In RE OFFICE OF THE ATTORNEY GENERAL v. the State of Texas ( 2024 )

Supreme Court of Texas
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No. 24-0073
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In re Office of the Attorney General,
Relator
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On Petition for Writ of Mandamus
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PER CURIAM
Justice Young did not participate in the decision.
This mandamus petition is the latest proceeding arising out of a
2020 Whistleblower Act suit brought by four former employees against
the Office of the Attorney General. OAG seeks mandamus relief,
asserting that the trial court abused its discretion by ordering
depositions of the Attorney General and three of his senior subordinates
after OAG elected in a pleading “not to dispute the Plaintiffs’ lawsuit as
to any issue” and, instead, to “consent[] to the entry of judgment” for
plaintiffs. OAG contends those concessions mean there are no
remaining disputed issues of fact and, thus, no further discovery is
warranted. Alternatively, it asserts the only remaining fact issue is the
amount of plaintiffs’ damages, for which the requested depositions
would not be relevant. While we agree with the former employees that
OAG’s concessions do not preclude all discovery, we agree with OAG
that the trial court abused its discretion in ordering the depositions of
these four witnesses without considering that the only fact issue on
which those witnesses are likely to provide information—OAG’s liability
under the Whistleblower Act—is now uncontested. We therefore
conditionally grant the requested relief.
I
Four former OAG employees—James Blake Brickman, J. Mark
Penley, David Maxwell, and Ryan M. Vassar—sued the OAG in
November 2020, alleging that the agency violated the Whistleblower
Act. See TEX. GOV’T CODE §§ 554.001-.010. Their live petition alleges
that they were unlawfully retaliated against by their employer after
making a good-faith report to the FBI of their collective belief that
Attorney General Ken Paxton had violated the law. OAG initially
denied the allegations and moved to dismiss the lawsuit under Texas
Rule of Civil Procedure 91a, asserting that OAG was immune and that
plaintiffs failed to allege a valid claim under the Whistleblower Act. See
Off. of Att’y Gen. v. Brickman, 636 S.W.3d 659, 663 (Tex. App.—Austin
2021, pet. denied). The trial court denied the Rule 91a motion, OAG
appealed, and the court of appeals affirmed. Id. at 679. While OAG’s
petition for review was pending in this Court (in Case No. 21-1027), the
parties entered into a Mediated Settlement Agreement. On the parties’
joint motion, we abated the case in February 2023 and instructed the
parties to notify the Court “about any changes in status in the
settlement proceedings.” Notably, the settlement agreement states that
it “is contingent upon all necessary approvals for funding.”
2
The Texas Legislature adjourned its 2023 regular session without
approving funding for the settlement. Instead, the Texas House of
Representatives impeached Paxton, based on some of the same
allegations of wrongful conduct that formed the basis for the
Whistleblower Act claims. See Articles of Impeachment, 88th Leg., R.S.,
H.R. 2377 (adopted May 27, 2023). Paxton was tried by the Texas
Senate in September 2023 and ultimately acquitted. See TEX. SENATE,
JUDGMENT (Sept. 16, 2023), https://senate.texas.gov/_assets/coi/
docs/Judgment-Court-of-Impeachment-Warren-Kenneth-Paxton-Jr.pdf.
After lifting the abatement in Case No. 21-1027, this Court denied
OAG’s petition for review.
Back in the trial court,1 plaintiffs moved to compel the depositions
of Paxton and three OAG employees—Brent Webster (the Attorney
General’s first assistant), Lesley French Henneke (the Attorney
General’s chief of staff), and Michelle Smith (a senior advisor to the
Attorney General). The trial court granted the motion and ordered the
parties to confer on deposition dates. The order stated that if the parties
could not agree on scheduling, “any party may notify the Court of the
impasse and request a supplemental order setting specific dates and
times for these depositions.” OAG filed a petition for writ of mandamus,
arguing (1) the parties’ settlement agreement was binding and
enforceable despite the lack of legislative funding and (2) the ordered
1 Before returning to the trial court, OAG sought and obtained an ex
parte temporary restraining order from a different court enjoining plaintiffs
from litigating their claims or engaging in discovery in the underlying lawsuit.
After a hearing, however, that court denied OAG’s request for a temporary
injunction, the TRO expired, and OAG nonsuited its claims.
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depositions violated Texas’s limitations on apex depositions.2 The court
of appeals denied relief. This Court denied OAG’s subsequent
mandamus petition along with its request for a temporary stay, with two
justices dissenting in part.
Shortly after the Court denied that petition, however, OAG
amended its answer in the trial court. OAG now “affirmatively answers
that it elects not to dispute the Plaintiffs’ lawsuit as to any issue and
consents to the entry of judgment.” Although the amended answer
contains numerous affirmative statements that refute the factual
allegations in the live petition and insist that plaintiffs’ claims are
“baseless and they would fail,” OAG’s answer nevertheless states that it
“consent[s] to the entry of judgment in this matter to the extent of the
statutory limitations of the Texas Whistleblower Act.”
About an hour after OAG filed its amended answer, plaintiffs
notified the trial court that the parties were unable to agree on
deposition dates and asked the court to set the four depositions for
particular dates, as contemplated by the court’s previous order. The
next day, the trial court signed a “Supplemental Order” setting each of
the four witnesses’ depositions for dates in February 2024. OAG
responded by filing a combined motion for entry of judgment and to
vacate the supplemental order. The trial court denied OAG’s request to
2 See Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127-28
(Tex. 1995) (defining apex depositions as depositions of “a corporate officer at
the apex of the corporate hierarchy” and announcing guidelines for addressing
such deposition requests).
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vacate its supplemental order on the depositions.3 OAG sought
mandamus relief in the court of appeals, which was denied. ___ S.W.3d
___, 2024 WL 308011 (Tex. App.—Austin Jan. 26, 2024). OAG then
sought mandamus relief and a stay of the trial court’s supplemental
order in this Court.
II
Our rules authorize discovery requests for information that is
“reasonably calculated to lead to the discovery of admissible evidence.”
TEX. R. CIV. P. 192.3(a). Permissible discovery requests are limited to
those that “show a reasonable expectation of obtaining information that
will aid the dispute’s resolution.” In re CSX Corp., 124 S.W.3d 149, 152
(Tex. 2003). In addition, discovery “should be limited” if the burden or
expense of the requested discovery outweighs its likely benefit, taking
into account such factors as “the needs of the case,” “the importance of
the issues at stake in the litigation,” and “the importance of the proposed
discovery in resolving the issues.” TEX. R. CIV. P. 192.4; see also In re
K & L Auto Crushers, LLC, 627 S.W.3d 239, 253 (Tex. 2021) (describing
Rule 192.4 as imposing a “proportionality standard”); In re State Farm
Lloyds, 520 S.W.3d 595, 599 (Tex. 2017) (“Reasonableness and its
bedfellow, proportionality, require a case-by-case balancing of
jurisprudential considerations, which is informed by factors the
discovery rules identify as limiting the scope of discovery . . . .”).
3 The trial court later denied OAG’s motion for entry of judgment, which
asked the trial court to “enter judgment on Plaintiffs’ sole claim under the
Texas Whistleblower Act,” subject to the trial court’s entry of a final judgment
following the court’s determination of “damages, including attorneys’ fees.”
That ruling is not before us in this proceeding, and we express no opinion on
it.
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A party is entitled to mandamus relief when it demonstrates that
the trial court clearly abused its discretion and the party lacks an
adequate remedy by appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex.
2018). A trial court abuses its discretion by “ordering discovery that
exceeds that permitted by the rules of procedure.” CSX Corp., 124
S.W.3d at 152. The responding party has no adequate remedy by appeal
if the discovery order “compels production beyond the permissible
bounds of discovery.” In re Weekley Homes, L.P., 295 S.W.3d 309, 322
(Tex. 2009).
III
OAG argues that the trial court abused its discretion in ordering
the depositions of the Attorney General and three senior employees
because either there are no remaining disputed issues of fact or,
alternatively, the only remaining fact issue is the amount of plaintiffs’
damages, an issue on which OAG contends the requested depositions
would shed no light. Plaintiffs respond that further discovery is needed
because, despite OAG’s amended answer and its motion to enter
judgment in plaintiffs’ favor, plaintiffs must still prove the validity of
their claims with evidence to obtain a judgment. Regardless of whether
OAG’s amended answer eliminates plaintiffs’ need or desire to present
evidence in support of a judgment, OAG’s unambiguous statements that
it will not dispute any issue in the lawsuit and consents to the entry of
a judgment on liability in plaintiffs’ favor unquestionably alters the
analysis as to whether the requested depositions “show a reasonable
expectation of obtaining information that will aid the dispute’s
resolution,” CSX Corp., 124 S.W.3d at 152, and whether the burden or
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expense of sitting for those depositions “outweighs [their] likely benefit,”
TEX. R. CIV. P. 192.4(b). When, as here, the scope of the dispute is
narrowed, the trial court must re-evaluate the need, likely benefit, and
burden or expense of any requested discovery in light of the change in
the dispute’s scope. We conclude that the trial court abused its
discretion by failing to consider how the narrowing of the scope of the
remaining disputed fact issues to include only damages affected the
need, likely benefit, and corresponding burden or expense of the
requested discovery before issuing an order compelling the depositions.
Plaintiffs complain that OAG’s amended answer does not admit
fault and, instead, contains numerous statements that appear to contest
the validity of plaintiffs’ claims. But the legal effect of the answer in
this lawsuit is clear: OAG no longer disputes liability on any issue
alleged by plaintiffs and consents to the entry of a judgment in plaintiffs’
favor. We need not decide the precise effect of OAG’s amended answer
on plaintiffs’ need to present evidence to obtain a judgment. For
purposes of this proceeding, what matters is that OAG’s agreement to a
finding of liability makes it significantly less likely that testimony from
these four witnesses is needed to resolve any remaining factual dispute.
Information sought regarding a fact issue that will not be contested at
trial will not “aid the dispute’s resolution” and therefore is not
discoverable. See CSX Corp., 124 S.W.3d at 152.
OAG’s amended answer likewise alters the proportionality
analysis in which courts must engage. In its motion to vacate the trial
court’s supplemental order compelling the depositions, OAG argued that
preparing for these depositions would distract the deponents from
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“managing 4,200 employees and the over 30,000 active cases the State
of Texas is currently litigating.” In light of OAG’s amended answer and
its concession that it will not contest “any issue” regarding liability, it
appears that the requested deposition testimony would not advance the
needs of the case or have importance in resolving the remaining issues
in dispute. At a minimum, any such needs or importance appear to be
significantly outweighed by the depositions’ burdens, which have not
been contested by plaintiffs. See TEX. R. CIV. P. 192.4(b); K & L Auto
Crushers, 627 S.W.3d at 253. In any event, there is no indication on this
record that the trial court considered the effect of OAG’s amended
answer on whether the requested depositions were relevant and
proportional.
Plaintiffs advance two additional arguments why ordering the
depositions was not an abuse of discretion, neither of which is
convincing. First, plaintiffs argue that these depositions are necessary
because the Whistleblower Act is “aimed at ‘ferreting out government
mismanagement to protect the public.’” City of Fort Worth v. Pridgen,
653 S.W.3d 176, 184 (Tex. 2022) (quoting Neighborhood Ctrs. Inc. v.
Walker, 544 S.W.3d 744, 748 (Tex. 2018)). Whether we agree with
plaintiffs that this is the Act’s “fundamental purpose,” it does not give
courts license to exceed their authority to resolve actual cases and
controversies before them. See Morrow v. Corbin, 62 S.W.2d 641, 644
(Tex. 1933) (“‘Judicial power’ is the power of a court to decide and
pronounce a judgment and carry it into effect between persons and
parties who bring a case before it for a decision.”); cf. Pike v. Tex. EMC
Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (“Our adversary system of
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justice generally depends ‘on the parties to frame the issues for decision
and assign[s] to courts the role of neutral arbiter of matters the parties
present.’” (alteration in original) (quoting Greenlaw v. United States, 554
U.S. 237, 243 (2008))); Greenlaw, 554 U.S. at 244 (“[Courts] do not, or
should not, sally forth each day looking for wrongs to right. We wait for
cases to come to us, and when they do we normally decide only questions
presented by the parties.” (alteration in original) (quoting United States
v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J.,
concurring))). Whatever the purpose of the Whistleblower Act may be,
it does not alter our longstanding rules limiting discovery in court
proceedings to information that is reasonably expected to aid the
dispute’s resolution and further limiting it where the burden of the
discovery outweighs the likely benefit in the litigation. Notably, all the
factors that courts must consider under Rule 192.4(b)—“the needs of the
case, the amount in controversy, the parties’ resources, the importance
of the issues at stake in the litigation, and the importance of the
proposed discovery in resolving the issues”—relate to the litigation
itself, not to non-litigation objectives that might be advanced by pressing
discovery.
Similarly, plaintiffs’ claim that the Government Code gives the
state auditor “access to all records pertaining to the suit” under the
Whistleblower Act, TEX. GOV’T CODE § 554.010(b), does not support their
assertion that the depositions should be allowed regardless of their
relevance to the lawsuit’s resolution. Nothing in this statute suggests
that courts should abandon ordinary limitations on discovery to ensure
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that information some might find useful will be made public by its
inclusion in the court’s records.
Second, plaintiffs contend that without this discovery, they will
be unable to obtain “effective” relief. As they correctly note, collection of
a money judgment in their favor will require an appropriation from the
Legislature. See Tex. Dep’t of Hum. Servs. v. Green, 855 S.W.2d 136, 145
(Tex. App.—Austin 1993, writ denied) (noting that a successful
Whistleblower Act plaintiff “must still request a legislative
appropriation to collect the damages awarded him”). According to
plaintiffs, the Governor and members of the Legislature have expressed
a desire to hear from these witnesses before deciding whether to
appropriate funds. But discovery requested as part of the litigation
process is not proper simply because it might be used for legislative
purposes. See Morath v. Tex. Taxpayer & Student Fairness Coal., 490
S.W.3d 826, 853 (Tex. 2016) (“Courts should not sit as a
super-legislature.”). Information is discoverable if it is relevant to
pending litigation, and a discovery request must be directed at
information that “will aid the dispute’s resolution”—i.e., the dispute
before the court. If, as plaintiffs assert, the Legislature will be
unsatisfied with the trial court’s judgment and whatever evidence was
presented in support of that judgment, the Legislature has at its
disposal the means to obtain additional information. See, e.g., TEX.
GOV’T CODE § 301.024(a) (“A general investigating committee may issue
process to compel the attendance of witnesses and the production of
books, records, documents, and instruments required by the
committee.”). It does not need the courts to impose discovery obligations
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in a lawsuit where the parties’ pleadings have rendered the information
sought incapable of resolving a disputed issue or made the discovery
requests disproportionate.
IV
Without hearing oral argument, see TEX. R. APP. P. 52.8(c), we
conditionally grant the petition for writ of mandamus and order the trial
court to vacate the Supplemental Order Setting Time and Place of
Depositions signed on January 19, 2024. We are confident the trial court
will comply, and our writ will issue only if it does not.
OPINION DELIVERED: November 22, 2024
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