In Re Terry Lynn Jones v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00094-CV
IN RE TERRY LYNN JONES
Original Mandamus Proceeding
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
In this case involving a fatal motor-vehicle collision, Terry Lynn Jones, the driver of a
commercial tractor-trailer, filed a petition for a writ of mandamus asking this Court to vacate the
trial court’s order compelling discovery responses. Because Jones has failed to comply with the
Texas Rules of Appellate Procedure, we deny his requested relief.
In responses to several requests for admissions propounded by the real parties in interest
involving post-accident drug testing, Jones asserted a Fifth Amendment privilege. “[T]he Fifth
Amendment provides that ‘[n]o person . . . shall be compelled in any criminal case to be a
witness against himself.’” United States v. Balsys, 524 U.S. 666, 671 (1998) (quoting U.S.
CONST. amend. V). “A party may invoke his Fifth Amendment privilege against self-
incrimination in a civil proceeding if he reasonably fears that the answer sought might
incriminate him.” In re Mize, 558 S.W.3d 187, 194 (Tex. App.—Texarkana 2018, no pet.)
(quoting Dunne v. Brinker Tex., Inc., No. 05-16-00496-CV, 2017 WL 3431465, at *3 (Tex.
App.—Dallas Aug. 10, 2017, pet. denied) (mem. op.)). “The privilege may be invoked ‘during
the discovery process to avoid answering questions at a deposition, responding to interrogatories
or requests for admissions, or to produce documents.’” Id. (quoting In re Ferguson, 445 S.W.3d
270, 276 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding)). “The question is whether
there is a risk that [Jones’s responses] will be used in a proceeding that is a ‘criminal case.’”
Balsys, 524 U.S. at 671.
When determining privilege under the Fifth Amendment in this context, the Texas
Supreme Court has explained that judges should employ the following standard:
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The judge is entitled to determine whether the refusal to answer appears to be
based upon the good faith of the witness and is justifiable under all of the
circumstances. The inquiry by the court is necessarily limited, because the
witness need only show that an answer to the question is likely to be hazardous to
him; the witness cannot be required to disclose the very information which the
privilege protects. Before the judge may compel the witness to answer, he must
be perfectly clear, from a careful consideration of all the circumstances in the
case, that the witness is mistaken, and that the answer(s) cannot possibly have
such tendency to incriminate.
In re Nichol, 602 S.W.3d 595, 601 (Tex. App.—El Paso 2019, orig. proceeding) (quoting
Ex parte Butler, 522 S.W.2d 196, 198 (Tex. 1975) (orig. proceeding) (citations omitted)).
Accordingly, “[e]ach question for which the privilege is claimed must be studied, and the court
must forecast whether an answer to the question could tend to incriminate the witness in a
crime.” Id. (quoting In re Charles, No. 01-18-01112-CV, 2019 WL 2621749, at *3 (Tex.
App.—Houston [1st Dist.] June 27, 2019, orig. proceeding) (mem. op.)).
When a party responds to a discovery request by asserting a Fifth Amendment privilege,
“the trial court reviews the discovery request, applies the law of privilege, discovery, and
protection to the request, and determines how best to protect the privilege, the right to proceed
with the case, and the right to defend the suit.” Id. (quoting In re Ferguson, 445 S.W.3d at 275).
As a result, “the trial court still retains some leeway to determine how best to balance the
competing interests of defendant’s privilege, the plaintiffs’ right to proceed with their case and
their right to investigate potential claims, along with the right of defendant to defend the suit.”
Id. at 604. Also “[a] party’s attempt to develop evidence in a civil case does not lead to any
presumption that a party is trying to develop evidence for a contemporaneous criminal case.”
In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding) (citing Meyer v.
Tunks, 360 S.W.2d 518, 522 (Tex. 1962) (orig. proceeding)). For this reason, “[b]lanket
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assertions of the Fifth Amendment privilege generally are not permitted in civil cases.” In re
Edge Cap. Grp., Inc., 161 S.W.3d 764, 768 (Tex. App.—Beaumont 2005, orig. proceeding).
Jones states in his petition that he “had already been ‘no-billed’ by the Cass County
Grand Jury.” Further review of Jones’s petition shows that it contains blanket assertions of Fifth
Amendment privilege and fails to “contain a clear and concise argument” as to why the trial
court erred in its question-by-question analysis. TEX. R. APP. P. 52.3(h). Most critically,
although a hearing was held on “Plaintiffs’ Motion to Deem Admissions and Compel Defendant
Terry Jones’ Responses to Plaintiffs’ First Requests for Admissions and Interrogatories,” the
mandamus record fails to include a transcript of the hearing, which would have likely included
the trial court’s analysis and evidence relied on by the trial court.1
“It is the relator’s burden to provide this Court with a sufficient record to establish his or
her right to mandamus relief.” In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana
2008, orig. proceeding). Our appellate rules require that the appendix contain “a certified or
sworn copy of any order complained of, or any other document showing the matter complained
of.”2 TEX. R. APP. P. 52.3(k)(1)(A). In addition, the rules require that the record contain “a
properly authenticated transcript of any relevant testimony from any underlying proceeding,
including any exhibits offered in evidence, or a statement that no testimony was adduced in
connection with the matter complained.” TEX. R. APP. P. 52.7(a)(2).
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The trial court’s order stated that it considered the motion to compel, “evidence, and arguments of counsel.”
2
We note that the mandamus record, although sworn to include “a certified copy of every document that is material
to the relator’s claim for relief and that was filed in any underlying proceeding,” contains information clearly not
before the court, including a lawyer’s comments and notes contained within the margin of the mandamus record.
TEX. R. APP. P. 52.7(a)(1).
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We find that the mandamus petition fails to provide a complete record as required by
Rule 52.7(a) and is insufficient to establish that the trial court abused its discretion. As a result,
we deny the petition for a writ of mandamus.3
Charles van Cleef
Justice
Date Submitted: December 12, 2023
Date Decided: December 12, 2023
3
The trial court’s order compelling Jones’s discovery responses was entered on November 22, 2023. On
December 11 at 7:00 p.m., Jones filed this petition along with an emergency motion to stay his December 13
deadline to respond. Due to our disposition in this matter, we deny Jones’s requested emergency relief.
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