in Re Luis Alonzo Alvarez ( 2007 )

Opinion issued October 29, 2007

In The

Court of Appeals

For the

First District of Texas

____________

NO. 01-07-00569-CV

____________

IN RE LUIZ ALONZO ALVAREZ, Relators

---

Original Proceeding on Petition for Writ of Mandamus

---

MEMORANDUM OPINION Relator Luiz Alonzo Alvarez filed a petition for a writ of mandamus, complaining of Judge Dorfman's June 25, 2007 order denying Alvarez's motion for protection from discovery. ⁽¹⁾ The real parties in interest are: (1) Jonathan McKinley, individually and as independent administrator of the estate of Michelle McKinley and as next friend of Quinn McKinley, a minor, and Paige McKinley, a deceased minor; (2) Martha Olson; and (3) Stacey Hoyle, individually and as independent administrator of the estate of Jay Hoyle and as next friend of Rachel Hoyle and Erin Hoyle, minors.

Alvarez is a truck driver for Louisiana Transportation, Inc. On April 1, 2006, Alvarez was involved in an accident in which Michelle McKinley, Paige McKinley, and Jay Hoyle were killed. The real parties in interest filed suit against Alvarez and Louisiana Transportation on April 21, 2006. On May 23, 2007, Alvarez was indicted

for injury to a child and two counts of criminally negligent homicide.

Alvarez filed multiple motions to quash his deposition. Judge Dorfman granted three of those motions on December 13, 2006, February 13, 2007, and March 20, 2007. On June 25, 2007, Judge Dorfman denied Alvarez's motion for protection from discovery, but also stated, "In accordance with the Court's prior statement on this matter, the Court will take into account the defendant's assertion, if any, of his Fifth Amendment privilege, and the pendency of any parallel criminal proceeding, before proceeding to trial or hearing pretrial dispositive motions that might place defendant Alvarez at substantial disadvantage due to such assertion."

Alvarez claims that Judge Dorfman abused his discretion in denying the motion for protection from discovery based on the Fifth Amendment. Alvarez has yet to assert a Fifth Amendment privilege in response to discovery, but instead asserts he is entitled to protection from all discovery while the criminal proceedings are pending. This is not Texas law. See, e.g., In re Edge Capital Group, Inc., 161 S.W.3d 764, 768 (Tex. App.--Beaumont 2005, orig. proceeding) (blanket assertions of Fifth Amendment privilege generally are not permitted in civil cases); In re R.R.,

26 S.W.3d 569, 574 (Tex. App.--Dallas 2000, orig. proceeding) (blanket denial of all discovery in civil case due to pending criminal case is not good public policy); Burton v. West, 749 S.W.2d 505, 508 (Tex. App.--Houston [1st Dist.] 1988, orig. proceeding) (holding relator may not make blanket Fifth Amendment objection to all interrogatories propounded, but must instead state objections to each individual interrogatory).

We deny the petition for a writ of mandamus. The stay issued September 19, 2007 is vacated.

PER CURIAM

Panel consists of Justice Nuchia, Jennings, and Keyes.

1.