparently, these calendars contained the following stickers on their cars, maintain a Barrera campaign sign APPENDIX 37 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

outside their homes, and volunteer at Barrera campaign headquarters. (Jd. at~~ 71, 73, 75). These activities were This involves a violation of Texas Penal Code § supposedly enforced, in pmi, by threats of termination for 71.02(a)(2), which provides that " [a] person commits failure to comply. Several Plaintiffs claim that they were an offense if, with the intent to establish, maintain, or indeed fired for refusing to engage in campaign activity participate in a combination or in the profits of a for Barrera. (Jd. atn71, 76- 77). combination or as a member of a criminal street gang, he commits or conspires to commit .. . any gambling After whistle-blowing by then and former WCTAC offense punishable as a Class A misdemeanor .... " Because Novoa is also charged with engaging in employees, including by two of the Plaintiffs, the organized criminal activity, the offense of gambling Attorney General of the State of Texas began to promotion becomes a state jail felony. Texas Penal investigate the activities at the WCTAC. (!d. at~~ 43, 53). Code § 71.02(b ). A Texas state jail felony is On October 11 , 2007, pursuant to a search wanant, the punishable, in part, by "confinement in a state jail for Attorney General's office conducted a raid of the any term of not more than two years or less than 180 WCTAC, which resulted in the seizure of evidence. (!d. at days" and a fine of not more than $10,000. TEXAS ~~ 44--45; Dkt. No. 45, Ex. B). In *395 the following PENAL CODE§ 12.3 5(a), (b). months, investigators with the Attorney General conducted interviews of WCT AC employees, and some employees were subpoenaed to testifY before a Grand Jury. (Dkt. No. 1 at ~~ 48, 59, 66). Plaintiffs allege that ... did unlawfully with intent to establish, mairitain, and WCTAC employees were threatened with retaliation by participate iri a combiriation and iri the profits of a Barrera and the Defendant-supervisors if they spoke to combination, said combination consisting of defendant investigators. (Jd. at n 49- 52, 54-57). Those employees, and two or more other persons, commit the Class A including one Plaintiff, who testified or were suspected of misdemeanor offense of Gambling Promotion, and in testifYing before the Grand Jury, were purpmiedly furtherance of said combination, DEFENDANT, on or terminated. (!d. at~~ 67-68). about and between May 24, 2006 and May 24, 2007 pmsuant to one scheme and continuing course of By early September of 2008, the last of all the conduct, did then and there intentionally and knowingly above-captioned Plaintiffs had either resigned or had been for gain become the custodian of a thing of value bet or te1minated from the WCT AC. On September 24, 2008, offered to be bet, to-wit: money for raffle tickets.

Plaintiffs filed the instant federal civil action against (Jd.). While Novoa is accused of acting with two or Webb County, Texas, Banera (in her individual and more other persons, she is currently the only defendant official capacities), and the Defendant-supervisors, in this case who has been indicted.

Novoa, Hernandez, and Jimenez (also in their respective Eventually, Banera, Novoa, and the other individual and official capacities). (Dkt. No . 1). Plaintiffs Defendant-supervisors all filed separate answers to bring suit, inter alia, pmsuant to 42 U.S.C. § 1983, Plaintiffs' complaint. With respect to Plaintiffs' claims alleging civil rights violations under the First and regarding raffles at the WCTAC, in her answer, Novoa Fomieenth Amendments of the United States generally admits that raffles, sanctioned by Barrera, took Constitution. (Dkt. No. 12 at~ 155). Plaintiffs also allege place. (Dkt. No . 28 at~~ 4, 6-7, 9). She also admits that it that Defendants violated various state law offenses. was known to WCTAC employees that some of the money collected from the "Raffle Among Friends" was The same day Plaintiffs filed their lawsuit, Defendant used for Barrera's campaigns and for "giveaways" to Novoa was indicted in Webb County on state charges of *396 patrons of the WCT AC. (!d. at ~ 12). However, gambling romotion 2 and engaging in organized criminal Novoa denies that these raffles constituted "gambling" activity. 3 (Dkt. No . 45, Ex. C). The indictment charges and that any pmiicipation by WCTAC employees was that Novoa: mandatory. (Id. at ~~ 4, 9). She also denies that raffle ticket money collected by the WCT AC employees was 2 More specifically, Novoa is charged with a violation of paid directly to her. (!d. at~ 13).

Texas Penal Code § 47.03 (a)(3), which provides that "[a] person commits an offense if he intentionally or In the case of Banera, she too admits that raffles occmTed knowingly ... for gain, becomes a custodian of anything amongst the WCTAC employees. (Dkt. No. 36 at ~ 7). of value bet or offered to be bet .... " An offense under § Banera also admits that she would, on occasion, conduct 47.03 is a Class A misdemeanor. TEXAS Penal Code§ ceremonial drawings for the "Raffle Among Friends," and 47.03 (b). that part of the monies collected from that raffle "were utilized to pay for calendars and materials which were •JNexr © 2015 Thom son Reuters. No claim to m iginal U.S. Government Works. 5 APPENDIX 38 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

considered to be promotional in nature." (Id. at ~ 9). to stay proceedings stems fi·om its inherent authority to However, Banera denies that mandatory gambling was a control the disposition of the cases on its own docket condition of employment at the WCTAC. (Id. at ~ 6). "with economy of time and effort for itself, for counsel, Barrera also denies that raffle ticket money collected by and for litigants." Landis v. North American Co. , 299 U.S. the WCTAC employees was paid directly to her. (!d. at~ 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). These same 8). principles apply where, as in the present case, a state criminal prosecution and a federal civil action are Hernandez and Jimenez deny that raffles ever took place involved. See, e.g., St. Martin v. Jones, 2008 WL at the WCTAC. (Dkt. No. 30 at ~ 5; No. 34 at ~ 2). 4534398 (E.D.La. Oct. 2, 2008); Agueros v. Vargas, 2008 Jimenez also objects to Plaintiffs' framing of this activity WL 2937972 (W.D.Tex. July 21, 2008). as "gambling" and "sanctioned." (Dkt. No. 34 at~ 2). As to most of the rest of Plaintiffs' claims, Jimenez has *397 There are several reasons why a court may wish to invoked her privilege against self-incrimination due to the exercise its discretion and stay a parallel civil case. One Texas Attorney General's ongoing criminal investigation primary goal of a stay, when a stay is indeed wananted, is into the WCTAC. (Id. at ~ 5). Jimenez is the only to preserve a defendant's Fifth Amendment right against defendant to have invoked her Fifth Amendment rights self-incrimination and to resolve the conflict he would thus far. face between asse1ting this right and defending the civil action. See SEC v. Dresser Industries, Inc. , 628 F.2d On January 22, 2009, Novoa and Banera filed this motion 1368, 1376 (D.C.Cir. 1980) (en bane), cert. denied, 449 requesting that the Court stay the civil proceedings in this U.S . 993, I 01 S.Ct. 529, 66 L.Ed.2d 289 (1980); see also case pending completion of the ongoing state criminal Trustees of Plumbers and Pipejitters Nat '/ Pension Fund action against Novoa. (Dkt. No. 45 at ~ 3). None of the v. Transworld Mech. , Inc., 886 F.Supp. 1134, other Defendants joined in this motion, nor did they file a 1138(S.D.N.Y. 1995); see also Heller Healthcare Fin., separate request for a stay. Plaintiffs filed their response Inc. v. Boyes, 2002 WL 1558337, at *3 (N.D.Tex. July 15, in opposition to the stay on January 26, 2009. (Dkt. No. 2002). Furthermore, a stay may be justified in order to 46). prevent extending criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), exposing the defense's theory to the prosecution in advance of trial, or otherwise prejudicing the criminal case. Dresser, 628 F.2d at 1376; Plumbers and Pipejitters, 886 F.Supp. at Discussion 1138. The Fifth Circuit has advised that when handling a motion to stay a civil case, a cowt should be sensitive to the differences between the civil and criminal rules of I. Legal Standard 1 121 t is not altogether uncommon that a defendant will discovery, noting that "[w]hile the Federal Rules of Civil Procedure have provided a well-stocked battery of find himself or herself facing separate civil and criminal discovery procedures, the rules governing criminal rosecutions stemming from the same transaction or discovery are far more restrictive." Campbell v. Eastland, occurrence. For instance, this occurs quite often in the 307 F.2d 478, 487 (5th Cir.l962). Given these securities field, where parallel actions may be brought at differences: the same time by different agencies of the federal government. However, the Supreme Cowt has established that there exists no general constitutional, statutory, or Judicial discretion and procedural common law prohibition against the prosecution of flexibility should be utilized to m·allel criminal and civil actions, even where sue harmonize the conflicting rules and actions proceed simultaneously. SEC v. First Fin. Group to prevent the rules and policies of Texas, Inc., 659 F.2d 660, 666-67 (5th Cir. 1981) applicable to one suit from doing (citing United States v. Kordel, 397 U.S. 1, 11, 90 S.Ct. violence to those pe1iaining to the 763, 25 L.Ed.2d 1 (1970)). Thus, whether to stay a civil other. In some situations it may be action pending resolution of a parallel criminal appropriate to stay the civil rosecution is not a matter of constitutional right, but, proceeding. In others it may be rather, one of cowt discretion, that should be exercised preferable for the civil suit to when the interests of justice so require. Kordel, 397 U.S. proceed- unstayed. In the proper at 12 n. 27, 90 S.Ct. 763; Dominguez v. Hartford Fin. case the trial judge should use his Set-vs. Group, Inc., 530 F.Supp.2d 902, 905 discretion to nan·ow the range of (S.D.Tex. 2008). A district cowt's discretionary authority discovery.

Vk - l- ·~Nexr © 201 5 Tllomson Reuters. No claim to origin al U S . Governm ent Works. 6 APPENDIX 39 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

ld (internal citation omitted). lee Cream Co., Inc. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D.Pa. 1980). In Golden Quality, the comt egardless, "[i]t 'is the rule, rather than the exce tion' held that whether to stay a civil action by reason of a that civil and criminal cases roceed together." United pending criminal action involved a balancing of the States ex rei. Gonzalez v. Fresenius Med Care N. Am., ifollowing interests : (1) the p laintiffs interest in 571 F.Supp.2d 758, 761 (W.D.Tex. 2008) (quoting IBMv. proceeding expeditiously in the civil case, balanced Brown, 857 F.Su . 1384, 1387 C.D .Cal.l994 ). And the against the potential prejudice to the plaintiff caused by a complete stay of a pending civil action until the delay; (2) the defendant's interest and the burden which conclusion of a related criminal proceeding is considered any particular aspect of the proceedings may impose on to be an "extraordinary remedy." In re Piperi, 137 B.R. him; (3) the coutt's interest in the management of its 644, 646-47 (Bankr.S.D.Tex. 1991) (citing Wei! v. cases and the efficient use of judicial resources; (4) the Markowitz, 829 F.2d 166, 174 (D.C.Cir. 1987)); see also interests of persons not parties to the civil litigation; and Plumbers and Pi efitters, 886 F .Supp. at 1139. One (5) the public's interest in the ending civil and criminal reason for this is that a complete stay is tantamount to a litigation. Golden Quality, 87 F.R.D. at 56. Over time, defendant's "blanket assertion" of the Fifth Amendment, this test has been adopted by other comts and has which is itself im ro er. SEC v. Incendy, 936 F.Supp. evolved-some factors have been dropped and others 952, 957 (S.D.Fla. 1996); see United States v. Little A!, added. Compare Golden Quality Ice Cream Co., Inc. v. F .2d 133 134-136 Q.th Cir. 1983); see also First Deerfield Specialty Papers, Inc. , 87 F.R.D. 53, 56 Financial, 659 F.2d at 668-69; see also United States v. (E.D.Pa. 1980), with Arden Way Assocs. v. Boesky, 660 Goodwin, 625 F.2d 693 , 70 I (5th Cir. 1980). Generally, a F.Supp. 1494, 1497-98 (S.D.N.Y. 1987) (citing Golden party is required to selectively invoke the privilege Quality, 87 F.R.D. at 56), with Volmar Distribs., Inc. v. against self-incrimination and object with specificity to Ne·w York Post Co., Inc., 152 F.R.D . 36, 39 the information sought from him. First Financial, 659 (S.D .N.Y. 1993) (citing Arden Way, 660 F.Supp. at F.2d at 668. This allows a district coutt to conduct a 1497-98), with Trustees of Plumbers and Pipefitters Nat'/ particularized inquiry, deciding in connection with each Pension Fund v. Transrvorld Mech. , Inc., 886 F.Supp. specific area that the questioning pmty seeks to explore, 1134, 1139 (S.D.N.Y. 1995) (citing Volmar Distribs., 152 whether or not the privilege is well-founded . !d. (quoting F.R .D. at 39; Parallel Civil and Criminal Proceedings, United States v. Melchor Moreno, 536 F.2d 1042, 1049 129 F .R.D. 201 (Pollack, J.)), with Heller Healthcare (5th Cir. 1976)) (quotation marks omitted). Whether a Fin., Inc. v. Boyes, 2002 WL 1558337, at *2 (N.D.Tex. party is entitled to the protection of the privilege is for the July 15, 2002) (citing Plumbers and Pipefitters, 886 court to decide, not the invoking party. Jd F.Supp. at 1139). l41 rsJ As far as the civil case is concerned, there is a strong 161 The test (or a variation thereof) that is generally used presumption in favor of discovery, and it is the party who today was first articulated by District Judge Denny Chin *398 moves for a stay that bears the burden o in Trustees of Plumbers and Pipefitters Nat 'l Pension overcoming this presum tion. Fresenius Medical, 571 Fund v. Transworld Mech., Inc., 886 F.Supp. 1134 F.Supp.2d at 761 (citing United States v. Gieger Transfer (S.D .N.Y . 1995). In Plumbers and Pipefitters, the court Serv., Inc., 174 F.R.D . 382, 385 (S .D.Miss .l997)). A modified the traditional "balancing of the interests" test district comt should stay the civil case only upon a developed by the Golden Quality coutt by weighing two showing of "special circumstances," so as to prevent the additional factors as pmt of the analysis: the extent to defendant from suffering substantial and ine arable which the issues in the criminal case overlap with those rejudice. First Financial, 659 F.2d at 668 (citing Kordel, presented in the civil case; and the status of the criminal U.S . at 11 - 13, 90 S.Ct. 763); Dresser, 628 F.2d at case, including whether the defendants have been 1377. indicted . ~ Id at 1139. District comts in the Fifth Circuit who apply the Plumbers and Pipefitters test consider or In determining whether "special circumstances" wanant a weigh the six following factors : (1 ) the extent to which stay, a court must measure the relative weights of the issues in the criminal case overlap with those competing constitutional and procedural interests. See resented in the civil case; (2) the *399 status of the First Financial, 659 F.2d at 668 ; see also Wehling v. criminal case, including whether the defendant has been Columbia Broadcasting System, 608 F.2d 1084, 1088 (5th indicted; (3) the private interests of the plaintiff in Cir. 1979); see also LeBouef v. Global X- Ray, 2008 WL roceeding expeditiously, weighed against the prejudice 239752, at *2 (E.D .La. Jan. 29, 2008). Those interests to the plaintiff caused by a delay; (4) the private interests were mticulated by Dish·ict Judge Louis H. Pollak and of and burden on the defendant; (5) the interests of the Magish·ate Judge William F. Hall, Jr. in Golden Quality comts; and (6) the ublic interest. See, e.g, St. Martin v. W2_;L [- : •.Nexr © 20 15 Thom so n Re ute rs. No cl aim to original U S. Govern men t W orks. 7 APPENDIX 40 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

Jones, 2008 WL 4534398, at * 1 (E.D .La. Oct. 2, 2008); the patties, the Court, third miies, and the public will be United States ex rei. Gonzalez v. Fresenius Med. Care N. weighed against each other. 6 In other *400 words, because Am., 571 F.Supp.2d 758, 762 (W.D .Tex. 2008); Agueros v. factors like overlap and the status of the criminal case Vargas, 2008 WL 2937972, at *1 (W.D.Tex. July 21 , may substantially impact the interests of the parties, the 2008); Akuna Matata Invs., Ltd. v. Texas Nom Ltd. Comi, third parties, and the public, these two factors P 'ship, 2008 WL 2781198, at *2 (W.D.Tex. April 14, ·should be analyzed within the framework of those 2008); SEC v. Offill, 2008 WL 958072, at *2 (N.D.Tex. interests. "This balancing-of-the-interests approach Apr. 9, 2008); United States v. Simcho, 2008 WL ensures that the rights of both [the defendant and the 2053953 , at *3 (N.D.Tex. Mar. 31 , 2008); SEC v. plaintiff] are taken into consideration before the court AmeriFirst Funding, Inc., 2008 WL 866065, at *2 decides whose rights predominate." Wehling, 608 F.2d at (N.D .Tex. Mar. 17, 2008); LeBouef v. Global X-Ray, 1088. 2008 WL 239752, at *I (E.D.La. Jan. 29, 2008); Dominguez v. Hartford Fin. Servs. Group, Inc., 530 6 The Court is well aware that its own understanding of F.Supp.2d 902, 905 (S .D.Tex. 2008); Whitney Nat '/ Bank this six-factor test may differ slightly from that of other v. Air Ambulance ex rei. B & C Flight Mgmt., Inc., 2007 district courts. However, the Court views as WL 1468417, at *2 (S .D.Tex. May 18, 2007); Shaw v. problematic the balancing of concepts like "overlap of Hardberger, 2007 WL 1465850, at *2 (W.D.Tex. May issues" and "status of the criminal case," with concepts 16, 2007); Holden Roofing, Inc. v. All States Roofing, like "defendant's interests," "plaintiffs' interests," and Inc., 2007 WL 1173634, at *I (S .D.Tex. Apr. 18, 2007); the Court's own interests in this matter. In Golden Quality, this test was originally viewed as a balancing State Farm Lloyds v. Wood, 2006 WL 3691115, at *I of competing interests. Whether there is significant (S.D.Tex. Dec. 12, 2006); Lewis v. City of Garland, 2005 overlap of the issues between the civil and criminal WL 2647956, at *2 (N .D.Tex. Oct. 14, 2005); SEC v. case is an important aspect of the analysis- maybe, Mutuals.com, Inc., 2004 WL 1629929, at *3 (N.D.Tex. even, the most important. But only because it and the July 20, 2004); Frierson v. City of Terrell, 2003 WL "status of the criminal case" will affect how much 22479217, at *2 (N .D.Tex. Aug. 4, 2003); Librado v. MS. weight to accord to the competing interests and how Carriers, Inc., 2002 WL 31495988, at* 1 (N .D.Tex. Nov. those interests are ultimately balanced against each 5, 2002); Heller Healthcare Fin., Inc. v. Boyes, 2002 WL other. Simply stated, the overlap of the criminal and 1558337, at *2 (N.D.Tex. July 15, 2002).5 Although not civil cases is not something to "balance," per se, but, rather, something to consider in determining how the usually considered by district comis in the Fifth Circuit, balancing of the various interests in a case will play another important factor atiiculated by the Golden Quality out. Regardless, while the Court's analysis of this test comi involves balancing the interests of persons not may be different, its application should yield the same parties to the civil litigation. result. Arguably, the Court's understanding of this test aligns more closely with the test applied by the Ninth The Plumbers and Pipejillers court also dropped one Circuit Court of Appeals, whose test derives directly factor, the interests of persons not party to the civil from the source- the Golden Quality case. See Federal litigation, because it was deemed inapplicable by the Sav. and Loan Ins. C01p. v. Molinaro, 889 F.2d 899 court and had not been raised by the parties. Plumbers (9th Cir. 1989) (citing Golden Quality, 87 F.R.D. at 56); and Pipejillers, 886 F.Supp. at 1139 n. 7. see also Keating v. Office ofThrift Supervision, 45 F.3d 322 (9th Cir.l995) (citing Molinaro, 889 F.2d at 902-03); see also Lizarraga v. City ofNogales Arizona, 2007 WL 215616 (D.Ariz. Jan. 24, 2007) (citing Plumbers and Pipefitters is the genesis of this test. All Keating, 45 F.3d at 324-25). the cases cited here either cite Plumbers and Pipejillers directly, or cite a case that cites Plumbers and Pipejillers.

II. Analysis The Court agrees that all of these factors are impmiant in After having balanced the above-referenced competing determining whether the stay of a civil case should be interests and how overlap and the status of the criminal granted. However, the Comi believes that the two case impacts those interests, the Cowi holds that a additional factors miiculated rn Plumbers and complete stay of these proceedings is not wan·anted.

Pi efitters-namely, the overlap between the civil and criminal cases and the status of the criminal case-are not independent factors for the Cowi to consider. Rather, they are factors im ortant in determining how the interests of A. The Balancing of Interests APPENDIX 41 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

1. Defendants' Interest 1139 (citing Parallel Proceedings, 129 F.R.D. at 203) ("If In deciding whether to issue the stay, the Comt first there is no overlap, there would be no danger of considers the interests of the moving defendants .' As self-incrimination and accordingly no need for a stay."). previously stated, the Court evaluates those interests As such, a comt should consider whether, by allowing the primarily by analyzing how overlap and the status of the civil case to continue, the defendant can effectively criminal case may affect those defendants. defend the civil lawsuit without being pressured into waiving his Fifth Amendment rights.

Because neither Jimenez nor Hernandez seeks to stay this case, the Court will not address the propriety of Furthermore, the status of the criminal case is imp01tant according such relief as to these particular defendants. in evaluating a defendant's interest in obtaining a stay in the civil proceedings. In fact, status ofthe criminal case is pivotal to determining the degree of overlap. Analysis Overlap can be particularly imp01tant to a defendant's centers upon whether the criminal case is pre-indictment interests.8 For example, a defendant has an interest in in the investigation stage or post-indictment with a set preventing a parallel civil action from prejudicing his trial date . criminal defense. As noted above, if a comt does not stay a parallel civil action, then the civil case might undermine Prior to an indictment, whether the issues will even the defendant's Fifth Amendment privilege against overlap is a mere "matter of speculation." United States e.;~: rei. Shank v. Lewis Enters., Inc., 2006 WL 1064072, at self-incrimination by expanding rights of criminal discovery beyond the limits of Federal Rule of Criminal *4 (S.D.Ill. Apr. 21, 2006); see SquareD Co. v. Sho·wmen Procedme 16(b), by exposing the basis of the defense to Supplies, Inc., 2007 WL 1430723, at *4 (N.D.Ind. May the prosecution in advance of criminal trial, or by 14, 2007). Accordingly, courts generally decline to prejudicing the criminal case through other means. See impose a stay where the defendant is under criminal Dresser, 628 F.2d at 1376. Simply stated, a defendant investigation, but has yet to be indicted. In re CFS, 256 may be burdened by liberal civil discovery on the same F.Supp.2d 1227, 1237 (N.D.Okla. 2003) (citing Sterling issues as those in the pending criminal case, where Nat. Bank v. A- / Hotels /nt 'I, Inc. , 175 F.Supp.2d 573, discovery would be otherwise limited. See Whitney, 2007 576 (S.D.N.Y. 2001)); Fresenius Medical, 571 F.Supp.2d WL 1468417, at *3; see also Campbell, 307 F.2d at 487; at 763 (citing Shank, 2006 WL 1064072, at *3). Indeed, a see also Dresser, 628 F.2d at 1376. "pre-indictment motion to stay can be denied on this ground alone." Citibank, NA . v. Hakim, 1993 WL 481335, at* 1 (S.D.N.Y. Nov. 18, 1993).

It is said that self-incrimination is more likely to occur the more significant the overlap. See Plumbers and 171 Post-indictment is when the degree of overlap between Pipefitters, 886 F.Supp. at 1139. Whether there is overlap between the issues in a criminal and civil action a criminal and civil case can most readily be determined. "demands a common-sense, fact-bound analysis." Fresenius Medical, 571 F.Supp.2d at 762. The criminal Fresenius Medical, 571 F.Supp.2d at 762 (citing In re indictment helps clarifY the alleged conduct at issue and Ramu Corp., 903 F.2d 312, 320 (5th Cir.l990)). A can be easily compared against the civil complaint. As comt must read the criminal indictment and the civil · such, " [t]he ' strongest case' for a stay exists where a patty complaint side-by-side and determine whether the is indicted for a serious offense and must defend a civil wrong/iii conduct alleged in both cases is similar. action involving the same matter." 9 Lizarraga v. City of Plumbers and Pipefitters, 886 F.Supp. at 1139. Comts Nogales Arizona, 2007 WL 215616, at *3 (D.Arizona, caution, however, that "a mere relationship between January 24, 2007) (citing Dresser, 628 F.2d at 1377). It is civil and criminal proceedings and the prospect that discovery in the civil case could prejudice the criminal important to note, however, that even after an indictment proceeding does not necessarily warrant a stay." has issued, courts are generally split as to the propriety of Fresenius Medical, 571 F.Supp.2d at 762 (citing In re granting a stay. In re CFS, 256 F.Supp.2d at 1238; see In Ramu C01p., 903 F.2d 312, 320 (5th Cir. 1990)). re Worldcom, Inc. Sec. Litig., 2002 WL 31729501, at *4 (S.D.N.Y. Dec. 5, 2002 . In summary, to warrant a stay, a defendant must make a strong showing that the two A defendant also has an interest in avoiding the quandary proceedings will so overlap that either ( 1) he cannot of choosing between waiving his Fifth Amendment rights protect himself in the civil proceeding by selectively and effectively forfeiting the civil case. Plumbers and invoking his Fifth Amendment privilege, or (2) effective Pipejitters, 886 F.Supp. at 1140. A defendant is more defense of both [the criminal and civil cases] is likely to face this quandary where the subject matter of 'm ossible. Koester v. American Republic Investments, *401 both cases overlaps to a significant degree. !d. at Inc., 11 F .3d 818, 823 (8th Cir. l993).

W=>~t t "':JNexr © 2 015 Thom son Reuters. No claim to origin al U.S. Governm ent Works. 9 APPENDIX 42 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

WCTAC was conditioned on the rmsmg of money A stay is even more appropriate when the federal through the raffle and the participation in various government has initiated both the civil and criminal campaign activities. The differences between the proceedings. Brock v. Tolkow, 109 F.R.D. 116, 119 wrongful conduct alleged in the civil and criminal cases (E.D.N.Y. 1985); see Square D Co. v. Showmen demonstrates a lack of significant overlap between the Supplies, Inc., 2007 WL 1430723, at *4 (N.D.Ind. May two.

14, 2007); see also Sterling Nat. Bank v. A-1 Hotels lnt'l, Inc., 175 F.Supp.2d 573, 578- 79 (S.D.N.Y. 2001). The degree of overlap is further reduced by the fact that Again, this is quite common in the field of securities the prosecutor in the criminal case, namely the State of regulation. There is likely to be complete overlap Texas, is not a party to the civil action. In fact, the betv<een a civil suit by the SEC and a parallel criminal prosecution by the DOJ. potential for prejudice to a criminal defense is diminished where private parties, and not the government, are the p laintiffs in the civil action. Hakim, 1993 WL 481335, at *2. Quite possibly the strongest case for a stay occurs when the federal government has initiated both the civil and criminal proceedings. Brock v. Tolkow, 109 F.R.D. a. Novoa 116, 119 (E.D.N.Y.l985); see SquareD Co. v. Showmen Supplies, Inc. , 2007 WL 1430723, at *4 (N.D.Ind. May In the case of defendant Novoa, an indictment has been 14, 2007); see also Sterling Nat. Bank v. A-I Hotels Int '/, issued, and it is possible to pinpoint the issues at stake Inc. , 175 F.Supp.2d 573, 578- 79 (S.D.N.Y. 2001). "In with some cettainty. At first glance, there does appear to such circumstances, there is a special danger that the be some degree of overlap between Novoa's criminal govemment can effectively undermine rights that would prosecution in state comt and the instant federal civil exist in a criminal investigation by conducting a de facto action. Novoa is being prosecuted for organized *402 criminal investigation using nominally civil means." gambling promotion. This allegedly involved Novoa Sterling, 175 F.Supp.2d at 579; see Square D, 2007 WL becoming, for gain, the custodian of a thing of value bet 1430723, at *4 (citing United States ex ref Shank v. Lewis or offered to be bet- specifically, money for raffle Enters., Inc. , 2006 WL 1064072, at *4 (S.D.Ill. Apr. 21, tickets. In tetms of the civil action, Plaintiffs claim, in 2006)) ("The comt' s concem is the risk of the patt, that they were wrongfully required as a condition of govemment's use of the broad scope of civil discovery to employment at the WCTAC to patticipate in this obtain information for use in the criminal prosecution."); organized scheme whereby Novoa became the custodian see also Campbell, 307 F.2d at 487. Arguably, the risks to of the thing of value, or the money for the raffle tickets. a defendant's constitutional rights are magnified in such a Furthermore, Plaintiffs claim that they were then situation. Sterling, 175 F.Su p.2d at 579. However, the retaliated against for cooperating with the Attorney instant civil case has been brought by private entities and General ' s investigation into this supposed scheme. is not one "in which the government itself has an Overlap between the two cases would occur, then, with oppmtmtity to escalate the pressure on defendants by respect to any facts related to Novoa's supposed manipulating simultaneous civil and criminal collection of raffle-ticket money from WCTAC proceedings, both of which it controls." !d. The private employees. plaintiffs here have interests distinct fi·om those of the Texas government, and "[t]here is no reason to assume However, a closer comearison of the criminal indictment that [Plaintiffs'] civil case is simply a stalking horse for and the civil complaint reveals that the wrongful conduct he government's criminal inquiry, rather than a good alleged in the civil case is at least one step removed fi·om faith effmt *403 to obtain con1J2ensation for [their] own the wrongful conduct alleged in the criminal case. rivate injuries." !d.

Whereas in the criminal case, the alleged wrongful conduct centers around the taking and holding of raffle Because there is no significant overlap between the civil ticket money, the alleged wrongful conduct in the civil and criminal cases, little concem is raised regarding case centers around whether WCTAC employment was Novoa's Fifth Amendment rights and her ability to defend conditioned on the raising of money through the raffle the civil and criminal actions. First in terms of the civil and the participation in various campaign activities. case, if Novoa is indeed asked during discove1y whether Liability in the civil case is also based upon an even more any raffles took place at the WCTAC, or whether she tangentially related scenario: whether WCTAC collected any raffle monies, she can admit or deny this, or employees were retaliated against for cooperating in an invoke her Fifth Amendment right not to incriminate investigation regarding whether employment at the erself. Selective invocation of the Fifth Amendment as "''" l '.\INexr © 201 5 Thomson Reuters. No cl aim to ori ginal U.S. Governm ent Works. 10 APPENDIX 43 Alcala v. Texas Webb Co unty, 625 F.Supp.2d 391 (2009)

to such a uestion would not burden her civil defense. As for Barrera, she has yet to be indicted. The degree of Whether these raffles occurred at the WCTAC, or overlap is thus speculative at this point. See Shank, 2006 whether Novoa was the custodian of the raffle monies, is WL 1064072, at *3; SquareD Co., 2007 WL 1430723, at not the wrongful conduct alleged by Plaintiffs. Instead, *4. Even assuming that Banera were to be indicted as one Plaintiffs would have to prove, in part, for purposes of the of the individuals alleged to have acted in combination civil suit, that Novoa furthered the policy of mandatory with Novoa, again, there would be no significant overlap participation in these raffles. And even if Novoa were ofthe issues. Fmthermore, Banera would not be burdened indeed asked whether this was the case, her civil defense in the civil suit through selective invocation of her Fifth would not be unduly burdened through her selective Amendment right. Like Novoa, *404 Banera has the invocation of the Fifth Amendment in response. If the benefit of dozens of witnesses, current and former evidence in this case simply consisted of one pmty's word WCTAC employees, who have seen and experienced against the other's, the defendant's invocation of the Fifth what occmTed at the WCTAC. Therefore, Banera cannot Amendment privilege would have the potential to hamper show that selective invocation of her Fifth Amendment the civil defense. But here, there are literally dozens of right would significantly prejudice her civil case. Also, witnesses, cunent and former WCTAC employees, who like Novoa, Banera did not invoke her Fifth Amendment have seen and experienced what occmTed at the WCTAC. right in her answer. She too generally admits that raffles (Dkt. No. 45, Exhibit A, Initial Disclosures) . As such, if occmTed at the WCT AC and denies that participation in she were to selectively invoke the Fifth Amendment, these raffles was mandatory or that a lack of pmticipation Novoa's hands will not be tied because there may be any in the raffles and other campaign activities led to number of witnesses willing to testifY on her behalf and terminations. Therefore, Ban·era, like Novoa, is able to support any claims she may make in defense of her suit. testifY that no retaliation occurred and that there were legitimate reasons for any terminations. Finally, Barrera is !Regardless, there seems to be little reason to believe that unable to show that the government is using the civil suit Novoa would selectively invoke her Fifth Amendment as a means of aiding its prosecution of a criminal action, privilege against self-incrimination as to any questions both because the government is not a party to the civil suit whatsoever. In her answer to Plaintiffs' complaint, Novoa and, in Banera's case, because no criminal action has yet generally admits that raffles occwTed at the WCTAC, and been initiated. she denies any facts that would give rise to the true basis of liability in this civil action-whether participation in The Comt does note that an investigating officer with the these raffles was mandatory and whether she furthered Texas Attorney General Office, Sergeant Alfonso this policy tlu·ough any number of means.' 0 Simply put, Cavalier, executed an affidavit in suppmt of the WCTAC ovoa has denied all of Plaintiffs ' allegations as to search wanant, swearing, in part, that Barrera committed ,·etaliation or wrongful termination alleged by the fonner the following offense: CTAC employees. Therefore, there does not seem to be Texas Penal Code, Chapter 39.02 anything incriminating about Novoa testifYing regarding Abuse of Official Capacity [by] the legitimate reasons as to why a former employee was allowing county employees to terminated or denying any alleged instances of retaliation. participate in football pots on summary, Novoa has failed to show that she would be county property during the course burdened in the civil suit through selective invocation of of their normal work day, by er Fifth Amendment right, or that it would be impossible mandating that county employees to simultaneously defend the criminal and civil actions. sell raffle tickets during business hours while being paid by the Whether Novoa has already waived her Fifth county, by allowing the sale of Amendment privilege by even making these admissions these raffle tickets during business and denials in her answer is a question not presently hours while being paid by the before the Court. Barrera also makes similar admissions county, by allowing the sale of and denials in her respective answer to Plaintiffs' these raffle tickets in a county complaint. facility workplace, and personally profiting from the sale of these football pots and raffle tickets being sold by said county employees."

b. Barrera II Section 39.02(a) of the Texas Penal Code provides that APPENDIX 44 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

"a public servant commits an offense if, with intent to to expeditiously pursue his claim,' " Whitney, 2007 WL obtain a benefit or with intent to harm or defraud 1468417, at *3 (citing In re Adelphia Commc 'ns Sec. another, he intentionally or knowingly: (1) violates a Litig., 2003 WL 22358819, at *4 (E.D.Pa. May 13, law relating to the public servant's office or 2003)), comis recognize that delay can lead to the loss of employment; or (2) misuses government property, evidence and duly fi"ustrate a plaintiff's ability to put on services, personnel, or any other thing of value an effective case. Fresenius Medical, 571 F.Supp.2d at belonging to the government that has come into the 763 ; Sidari v. Orleans County, 180 F.R.D. 226, 230 public servant's custody or possession by virtue of the (W.D.N.Y. 1997); SEC v. Brown, 2007 WL 4192000, at public servant's office or employment." TEXAS PENAL CODE§ 39.02(a). *2 (D.Minn. July 16, 2007); Hakim, 1993 WL 481335, at *2. With the passage of time, witnesses become unavailable, memories of conversations and dates fade, and documents can be lost or destroyed. Brown, 2007 WL (Dkt. No. 54, Ex. B at pg. 9). While an indictment based 4192000, at *2. on this statement appears to overlap with the civil suit to a greater degree than the conduct alleged in Novoa's This case was filed back in September of2008; and due to indictment, the Court points out that the search warrant delays, discovery has yet to begin. Of particular concern was executed back in October 2007- about eighteen here, then, is the possibility that further postponing months ago. When the State of Texas initiated a discovery by staying this case will prevent Plaintiffs from prosecution approximately one year after the execution of obtaining information related to whether employee that search wanant, it did not indict Ban·era on the participation in raffles was mandatory at the WCTAC and offense stated in the search warrant. Instead, it indicted whether any of the plaintiffs were terminated for any of Novoa on a separate offense, diminishing the likelihood the wrongful reasons asse1ied. The Court expects that if that Banera will be indicted based on the conduct stated information exists as to the alleged culture or environment in the affidavit. If Barrera is indicted and the conduct of intimidation at the WCT AC, it will most likely have to alleged in that indictment significantly overlaps with the be elicited through written intenogatories and oral conduct alleged in the civil suit, the Cowi will reevaluate depositions of the plaintiffs and others who took pmi in or whether a stay is warranted. At this time, however, the witnessed any liability-creating transactions. Because degree of overlap is too speculative to wanant a stay of such information is couched in memory, the integrity of Barrera's case. " this information is in danger of degrading over time, and here, considerable time has already elapsed since the The Court also notes that Barrera requests a stay until alleged events that gave rise to this suit took place. 13 The the conclusion of the criminal case against Novoa. But last of the plaintiffs to have worked at the WCTAC were it is unclear to the Court how the conclusion ofNovoa' s terminated in early-September, over six months ago. Most case would impact Barrera, who has yet to be indicted of the other plaintiffs resigned or were terminated in and who could face prosecution even after Novoa' s early-to-mid 2008, and some in 2007. Thus, because most criminal case has concluded . of the evidence in this case will consist of witness testimony, continued delay will only serve to further prejudice Plaintiffs' ability to obtain discovery.

2. Plaintiffs' Interests The Court notes that while there is also a danger of losing documentary evidence due to the delay, th.is Overlap, or the lack thereof, is also a concern for would probably not be of great consequence to Plaintiffs' interests. Because *405 the Plaintiffs are not Plaintiffs ' case. Any documents would most likely be parties to the criminal case, a delay in their civil case relevant only for purposes of establishing that raffles could be prejudicial. When the government is a party to actually took place at the WCTAC. But as already both the civil and criminal actions, a delay in the civil discussed, whether raffles occurred at the WCTAC case may not be as significant. For the most pari, the would not, of itself, establish Defendants' liability in government is able to preserve its interests in the civil the civil case. Furthermore, Novoa and Barrera case through its prosecution of the criminal case. Such generally admit in their answers to the complaint that may not be the case when the plaintiffs, as they are here, raffles took place. are private parties.

While "[n]ormally, ' in evaluating the plaintiffs burden Regarding the issuance of an indictment against Novoa, it resulting from the stay, courts may insist that the plaintiff could be argued that "the prejudice to the plaintiffs in the establish more prejudice than simply a delay in his right civil case [would be] reduced since the criminal case APPENDIX 45 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

[would] likely be quickly resolved due to Speedy Trial such interest is injudicial efficiency. "The conviction of a Act considerations." See Plumbers and Pipefitters, 886 civil defendant as a result of the entry of a plea or F.Supp. at 1139. However, such an argument may not ollowing a trial can contribute significantly to the have as much force when the criminal defendant faces nanowing of issues in dispute in the overlapping civil indictment by the State of Texas versus the federal case and promote settlement of civil litigation not only by government. Under the Speedy Trial Act, it is generally hat defendant but also by co-defendants who do not face required that a federal criminal trial begin within 70 days criminal charges." Worldcom, 2002 WL 31729501 at *8. after a defendant is indicted *406 or makes an initial A cowt, then, must analyze whether, and to what extent, appearance. See 18 U.S.C. § 316l(c)(1). Thus, after the outcome of the criminal proceeding would serve to indictment by the federal government, the Speedy Trial simplifY or "streamline" the issues and any possible Act effectively limits the ·duration of a stay in a parallel discovery disputes. Of course, this all depends on the civil case. The State of Texas, on the other band, has no degree of overlap between the criminal and civil cases.

Speedy Trial Act. " Accordingly, where a defendant has been indicted by the State of Texas, there is no statutory ere, there would be little "streamlining." Were the State mechanism by which to set the possible durational limits of Texas to establish Novoa's guilt, this civil case would of a parallel civil action in federal comt. 15 a·emain unresolved. Perhaps a criminal conviction against Novoa would establish to some extent, and merely as a In 1987, the Texas CoUJt of Criminal Appeals held that threshold matter, that gambling did occur at the WCTAC the Texas Speedy Trial Act was unconstitutional and that Novoa collected any raffles monies. However, because it violated principles of separation of powers such a conviction would not speak to the actual bases of under the Texas Constitution. Meshell v. State, 739 liability in this civil action. Coercing participation in an S. W.2d 246 (Tex.Crim .App.l987). organized gambling scheme through threats of retaliatory termination, for example, is not the wrongful conduct for which Novoa has been charged. As such, it would not be 15 addressed by the State in proving its criminal case, nor The Sixth Amendment itself is not effective in defining such limits. " It is ... impossible to determine with would it be adjudicated by the criminal tribunal. precision when the [Sixth Amendment right to a speedy trial] has been denied." Barker v. Wingo, 407 U.S. 514, The Court does realize that by proceeding with the civil 522, 92 S.Ct. 2182, 33 L.Ed.2d I 01 ( 1972). Whether a case, there is a possibility that the Comt will have to rule defendant has been deprived of this right requires the on selective claims of Fifth Amendment privilege and consideration of several factors, including the length of objections to specific information requests dming the the delay and whether the defendant has asserted his discovery process. *407 However, Novoa and Banera, the rights. !d. at 530, 92 S.Ct. 2182 . A presumption of only two defendants moving for a stay, have not shown prejudice against the accused does not trigger until at the Court, thus far, that they would selectively invoke least one year from arrest or indictment. Doggett v. United States, 505 U.S. 647, 652 n. I, 112 S.Ct. 2686, their Fifth Amendment privilege. As already discussed, in 120 L.Ed.2d 520 (1992). their respective answers to the complaint, these defendants have generally admitted that raffles occmTed at the WCTAC, and they have denied all other accusations that provide for the true basis of liability in Here, because Novoa has been indicted by the State of this civil case. Therefore, it does not appear, at this time, Texas, it is difficult for the Cowt to dete1mine the that the Court will have to expend any significant amount duration of a possible stay in this civil case. In fact, the oftime and effort ruling on any claims of privilege. indictment against Novoa was issued more than six months ago, and the Comt takes judicial notice that Another interest for the Cowt to consider is judicial Novoa's pending trial, which is currently set for May 18, expediency, whether staying the civil case will interfere 2009, has already been reset twice before. As for Banera, with its management of the docket. A comt "has an there is no telling when, or even if, she will be indicted. obligation to move its docket, and not let cases languish Plaintiffs may have already been prejudiced by the delay before it." In re Scrap Metal Antitrust Litig. , 2002 WL that bas occurred thus far, Jet alone by any further delay 31988168, at *7 (N.D.Obio Nov. 7, 2002). But that is of an indefinite duration. precisely the danger where, as here, a stay could be of indefmite duration. As discussed above, Novoa has been indicted by the State of Texas, which has no speedy trial act. Moreover, no indictment has even been issued in 3. The Court's Interests IIOI ifhe Court must also balance its own interests. One Barrera's case. Postponement of this suit until the APPENDIX 46 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

conclusion of Banera's criminal prosecution, if any, As such, the Court DENIES Novoa's and Barrera's "would require this court either to 'rely upon fmtuitous request to stay this case in its entirety. *408 All parties events to manage its docket,' or to guess what criminal should begin discovery immediately. A stay order will be acts [she] might be charged with, and consequently which reversed when found to be immoderate or of an indefinite limitations periods apply to those criminal acts .... " duration. McKnight v. Blanchard, 667 F.2d 477, 479 (5th Hakim, !993 WL 481335, at *2 (internal citation Cir. 1982). As such, a district comt should carefully omitted). consider the time reasonably expected for the resolution of the criminal case. See Wedgeworth v. Fibreboard Corp., 706 F.2d 541 , 545 (5th Cir. 1983). Since Novoa's next state court date is set for May 18, 2009, the Comt 4. The Public's and Third-Parties' Interests will GRANT a limited stay to continue as to Defendant 1111 Finally, the interests of the public and third parties Novoa only until May 24, 2009. During this period, no must be considered.16 The public bas an interest in the party should serve intenogatories, requests for resolution of disputes with minimal delay, but only to the admissions, or a notice of deposition on Novoa until May extent that the integrity of the defendant's rights can be 25, 2009. All other requests for relief in Novoa and maintained. St. Martin, 2008 WL 4534398, at *3; State Ban·era's motion are DENIED.

Farm L/oy ds, 2006 WL 369 1115, at *3; Frierson v. City of Terrell, 2003 WL 21355969, at *4 (N.D.Tex. June 6, IT IS SO ORDERED.

2003). The degree of overlap is an impmtant consideration in weighing the public's interests. As already discussed, there is no significant overlap between Novoa's criminal prosecution and the civil case, so her rights are not at risk. The status of Banera's criminal case OPINION AND ORDER is also an impmtant consideration. Banera bas not been indicted. Thus, the risk to her rights is presently unclear, and it is impossible to predict exactly when an indictment MICAELA ALVAREZ, District Judge. will be handed up against her, if at all. Here then, because On May 25, 2009, Defendant Patricia A. Barrera the integrity of Novoa and Banera's rights can be ("Banera") through her counsel filed an Emergency maintained without a stay, the public's interest in Motion in this cause of action. 1 [Dkt. No. 77V In this resolving the case with minimal delay weighs against a Motion, Banera moves the Comt to (1) handle all futme stay. St. Martin, 2008 WL 4534398, at *3. pre-trial matters in these cases; (2) vacate Judge Hacker's Opinions of May 1, 2009 and May 15, 2009; and (3) stay all discovery in this case for eleven months. Plaintiff filed Typically, district courts have analyzed these two a response on May 28, 2009. [Dkt. No. 81]. For the factors separately. Whether these two interests are considered independently or together is immaterial in following reasons, the Comt DENIES Defendant's the overall balancing of interests. Motion ofMay 25, 2009.

The full title of this Motion is "Defendant, Patricia A.

Third pmties may also have an interest in resolving this Barrera's Opposed Emergency Motion for Stay of Proceedings Pendiente Lite Directed to United States case with minimal delay. Defendants are currently District Judge and Motion to Reconsider Magistrate employed at the WCTAC. If Plaintiffs' allegations are Judge's Denial of Motion to Stay Proceedings, Motion true, the other WCTAC employees, who are not plaintiffs for Vacation of Magistrate Judge's May 15, 2009 Order in this case, have an interest in not being the victims of and Amended Schedu ling Order and Motion for threats, retaliation, wrongful termination, or pressure to Protective Order and for Rule 26 Scheduling leave their employment. If Plaintiffs' allegations are false, Conference." [Dkt. No. 77]. then Webb County and the WCTAC employees have an interest in exposing the truth promptly.

"Dkt. No." refers to the docket number entry for the Court's electronic filing system. The Comt will cite to the docket number entries rather than the title of each filing.

Conclusion After considering the various interests in this case, the Comt finds that a stay of the entire case is not warranted. ~,. [-.·.Nexr © 2015 Thom son Reuters. No cl aim to ·original U.S . Government Works . 14 APPENDIX 47 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

I. BACKGROUND AND PROCEDURAL HISTORY All ten Plaintiffs had either resigned or been terminated In January 1993, Defendant Banera assumed elected from WCTAC at the time they filed this federal civil office as Webb County Tax Assessor/Collector. [Dkt. No. suit.

12 at~ 18]. Plaintiffs allege that soon thereafter the Webb County Tax Assessor/Collector's Office ("WCTAC"), where they worked, began to hold a series of raffles to On December 16, 2008, Banera answered Plaintiffs' raise money. [Id. at~~ 19- 22]. According to Plaintiffs, the Complaint. [Dkt. No. 36]. In her answer, Banera admits pmpose of one tri-annual raffle, the "Rifa Entre Amigos " that raffles occun·ed between the WCTAC employees. ("Raffle Among Friends") was, in part, to benefit [Id at ~ 7]. Banera also states that "part of the monies Barrera's re-election campaign. [Id. at ~ 29]. Plaintiffs collected from the ["Rifa entre Amigos" ] were utilized to aver that all employees had to sell a specific number of pay for calendars and materials which were considered raffle tickets for the Rifa Entre Amigos. [Id. at ~~ 22, promotional in natme." [!d. at~ 9].

25-28]. WCTAC employees had to sell these tickets during both work and non-work hours. According to On January 22, 2009, Barrera along with Defendant Mary Plaintiffs, participation was mandatory and a condition of Ethel Novoa, filed a Motion requesting that the Cornt stay employment. [Id. at ~~ 25, 27]. Defendants, including the civil proceedings in this case pending completion of Banera, purportedly enforced participation in these raffles the ongoing state criminal action against Novoa. [Dkt. through threats of termination and retaliation. [Id. at~ 23] .

No. 45 at ~ 3]. A state grand jrny indicted Novoa with gambling promotion and engaging in organized criminal Apart from participation in these raffles, Plaintiffs aver activity the same day Plaintiffs filed their civil complaint that Defendants began in 2000 requiring WCT AC in this lawsuit. [Dkt. No. 45, Ex. C]. On May 1, 2009, in a employee participation in football pots (or betting pools). lengthy, well-reasoned opinion, Magistrate Judge J. Scott [!d. at~ 36]. Allegedly, WCTAC employees also had to Hacker analyzed whether the Cornt in its discretion campaign on behalf of Banera in her re-election should stay all civil proceedings until the conclusion of campaigns. [Id. at ~~ 70- 82]. According to Plaintiffs Banera required WCTAC employees place campaig~ Novoa's criminal case. [Dkt. No. 67]. Judge Hacker balanced the interests of the Defendants, the Plaintiffs, the bumper stickers on their cars, maintain a campaign sign Court, and the public. [/d.]. Judge Hacker focused outside their house, and volunteer at her campaign pmticularly on whether defendants would be unfairly and headquarters. [Id. at~~ 71, 73, 75]. *409 These required unduly prejudiced defending this civil action. The campaign activities and football pots allegedly also were simultaneous Texas Attomey General investigation might enforced by threats of termination and retaliation. [Id. at force them to assert their Fifth Amendment privilege ~~ 39, 71, 76-77]. Indeed, several Plaintiffs claim they against self-incrimination during discovery. Based on the were fired for refusing to engage in these activities. [Id. at balancing interests, Judge Hacker, however, determined ~~ 71, 77]. that a total stay of the case was not wananted. [Id.]. Judge Hacker did grant a limited stay to continue as to In 2007, the State of Texas Attorney General began to Defendant Novoa until May 24, 2009 as she had been investigate the activities at the WCTAC based on criminally indicted. [!d. at 26]. As to all other Defendants "whistle-blowing" by WCTAC employees, including two Judge Hacker ordered that discovery begin immediately: of the Plaintiffs. [!d. at~~ 43 , 53]. Investigators with the [Id.]. Indeed, that same day Judge Hacker issued a Attorney General conducted interviews and issued Grand proposed scheduling order with deadlines for all pre-trial Jmy subpoenas to WCTAC employees. [!d. at~~ 48, 59, events, including a discovety deadline. [Dkt. No. 68].

66]. Plaintiffs allege that Banera and the other individual Judge Hacker ordered that the pmties make any objections Defendants threatened them with retaliation if they spoke to the proposed deadlines by May 8, 2009. [Id.]. to the investigators. [Id at ~~ 49- 52, 54-57]. According to Plaintiffs, those employees who testified or were On May 8, 2009, Barrera filed a Motion entitled suspected of testifying before the Grand Jmy were "Objection to Entry of Scheduling *410 Order, Advisory terminated. [Id. at~~ 67- 68]. to Court, and Motion for Rule 26 Scheduling In September 2008, Plaintiffs, ten former employees of Conference." [Dkt. No 69]. In this motion Banera WCTAC, filed this instant federal civil cause of action.) advised the Cornt that criminal proceedings had been Pmsuant to 42 U.S.C. § 1983, Plaintiffs allege Defendants initiated against her fom days earlier, on May 4, 2009. violated their First and Fourteenth Amendments civil [Id. at~ 3] . State prosecutors had extended a plea deal to rights . [Id at~ 155]. Plaintiffs also allege that Defendants her. [Id at ~ 4]. Based on these changed circumstances, committed several state law offenses. [/d. at~~ 175- 194]. Ban·era also asked the Cornt to hold a Rule 26 Scheduling a5 1-!.vNexr © 201 5 Tll orn son Reuters. No claim to ori ginal U.S. Governm ent Works. 15 APPENDIX 48 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

Conference. [Jd. at ~ ~]. At this conference, Barrera Factual findings are clearly enoneous when "the asserted that the Comt should consider oral argument on a reviewing court upon examination of the entire evidence second motion to stay proceedings. [Jd.]. Judge Hacker is left, with the defmite and firm conviction that a mistake denied Barrera's objections and entered the previously has been committed." Bolding v. Comm 'r of Internal proposed scheduling order. [Dkt. No. 72]. Revenue, 117 F.3d 270, 273 (5th Cir. 1997) (citation omitted); Lahr v. Fulbright & Jaworski, L.L.P., 164 Then, on May 25, 2009, Barrera filed the Emergency F.R.D. 204, 208 (N.D.Tex. 1996). The Court turns to Motion currently before the Coutt. [Dkt. No. 77]. In this analyzing Defendant Banera's individual objections to Motion, Banera first moves the Court "to stay all the Magistrate Judge's Opinions of May 1 and May 15, discovery in the matter for an eleven month period of 2009. time." [Id. at 1]. This request appears to be a Motion for Reconsideration of Judge Hacker's May 1, 2009 Order denying a complete stay of the civil action as well as a new Motion to Stay Proceedings. On May 15, 2009, the 1. May 1, 2009 Opinion and Order Webb County District Attorney filed a formal three-count Criminal Information and Complaint against Banera. [Id , The Magistrate Judge's May 1, 2009 Opinion denied Ex. A]. This Criminal Information and Complaint charges Banera's first Motion to *411 completely sfay civil that Barrera knowingly (1) used or permitted another to proceedings. [Dkt. No. 67]. Barrera's primary objection to use a building or room for gambling; (2) owned, the Opinion is that Judge Hacker has ignored the criminal manufactured, or possessed gambling paraphernalia; and investigation and subsequent proceedings against Banera. (3) possessed for transfer or did transfer a card, stub, Banera contends that Judge Hacker found "the impending ticket, or check designed to serve as evidence of criminal proceeding[ s] were too speculative" to stay the participation in a lottery. [Jd.]. Second, Barrera requests case. [Dkt. No. 77 at 7]. This is a self-serving that all "pre-trial matters be handled by the Honorable simplification of the Opinion's analysis of one balancing United States District Judge due to the procedural history factor, Barrera's private interest, in a four-part balancing of this cause ... and the actions of the Magistrate Judge ... " test. 4 What Judge Hacker found was that the criminal [Id. at 1- 2]. Specifically, BarTera objects to Judge investigation of Barrera had been ongoing since October Hacker's Opinions of May 1 and May 15, 2009. [Id at 2007 and BmTera had not been indicted as of May 1, 5-6]. Barrera further asks that the Coutt to vacate these 2009. [Dkt. No. 67 at 403-404] . Thus, it was Orders. The Court will take up this second matter first. "speculative" to assume that the criminal investigation would significantly overlap with the civil case at that time. Judge Hacker could not have predicted that BmTera would be indicted on May 15, 2009. And for that reason, II. DISCUSSION Judge Hacker added, "If Barrera is indicted and the conduct alleged in that indictment significantly overlaps with the conduct alleged in the civil suit, the Coutt will A. MOTION FOR DISTRICT COURT TO HANDLE reevaluate whether a stay is warranted"- an analysis this ALL PRE-TRIAL MATTERS Court will undertake in the second part of this Opinion. [Id. at 404]. More importantly, Judge Hacker determined In her Motion, Defendant Banera asks this Court to that Barrera had not established that she could not protect conduct all future pre-trial matters instead of Magistrate herself by selective invocation of her Fifth Amendment Judge J. Scott Hacker because the "Magistmte Judge 's privilege. [Id]. Finally, these were Judge Hacker' s May 1, and May 15, 2009 Memoranda and Opinions conclusions as to only one factor in a four-part test. Judge clearly demonstrate his inability to handle pre-trial." [Dkt. Hacker also weighed the Plaintiffs', the Court's, and the No. 77 at 5-6]. As permitted under 28 U.S.C. § 636 and public's interests in a stay.

Southern District of Texas Local Rule 72, the Coutt referred all pre-trial non-dispositive matters in this case to 4 Barrera does not appear to dispute the applicable legal Judge Hacker. 28 U.S.C. § 636(b)(1)(A) (2006) (stating standards set forth by Judge Hacker. BruTera quotes the that a "designated magistrate may hear and determine six-factor test recited in State Farm Lloyds v. Wood, pretrial matters pending before a district court" with Civ. No. H-06-503 , 2006 WL 3691115, at *I limited exceptions); S.D. TEX. LOCAL R. 72. When a (S.D.Tex. Dec. l2, 2006), but makes no specific magistrate judge decides a non-dispositive matter, the objections to Judge Hacker's four-part balancing of district judge "must consider timely objections and interests test. Judge Hacker's four-part balancing of modify or set aside any part of the order that is clearly interest test incorporates all six factors recited in State erroneous or contrary to law." FED. R. CIV. P. 72(a). Farm Lloyds.

W.e:;tl : Nexr © 2015 Th omson Reuters. No claim to origina l U S. Government Works. 16 APPENDIX 49 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

Barrera also objects that the May I, 2009 Opinion focuses Ban·era also insinuates that Judge Hacker should have too much "upon the factor of the potential (and granted her renewed motion to stay proceedings as a speculative) prejudice to the Plaintiffs from the potential result of the Webb County District Attorney filing a loss of testimony and evidence." [Dkt. No. 77 at 12]. The Criminal Information and Complaint against her on May May 1, 2009 Opinion, however, does not focus primarily 15, 2009. [Dkt. No. 77 at 7]. BmTera contends that Judge on the prejudice Plaintiffs may suffer by a stay in the civil Hacker should have known of these events based on the case. It applies equal weight and analysis to Defendants', local media's coverage of the criminal case. (Jd.] . Indeed, Plaintiffs', the Cowt's, and the public's interests in a stay. Banera asks, whether " ... Barrera's subsequent anest on [Dkt. No. 67]. Based on its review of the May 1, 2009 the May 15, 2009 criminal information escapes Hacker' s Opinion, the Court finds that this Opinion is not clearly attention? Does Hacker live in a cocoon in spite of the erroneous or contrary to law. plethora of publicity swTounding Banera's anest and booking? Is Hacker completely out of sync with the course of proceedings in the State Criminal Justice System given this publicity?" [Id.]. It is a bedrock 2. May 15, 2009 Opinion and Order principle that it is the pmties' obligation to bring fmth whatever evidence it wants the Court to consider. It is not Judge Hacker's May 15, 2009 Opinion entered a Judge Hacker's obligation to follow the daily occunences Scheduling Order for this case and denied Banera's in a parallel state criminal case. As the Seventh Circuit renewed request to stay this cause of action. [Dkt. No. has so aptly stated, "Judges are not like pigs, hunting for 72]. Banera asserts Judge Hacker's "entire basis" for truffles" or events affecting cases before them. See United denying this renewed request "was the absence of any States v. Dunkel, 927 F.2d 955, 956 (7th Cir.l991). Any criminal proceedings against her." [Dkt. No. 77 at 7]. evidence that Defendant Banera wanted the Court to Barrera continues on to state that "a proffered plea consider should have been filed with the Court. Moreover, atTangement does not suffice for Hacker to grant a stay of a cowt should not rely upon local newspaper articles and discovery and proceedings. Hacker requires a formal news programs, both forms of hearsay, to keep abreast of criminal charge." [Id.]. This argument fails to understand events affecting a case before it. 6 These media sources are the nuances of Judge Hacker's May 15, 2009 Opinion. In hearsay evidence that a court cannot properly consider for the May 15, 2009 Opinion, Judge Hacker acknowledged the truth of the matters asserted. See Pan-Islamic Trade Banera's statement that the Texas Attomey General had Corp. v. Exxon C01p., 632 F.2d 539, 556-57 (5th contacted her about a potential plea agreement. [Dkt. No. Cir.l980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 at 1]. 5 Judge Hacker just *412 found that Barrera had L.Ed.2d 236 (1981). not established that "she would suffer 'substantial and ineparable prejudice' if the civil case were allowed to 6 Under Federal Rule of Evidence 201 , a Comi may take proceed." [Id. uoting SEC v. First Fin. Grou of Texas, judicial notice of facts " not subject to reasonable Inc., 659 F.2d 660, 668 (5th Cir.l981))]. Banera had not dispute in that it is either (1) generally known within demonstrated that she could not protect herself by the territorial jurisdiction of the trial court or (2) selectively invoking her Fifth Amendment privilege in the capable of accurate and ready determination by resort civil proceeding or that she could not defend both her to sources whose accuracy cannot reasonably be civil and potential criminal cases simultaneously. [Id. at questioned." FED.R.EVID. 201(b); Taylor v. Charter 1- 2]. Judge Hacker's denial ofBanera's renewed request Med. Corp., 162 F.3d 827, 831 (5th Cir. l998). Courts was not just because of the absence of criminal have taken judicial notice of official court records and proceedings against Banera. proceedings in other state or federal comi cases. United States v. Capua, 656 F.2d I 033, 1038 n. 3 (5th Cir. l 98 1). But the determination whether to take At one point, BaiTera claims that she filed a copy of the judicial notice of a fact is discretionary. FED.R.EVID. proffered plea agreement in the state case under seal for 201(c). A cou1i only has to take notice of an the Court's in camera review. [Diet. No. 77 at 6]. adjudicative fact when requested by a party and Barrera's counsel gave the Clerk's Office documents supplied with the necessary information. FED.R.EVID. which the Clerk's Office then gave to the Court. The 20 I (d). That did not occur here.

Court, however, did not review them as they were improperly filed . Indeed, the Comi handed them back to Counsel at a May 15, 2009 Show Cause Hearing. [Min. Entry of May 13, 2009]. Amidst these substantive objections, the Motion attacks Judge Hacker's personal character. At various points, "5 l :l.'.INexr © 2015 Thom son Reuters. No claim to origin al U S. Government Works. 17 APPENDIX 50 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

Banera avers that "[t]his case has become unmanageable cowts; and 6) the ublic interest. See, e.g., United States for Hacker;" "this former prosecutor is the last Magistrate e.x ref. Gonzalez v. Fresenius Merj. Care N. Am., 571 Judge who should be handling the pretrial" as well as F.Supp.2d 758, 762 (W.D.Tex. 2008) (citations omitted); "[d]oes Judge Hacker live in a cocoon." [Dkt. No. 77 at 4, Dominguez v. Hartford Fin. Servs. Group, Inc. , 530 7]. The Motion also refers to Judge Hacker as just F.Supp.2d 902, 905 (S.D.Tex. 2008); Holden Roofing, Inc. "Hacker." [!d.]. The Court reminds Counsel to direct v. All States Roofing, Inc., Civ. No. H-06-3406, 2007 WL objections to an opinion or order to the *413 merits of the 1173634, at* I (S.D.Tex. Dec. Apr. I 8, 2007); State Farm opinion or order. Counsel should conduct himself Lloyds v. Wood, Civ. No. H-06-503, 2006 WL 369I I 15, befitting the profession. S.D. TEX. LOCAL R. OF at *I (S.D.Tex. Dec. l2, 2006).

DISCIPLINE 1 ("Lawyers who practice before this Cowt are required to act as matme and responsible Banera's request for a stay has been thoroughly addressed professionals, and the minimum standard of practice shall by Judge Hacker's well-reasoned Opinion of May I, be the Texas Disciplinary Rules of Professional 2009. [Dkt. No. 67]. To the extent that Banera's pending Conduct."). Counsel is also reminded that the Texas request serves as an objection to the May 1, 2009 Lawyer's Creed mandates that a lawyer "demonstrate [ ] Opinion, the Cowt finds that the 0 inion is not clearly respect for the Court ... " TEXAS LAWYER'S CREED: A en·oneous or contrary to law and therefore, adopts it as MANDATE FOR PROFESSIONALISM (Sup.Ct. of Tex. his Court's Opinion. The Court also adopts the May I, and Tex.Crim.App. Nov. 1989). 2009 Opinion as it relates to the requested stay following Banera's indictment, with the additional rationale as In sum, Defendant Banera has not established that any follows. part of Judge Hacker's May 1, 2009 or May 15, 2009 Opinions are clearly erroneous or contrary to law. These (IZJ Banera first argues that her personal interests favor a Opinions do not "clearly demonstrate [Judge Hacker's] complete stay in the civil case, now that she has been inability to handle pre-trial" matters as Banera asserts. To indicted. According to Banera, the criminal and civil the contrary, they are meticulously and well-reasoned complaints overlap. [Dkt. No. 77 at I0-12]. The Webb opinions. Thus, the Court will not withdraw its refenal to County District Attorney indicted Banera on May 15, Judge Hacker of non-dispositive pretrial matters in this 2009 for organized gambling promotion. [Dkt. No. 77, case. Accordingly, Banera' s Motion for the district court Ex. A]. The Cowt agrees that there is *414 a degree of to handle all pre-trial matters is DENIED. overlap between Barrera's criminal prosecution in state cowt and the instant federal civil action. Both cases involve pmpmted gambling activities that allegedly occwTed at the WCTAC office. The Cowt, however, B. THIRD RENEWED MOTION FOR STAY OF believes the sixty-day stay in discovery against Barrera CIVIL CASE granted on May 27, 2009 serves Banera's ersonal interests. [Dkt. No. 80]. A complete stay is not necessary Ban·era next moves for a complete stay of this civil case 1ere. The Cowt does not know how long the state until the criminal case against Ban·era has concluded, a criminal case against Barrera will last. Texas does not period of eleven months by Barrera's estimation. A have a Speedy Trial Act as in the federal system. A dish·ict court has the discretionary authority to stay a civil sixty-day stay also permits Barrera to investigate her case pending resolution of a parallel criminal case if the ability and need to invoke the Fifth Amendment privilege interests of justice require. SEC v. First Fin. Grou of during discovery. The Fifth Circuit has advised that a stay Texas, Inc. , 659 F.2d 660, 666- 67 5th Cir. 1981) (citing order will be reversed when found to be of an indefinite United States v. Kordel, 397 U.S. 1, 11 , 90 S.Ct. 763, 25 or inlmoderate duration. McKnight v. Blanchard, 667 L.Ed.2d I (1970)). A stay is not a constitutional right. F.2d 477, 479 (5th Cir.I98I); see also Landis v. N. Am.

Korde/, 397 U.S. at 12 n. 27, 90 S.Ct. 763 . istrict Comts Co., 299 U.S. 248, 257, 57 S.Ct. I63, 81 L.Ed. 153 within the Fifth Circuit traditionally have applied a (I 936). six-factor test to determine whether the interests of justic require a stay. These factors are: (I) the extent to which Second, Banera contends that Plaintiffs will not be the issues in the criminal case overlap with those prejudiced by waiting until the conclusion of the criminal presented in the civil case; (2) the status of the criminal case against Banera. Ban·era states the trial "will be case i11cluding whether the criminal Defendant has been transcribed and there will simply be no loss of testimony indicted; (3) the private interests of the plaintiff in or documents." [Dkt. No. 72 at 12-13]. Banera also proceeding expeditiously, weighed against the prejudice implies that Plaintiffs' interests should not be considered: to the plaintiff caused by a delay; (4) the private interests Plaintiffs "were the whistleblowers whose actions of and burden on the defendant; (5 the interests of th ,. l-wNexr © 2015 Thom son Reuters . No claim to original U.S. Government Works. 18 APPENDIX 51 Alcala v. Texas Webb County, 625 F.Supp.2d 391 (2009)

culminated in a well-timed civil complaint" filed 1:02-0844, 2002 WL 31988168, at *7 (N.D.Obio Nov.?, concurrently with the criminal actions. [!d.]. The Court 2002). The public also bas in interest in the resolution of disagrees and believes that Plaintiffs will be prejudiced by disputes in a timely manner and the fair treatment of all a complete stay. Plaintiffs here are not patties to the parties. St. Martin v. Jones, Civ. No. 08-1047, 2008 WL criminal case. They do not have the ability to preserve 4534398, at *3 (E.D.La. Oct.2, 2008). their interests in the civil case through the prosecution o the criminal case, as the Government might. Moreover, Based on its analysis of the Defendant's, Plaintiffs', Plaintiffs have already waited over eight months in this Court's, and public's interests, the Court believes that a case to begin discovery. A long delay can lead to a loss o stay of the entire case is not necessmy or warranted. The evidence--documents can be misplaced or destt·oyed an Comt believes that a 60-day stay in all discovery as to the witnesses ' memories can fade. In tmn, a loss of evidence individual defendants is appropriate. This 60-day stay can frustrate Plaintiffs ' abilities to put forth an effective will permit the individual defendants to understand *415 case. Therefore, Plaintiffs ' interests militate against a the criminal charges against them and how to respond com tete stay in this case. appropriately in this civil suit.

Third, Banera avers that the Comt's and public's interests weigh in favor of a stay. According to Barrera, the Court will have to "frequently intervene in the discovery process III. CONCLUSION to make rulings on claims of Fifth Amendment privileges to now be asse1ted by Defendant Banera during the The Court DENIES Defendant Barrera's Motion that this pendency of the parallel state criminal action." [Dkt. No. Court (1) handle all future prett·ial matters in this case; (2) at 13]. Banera believes these interventions will be a vacate Judge Hacker's Opinions of May 1, 2009 and May "burdensome task given this court's heavily congested 15, 2009; and (3) stay all discove1y in this case for eleven criminal docket." [!d.]. The Comt realizes that it may months. have to rule on selective claims of Fifth Amendment privilege and objections to specific requests during the IT IS SO ORDERED. discovery process. But Ban·era fails to show the Comt how she would invoke her Fifth Amendment privilege.

Moreover, in her answer, Banera has already admitted All Citations that raffles occuned at the WCTAC. The need for the Court's possible intervention does not outweigh the 625 F.Supp.2d 391 Court's desire for judicial expediency. A comt "has an obligation to move its docket, and not let cases languish before it." In re Scrap Metal Antitrust Lilig., Civ. No. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Wctl v Nexr © 2015 Thom so n Reuters. No claim to origina l U.S. Government Works. 19 APPENDIX 52 In re Messervey Trust, Not Reported in S.W.3d (2001) 2001 WL 55642

limit the discovery of information and witriesses vital to 2001 WL 55642 the prosecution of the pending federal criminal Only the Westlaw citation is currently available. prosecution. On June 2, 1998, the trial comt stayed all discovery in the civil case for 90 days. On June 16, 1998, NOTICE: NOT DESIGNATED FOR PUBLICATION. the trial court lifted the stay. On July 28, 1998, the trial UNDER TX R RAP RULE 47.7, UNPUBLISHED court abated the civil proceeding, this time at the request OPINIONS HAVE NO PRECEDENTIAL VALUE of Messervey based on his asse1tion of 5th Amendment BUT MAY BE CITED WITH THE NOTATION "(not rights. On September 9, 1998, the abatement was lifted; designated for publication)." however, the pmties disagree about the extent of the comt's order. Messervey claims the abatement was lifted Court of Appeals of Texas, San Antonio. only to allow discovery to proceed; Nmthbrook contends the proceeding was allowed to go forward in its entirety. 1 In re Charles D. MESSERVEYTrust, Charles D.

Messervey d/b j a Art Images.

Neither party provided a copy of the court order lifting No. 04-00-00700-CV. I Jan. 24, 2001. the abatement on September 28, 1998. We have only copies of the proposed orders submitted to the trial court, reflecting the parties' disagreement over the Original Proceeding, Related Trial Court Nos. scope of the court's ruling.

97-CI-06922 & 97-CI-14613. From the 225th Judicial District Comt, Bexar County, Texas, John J. Specia, Jr., Judge Presiding. On August II, 1999, Messervey was convicted by a jury on all counts of the federal indictment, two of which STONE, GREEN and DUNCAN, JJ. relate to his claim under the olicy with NorthbrooK. At the time this mandamus action was filed, Messervey was Opinion still awaiting sentencing on the convictions.

GREEN.

On June 19, 2000, Nmthbrook filed a motion for smnmary judgment. Messervey filed a motion for *1 In this mandamus action, we are asked to vacate the continuance, objections, special exceptions, a motion to order of the trial court abating the underlying state civi strike the hearing, and a motion for leave to file a late awsuit pending the outcome of a federa l criminal response. Messervey also sent notices of deposition for prosecution. Because we find the abatement overbroad, Assistant United States Attorneys Jack Stick and we conditionally grant the writ in art. Margaret Embry and FBI Special Agent Jeff Allovio.

Messervey argued recently discovered evidence of government threats and coercion made it necessary to depose Stick, Embry and Allovio, in addition to certain witnesses who testified in the federal criminal trial.

Background Following a July 14 hearing, the trial court entered an The underlying trial court case arises out of an insurance order (the July 27 order) with the following provisions: dispute. In 1996, Charles Messervey made a claim for insurance benefits based on losses from a theft of ce1tain I) the summary judgment and all related objections, mt from his residence. The defendant insurance company, special exceptions, etc., were taken under Nmthbrook Prope1ty and Casualty Insurance Company advisement; (Northbrook), denied the claim, alleging Messervey committed fraud by attempting to recover for more items 2) Messervey's motion for continuance was denied; than he actually owned. On May 12, 1997, Messervey filed suit against Northbrook. 3) the motion to extinguish abatement 2 would be reset for hearing at an unspecified later date; On April 23, 1998, Messervey was indicted in federal comt on several counts of mail fi·aud stemming in part This motion is not in the record before this court. fi·om the alleged theft and insurance claim. The United States intervened in the civil case on August 8, 1998, to V.,:.; l a,-.Nexr © 2015 Thomson Reuters. No cl aim to origin al U.S. Governm ent Wo rks.

APPENDIX 53 In re Messervey Trust, Not Reported in S.W.3d (2001) 2001 WL 55642 4) the U.S. need not produce Jack Stiff, Jeff Allovio, 566-67 (Tex. 1985); Coastal Oil & Gas Corp. v. Flores, or Margaret Embry or respond to any discovery until 908 S.W.2d 517, 518 & n. I (Tex.App .-San Antonio further order of the court; and 1995, orig. proceeding). However, an abatement order may be reviewed in special circumstances, such as when *2 5) the case was abated pending the trial the abatement is for an indefinite period or effectively court's ruling on the summary judgment. vitiates a patty's ability to present a claim or defense.

On August 24, Messervey filed a motion for leave to file a Gebhardt v. Gallardo, 891 S.W.2d 327, 332-33 otion to lift the abatement and to file a motion for ruling (Tex.App.-San Antonio 1995, orig. proceeding). The on the special exce tions, objections, and the motion for grant or denial of an abatement is within the discretion of summary judgment. After some procedural wrangling, the the trial court and will not be disturbed absent an abuse of trial cowt set all pending motions for September 8, 2000. discretion. Gebhardt, 891 S.W.2d at 332.

It also modified the July 27 abatement order. he new order, signed Se tember 1: 1) abates the entire case for 6 months or until the criminal case becomes fina l, whichever is sooner; Discussion and 2) requires all parties to obtain leave of cornt to file A. Messervey's complaints any further pleadings or set any hearings. In his first two issues, Messervey challenges the validity of the abatement orders of July 27 and September 1. In his Messervey filed yet another motion to lift the abatement. third issue, he complains the trial court abused its He attempted to have it set for hearing on September 18 discretion by not ruling on the motion for summary but the court refused. Subsequently, Messervey filed a judgment. The fomth issue is not a separate ground for motion for leave to request findings of fact and mandamus but presents Messervey's argument that conclusions of law, a motion for leave to file an mandamus is allowed because there is no adequate interlocutory appeal, and a request for preparation of the remedy on appeal. Because it impacts our jurisdiction, we clerk's record and reporter's record. The trial court elect to address Messervey's fourth issue first. refused to file findings of fact and conclusions of law, but granted the other motions.

B. Ade uate Remedy by A '?Peal *3 Mandamus has been allowed: Standard of Review (1) when the trial comt's order of abatement is for an indefinite period oftime. Gebhardt, 891 S.W.2d at 333 .

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when (2) when a blanket stay of all discovery effectively there is no other adequate remedy at law. Walker v. :vitiates or severely compromises a at 's ability to Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). The trial present a claim or defense. In re R.R., 26 S.W.3d 569, cowt abuses its discretion when it fails to properly apply 573-74 (Tex.App. -Dallas 2000, no pet. h.) ; Underwood the law to the undisputed facts, when it acts arbitrarily or v. Bridewell, 931 S.W.2d 645, 646-47 (Tex.App.-Waco unreasonably, or when its ruling is based on factual 1996, orig. proceeding). assettions unsuppmted by the record . In re Doctors' Hasp. of Laredo, 2 S.W.3d 504, 506 (Tex.App.-San (3) when the tt·ial cowt refuses to rule on a motion Antonio 1999, orig. proceeding). In applying the abuse of within a reasonable time. In re Ramirez, 994 S.W.2d discretion standard, we defer to the ttial court' s factual 682, 683 (Tex.App.-San Antonio 1998, orig. determinations, so long as they are properly suppmted by proceeding). the record, while reviewing its legal determinations de novo. Pony Express Courier Corp. v. Morris, 921 S.W.2d All of Messervey's complaints fall into one of the above categories. Therefore, if he can show the trial comt 817, 820 (Tex.App .-San Antonio 1996, no writ). abused its discretion, he bas no adequate remedy by Generally, there is no interlocutory appeal of the trial appeal and is entitled to mandamus relief. · comt's decision to abate a case because the order may be reviewed on appeal. See Abor v. Black, 695 S.W.2d 564, APPENDIX 54 In re Messervey Trust, Not Reported in S.W.3d (2001) 2001 WL 55642 C. The July 27 Order discretion of the trial comt and, by its own tenns, was not We have no jurisdiction to issue a writ of mandamus a complete abatement of the case. The language of the based on the July 27 order because it has been superceded order clearly contemplated further action by the trial court by the September 1 order, rendering the earlier stay moot. and the trial judge retained authority to modifY his own See In re Taylor, 28 S.W.3d 240, 245-46 (Tex.App. -Waco docket control order. See id. at 525 (abatement order may 2000, orig. proceeding). However, because part of allow for fu1ther proceedings); Lumbermen's Mut. Cas.

Messervey's complaint about the September 1 order is Co. v. Garza, 777 S.W.2d 198, 199 (Tex.App.-Corpus based on an eiToneous interpretation of the July 27 order, Christi 1989, orig. proceeding) (same). The September 1 we briefly address the nature of the earlier stay. order was not prohibited by the July 27 order.

There is a distinction between a fmmal plea in abatement *4 Having determined the trial comt had the authority to and a discretionary stay based on considerations of docket modifY or lift the July 27 stay, we reach the validity of the control, comity, or inconsistent rulings. See Evans v. September 1 abatement order. Some courts have stated a Evans, 186 S.W.2d 277, 279 (Tex.Civ.App.-San Antonio protective order is preferable to abatement as a means of 1945, no writ). The trial comt has inherent authority to limiting discovery where the government seeks to restrict manage its own docket. Ho v. Univ. of Tex. at Arlington, civil discovery because disclosure could interfere with a 984 S.W.2d 672, 693-94 (Tex.App.-Amarillo 1998, pet. criminal case based on the same facts . Underwood, 931 denied) (no abuse of discretion for trial court to continue S.W.2d at 647;Texas Attorney General 's Office v. Adams, trial date sua sponte pending ruling on summary 793 S.W.2d 771, 776-77 (Tex.App.-Fort Worth 1990, judgment). The power to temporarily stay a lawsuit "is orig. proceeding). The trial comt should not stay the incidental to the power inherent in every court to control entire lawsuit because to do so prevents the party the disposition of the causes on its docket with economy opposing the stay from proceeding on its claims or of time and effmt for itself, for counsel, and for defenses. In re R.R. , 26 S.W.3d at 574;Underwood, 931 litigants."Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.W.2d at 647.We hold the appropriate remedy in this S.Ct. 163, 166, 81 L.Ed. 153 (1936). case is for the trial comt to fashion individual protective orders.

It is clear the July 27 abatement was a discretionary docket control order. The case had been stayed in the past The September 1 order is not indefmite because it and one of the motions before the trial court on July 14 terminates when the criminal case becomes final or in (as noted in the order) was a motion to lift the stay. The months, whichever is sooner, a maximum time of 6 trial judge, who is specially assigned to this designated months. However, we hold it is overbroad because it complex case, is familiar with the pending criminal matter abates the entire case. The better course for the trial cowt and the overall status of the lawsuits. He has the authority at this time is to fashion individual protective orders to to stay the case temporarily while he considers the motion protect the interests of the United States and the for summary judgment and determines whether the continuing prosecution of the criminal matter without discovery sought by Messervey is relevant and necessary com letely cwtailing rosecution of the civil case. 3We for Messervey to contest the issues raised by Nmthbrook. conditionally grant the petition for writ of mandamus with See Ho, 984 S.W.2d at 694. regard to the September 1 order to allow the trial court to vacate the order in accordance with this opinion. 4 By this opinion, we do not foreclose the possibility that D. The September 1 Order a complete abatement of the civil suit might be Messervey claims the September 1 order is void or, in the appropriate at some future date. alternative, is an abuse of discretion.

Messervey says the September I order is void because the trial court could not act while the July 27 abatement was Because we conditionally grant the petition with regard in effect. We disagree. First, the July 27 stay is not a to the September I order, we need not reach the issue of statutorily mandated abatement which prevents the trial whether it was error for the trial court to refuse to enter findings of fact and conclusions of law regarding the court fi·om proceeding in the case. Cf In re Kimball Hill September 1 order.

Homes Te;r,as, Inc., 969 S.W.2d 522, 526-27 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding) (pursuant to statute, neither court nor parties could proceed until mandatory period of stay expired). Second, the July 27 docket control order was entered at the ~ "'::; -1:,~Nexr © 2015 Thom son Reuters . No claim to origin al U. S. Governm ent Works. 3 APPENDIX 55 In re Messervey Trust, Not Reported in S.W.3d (2001) 2001 WL 55642 E. Failure to Rule on tlte Motion for Summmy evidence in the civil court record, there is a question of Judgment fact to be determined by a jury. This is not inconsistent Messervey complains the trial court has no discretion to with the federal jmy verdict, which is not yet even refuse to rule on the motion for summary judgment. We final, based on evidence jn the criminal trial, which agree. "When a motion is properly filed and pending may or may not be the same as what is finally presented before a trial cowt, the act of giving consideration to and in the civil trial. ruling upon that motion is a ministerial act, and mandamus may issue to compel the trial judge to act." In re Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio I 998, orig. proceeding) (citing Safety Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding)). However, the trial court has Conclusion considerable discretion regarding the time it takes to rule .Zalta v. Tennant, 789 S.W.2d 432, 433 We deny the petition for writ of mandamus based on the (Tex.App.-Houston [lst Dist.] 1990, orig. proceed ing) July 27 order for lack of jurisdiction. Because we presume (eighteen month delay not abuse of discretion). the trial court will act in a reasonable time on all pending motions, we deny the petition for writ of mandamus with We will not rush the trial cowt's decision nor will we regard to the motion for summary judgment. We direct the substance of the ruling.5 We presume the trial conditionally grant the petition in part to allow the trial court will act on the motion for summary judgment within court to vacate its September 1order in accordance with a reasonable time after it vacates the September 1 order. this opinion. The writ will issue if the trial court fails to The petition for writ of mandamus is denied with regard vacate its order within twenty days of the date of this to the trial comt's ruling on the motion for summary opinion. judgment.

We note, however, the parties' concern about the effect All Citations of a summary judgment ruling on the federal conviction is irrelevant at this time. If Judge Specia grants the Not Repmted in S.W.3d, 2001 WL 55642 summary judgment, the entire dispute goes away. If he denies the summary judgment, he has done no more than rule that based upon the summary judgment End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

B.:il l .vNexr © 2015 Th omson Reuters. No cl aim to ori ginal U. S. Governm ent W orks. 4 APPENDIX 56 In re Gore, 251 S.W.3d 696 (2007)

1m' I Original Image of 251 S.W .3d 696 (PDF) 121 Pretrial Procedure 251 S.W.3d 696 Court of Appeals of Texas, Discretion of Court San Antonio.

A trial court abuses its discretion in scheduling In re Kevin GORE. discovery when it acts in an unreasonable or arbitrmy manner, or when it acts without No. 04-07-00597-CV. I Dec. 12, 2007. reference to guiding rules and principles.

Cases that cite this headnote Synopsis Background: State brought a civil action seeking forfeiture of personal property the state seized as contraband in a related criminal case, in which anestee (3( was indicted on felony drug charges. The 224th District Mandamus Cowi, Bexar County, David A Berchelmann, Jr., J., Matters of Discretion abated proceedings and stayed discovery until the resolution of the criminal case. Anestee petitioned for In seeking mandamus review of a trial court's writ of mandamus. resolution of factual issues, a relator must establish that the cowt could reasonably have reached only one decision.

Holdings: The Comi of Appeals, Steven C. Hilbig, J., held that: Cases that cite this headnote Ill trial court abused its discretion by arbitrarily and indefmitely abating civil forfeiture case, but (4( issue of whether arrestee was entitled to discovery in Mandamus civil forfeiture action was not ripe. Matters of Discretion A trial cowi has no discretion in determining Writ conditionally granted in pmi. what the law is or applying the law to the facts, and thus, a clear failure by the trial cowt to analyze or apply the law conectly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ of West Headnotes (15) mandamus.

Ill Mandamus Cases that cite this headnote Remedy at Law Mandamus Nature of Acts to Be Commanded (51 A writ of mandamus will issue only to cmTect a Controlled Substances clear abuse of discretion for which the relator Proceedings lacks an adequate remedy by appeal.

Trial court abused its discretion by arbitrarily and indefmitely abating civil forfeiture case Cases that cite this headnote against anestee until the resolution of related drug prosecution; abatement order halted all :,~ Nexr © 2015 Thomson Reute1·s. No claim to ori gin al U.S. Government Works.

APPENDIX 57 In re Gore, 251 S.W.3d 696 (2007)

proceedings in the case, denied anestee his right resolution ofthe criminal matter. to full discovery, severely compromised his ability to develop his defenses, and denied anestee any effective method of challenging the 1 Cases that cite this headnote trial comt's ruling for an indefmite period by suspending the proceedings. Vernon ' s Ann.Texas C.C.P. art. 59.05 . (9) Abatement and Revival I Cases that cite this headnote Nature of Other Action or Proceeding Statute providing an exemption from disclosure for certain law enforcement and prosecutorial records under the Public Information Act did not (6( Mandamus mandate abatement of civil forfeiture case until Proceedings in Civil Actions in General the resolution of a related drug prosecution.

V.T.C.A., Government Code§ 552.108.

A trial court abuses its discretion for purposes of mandamus when it arbitrarily abates a civil case for an indefinite period of time. Cases that cite this headnote

I Cases that cite this headnote JIOJ Abatement and Revival Nature of Other Action or Proceeding Pretrial Procedure 171 Action Objections and Protective Orders Course of Procedure in General Pretrial Procedure State's interest in protection from civil Right to Discovery and Grounds for discovery in civil forfeiture action did not entitle Allowance or Refusal state to abatement of action until the resolution Pretrial Procedure of a related drug prosecution; although Sequence and Timing; Condition of Cause disclosure could interfere with prosecution, the proper remedy was an individually tailored The parties in the civil case are entitled to full protective order. Vernon's Ann.Texas Rules discovery within a reasonable time, to develop Civ.Proc., Rules 192.6, 193.3- 193.4. their claims and defenses, and to have the case tried.

2 Cases that cite this headnote I Cases that cite this headnote

Jill Pretrial Procedure Sequence and Timing; Condition of Cause (8) Abatement and Revival Pretrial Procedure Identity of Causes and Issues Objections and Protective Orders Pretrial Procedure Sequence and Timing; Condition of Cause It is not good public policy to deny civil litigants their entitlement to a fully authorized discovery The pendency of a criminal investigation, to assist in preparation of the civil lawsuit indictment, or other proceeding does not affect a merely because criminal matters may be contemporaneous civil proceeding based on the pending; rather, the proper remedy IS an same facts or parties and does not justify abating individually tailored protective order. or staying all discovery in the civil case until e.s l awNexr © 2015 Th omson Reuters. No claim to ori gin al U.S. Government Works. 2 APPENDIX 58 In re Gore, 251 S.W.3d 696 (2007)

[IS[ Motions Cases that cite this headnote €?Determination A trial comt has a ministerial duty to act upon motions properly filed and pending before it. [12) Pretrial Procedure Objections and Protective Orders Cases that cite this headnote Privileged Communications and Confidentiality Waiver of Objections Failure to timely plead and prove entitlement to * 697 Original Mandamus Proceeding. ' protection from discovery can result in waiver of This proceeding arises out of Cause No . any objection or claimed privilege. Vernon 's 200~I--05009, styled The State of Texas v. Six Ann .Texas Rules Civ.Proc., Rules 193 .2- 193.4. Thousand Four Hundred Four Dollars ($6,404.00) United States Currency; One (1) 2002 Kawasaki Motorcycle, VIN JKB VNCA112B509107; and Certain Cases that cite this headnote Property. The record indicates the cause was assigned to the 224th Judicial District Court, Bexar County, Texas, in which the Honorable Gloria Saldana is the presiding judge. However, the challenged order was signed by the Honorable David A. Berchelmann, Jr., [ 13) the presiding judge of the 37th Judicial District Court, Pretrial Procedure Bexar County, Texas. The reporter' s record indicates Objections and Protective Orders the hearing was presided over by Judge Berchelmann sitting in the 224th Judicial District Comt, Bexar When properly raised, a trial court has an County, Texas. obligation to weigh each discovery request and apply the law for discovery or protection to each request by determining the least restrictive way to protect both cases and the defendant's right to Attorneys and Law Firms defend himself in the suit.

Markes E. Kirkwood, Law Offices of Markes E.

Kirkwood, San Antonio, TX, for Appellant.

Cases that cite this headnote Troy L. Meinke, Assistant Criminal Dish·ict Attorney, San Antonio, TX, for Appellee. [14[ Sitting: KAREN ANGELINI, Justice, PHYLIS J.

Mandamus SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.

Mandamus Ineffectual or Not Beneficial Issue of whether arrestee was entitled to discovery in civil forfeitme action was not ripe for appellate court to address in mandamus OPINION proceeding, since trial court had not addressed the merits of citizen's discovery motion when it ordered the action abated pending resolution of Opinion by STEVEN C. HILBIG , Justice. related drug prosecution.

Kevin Gore seeks a writ of mandamus to compel the h·ial comt to (1) vacate its *698 order abating a civil forfeiture Cases that cite this headnote action until several criminal prosecutions are com leted and (2) order the State to provide discovery. We hold the trial court abused its discretion by abating the case and therefore conditionally grant the requested writ in part.

<5 l=wNexr © 2015 Thom son Reute1·s . No claim to origina l U.S . Government Works. 3 APPENDIX 59 In re Gore, 251 S.W.3d 696 (2007)

for a hearing on May 8. During the hearing, again before Judge Berchelmann, the State orally moved to continue the abatement. At the conclusion of the hearing, the trial FACTUALANDPROCEDURALBACKGROUND comt denied Gore's motion to compel without reaching the merits of the motion and ordered the case "abated in In March 2006, the State of Texas filed a civil action its entirety until the criminal case is resolved." Gore seeks against Gore pmsuant to Chapter 59 of the Texas Code of relief fl'om this last order, requesting this court to order Criminal Procedme seeking forfeiture of personal Judge Berchelmann to "lift his abatement," allow Gore to property the State seized as contraband. The civil case conduct depositions, and order the State to "properly apparently arises from events that led to Gore's anest and answer discovery" propounded by Gore. subsequent indictment for felony drug offenses. The State served Gore with various discovery requests together with the original petition. Gore responded to the discovery in May 2006 and also served requests for written discovery and notices of deposition upon the State. On June 8, 2006, PREREQUISITES FOR MANDAMUS RELIEF the State filed a motion seeking abatement of the civil forfeiture lawsuit until the resolution of related criminal liJ 12 1 lJJ 141 A writ of mandamus will issue only to conect a charges. The Honorable Joe Frazier Brown, Jr., ordered clear abuse of discretion for which the relator lacks an the State to respond to all outstanding requests for written adequate remedy by appeal. See *699 Walker v. Packer, discovery, but otherwise ordered the forfeiture action 827 S.W.2d 833, 839-40 (Tex.l992). A "trial comt abated until December 31, 2006. The abatement order abuses its discretion when it acts in an umeasonable or provided that Gore could file a motion to compel arbitrary manner or, stated differently, when it acts discovery after December 31, 2006; Gore could depose without reference to guiding rules and principles." In re two deputy sheriffs and a representative of the State and Colonial Pipeline Co., 968 S. W.2d 938, 941 (Tex.l998). could file a motion for summary judgment after January "With respect to resolution of factual issues," " [t]he 1, 2007; and the case was set for trial on the February 12, relator must establish that the trial court could reasonably 2007 jury docket. Pursuant to Judge Brown's order, the have reached only one decision." Walker, 827 S.W.2d at State filed its disclosures and responses to Gore's 840. However, "[a] trial court has no ' discretion' in discovery requests on June 20, 2006. The State objected dete1mining what the law is or applying the law to the to two requests for production, one as inelevant and the facts. Thus, a clear failure by the trial comt to analyze or other as calling for work product. The State did not apply the law correctly will constitute an abuse of interpose any other any objections or claims of privilege. discretion, and may result in appellate reversal by All of the State's unverified answers to intenogatories extraordinary writ." ld and most of its disclosures and responses to requests for production consisted of advising Gore to see the attached file .

In January 2007, Gore served the State with his notices of ABATEMENT intent to depose two deputy sheriffs and a designated JSJ 161 We have repeatedly held that a trial comt abuses its representative of the sheriffs department, and attempted to confer with the State about purported inadequacies in discretion when it arbitrarily abates a civil case for an the State's responses to discovery. The State responded indefinite eriod of time. See In re Sims, 88 S.W.3d 297, by filing a motion to continue the abatement. The motion 306 (Tex.A .-San Antonio 2002, orig. eroceeding); was heard January 29, 2007, by the Honorable Karen Gebhardt v. Gallardo, 891 S.W.2d 327, 330- 32 Pozza, who continued the abatement until May 7, 2007. Tex.A .-San Antonio 1995, orig. roceeding); In re Judge Pozza also ruled that Gore could file and pursue a Messervey Trust, No. 04-00-00700- CV, 2001 WL motion challenging the adequacy of the State's 55642, at *4 (Tex.App.-San Antonio, Jan.24, 2001 , orig. disclosures and responses to discovery. Gore then filed a proceeding) (not designated for publication).

Nevettheless, the State argued in the trial court that motion to compel and for sanctions. The motion was heard by the Honorable David A. Berchelmann, Jr., who because there were pending criminal proceedings, it was denied it without prejudice to Gore remging the motion "absolutely entitled to a full abatement on everything." after the abatement was lifted. Gore disagrees, arguing a writ of mandamus should issue because there is no legal basis for abating the case and the The abatement ordered by Judge Pozza expired May 7, trial comt's indefmite abatement violates the open courts 2007, and Gore set his motion to compel and for sanctions provision in article I, section 13 of the Texas Constitution.

Wastl v.Nexr © 20 15 Th omson Reuters . No claim to origina l U S. Governm ent Worl<s. 4 APPENDIX 60 In re Gore, 251 S.W.3d 696 (2007)

Supp. 2007). While courts have concluded this section 1 1 The parties in the civil case are entitled to full creates a "law enforcement investigation" privilege/ the discovery within a reasonable time, to develop their State has not pointed to a single case nor has our research claims and defenses, and to have the case tried. See disclosed any authority for treating such language as Colonial Pipeline, 968 S.W.2d at 941--42 (holding that mandating abatement upon request of the State. order abating discovery fi·om all but small group of plaintiffs until that group's claims were resolved See Hobson v. Moore, 734 S.W.2d 340, 340--41 umeasonably interfered with defendants' ability to (Tex. l987). prepare a defense and was abuse of discretion); In re R.R., 26 S.W.3d 569, 574 (Tex.App.-Dallas 2000, orig. proceeding) (holding blanket order staying discovery on The State argues the trial coutt acted within its discretion main issue because of related criminal proceeding was and did not run afoul of our holding in Gebhardt because abuse of discretion because it vitiated defendant's ability the abatement will end when the criminal case is resolved to prepare defense in civil case); Trapnell v. Hunter, 785 and therefore is not "indefmite." The order at issue in S.W.2d 426, 429 (Tex.App.-Corpus Christi 1990, orig.

Gebhardt abated the case until the latter of the rumting of roceeding) (holding that refusal to proceed to trial by the statute of limitations for any crime relevant to the civil rbit:rarily abating case violates article I section 13 of the pleadings or the fmal dis osition of any criminal charges Texas Constitution). "The pendency of a criminal that might be brought. 891 S.W.2d at 329. We held that investigation, indictment, or other proceeding does not given the evidence before the cowt, it was impossible to affect a contemporaneous civil proceeding based on the detennine when the abatement would end and thus same facts or patties" and does not justify abating or indefmitely denied plaintiff the ability to develop her case staying all discovery in the civil case until resolution of and a forum to tJy her case 'Jd. at 331- 33. Likewise, there the criminal matter. Gebhardt, 891 S.W.2d at 330; see is nothing in this record that enables us to determine when Underwood v. Bridewell, 931 S.W.2d 645, 64 7--48 the abatement will end. Moreover, whether the n·ial (Tex.App.-Waco 1996, orig. proceeding) (abuse of cowt's order exceeded its discretion does not turn solei discretion to abate civil forfeiture action until criminal on whether the abatement is "indefinite." In Messervey prosecution completed); Mcinnis v. State, 618 ~.W.2d we considered an order that abated a civil case for a 392- 93 (Tex.Civ.App. -Beaumont 1981, wnt refd n.r.~.) (upholding trial court's refusal to continu~ c_ivil period of six months or until the criminal case was concluded, whichever occun·ed earlier. 200 1 WL 55642, disbarment case until fmal disposition of related cnmmal at *2 Recognizing that the abatement was not indefinite, case), cert. denied, 456 U.S. 976, 102 S.Ct. 2242, 72 we nevettheless conditionally granted a writ of mandamus L.Ed.2d 851 (1982); Messervey, 2001 WL 55642 at *4 to vacate the abatement order because by completely (abuse of discretion to completely abate civil case for six curtailing prosecution of the entire case, it was months solely because related criminal case is pending). ermissibly overbroad. Jd., at *4.

1 1 A forfeiture proceeding is a civil case that "shall 10 1 The State also argues this case is distinguishable from proceed to trial in the same manner as in other civil those cited above because it has provided Gore cases." TEX.CODE CRIM. PROC. ANN. art. 59.05(b) "extensive" discoveiy and any fuither discovery would (Vernon 2006). Accordingly, absent authority to :h_e interfere with confidentiality in law enforcement contrary, Gore has the same right as any other CIVIl activities. The State provided disclosures and responses to litigant to obtain full discovery *700 within a rea_sonable Gore's written discovery requests in June 2006 . However, time, develop his defenses, and proceed to trial. See Gore has contended for more than a year and a half that Underwood, 931 S.W.2d at 646--47; see also Mcinnis, the responses are inadequate and he has been unable to S.W.2d at 393 ("We find no constitutional or obtain a hearing to test their adequacy. He has also been statutory provisions granting this appellant the right to denied his right to depose the State's primary witnesses. choose the case, either criminal or civil, which he desires to first proceed to trial."). In its response to the petition 12 13 1111 1 1 1 1 We recognize the State may have a legitimate for a writ of mandamus, the State asserts it is entitled to interest in seeking some protection from civil discovery abatement of the civil case "as a matter of statute." because disclosure could interfere with a criminal However, the State cites only to § 552.108 of the .prosecution based on the same facts . See Te.xas Attorney Government Code, which on its face only creates an General's Office v. Adams, 793 S.W.2d 771, 776 exemption from disclosure for ceitain Ia~ enforcem~nt (Tex.App.-Fort Wmth, 1990, no pet.). But it is "not good and prosecutorial records under the Pubhc InformatiOn public policy to deny civil litigants their entitlement to a Act. See TEX. GOV'T CODE ANN. § 552. 108 (Vernon fully authorized discovety to assist in preparation of the W'E:. =l,,.N exr © 2015 Th omson Reuters. No claim to ori ginal U.S. Governm ent Works . 5 APPENDIX 61 In re Gore, 251 S.W.3d 696 (2007)

civil lawsuit merely because criminal matters may be MOTION TO COMPEL pending." !d. at 777. Rather, the proper remedy is an 1141 1151 Gore also complains the trial comt abused its individually tailored protective order. See Undetwood, 931 S.W.2d at 647; Messervey 2001 WL 55642, at *4. discretion in denying his motion to compel discovery.

The State, just as other civil litigants, must timely plead However, a fair reading of the record reveals that the trial and prove its entitlement to *701 protection from court did not address the merits of the motion, but denied discovery. See TEX.R. CIV. P. 192.6, 193.2, 193 .3, it solely because it granted the State' s motion to abate.

193.4. Failure to do so can result in waiver of any Accordingly, the issue is not ripe and we decline to objection or claimed privilege. See Hobson, 734 S.W.2d address it. The trial comt has a ministerial duty to act at 340--41 ; Scrivner v. Casseb, 754 S.W.2d 354, 358 upon motions properly filed and pending before it. In re (Tex.App.- San Antonio 1988, no pet.). When properly Ramirez, 994 S.W.2d 682, 683 (Tex.App.-San Antonio raised, "the trial comt has an obligation to weigh each 1998, orig. proceeding). We have confidence the trial discovery request and apply the law for discovery or comt will consider and rule on the merits of the motion to protection to each request by determining the least compel within a reasonable period of time after the resh·ictive way to protect both cases and the defendant' s abatement order is vacated. right to defend himself in this suit." In re R.R., 26 S.W.3d at 574. The record does not disclose that the State timely pled and proved a "law enforcement investigation" privilege from discovery.

CONCLUSION We conclude the trial court abused its discretion in We conditionally grant Gore 's petition for a writ of abating the case until the criminal proceedings are mandamus regarding the trial comt's abatement of the resolved. Because the order halts all proceedings in the forfeiture suit. The writ of mandamus will issue if the trial case, denies Gore his right to full discovery, and severely court fails to vacate the abatement order within twenty compromises his ability to develop his defenses, Gore has days of the date of this court's order. no adequate remedy by appeal. See Colonial Pipeline, 968 S.W.2d at 942; Messervey, 2001 WL 55642, at *3 .

Moreover, by arbitrarily and indefinitely suspending the proceedings, the h·ial comt denied Gore any effective All Citations method of challenging the trial comt's ruling for an indefmite eriod. Sims, 88 S.W.3d at 306; Gebhardt, 891 251 S.W.3d696 S.W.2d at 332-33. Accordingly, Gore has no adequate remedy by appeal and is entitled to mandamus relief.

End of Document © 2015 Thomson Reu ters. No claim to origina l U.S. Government Works.

V\"'5 h'V'Nexr © 201 5 Thom so n Reuters. No claim to ori ginal U.S. Governm ent Wo rks. 6 APPENDIX 62 Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)

l;w'l .1: Original Image of 891 S.W.2d 327 (PDF) Cases that cite this headnote 891 S.W.2d 327 Court of Appeals ofTexas, San Antonio.

121 Mandamus Shay GEBHARDT, Relator, v. Matters of Discretion Ron. Juan GALLARDO, Respondent.

Although appellate comt rarely interferes with No. 04-94-00690-CV. I Jan. 9, 1995. trial court's exercise of discretion, clear abuse of discretion wanants correction by mandamus when comt issues decision without basis or Republican candidate brought negligence and civil guiding principles oflaw. conspiracy claims against Democratic party officials and members concerning filing of Democratic candidate's nominating petition. The 150th District Court, Bexar Cases that cite this headnote County, Juan Gallardo, J., severed and abated negligence claim pending possibility of or pursuance of criminal charges against any of the defendants, and plaintiff sought review by mandamus. The Court of A peals, Blair 131 W itnesses Reeves, C.J. (Retired), held that: (1) defendants ' asse1tion of privilege against self-incrimination alone did not Proceedings to Which Privilege Applies present legal basis for severance and abatement oii negligence claim; (2) negligence claim was improperly Party does not lose Fifth Amendment right severed from civil conspiracy claim since the two claims against self-incrimination in civil suit, whether were based upon same facts and circumstances; and (3) or not criminal indictment is pending. U .S.C.A. where term of abatement of negligence claim was Const.Amend. 5; Vernon ' s Ann.Texas Const. indefinite, Republican candidate had no adequate remedy Art. 1, § 10. at law for pmposes of determining whether mandamus should issue.

6 Cases that cite th is headnote Writ of mandamus conditionally granted.

141 Witnesses Waiver of Privilege West Headnotes (18) Witnesses Claim ofPrivi lege Jl l Mandamus Each assertion of privilege against Remedy by Appeal or Writ ofEnor self-incrimination rests on its own circumstances Mandamus and must be raised in response to each specific Exercise of Judicial Powers and Functions in inquiiy or it is waived; blanket asse1tions of the General privilege are not permitted. U.S.C.A.

Mandamus Const.Amend. 5; Vernon ' s Ann.Texas Const. Matters of Discretion Art. 1, § 10.

Pmty seeking mandamus relief must demonstrate that trial court has committed clear 4 Cases that cite this headnote abuse of discretion or violated duty imposed by law, and that party has no adequate remedy on appeal.

"'~ll-wNexr © 20 '15 Thomson Reuters . No cla im to origina l U.S. Government Works.

APPENDIX 63 Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)

(5( (8( Abatement and Revival Action Identity of Causes and Issues Severance of Actions Action Severance of Actions Claim is properly severable only if controversy involves more than one cause of action, severed Assertion of privilege against self-incrimination claim is one that would be proper subject of alone did not present legal basis for severance lawsuit if independently asse1ted, and severed and abatement of negligence claim against claim is not so interwoven with remaining action defendant while criminal investigation of that they involve same facts and issues. defendant arising out of same facts was pending, Vernon ' s Ann .Texas Rules Civ.Proc. , Rule 4 I. even though, if defendant asserted privilege at trial, plaintiff might request instruction on res ipsa loquitur; abatement would be akin to I Cases that cite this headnote impermissible blanket assertion of the privilege.

U.S.C.A. Const.Amend. 5; Vernon's Ann.Texas Const. Art. 1, § 10. (91 Action Cases that cite this headnote Severance of Actions Trial court is afforded broad discretion in matter of severance. Vernon ' s Ann .Texas Rules Civ.Proc., Rule 41 . (61 Abatement and Revival Identity of Causes and Issues Cases that cite this headnote Pendency of criminal investigation, indictment or other proceeding does not affect contemporaneous civil proceeding based on same facts or pmties. JIOJ Action Severance of Actions Cases that cite this headnote Controlling reasons for severance are to do justice, avoid prejudice and further convenience.

Vernon ' s Ann.Texas Rules Civ.Proc., Rule 41.

171 W itnesses Effect of Refusal to Answer Cases that cite this headnote Although it is constitutional error under Fifth Amendment to instruct jury in criminal case that it may draw inference of guilt from defendant' s Jill failure to testify about facts relevant to his case, Action Fifth Amendment does not forbid adverse Severance of Actions inferences against parties to civil actions when they refuse to testify in response to probative Negligence claim by Republican candidate evidence offered against them. U.S .C.A. against Democratic pa1ty officials and members Const.Amend. 5. concerning filing of Democratic candidate ' s nominating petition was improperly severed from Republican candidate's civil conspiracy Cases that cite this headnote claim against same pmties, since the two claims were based upon same facts and circumstances, and the concerns advanced by Democratic pa1ty officials in support of imposing restrictions on proceeding with negligence claim while grand :; hvNexr © 2015 Thom son Reuters. No claim to ori ginal U.S. Government Works. 2 APPENDIX 64 Gebhardt v. Gallardo, 891 S.W.2d 327 {1995)

jury investigation was pending would in large defendants' testimony through oral deposition measure also be present in conspiracy trial. on negligence issues while abatement order was Vernon's Ann.Texas Rules Civ.Proc., Rule 41. in effect, so that evidence might become unavailable.

Cases that cite this headnote Cases that cite this headnote

1121 Mandamus Proceedings in Civil Actions in General J16J Abatement an d Revival Identity of Causes and Issues Abatement is generally incidental ruling not susceptible to mandamus relief. Abatement of negligence claim by Republican candidate against Democratic pmty officials and members concerning Democratic candidate's Cases that cite this headnote filing of nominating petition, pending possibility of or pursuance of criminal charges against any of the defendants, was improper because term of abatement was indefinite due to impossibility of JI3J determining which statutes of limitation might Pretrial Procedure apply and when they might expire. Vernon' s Discretion of Court Ann .Texas Const. Art. 1, § 13 ; Vernon' s Ann .Texas C.C.P. art. 12.05 .

Trial courts generally have discretion in abatement decisions .

1 Cases that cite this headnote Cases that cite this headnote

1171 Mandamus )14) Proceedings in Civil Actions in General Mandamus Modification or Vacation of Judgment or Revision of statute concerning authority of Order cowts of appeal to issue writs of mandamus ordering trial judges to go to tTial placed Appeal is not appropriate remedy, for purposes abatement under general principles of law of determining whether mandamus should issue, applicable to mandamus. V.T.C.A., Government where ability to present viable claim was Code § 22.221 . vitiated by pretrial order.

1 Cases that cite this headnote Cases that cite this headnote

JIB) JISJ Mandamus Mandamus Acts and Proceedings of Courts, Judges, and Proceedings in Civil Actions in General Judicial Officers Abated negligence claim was vitiated, for Indefmiteness of abatement of Republican purposes of determining whether mandamus candidate's negligence action against should issue as to abatement order, where Democratic pmty officials and members claimant was prohibited from preserving concerning filing of Democratic candidate's wNexr © 2015 Thom son Reuters. No cla im to orig ina l U.S. Government Works. 3 APPENDIX 65 Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)

nominating petition rendered remedy at law petition for the Democratic candidate and seeks actual and inadequate, so that mandamus was appropriate. exemplary damages . Relator alleged that the Democratic V.T.C.A. , Government Code§ 22.221. candidate did not meet minimum filing standards because a number of the required 250 signatures on his petition were forgeries and/or had been added to the petition after Cases that cite this headnote the deadline had expired.

The h·ial court severed and abated the negligence claim pending the possibility of or pursuance of criminal charges against any of the defendants.' Relator seeks a writ of mandamus to order Visiting Dish·ict Judge Juan Attorneys and Law Firms Gallardo to rescind the order which severed and abated *328 John E. Clark, Goode, Casseb & Jones, San petitioner's negligence claim on grounds it was an abuse Antonio, for appellant. of discretion . Real party argues that his federal and state constitutional rights will be violated if plaintiff is allowed Steven P. Price, Enrique G. Serna Martinez, The Law to explore matters in this civil action which are also Offices of Steven P. Price, Randall C. Jackson, Jr. , subject to a grand jury investigation. Neither the transcript Speiser, Krause, Madole & Mendelsohn, Dwight P. nor the statement of facts reveals any source for the Mosher, Robert A. Valdez, San Antonio, for appellee. court's fmding. We are unable to fmd any legal basis for this mling. We hold that the order of severance and *329 Before JAMES F. ONION, Judge, (Ret.), CARLOS abatement constitutes a clear abuse of discretion for C. CADENA and BLAIR REEVES, C.JJ. (Ret.). which relator has no adequate remedy on appeal. Writ of mandamus is conditionally granted for the reasons set forth below.

The order, dated October 4, 1994, states in pertinent OPINION pati: After considering the evidence, the arguments of counsel, and the post-hearing briefs filed by the BLAIR REEVES, Chief Justice, (ret.).l parties, the court finds that the plaintiffs allegations could be read as a claim that the candidate 's petition Judge Onion, Justice Cadena and Justice Reeves were was altered while in the exclusive possession of assigned to this case by the Chief Justice of the some of the defendants, and that such allegations Supreme Court of Texas pursuant to TEX. GOV 'T raise the possibility that the plaintiff may rely upon CODE ANN. § 74.003(b) (Vernon 1988). and may seek an instruction on the doctrine of res ipsa loquitur; therefore, the court enters the following order: The plaintiff having advised the co uti that she elects Shay Gebhardt seeks review by mandamus of an order not to amend her pleadings to exclude the claim for entered by the Hon. Juan Gallardo, visiting district judge, negligence comprising paragraph IV of her original which severed and abated her negligence claim from an petition, it is ORDERED that all of the allegations of alternative claim of civil conspiracy.2 paragraph IV of plaintiffs original petition, and all allegations of damage by reason of negligence in paragraph V of plaintiff's original petition be, and The original lawsuit is styled and numbered Shay the same are hereby, SEVERED from this cause of Gebhardt v. Leo G. Pacheco, John W. Reynolds, action and assigned separate docket number Dwight Mosher, and Ramon G. Flores, Sr., No. 94- CI-14910.

94-CI-05455, in the 150th District Court of Bexar It is FURTHER ORDERED that after severance, the County, Texas. severed cause number 94-CI-14910 shall be, and it is hereby, ABATED pending the final disposition of any criminal charges that may be brought against any Relator, the Hon. Shay Gebhardt, the Republican of the defendants based on the allegations of fact candidate for judge of County Court-at-Law No. 3 of contained in the severed paragraph IV of plaintiffs original petition, or until the expiration of the statute Bexar County, sued real party, John Reynolds, and three of limitations for any criminal offense with which other Democratic party officials or members. The lawsuit any of the defendants could be charged on the basis alleges civil conspiracy and, in the alternative, negligence of the allegations contained in the severed paragraph in promoting and certifying the filing of the nominating Watl -JNNexr © 201 5 Thomson Reuters. No claim to original U.S. Govern ment Wo rks. 4 APPENDIX 66 Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)

N of the plaintiff' s original petition, whichever attomey, Reynolds did not want to be subjected to the occurs last. intense light of civil discovery while the criminal investigation was pending.

131 A pmty does not lose his Fifth Amendment right against self-incrimination in a civil suit. Whether or not an indictment is pending, a wimess is entitled to assert MANDAMUS AND THE ABUSE OF DISCRETION this fundamental constitutional right. See Maness v. Mey ers, 419 U.S. 449,464, 95 S.Ct. 584, 594, 42 L.Ed.2d 111A patty seeking mandamus relief must demonstrate that 574, 587 (1975) (Fifth Amendment may be asserted in the trial comt has committed a clear abuse of discretion or any proceeding, civil or criminal, administrative or violated a duty imposed by law. Johnson v. Fourth Court judicial, investigatory or adjudicatory); Ex parte Butler, of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). The 522 S. W.2d 196, 198 (Tex. 1975) (Texas Constitution Art. Supreme Comt emphasizes that the petitioner must also I, sec. 10, guarantees privilege against self-incrimination, show that she has no adequate remedy on appeal. Walker "fact that the inquiry is made in the course of a civil v. Packer, 827 S.W.2d 833, 842 (Tex. 1992); State v. proceeding does not interdict the wimess's privilege"); Walker, 679 S.W.2d 484,485 (Tex. 1984). Burton v. West, 749 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding) 121An appellate court rarely interferes with a trial court's (defendant in drug proceeds forfeitme case permitted to exercise of discretion. However, a clear abuse of assert Fifth Amendment to discovery); Smith v. White, discretion wanants *330 conection by mandamus when a 695 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] comt issues a decision which is without basis or guiding 1985, orig. proceeding) (defendants under indictment principles of law. See Johnson v. Fourth Court of entitled to assert Fifth Amendment rights in civil custody Appeals, 700 S.W.2d at 917; Professional Microfilming, dispute).

Inc. v. Houston, 661 S.W.2d 767, 769 (Tex.App.-Fort 141 151 6 Worth 1983, orig. proceeding). For example, a trial judge 11The asse1tion of the privilege against has no discretion in determining what the law is or in self-incrimination must be raised in response to each applying the law to the facts . Walker v. Packer, 827 specific inquiry or it is waived. Each asse1tion of the S.W.2d at 840. On the contrary, if a judge, by placing a privilege rests on its own circumstances. Blanket particular construction on the law, deprives a citizen of an asse1tions of the rivilege are not ermitted. See United unquestioned legal right, and there is no other adequate States v. White, 589 F.2d 1283, 1286- 87 (5th Cir. 1979); remedy, mandamus will lie to review his judgment or Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex. 1962). The decision on the question. Womack v. Beny, 156 Tex. 44, abatement of the negligence claim while the grand jury 291 S.W.2d 677, 683 (1956); State Farm v. Wilborn, 835 investigates potential criminal charges is akin to a blanket S.W.2d 260, 261 (Tex.App.-Houston [14th Dist.] 1992, assertion of the Fifth Amendment rivilege. The rationale orig. proceeding); see also Joachim v. Chambers, 815 for reversals in White and Meyer v. Tunks would militate S.W.2d 234, 240 (Tex. 1991) (trial comt abused discretion against severance and abatement on a vague assertion of by misinterpreting the Code of Judicial Conduct); NCNB constitutional privilege regarding res ipsa loquitur. The Texas Nat '! Bank v. Coker, 765 S.W.2d 398, 400 pendency of a criminal investigation, indictment, or other (Tex. 1989) (trial court abused discretion by failing to proceeding does not affect a contemporaneous civil apply proper legal standard to motion to disqualify roceeding based on the same facts or mties. See counsel); Eanes Jndep. Sch. Dist. v. Logue, 712 S.W.2d Mcinnis, v. State, 618 S.W.2d 389, 393 , 742 (Tex. 1986) (trial comt abused discretion by (Tex.App.- Beaumont 1981 , writ refd n.r.e.) enoneously finding constitutional violation). (disbarment suit may proceed while indictment pending against attomey on same grounds for same offense); see also Meyer v. Tunks, 360 S.W.2d at 523 (no presumption that attempt to take defendant's deposition in civil case is impermissible attempt to develop evidence in concunent THE FIFTH AMENDMENT PRIVILEGE criminal proceeding). The Fifth Circuit has held that putting a defendant to trial in a civil case while criminal Defendant, John W. Reynolds, sought abatement of the charges arising out of the same conduct were pending did lawsuit on the ground that he was a target of a grand jmy not unconstitutionally force him to choose between investigation, that he had asse1ted his Fifth Amendment preserving his Fifth Amendment privilege and losing his right against self-incrimination in this suit and its civil suit where there was *331 no indication that predecessor biii of discovery, and, according to his Wes =v N exr © 2015 Th omson Reuters. No claim to original U.S. Governm ent Works. 5 APPENDIX 67 Gebhardt v. Gallardo, 891 S.W.2d 327 (1995)

invocation of the Fifth Amendment would necessarily conspiracy claim are based upon the same factual result in an adverse civil judgment. See United States v. allegations. A claim is properly severable only if White, 589 F.2d 1283, 1286-87 (5th Cir.1979 (decision on whether to testify in civil case is matter of trial (1) the controversy involves more strategy). The Mcinnis court stated: "We frnd no than one cause of action, (2) the constitutional or statutory provisions granting this severed claim is one that would be appellant the right to choose the case, either criminal or the proper subject of a lawsuit if civil, which he desires to first roceed to trial. " Mcinnis v. independently asserted, and (3) the State, 618 S.W.2d at 393. severed claim is not so interwoven with the remaining action that they In this case, the comt severed and abated the involve the same facts and issues. negligence claim on the ground that plaintiffs pleadings may be construed to support a theory of res ipsa loquitur." Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., One is left, at this early stage in the proceedings, to 793 S.W.2d 652, 658 (Tex. 1990) (citing Saxer v. Nash assume that if the defendant exercises his right to silence Phillips-Copus Co. Real Estate, 678 S.W.2d 736, 739 under the Fifth Amendment, the plaintiff may, as a trial (Tex.App .-Tyler 1984, writ refd n.r.e.)); strategy, request an instruction on res ipsa loquitur on the TEX.R.CIV.PROC. 41. Rule 41 affords the trial court negligence theory. Be that as it may, the United States broad discretion in the matter of severance. "The Supreme Court distinguishes between a criminal and a controlling reasons for a severance are to do justice, avoid civil case as to whether an inference of guilt may be prejudice and further convenience." Guaranty Fed. Sav. drawn from a defendant's silence. It is clearly Bank, supra. In this case, the third prong of the severance constitutional error under the Fifth Amendment to instruct test is clearly missing. Relator has pled altemative a jury in a criminal case that it may draw an inference of theories ofrecovery. The severed claim is based upon the guilt from a defendant's failure to testify about facts same facts and circumstances as the remaining claim. The relevant to his case. Griffin v. California, 380 U.S. 609, parties are identical. While the elements of each claim are 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965). necessarily different, the proof required is all to be drawn However, "the Fifth Amendment does not forbid adverse from the same events. The severance order is inferences against pmties to civil actions when they refuse interlocutory and nonappealable while the abatement is in to testify in response to probative evidence offered against effect. them." Baxter v. Palmigiano, 425 U.S . 308, 318, 96 S.Ct. 1551 , 1558, 47 L.Ed.2d 810, 821 (1976). The Amendment Moreover, it is observed that the trial court's order leaves "does not preclude the inference where the privilege is the relator free to try her civil conspiracy claim based on claimed by a party to a civil cause." 8 J. WIGMORE, the same factual allegations without the restrictions the EVIDENCE 439 (McNaughton rev. 1961) (emphasis in trial court has placed on the severed and abated original). The Baxter opinion lists a long line of cases negligence claim. The concerns advanced by the which recognize "that in proper circumstances silence in respondent to the trial court would in large measure also the face of accusation is a relevant fact not bmTed from be present in the conspiracy trial. Severing claims into evidence by the Due Process Clause." Baxter, 425 U.S. at separate lawsuits without valid and sustaining reasons is 319, 96 S.Ct. at 1558, 47 L.Ed.2d at 822. Therefore, the not in the interest of judicial economy. asse1tion of the privilege against self-incrimination alone does not present a legal basis for severance and abatement of the negligence claim while a criminal investigation proceeds. *332 ABATEMENT The record before us does not reflect that this theory is The trial comt ordered the negligence claim abated alleged by the plaintiff below. pending final disposition of any criminal charges that may be brought against any of the defendants or until the statutes of limitation expire.

ll2J JIJJ Abatement is generally an incidental ruling not susceptible to mandamus relief. E.g., Abor v. Black, 695 SEVERANCE S.W.2d 564, 567 (Tex.l985) (citing Pope v. Ferguson, 191 JIOJ Jill The severed negligence claim and the civil 445 S.W.2d 950, 954 (Tex. 1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970)). Further, trial ~ =-;t "'.' Nexr © 201 5 Th omson Reute1·s. No claim to origin al U.S. Governm ent Works. 6 APPENDIX 68 Gebhardt v. Gallardo, 891 S.W.2d 327 (1995}

comts generally have discretion in abatement decisions. A trial judge may not arbitrarily halt tr·ial roceedings."

E.g. , Dolenz v. Continental Nat 'l Bank of Fort Worth, 620 Jd., citing Clevelandv. Ward, 116 Tex. 1, 285 S.W. 1063 , S.W .2d 572, 575 (Tex.l981) . 1068 (1926); Greenberg, Benson, Fisk and Fielder v. Howell, 685 S.W.2d 694, 695 (Tex.A .- Dallas 1984, 1141 I1SI The trial couti should consider what effect, if any, orig. roceeding) (citing the rovision of the abatement of the negligence claim will have on the TEX. CONST. art. I, §.J..V. plaintiff's ability to prosecute the remaining conspiracy claim. Walker v. Packer, 827 S.W.2d 833, 843 (Tex. l992) [l?l The Texas Supreme Comt has also reasoned that recognizes that appeal is not an appropriate remedy where mandamus would issue to force a trial judge to go to tr·ial the ability to present a viable claim was vitiated by a because there was no remedy by agpeal. Cleveland v. pretrial order. The negligence claim in this case is vitiated Ward, 285 S.W. at 1068. At that time a statute authorized because relator is prohibited from preserving defendants' courts of appeal to issue writs of mandamus ordering tr·ial testimony through oral deposition on the negligence judges to go to trial. Article 1824 was amended in 1984 to issues while the abatement order is in effect. As time goes eliminate the specific authority to order a trial judge to on, memories will likely dim and evidence become proceed to tr·ial before it was codified into the cutTent unavailable. statute providing our general mandamus jurisdiction. This revision places the abatement under the general principles 1161 Abating a case indefinitely, moreover, has been found of law applicable to mandamus . See TEX. GOV'T CODE to violate the o en comts provisions of the Texas § 22.221 (Vernon 1988). However, the Howell case cited Constitution. See Trapnell v. Hunter, 785 S.W.2d 426, above, consh·ues this change to expand an appellate (Tex.App.-Corpus Christi 1990, orig. proceeding). couti's power to order a judge to proceed to tr·ial in a In Trapnell, survivors had filed a wrongful death suit pending case. Greenberg, Benson, Fisk and Fielder v. against manufacturers of sulfite and foods containing it on Howell, 685 S.W.2d at 695. a themy of products liability. Several months later they filed a second suit in federal couti against the Navy under *333 I1BI The tenn of abatement in the present case is the Federal Tmt Claims Act on theories of negligent food indefinite. Statutes of limitations vary. The defendant preparation and failure to warn. The federal case was testified that he did not know how long the abatement, if stayed against the Navy pending completion of the granted, would last. He did not furnish the tr·ial judge with products liability state case. However, the manufacturer any information as to what crimes might be charged, so it defendants obtained an order abating the state case so is impossible to tell what statutes of limitations might they could seek intervention in the federal case. The apply. Moreover, statutes of limitations are tolled while federal district court denied their motion to intervene, an accused is absent from the state and tolled during the nevertheless the state district comt repeatedly refused to pendency of an indictment. TEX.CRIM.PROC.CODE vacate his order of abatement. !d. at 427. The issue at the ANN. art. 12.05 (Vernon 1979). It is, therefore, mandamus proceeding was whether the state couti had a impossible to detennine when the abatement will end. legal basis to abate the state cause in order to encourage The indefiniteness of the abatement leads us to the all pmties to settle their controversy in federal court. The conclusion that the relator has no adequate remedy at law. appellate comt held that the state comt abatement denied the pmties their right to a forum under the "o en comts" For these reasons we have concluded that relator is clause of the Texas Constitution. ! d. at 429. entitled to a writ of mandamus to direct the trial court to rescind its order of severance and abatement. The writ The opinion noted that article 1, section 13 of the will issue only in the event the trial court fails to act constitution is generally not violated by abatement issued accordingly. in deference to a pending suit in another couti because the plaintiff may still pursue her remedy in the second co mi.

Jd. In Trapnell, both forums had been indefinitely foreclosed to the plaintiffs by court orders. "When the All Citations trial comt sustains a plea in abatement, ... the plaintiff is effectively denied any other method of challenging the 891 S.W.2d 327 court's action for an indefinite period of time during which the cause of action remains in a suspended state ....

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