in Re Marvel Reed ( 2009 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00361-CV
In re Marvel Reed
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
DISSENTING OPINION
Because I interpret the language of the Minnesota trial court’s order to be consistent
with that of a “writ, mandate, or commission” as contemplated by section 20.002 of the Texas Civil
Practice and Remedies Code and the rules of civil procedure, I would deny mandamus relief. See
Tex. Civ. Prac. & Rem. Code Ann. § 20.002 (West 2008); Tex. R. Civ. P. 201.2.
While the Minnesota court order uses the future-tense language, “A writ shall be
issued,” the context of this language reveals that no further judicial action is contemplated. The
order requires Reed to produce documents “within 15 days from the date of this Order” and to
submit to a deposition “within 30 days” of receipt of such documents. One would assume that if the
trial court intended to require some future judicial action before its order could be enforced, such
action would have been taken within the 15-day deadline for the production of documents.
Significantly, the trial court signed its order almost five months ago and no additional writ has issued
in the interim. Texas courts have recognized that the language of trial court orders should be read
in context, so that form is not elevated over substance and cases are not decided based on the
inclusion or omission of “magic words.” See Texas Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803,
810-11 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that right to seek expunction of
arrest records “should not turn upon whether the trial court uses ‘magic words’ in its discharge
order”); Oryx Energy Co. v. Union Nat’l Bank, 895 S.W.2d 409, 417 (Tex. App.—San Antonio
1995, writ denied) (“Courts should not decide cases based on the inclusion or omission of ‘magic
words.’ Instead decisions should be based upon the facts as recited in the record as a whole.”);
Skidmore v. Glenn, 781 S.W.2d 672, 675 (Tex. App.—Dallas 1989, no writ) (explaining that
trial court’s future-tense statement, “I’ll enter an order approving the agreement,” when read in
context, was sufficient to render judgment at time it was made). Based on the context of the
Minnesota court’s order, I interpret the language, “A writ shall be issued,” to be self-activating, so
that the writ issued contemporaneously with that declaration. Relator has presented no persuasive
authority to suggest otherwise.
Black’s Law Dictionary defines a “writ” as “[a] court’s written order, in the name of
a state or other competent legal authority, commanding the addressee to do or refrain from doing
some specified act.” Black’s Law Dictionary 1602 (7th ed. 1999). The Minnesota court order,
which commands that certain documents be produced within 15 days, qualifies as a “writ” under
this definition.1
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Similarly, one widely respected commentator has stated that Texas Rule of Civil
Procedure 201.2 applies any time “a court of record of any other state or foreign jurisdiction issues
an order that requires a witness’s oral or written deposition testimony in Texas.”
MICHOL O’CONNOR, O’CONNOR’S TEXAS RULES * CIVIL TRIALS 464 (Michol O’Connor
& Byron P. Davis eds., 2009) (emphasis added). The Minnesota court’s order, a certified copy of
which was filed in Williamson County District Court, represents precisely this type of order.
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Mandamus relief should only be granted “to correct a ‘clear abuse of discretion’
committed by the trial court.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1991). A trial court
abuses its discretion if it “reaches a decision so arbitrary and unreasonable as to amount to a clear
and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917
(Tex. 1985). “A relator who attacks the ruling of a trial court as an abuse of discretion labors under
a heavy burden.” Id. Because the order of the Minnesota court could reasonably be read as a “writ,
mandate, or commission” requiring Reed’s deposition testimony in this State, the trial court did not
commit a clear abuse of discretion, but fulfilled its duty under the civil practice and remedies code
and rules of civil of procedure to honor the discovery order of a foreign court. Furthermore, the trial
court properly afforded Reed, as a nonparty witness, the same protections that would be given a
nonparty witness in “a proceeding pending in this State,” Tex. R. Civ. P. 201.2, by issuing a
protective order and allowing all personal information to be redacted from the documents produced.
As a result, I respectfully dissent from the majority’s decision to grant extraordinary relief.
___________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Patterson and Henson
Filed: July 10, 2009
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