in Re Jose Bandin and Monica Babayan

Petition for Writ of Mandamus Denied and Majority and Concurring Opinions
filed August 3, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00605-CV
IN RE JOSE BANDIN AND MONICA BABAYAN, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
334th District Court
Harris County, Texas
Trial Court Cause No. 2018-06745
CONCURRING OPINION
I agree with my colleagues that relators have an adequate remedy by appeal,
and I join the majority opinion. I also conclude that relators have not shown a clear
abuse of discretion because nothing in the text of the TCPA prohibits post-hearing
discovery. Moreover, even if there were such a prohibition, the TCPA does not
entitle relators to the remedy they seek: withdrawal of the trial court’s discovery
order. For these additional reasons, the Court correctly denies relators’ petition.
The TCPA sets short deadlines for hearing and ruling on a motion to dismiss.
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.004–27.005. Although the filing of a
motion suspends discovery, “[o]n a motion by a party or on the court’s own motion
and on a showing of good cause, the court may allow specified and limited discovery
relevant to the motion [to dismiss].” Id. § 27.006(b). In most cases, a hearing on
the motion must be set within 60 days after service of the motion, “but in no event
shall the hearing occur more than 90 days after service” unless the court has allowed
discovery. Id. § 27.004(a). “If the court has allowed discovery under Section
27.006(b), the court may extend the hearing date to allow discovery under that
subsection, but in no event shall the hearing occur more than 120 days after the
service of the motion . . . .” Id. § 27.004(c).
Relators contend that under this last provision, the trial court may not sign an
order allowing discovery—or even consider any evidence received in response to
previously allowed discovery—after a hearing has taken place. But the statute does
not say that. If the Legislature had desired to limit post-hearing discovery, it could
have commanded trial courts to extend the hearing date to allow discovery. Instead,
it chose the word “may,” making an extension of the hearing discretionary when
discovery is ordered. Nor does the statute say that in no event shall the hearing occur
before discovery is complete; it says that in no event shall the hearing occur more
than 120 days after service. I also note there is no reason to think the Legislature
would have assumed it was settled legal practice to complete discovery before a
dispositive hearing. For example, trial courts have long had discretion to consider
additional evidence received after a hearing in deciding whether to grant summary
judgment. See Tex. R. Civ. P. 166a(c).
Under the plain language of the TCPA quoted above, the trial court did not
clearly abuse its discretion by ordering discovery after the hearing. Section
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27.006(b) gives the trial court authority to allow specified discovery, and nothing in
the TCPA confines this authority to the period before the hearing. Given the TCPA’s
short deadlines and the difficulty of obtaining some types of discovery on a precise
timetable, the Legislature wisely left the trial court some discretion to manage
discovery and schedule hearings to meet the deadlines. To be considered, any
allowed discovery must of course be received before the trial court rules on the
motion, which it must do within 30 days after the hearing. Tex. Civ. Prac. & Rem.
Code § 27.005(a). That deadline to rule has not yet passed, so there is still an
opportunity for the trial court to receive and consider the discovery ordered.
Relators cite Whisenhunt v. Lippincott, 474 S.W.3d 30 (Tex. App.—
Texarkana 2015, no pet.), as supporting their view that a post-hearing order for
discovery is improper. In Whisenhunt, the trial court failed to rule on a post-hearing
motion for discovery, and the court of appeals held no error had been preserved. Id.
at 40–41. In this case, however, the State of Veracruz sought discovery before the
hearing, further urged its request after the hearing, and secured a ruling from the trial
court granting discovery—a possibility Whisenhunt expressly contemplates. Id. at
41. Unlike in Whisenhunt, the trial court did rule on the State’s discovery motion,
and its ruling granting discovery is not a clear abuse of the discretion the TCPA
provides.
Yet even if the trial court had exceeded its authority by holding a hearing on
the motion to dismiss and then ordering discovery, the remedy for that error is not
necessarily the one relators seek. Relators ask this Court to “instruct[] the trial court
to withdraw its order compelling Relators to appear for deposition . . . .” The trial
court certainly could remedy any error by choosing to withdraw its order and instead
denying discovery under section 27.006(b). But the trial court could also choose to
“extend the hearing date” under section 27.004(c) to allow completion of the ordered
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discovery and then hold a new hearing with the benefit of that discovery. See Watson
v. Hardman, 497 S.W.3d 601, 611 (Tex. App.—Dallas 2016, no pet.) (holding trial
court erred in denying TCPA motion after hearing and remanding for trial court to
consider request to conduct discovery). Under the TCPA, this choice belongs to the
trial court, not to relators. Accordingly, relators are not entitled to the remedy they
request in their mandamus petition.
Having concluded that relators failed to demonstrate their entitlement to
mandamus relief, I join my colleagues in voting to deny the petition.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Busby, and Wise (Boyce, J., majority).
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