in Re Katrena Becker and Carl Dean Matthews, Relators , 554 S.W.3d 780 ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00230-CV
IN RE KATRENA BECKER AND CARL DEAN MATTHEWS, RELATORS
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
July 11, 2018
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Relators, Katrena Becker and Carl Dean Matthews (Becker/Matthews), petition
this court for a writ of mandamus. Through it, they ask that we direct the Honorable Anna
Estevez, 251st Judicial District, “to vacate the portion of her May 2, 2018 Order permitting
interrogatories be propounded to Relators and requiring Relators’ depositions be taken
between July 10, 2018 and August 31, 2018” and “to enter an order Granting Relators’
Motion to Abate.” Through the latter, Becker/Matthews wanted the trial court to
“temporarily stay this civil case so that any criminal proceedings against them may
proceed without interference and their constitutional rights will not be compromised.” We
deny the petition.
Authority
Mandamus is an extraordinary remedy granted only when a relator shows that the
trial court clearly abused its discretion and that no adequate appellate remedy exists. In
re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per
curiam); In re Lloyd, No. 07-16-00340-CV, 2016 Tex. App. LEXIS 10489, at *3 (Tex.
App.—Amarillo Sept. 26, 2016, orig. proceeding) (mem. op.). A relator bears the burden
of proving these two requirements. In re Lloyd, 2016 Tex. App. LEXIS 10489, at *3. So
too must the relator show that 1) the trial court had a legal duty to perform, 2) performance
was demanded of the court, and 3) it refused. Id.
Next, whether to grant or deny a motion to abate a proceeding lies within the trial
court’s discretion. In re AAA Tex. Cty. Mut. Ins. Co., No 12-15-00277-CV, 2016 Tex. App.
LEXIS 9000, at *3 (Tex. App.—Tyler Aug. 18, 2016, orig. proceeding) (mem. op.); In re
Am. Nat’l Cty. Mut. Ins. Co., 384 S.W.3d 429, 435 (Tex. App.—Austin 2012, orig.
proceeding). In exercising that discretion, the trial court must be mindful of its duty to
schedule proceedings so as to expeditiously dispose of them. Jongebloed v. Horkey Oil
Co., No. 07-03-00052-CV, 2005 Tex. App. LEXIS 2793, at *8 (Tex. App.—Amarillo Apr.
12, 2005, pet. denied) (mem. op.). In turn, we must be respectful of the trial court’s
considerable discretion in managing its docket. Id.
Application of Authority
Amarillo Natural Gas, Inc., Paisano Natural Gas, Inc., Paisano Pronto, Ltd., and
William Leslie Price (Amarillo) sued approximately ninety-seven different entities and
individuals to recover damages for tortious acts allegedly committed by those defendants.
The causes of action alleged included conversion, fraud, breached fiduciary duty, and
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mail fraud. Becker/Matthews were two of the ninety-seven sued. Furthermore, the action
was commenced in March of 2016. Its two-year anniversary date lapsed several months
ago.
The motion to abate was at least the second one filed by Becker/Matthews based
upon purported criminal investigations being conducted by various federal governmental
agencies. Furthermore, the order underlying this petition for writ of mandamus was
actually another one which granted Becker/Matthews relief and abated the conduct of
discovery in some manner. At least one other had been issued. This time, however, the
trial court abated the proceeding until July 9, 2018, and decided to permit discovery to
proceed thereafter. A primary reason underlying its decision to do so was the existence
of a special two-week trial setting scheduled in January 2019. According to counsel for
the plaintiffs, further postponing discovery would hamper their ability to prepare for that
setting.
The request being made to us by Becker/Matthews is a bit confusing. For instance,
they suggest that they only want to stay discovery from occurring through the use of
interrogatories and depositions. Yet, they also ask that we order the trial court to grant
their motion to abate in toto, and in that motion they requested the trial court to “abate the
civil proceedings against them until September 4, 2018 and at that time set a hearing
to revisit the status of these parallel proceedings.” (Emphasis added). Abating the “civil
proceedings against them” seems to encompass more than simply staying certain
aspects of discovery.
Nonetheless, Becker/Matthews believe themselves entitled to such relief because
if they
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respond to the civil discovery and provide discovery and
depositions, they jeopardize their Fifth Amendment privilege
against self-incrimination because their answers will be used
against them in the coming prosecution. If they invoke their
Fifth Amendment privilege in the civil lawsuit, they risk severe
prejudice that could amount to a forfeiture of their due process
rights to properly and adequately defend this case. Either
alternative will damage a constitutional right.
As we learned years ago in law school, conditioning the exercise of a constitutional
right upon relinquishing another may be impermissible, see Simmons v. United States,
390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968) (stating that “we find it
intolerable that one constitutional right should have to be surrendered in order to assert
another”), and that seems to be the premise underlying Becker/Matthews request here.
The constitutional rights in play here are apparently the right to invoke the Fifth
Amendment privilege against incriminating oneself and the right to a fair trial inherent in
due process.
While it is true that Becker/Matthews have a constitutional right to avoid
incriminating themselves in both civil and criminal proceedings, Tex. Dept. of Pub. Safety
Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995); In re V.J.G., No. 07- 12-
00541-CV, 2013 Tex. App. LEXIS 3493, at *8 n.3 (Tex. App.—Amarillo Mar. 26, 2013, no
pet.) (mem. op.), they fail to clearly explain how invoking that right prejudices their right
to due process and a fair trial. Admittedly, they may lose the opportunity to present a
viable defense if they invoke the Fifth Amendment because their defense is founded upon
facts that somehow incriminate themselves. But, we know of no authority holding that a
defendant has the right to insulate himself from civil damages in a civil suit because his
defense would implicate him in criminal conduct; nor did Becker/Matthews cite us to such
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authority. Indeed, the defendant still gets his day in court, and the plaintiff remains
obligated to prove its claims even though the defendant may wish to invoke the Fifth.
Nor do we know of authority holding that a person has a constitutional right to avoid
being placed in the position of having to decide whether to plead the Fifth in a civil
proceeding. And, again, Becker/Matthews failed to fill that void.
Moreover, the primary authority they did cite to suggests they are entitled to
mandamus relief is quite inapposite. The two opinions to which we refer are Wehling v.
Columbia Broadcasting Sys., 608 F.2d 1084 (5th Cir. 1979), and Tex. Dept. of Pub. Safety
Officers Ass’n v. Denton, supra. Becker/Matthews would have us read them as requiring
the trial court to abate a civil suit as long as a potential criminal investigation or
prosecution pends. Neither opinion so mandates, however.
Both Wehling and Denton involved situations wherein the trial court dismissed a
suit as a sanction for the plaintiff’s offensive (as opposed to defensive) use of the Fifth
Amendment to avoid responding to discovery. See Tex. Dep’t of Pub. Safety Officers
Ass’n v. Denton, 897 S.W.2d at 759 (observing that the “trial court dismissed Lane
Denton’s cause of action when Denton asserted his Fifth Amendment privilege in
response to discovery requests”); Wehling, 608 F.2d at 1085 (noting that “[i]n this diversity
case plaintiff appeals from the dismissal of his libel action under Rule 37, Fed.R.Civ.P.,
for refusing to answer certain questions posed by CBS during plaintiff’s oral deposition”).
Both courts recognized that the plaintiff had a constitutional right to invoke their Fifth
Amendment privilege against self-incrimination in a civil proceeding. Tex. Dep’t Pub.
Safety Officers Ass’n v. Denton, 897 S.W.2d at 760; Wehling, 608 F.2d at 1086. And,
both held that in lieu of simply imposing death penalty sanctions such as dismissing the
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suit, other less drastic alternatives should be considered such as staying the action until
the threat of criminal prosecution is over. Tex. Dep’t Pub. Safety Officers Ass’n v. Denton,
897 S.W.2d at 763; Wehling, 608 F.2d at 1089.
We do not have an either/or situation before us. The trial court did not threaten
Becker/Matthews with death penalty sanctions if they invoked their privilege to forgo
incriminating themselves. Indeed, the record reveals that the trial court actually
endeavored to address their concerns by staying discovery in the past. Despite this,
Becker/Matthews want to continue postponing resolution of the suit for a period equal to
whatever length of time some federal agencies care to take in conducting their own
nondescript criminal investigations.
Nor do we have before us a situation wherein either Becker/Matthews actually
invoked their Fifth Amendment privilege to avoid answering particular discovery requests.
That too distinguishes our situation from those in Denton and Wehling. The questions
Amarillo seeks to propound via interrogatories and depositions may be such that expose
Becker/Matthews to potential criminal penalty if they choose to answer. Or, there may be
many relevant inquiries which pose no such criminal risk to them. And, even if asked
potentially hazardous questions, Becker/Matthews still have the right to invoke the Fifth
Amendment. While doing so may have its own consequence since negative inferences
may arise from the decision, see, e.g., Tex. Dep’t Pub. Safety Officers Ass’n v. Denton,
897 S.W.2d at 760 (stating that “[b]ecause of the difference between the civil and criminal
context, the United States Supreme Court has allowed juries in civil cases to make
negative inferences based upon the assertion of the privilege”), such is not the type of
penalty deemed impermissible in Wehling. Indeed, the penalties to which it referred
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consisted of “any sanction which makes assertion of the Fifth Amendment privilege
‘costly,’” such as dismissing the party’s suit. See Wehling, 608 F.2d at 1088, (quoting
Spevack v. Klein, 385 U.S. 511, 515, 87 S. Ct. 625, 628, 17 L. Ed .2d 574 (1967)) (stating
that “[i]n this context ‘penalty’ is not restricted to fine or imprisonment. It means . . . the
imposition of any sanction which makes assertion of the Fifth Amendment privilege
‘costly.’”) (Emphasis added). We reject the notion that permitting a civil jury to take
negative inferences from the assertion of a Fifth Amendment privilege is any type of
sanction for invoking the Fifth Amendment, especially since the United States Supreme
Court expressly has approved of such inferences. Baxter v. Palmigiano, 425 U.S. 308,
318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976); In re V.J.G., 2013 Tex. App. LEXIS 3493,
at *8 n.3 (referring to Baxter and reiterating that the Fifth Amendment does not forbid
inferences against parties to civil actions when they invoke the Fifth Amendment).
Finally, no one must forget that Amarillo and the other plaintiffs also have a due
process right to a fair adjudication of their claims. The Wehling court itself recognized the
competing rights to due process of the litigants involved in a suit. Just as a civil plaintiff
has no absolute right to both his silence and his lawsuit, and neither does a civil defendant
have an absolute right to have the action dismissed anytime a plaintiff invokes his
constitutional privilege, Wehling, 608 F.2d at 1088, a civil defendant has no right to
indefinitely postpone the adjudication of a civil suit because his conduct may have also
implicated a criminal statute.
Given the circumstances at bar, the rights being balanced by the trial court, and
the duties imposed on a trial court, we cannot say that Becker/Matthews carried its burden
here. They did not prove that the trial court clearly abused its discretion in denying their
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motion to abate and permitting discovery to proceed on July 10, 2018 in preparation of a
January 2019 two-week special trial setting. The trial court has not made them forfeit
either their Fifth Amendment protections or their rights to a fair trial in the civil action.
We deny the petition for writ of mandamus.
Brian Quinn
Chief Justice
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