Brett William Bostian, Lynda Ann De Leon, Ryan Elizondo & Doyne Scott Elliff v. Josephine Limon

ACCEPTED
13-14-00481-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
1/23/2015 5:39:15 PM
DORIAN RAMIREZ
CLERK
No. 13-14-000481-CV
FILED IN
IN THE THIRTEENTH COURT OF 13th COURT OF APPEALS
APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI, TEXAS 1/23/2015 5:39:15 PM
DORIAN E. RAMIREZ
Clerk
BRETT WILLIAM BOSTIAN, LYNDA ANN DE LEON, RYAN
ELIZONDO, AND DOYNE SCOTT ELLIFF,
CORPUS CHRISTI INDEPENDENT SCHOOL
DISTRICT EMPLOYEES,
Appellants
v.
JOSEPHINE LIMON,
Appellee
On Appeal from Nueces County Court of Law No. 4, Nueces County, Texas
Cause Number 2013CCV-61773-4
REPLY BRIEF OF APPELLEE’S RESPONSE BRIEF TO APPELLANTS
BRETT WILLIAM BOSTIAN, LYNDA ANN
DE LEON, RYAN ELIZONDO, AND DOYNE SCOTT ELLIFF
Philip Fraissinet
State Bar No. 00793749
Bradley J. Domangue
State Bar No. 24065156
Thompson & Horton LLP
3200 Southwest Freeway, Suite 2000
Houston, Texas 77027
Telephone: (713) 554-6743
Telecopy: (713) 583-9668
pfraissinet@thompsonhorton.com
ATTORNEYS FOR APPELLANTS
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
I. Standard of Review ..................................................................................... 1-4
A. A ruling regarding Rule 202 depositions is reviewed
de novo when it involves the immune status of a party
raised in a plea to the jurisdiction .......................................................... 1-3
B. Limon relies on an incorrect discretionary review standard ................. 3-4
II. The trial court failed to properly consider immunity
issues in granting the Rule 202 Depositions ............................................... 5-11
A. Contrary to Limon’s contention, a party’s assertion
of immunity is very much relevant to whether a trial court
has jurisdiction to order Rule 202 depositions ...................................... 5-9
B. Cases relied on by Limon support immunity
protections under Rule 202 proceedings ............................................. 9-11
III. Limon did not carry her burden to demonstrate that
Rule 202 depositions are necessary.......................................................... 11-15
PRAYER .................................................................................................................. 16
CERTIFICATE OF SERVICE ................................................................................ 17
CERTIFICATE OF COMPLIANCE ......................................................................... 1
ii
TABLE OF AUTHORITIES
Page(s)
Cases
City of Dallas v. Dallas Black Fire Fighters Ass’n,
353 S.W.3d 547 (Tex. App. 2011, no pet.)...............................................1, 2, 3, 8
City of Houston v. U.S. Filter Wastewater Group, Inc.,
190 S.W.3d 242 (Tex. App. – Houston [1st Dist.] 2006) ..........................2, 9, 10
Cnty. of Cameron v. Brown,
80 S.W.3d 549 (Tex. 2002)................................................................................... 2
Combs v. Texas Civil Rights Project,
410 S.W.3d 529 (Tex. App. – Austin 2013, rev. denied) ............................passim
In re East,
No. 13-14-00317-CV, 2014 WL 4248018 (Tex.App. – Corpus
Christi, August 22, 2014)..............................................................................12, 14
In re Jorden,
249 S.W.3d 416 (Tex. 2008) ............................................................................. 12
M.D. Anderson Cancer Center v. Tcholakian,
No. 01—11—00754—CV 2012 WL 4465349 (Tex. App. –
Houston [1st Dist.] Sept. 27, 2012, no pet.) ...............................................2, 9, 10
Mission Consolidated Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653 (Tex. 2008) .............................................................................. 15
Office Employees International Union Local 277 v. Southwestern
Drug Corporation,
391 S.W.2d 404 (Tex. 1965) ............................................................................... 3
Patton Boggs LLP v. Mosely,
394 S.W.3d 565 (Tex. App. – Dallas, 2011) ..............................................3, 4, 12
Prairie View A&M Univ. v. Chatha,
381 S.W.3d 500 (Tex. 2012) .............................................................................. 15
iii
In re Reassure America Life Ins. Co.,
421 S.W.3d 165 (Tex. App. – Corpus Christi, 2013) ........................................ 12
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ................................................................................ 3
Tex. Dep’t of Transp. v. Jones,
8 S.W.3d 636 (Tex. 1999)..................................................................................... 3
Tex. Dept. of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ................................................................................ 2
Tex. Natural Res. Conservation Comm’n v. IT—Davy,
74 S.W.3d 849 (Tex. 2002)................................................................................... 2
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ............................................................................... 4
In re Wolfe,
341 S.W.3d 932................................................................................................... 12
Statutes
TEX. GOV’T CODE § 552.001, et seq. ....................................................................... 15
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 ............................................7, 10, 12
TEX. CIV. PRAC. & REM. CODE, § 101.051 ................................................................. 8
TEX. CIV. PRAC. & REM. CODE, § 51.014 ............................................................... 1, 4
TEX. R. CIV. P. 202 ............................................................................................passim
TEX. R. APP. P. 9.4 ................................................................................................... 17
iv
ARGUMENT
I. Standard of Review
A. A ruling regarding Rule 202 depositions is reviewed de novo when
it involves the immune status of a party raised in a plea to the
jurisdiction
This is an interlocutory appeal of the trial court’s denial of the CCISD
Employees’ Plea to the Jurisdiction under Section 51.014 of the Texas Civil
Practice and Remedies Code. Although the trial court granted the Rule 202
depositions sought by Limon, the granting of the depositions was possible only
because the trial court denied the CCISD Employees’ Plea to the Jurisdiction.
(CR p.58)1
Appellate courts reviewing pleas to the jurisdiction related to the granting or
denial of Rule 202 petitions consistently apply a de novo standard of review.
See, e.g., Combs v. Texas Civil Rights Project, 410 S.W.3d 529, 533 (Tex. App. –
Austin 2013, rev. denied) (appellate court, in interlocutory appeal regarding the
granting of Rule 202 depositions stated, “Whether a trial court has subject-matter
jurisdiction is a matter of law we review de novo”); City of Dallas v. Dallas Black
Fire Fighters Ass’n, 353 S.W.3d 547, 551 (Tex. App. 2011, no pet.)(another
appellate court, similarly reviewing the granting of a Rule 202 petition in an
interlocutory appeal involving an immunity defense also stated, “Whether a trial
1
“CR” shall be used to refer to the Clerk’s Record in this case, and “RR” shall be used to refer to
the Reporter’s Record in this case.
1
court has subject matter jurisdiction is a matter of law that is reviewed de novo”).
A de novo review was applied in the very cases cited in Limon’s brief that
involved a party’s immunity claim raised in a plea to the jurisdiction. See M.D.
Anderson Cancer Center v. Tcholakian, No. 01—11—00754—CV 2012 WL
4465349, * 2 (Tex. App. – Houston [1st Dist.] Sept. 27, 2012, no pet.)(“Because
subject-matter jurisdiction represents a legal question, we review the trial court’s
ruling on a plea to the jurisdiction de novo”); City of Houston v. U.S. Filter
Wastewater Group, Inc., 190 S.W.3d 242, 244-45 (Tex. App. – Houston [1st
Dist.] 2006) (reviewed trial court’s decision of a plea to the jurisdiction of a Rule
202 petition under de novo standard of review).
As such, it is well established that when a lower court denies a respondent’s
plea to the jurisdiction as part of its ruling on a Rule 202 petition, the reviewing
principles are the same as those generally applicable to jurisdictional pleas.
Whether the trial court has subject matter jurisdiction is a matter of law that is
reviewed de novo by the appellate court. Tex. Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004); Tex. Natural Res. Conservation
Comm’n v. IT—Davy, 74 S.W.3d 849, 855 (Tex. 2002); City of Dallas, 353 S.W.3d
at 551. In reviewing the issue de novo, the appellate court does not look to the
merits of the case, but considers only the pleadings and evidence relevant to the
jurisdictional inquiry. See Miranda, 133 S.W.3d at 227; Cnty. of Cameron v.
2
Brown, 80 S.W.3d 549, 555 (Tex. 2002); see also City of Dallas, 353 S.W.3d at
551.
Moreover, the plaintiff (or in this case, the petitioner) has the burden of
alleging facts that affirmatively demonstrate the court’s jurisdiction to hear the
cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). If a plaintiff fails to plead a cause of action for which immunity has been
waived, the court has no jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 637 (Tex. 1999).
B. Limon relies on an incorrect discretionary review standard
Limon argues that the standard of review is an “abuse of discretion”
standard. See “Reply Brief of Appellee Josephine Limon” at p.3. However, the
“abuse of discretion” standard applies to mandamus relief regarding a trial court’s
Rule 202 ruling that does not involve a jurisdictional issue. The cases cited by
Limon in support of her contention involve private, non-immune parties seeking or
contesting Rule 202 decisions against other private entities and do not involve
governmental entities, claims of immunity, or pleas to the jurisdiction. See, e.g.,
Office Employees International Union Local 277 v. Southwestern Drug
Corporation, 391 S.W.2d 404 (Tex. 1965)(Union seeks Rule 202 depositions of
private corporation; Supreme Court rules that it does not have jurisdiction to hear
the case because the order of the trial court is not appealable.); Patton Boggs LLP
3
v. Mosely, 394 S.W.3d 565 (Tex. App. – Dallas, 2011)(Former employee seeks
Rule 202 depositions from former employer, a law firm; court grants writ of
mandamus and denies Rule 202 depositions because the former employee did not
provide enough evidence and the trial court abused its discretion).
Cases cited by Limon specifically state that mandamus is only appropriate
when no other remedy is available through the appellate process. Walker v.
Packer, 827 S.W.2d 833 (Tex. 1992) (Parents seek Rule 202 depositions from
private hospital; court denies parents’ writ of mandamus because an available
appellate procedure is available); Patton Boggs LLP, 394 S.W.3d at 569 (Writ of
Mandamus is appropriate if the relator has no adequate appellate remedy).
In the case before this Court, the CCISD Employees are expressly appealing
the lower court’s denial of a plea to the jurisdiction, and under § 51.014 of the
TEXAS CIVIL PRACTICE AND REMEDIES CODE, an interlocutory appeal is appropriate
when a county or district court has denied a party’s plea to the jurisdiction.
(“A person may appeal from an interlocutory order of a district court, county court
at law, statutory probate court, or county court that . . . grants or denies a plea to
the jurisdiction by a governmental unit.”). Because the CCISD Employees have
exercised their right to a direct interlocutory appeal, mandamus relief is not at
issue. As such, a de novo rather than discretionary review standard is appropriate.
4
II. The trial court failed to properly consider immunity issues in granting
the Rule 202 Depositions
A. Contrary to Limon’s contention, a party’s assertion of immunity
is very much relevant to whether a trial court has jurisdiction to
order Rule 202 depositions
Limon states that “Appellants’ claims of immunity are irrelevant to the trial
court’s analysis” concerning the propriety of Rule 202 depositions. See “Reply
Brief of Appellee Josephine Limon” at p.3. This assertion, fundamental to
Limon’s arguments, flies directly in the face of cases cited by both the CCISD
Employees and Limon herself. Those cases consistently hold that governmental
immunity applies to Rule 202 proceedings unless the subject matter presented in
the Rule 202 petition would support claims that are not barred by immunity. See,
e.g., Combs, 413 S.W.3d at 537 (“Nevertheless, because the Plaintiffs have failed
to sufficiently allege facts demonstrating that any relief sought would not be barred
by sovereign immunity, we cannot conclude that the purpose of the depositions of
the State Defendants, even in part, is to investigate a potential ultra vires claim
over which the trial court would have jurisdiction.”) Without affirmatively
pleading elements showing a trial court has jurisdiction over Rule 202 proceedings
involving a governmental entity and its officials, the trial court does not have the
ability to consider the proceedings because it is outside the trial court’s
jurisdiction. Id.
5
In Combs, petitioners sought to take Rule 202 depositions of the Texas
Comptroller and another state official concerning an alleged breach of security
regarding private information held by the Comptroller’s office. Combs, 410 S.W.
3d at 531. As in this case, the trial court denied the Comptroller’s assertion of
immunity and granted the petition. Id. The Comptroller, like the CCISD
Employees, filed an interlocutory appeal concerning the denial of their plea to the
jurisdiction. Id. The Austin Court of Appeals overturned the trial court’s order
because the petitioners failed to identify any claims, evidence or parties that would
overcome the Comptroller’s assertion of immunity. Id. at 539. In so ruling, the
court made clear that “when discovery from a governmental entity is sought under
rule 202, the petition must also set forth specific facts demonstrating that, at least
potentially, the petitioner has been injured by actions that would amount to a claim
which would not be barred by sovereign immunity.” Id. at 536. Combs, as well as
other rule 202 cases that turn on the immunity of a governmental entity, undercut
Limon’s claim that the immunity status of CCISD and its employees is irrelevant
to this case.
Limon seems to misread Combs when she asserts in her brief that the Combs
court “concluded that pre-suit depositions of governmental entities are not barred
by immunity.” See “Reply Brief of Appellee Josephine Limon” at p.6. What the
court in Combs actually says is that a Rule 202 petition is not necessarily barred by
6
governmental immunity if the petition alleges facts or identifies parties that would
survive a plea to the jurisdiction. Id. at 536. (“[W]e recognize that, while pre-suit
depositions under rule 202 are not necessarily barred by sovereign immunity,
governmental entities are protected from pre-suit depositions to the same extent
they would be protected from the same depositions in the contemplated suit
underlying the proceedings.”). The Combs court then concluded that the
petitioners had failed to identify any claims that could survive the Comptroller’s
assertion of immunity.
Similarly, Limon has wholly failed to identify any claims or parties that she
could pursue that would not be barred by immunity. From a plain reading of her
petition, it is evident that Limon’s entire focus of potential liability is on CCISD or
its employees. In fact, Limon explicitly stated in her petition that the reasons
behind the Rule 202 depositions were because “CCISD and its agents, servants,
and employees may be liable to Plaintiff under § 101.021 et seq. of the TEXAS
CIVIL PRACTICE & REMEDIES CODE because Cameron’s injuries and death were
proximately caused by a condition or use of tangible personal or real property and
CCISD would be personally liable to Plaintiff under Texas Law, were it a private
person.” (CR p. 13)(emphasis added) The amended petition went on to allege
Cameron’s death was “proximately caused by the negligent conduct of Defendant
CCISD.” (CR p. 13)(emphasis added) The amended petition did not identify any
7
potential defendant or liable party other than CCISD and/or its agents, servants,
and employees.
The CCISD Employees have repeatedly demonstrated that Section 101.051
of the Texas Civil Practices and Remedies Code (the “Texas Torts Claims Act”),
which is a limited waiver of immunity “does not apply to a school district or to a
junior college district,” unless the incident involves the operation of a motor
vehicle. TEX. CIV. PRAC. & REM. CODE, § 101.051; (CR pp. 34-35). The CCISD
Employees also demonstrated that outside of the Texas Tort Claims Act, tort
claims cannot be sought against a school district, or its government officials,
specifically because of the District’s governmental immunity. (CR pp. 34-38)
Limon has not directly responded to these issues or corrected her failure to allege
any feasible cause of action over which the trial court could have jurisdiction.
A plea to the jurisdiction is proper when the Rule 202 petition does not
describe subject matter or raise claims that would overcome the political
subdivision’s governmental immunity protections. Combs, 410 S.W.3d at 529;
City of Dallas, 353 S.W.3d at 553. “To determine whether a plaintiff has
affirmatively demonstrated the trial court’s subject matter jurisdiction to hear a
case, we consider the facts alleged in the petition along with any evidence
submitted by the parties, to the extent such evidence is relevant to the
jurisdictional issue.” Combs, 410 S.W. 3d at 533 (emphasis added). “[I]f the
8
pleadings affirmatively negate jurisdiction, then the plea to the jurisdiction should
be granted.” Id. The subject matter affirmatively pled by Limon negates the
possibility of any potential prospective relief, therefore, the “trial court [does] not
have subject-matter jurisdiction over the rule 202 proceedings.” See Id. at 538.
B. Cases relied on by Limon support immunity protections under
Rule 202 proceedings
Limon repeatedly cites two appellate court cases as support for her
contention that immunity does not apply to governmental entities under Rule 202
petitions; however, even these cases only grant Rule 202 depositions because the
petitioners identified viable claims against specifically named third parties in their
petitions. City of Houston, 190 S.W.3d 242; see also M.D. Anderson Cancer
Center, 2012 WL 4465349.
Both City of Houston and M.D. Anderson Cancer Center support the
premise that a trial court lacks jurisdiction over Rule 202 proceedings if the
petitioner does not affirmatively allege facts demonstrating the trial court’s
jurisdiction of a potential cause. City of Houston, 190 S.W.3d at 244. In City of
Houston, the court only permitted the depositions to go forward because the
petitioners made a claim in their petition against a specifically named third party
over which the trial court would have jurisdiction to review. Id. at 245 (“Because a
portion of the claim under investigation – a claim against Altivia [named third
9
party] – is under the jurisdiction of the state district court, the court did not err in
denying the City’s plea to the jurisdiction.”)
The same is true under M.D. Anderson, which relies on the City of Houston
ruling. See generally M.D. Anderson Cancer Center, 2012 WL 4465349. The
M.D. Anderson Court does not state that the trial court ultimately has jurisdiction
over all Rule 202 proceedings, but instead, the Court states that the petitioner
explicitly mentioned in his Rule 202 petition his expressed intent to investigate
claims against a specifically named party who was “non-immune” to the alleged
actions. Id. at *5. Because the petition identified a valid party under which the
state court may have jurisdiction, M.D. Anderson’s plea to the jurisdiction was
denied. Id.
Unlike the petitioners in the City of Houston or M.D. Anderson cases, Limon
fails to identify ANY parties other than CCISD or its employees who she believes
may be liable. She also fails to identify ANY facts that would give rise to a claim
against anyone other than CCISD or its employees. In fact, Limon expressly
mentions more than once in her Amended Petition that it is “CCISD and its
agents, servants, and employees” that “may be liable to Plaintiff under § 101.021
et seq. of the TEXAS CIVIL PRACTICE & REMEDIES CODE because Cameron’s
injuries were proximately caused by a condition or use of tangible personal or real
10
property of CCISD and would be personally liable to Plaintiff under Texas Law,
were it a private person.” (CR p. 38).2 2
To the extent that there may be claims against yet to be named private
parties or nongovernmental entities, Section 101.021 cannot apply because this
statute and its subsequent sections are only applicable to governmental entities.
Therefore, Limon’s petition fails to identify any facts or basis under which any
non-immune party could be liable. “[I]f the pleadings affirmatively negate
jurisdiction, then the plea to the jurisdiction should be granted.” Combs, 410 S.W.
3d at 533 (emphasis added).
III. Limon did not carry her burden to demonstrate that Rule 202
depositions are necessary.
Limon’s pleadings are void of the necessary elements and evidence to
demonstrate that the benefit of the requested depositions outweighs the burden. In
re Reassure America Life Ins. Co., 421 S.W.3d 165, 174 (Tex. App. – Corpus
Christi, 2013)(“[Petitioner] had the burden to show either that allowing him to take
the depositions would prevent a failure or delay of justice, or that the likely benefit
22
As more fully addressed in the CCISD Employees’ principal brief, Limon’s reliance on
Section 101.021 of the Texas Civil Practices and Remedies Code (the “Texas Torts Claims Act”)
is misplaced. Although Section 101.021 and the subsequent sections of the Texas Torts Claims
Act waive governmental immunity for some tort claims, Section 101.051 expressly does not
waive immunity for school districts unless the tort arises from the use of a motor vehicle. See
TEXAS CIV. PRAC. & REM. CODE ANN. §§ 101.021 and 101.051. Limon has failed completely to
articulate how CCISD or its employees could be liable under the Texas Tort Claims Act, or any
other law.
11
of allowing him to take the requested depositions to investigate a potential claim or
suit outweighs the burden or expense of the procedure”). The Texas Supreme
Court has clearly established that “Rule 202 depositions are not now and never
have been intended for routine use.” In re Jorden, 249 S.W.3d 416, 423
(Tex. 2008). In fact, the Texas Supreme Court has specifically ruled that Rule 202
depositions are not merely discovery because there is a potential for abuse and
Rule 202 depositions must be “strictly limited,” which is why it is necessary for the
petitioner to articulate subject matter that supports some anticipated action against
viable parties. See generally In re Jorden, 249 S.W.3d 416; In re Wolfe, 341
S.W.3d 932; Combs, 410 S.W.3d 529.
In determining whether or not Rule 202 depositions should be granted, there
is an evidentiary requirement to show that the Rule 202 depositions are necessary,
and “sworn, verified pleadings are generally not considered competent evidence to
prove the facts asserted in the pleading.” In re East, No. 13-14-00317-CV, 2014
WL 4248018, *6 (Tex.App. – Corpus Christi, August 22, 2014). Moreover, the
trial court is required to make findings that the benefit of the depositions outweighs
the burden. Patton Boggs LLP, 394 S.W.3d at 571 (“The trial court had no
discretion to order depositions under rule 202 without the required finding under
rule 202.4(a)(2)”)(citing In re Wolfe, 341 S.W. at 933; In re Jorden, 349 S.W.3d at
420).
12
Both in her petition and at a July 29, 2014, hearing, Limon failed to present
any evidence or allege any facts as to why the Rule 202 depositions were necessary
to prevent the failure or delay of justice or to demonstrate that any benefit from the
depositions would outweigh the burden. (RR pp. 4-11) The trial court would not
consider arguments from the CCISD Employees on why CCISD Employees were
protected under governmental immunity from the requested Rule 202 depositions.
(RR pp. 4-11) According to the trial court, “[e]verybody gets [Rule 202
depositions] when they ask for them.” (RR p. 8) The court went on to say, “[t]his
discovery business is broad. And you can take depositions of all kinds of people,
you know, in a lawsuit, even if they’re not liable . . . [I]f you look at discovery
ordinarily in a case and the latitude which you can go, the same thing applies to
this.” (RR p. 5) The trial court “assumed that” it had the authority to grant
Rule 202 depositions without requiring the petitioner to provide evidence
regarding whether or not the depositions were necessary to prevent a failure or
delay of justice or to demonstrate that any benefits from the depositions would
outweigh the burden or expense, and the court failed to make required findings on
these issues. (CR p. 58); See TEX. R. CIV. P. 202.4(a).
Limon argues that “Appellants exaggerate their purported burden by
suggesting a considerable amount of funds meant to educate students would be
lost, thus they have the heavier burden.” See “Reply Brief of Appellee Josephine
13
Limon” at p.6. But Limon ignores the point that it is the Petitioner’s burden to
demonstrate that the benefit of rule 202 depositions outweighs the burden.
East, 2014 WL 4248018 at *6 (“[t]he law is clear that a petitioner seeking a presuit
deposition must present evidence to meet its burden to establish facts necessary to
obtain the deposition.”)
There is no argument that the death of Cameron Espinosa is a tragedy
beyond belief, and the pain and suffering for his family must continue to be
extraordinary. The relevant question in this case, however, is not whether this
horrible accident has caused a heavy burden for Ms. Limon – about that there can
be no dispute. Rather, the issue here is whether the benefit of taking these
depositions at this time outweighs the burden. Limon simply has failed to carry
her burden to demonstrate any benefit, given that the potential parties she choose
to identify (CCISD and its employees) and the claims she chose to articulate (tort
claims) are plainly barred by governmental immunity. Given that Limon has failed
to demonstrate a benefit, then the very real burden on CCISD and its employees
(including time and the abrogation of immunity principles), regardless of how
significant one thinks that to be, clearly outweighs the benefit. Limon’s Amended
Petition is simply not enough to show that the Rule 202 deposition should be
permitted, and granting Limon’s Rule 202 depositions without necessary evidence
would violate the immunities granted to local governments in order to avoid costly
14
litigation that hamper governmental functions. See generally Mission
Consolidated Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008);
Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012).
Limon now argues that she should be entitled to take the Rule 202
depositions to find out whether there are other potential responsible parties.
However, this argument contradicts her own petition, which identifies potential
claims against only CCISD and its employees. She also failed to bring forth any
evidence suggesting the possibility of claims against potential third parties. As
such, at most, Limon now is simply saying she is entitled to conduct a fishing
expedition to try to find out whether other claims or parties exist. As the cases
discussed previously make clear, when seeking Rule 202 depositions from an
immune governmental entity, the petitioner must at least be able to demonstrate
other claims or identify other parties not subject to the immunity defense.
Moreover, to the extent Limon wishes to find out certain factual information from
which she might be able to identify other potential parties or claims, she has other
less burdensome avenues available, such as the Texas Public Information Act. See
generally TEX. GOV’T CODE § 552.001, et seq. Such open government laws
provide a mechanism to obtain information that is less burdensome and does not
negate the immunity protections afforded CCISD and its employees under law.
15
PRAYER
For the reasons stated herein and in CCISD Employees’ Appellant Brief,
CCISD Employees ask this Court to overturn the trial court’s order, grant the
CCISD Employees’ plea to the jurisdiction, deny Limon’s request for Rule 202
depositions, and grant such other relief to which the CCISD Employees may show
themselves entitled.
Respectfully submitted,
THOMPSON & HORTON LLP
By: /s/ Philip Fraissinet
Philip Fraissinet
State Bar No. 00793749
Southwest Freeway, Suite 2000
Houston, Texas 77027
Telephone: (713) 554-6743
Facsimile: (713) 583-9668
pfraissinet@thompsonhorton.com
Bradley J. Domangue
State Bar No. 24065156
Southwest Freeway, Suite 2000
Houston, Texas 77027
Telephone: (713) 554-6742
Facsimile: (713) 583-5295
bdomangue@thompsonhorton.com
ATTORNEYS FOR APPELLANTS
16
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing document was served by the Court’s electronic filing system, CM/ECF,
on January 23, 2014 to the following counsel of record by electronic mail:
Mr. Greggory A. Teeter
Email: gteeter@thomasjhenrylaw.com
/s/ Philip Fraissinet
Philip Fraissinet
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the foregoing document has 3,856
words and fully complies with TEXAS RULES OF APPELLATE PROCEDURE 9.4(i).
The word processing software used to prepare this filing, and calculate the word
count, is Microsoft Word 2010.
/s/ Philip Fraissinet
Philip Fraissinet
647603
9C3705.000178
17