in Re University of the Incarnate Word

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-15-00242-CV
IN RE UNIVERSITY OF THE INCARNATE WORD
Original Mandamus Proceeding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 24, 2015
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
On April 21, 2015, relator University of the Incarnate Word filed a petition for writ of
mandamus complaining of the trial court’s order granting plaintiffs’ motion to compel discovery
responses. Relator contends in this original proceeding that the challenged order was entered in
violation of an automatic stay prompted by the perfection of UIW’s interlocutory appeal from a
prior order denying its plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(8) (West 2015). Because we conclude an automatic stay is in effect during the
pendency of UIW’s interlocutory appeal, the trial court’s entry of the challenged discovery order
after perfection of the interlocutory appeal constitutes an abuse of discretion for which UIW has
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This proceeding arises out of Cause No. 2014-CI-07249, styled Valerie Redus, Individually and Robert Redus,
Individually and as Administrator of the Estate of Robert Cameron Redus v. University of the Incarnate Word and
Christopher Carter, pending in the 150th Judicial District Court, Bexar County, Texas, the Honorable David A.
Canales presiding.
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no adequate remedy at law. See In re Tex. Educ. Agency, 441 S.W.3d 747, 748 (Tex. App.—Austin
2014, orig. proceeding). Therefore, we conditionally grant mandamus relief.
BACKGROUND
Plaintiffs, Valerie and Robert Redus, filed suit against UIW and campus police officer
Christopher Carter in May 2014 alleging negligence, gross negligence and wrongful death and
survival actions in connection with the 2013 shooting death of their son, Cameron Redus. UIW
filed a timely answer and, three days later, filed a notice of removal to the District Court for the
Western District of Texas, San Antonio Division. See 28 U.S.C. § 1441(a). The basis for removal
was UIW’s contention that the Redus’s petition raised a federal question. See 28 U.S.C. § 1331;
42 U.S.C. § 1983 (providing for civil action for deprivation of Constitutional rights). After
concluding that the plaintiffs’ petition and allegations arose from state law and did not create
federal subject matter jurisdiction, the federal district court entered an order of remand on
November 25, 2014, returning the case to state court. See 28 U.S.C. § 1447(c).
In February 2015, UIW filed a plea to the jurisdiction in state court, asserting it is entitled
to governmental immunity from the Redus’s claims because UIW falls within the definition of a
“governmental unit” as provided in the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(3) (West Supp. 2014). The trial court denied the plea to the jurisdiction on March
2, 2015. The following day, UIW filed notice of an interlocutory appeal from the denial of its plea
to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). The interlocutory
appeal is presently pending before this court in Appeal No. 04-15-00120-CV, styled University of
the Incarnate Word v. Valerie Redus, et al.
On March 31, 2015, the plaintiffs filed a motion to compel discovery responses from UIW.
The presiding judge orally granted the plaintiffs’ motion to compel on April 15, and later signed a
written order on May 1, 2015. The written order required UIW to provide responses to the
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plaintiffs’ second requests for production by May 15, 2015. UIW filed this original proceeding
challenging the trial court’s order compelling discovery responses during the pendency of UIW’s
interlocutory appeal. We stayed the challenged discovery order pending the determination of this
original mandamus proceeding and requested a response to the mandamus petition.
ANALYSIS
Applicable Law
Mandamus relief is appropriate “to correct a clear abuse of discretion or the violation of a
duty imposed by law when there is no other adequate remedy by law.” Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985). The trial court’s clear failure to correctly analyze or
apply the law will constitute an abuse of discretion which is correctable by mandamus. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992).
The Civil Practice and Remedies Code provides for an appeal from an interlocutory order
which “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined by
Section 101.001.” See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). An interlocutory appeal
under this section triggers a stay of all proceedings in the trial court pending final determination
of the appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West 2015). The automatic stay
is only available, however, when the plea to the jurisdiction was filed, and a hearing requested,
within a defined timeframe. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(c) (West 2015). To
trigger the automatic stay, the plea to the jurisdiction must have been filed and a hearing requested
no later than the date set in a scheduling order, if any, or 180 days after the defendant’s original
answer or first other responsive pleading. Id.
Issue Presented
The issue in this mandamus proceeding is whether the trial court abused its discretion by
signing an order compelling discovery responses during the pendency of UIW’s interlocutory
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appeal. The record reflects that the challenged order was signed after UIW had filed its notice of
interlocutory appeal. The issue we must decide is whether UIW is entitled to the automatic stay as
provided by section 51.014(c).
The real parties in interest assert two reasons why the automatic stay should not apply in
this instance: (1) because UIW filed its plea to the jurisdiction more than 180 days after its original
answer; and (2) because UIW is not a “governmental unit.” Among the issues to be determined in
the pending interlocutory appeal is whether UIW is a “governmental unit.” This determination will
be required both with respect to the merits of UIW’s interlocutory appeal and with respect to the
appellees’ motion to dismiss the interlocutory appeal for lack of jurisdiction. Because we conclude
this issue is most appropriately decided in the context of the interlocutory appeal, we do not address
it in this original proceeding. In this mandamus proceeding, we address only whether UIW’s plea
to the jurisdiction was filed within the timeframe required by section 51.014(c), such that the
interlocutory appeal from its denial triggered an automatic stay of all proceedings in the trial court.
Effect of Removal to Federal Court
Although we have found no cases addressing the specific time frame at issue in this
proceeding, other Texas courts have held that state court time periods and deadlines are generally
suspended by removal to federal court. See, e.g., Brogdon v. Ruddell, 717 S.W.2d 675, 676-77
(Tex. App.—Texarkana 1986, writ ref’d n.r.e.) (deadline for perfecting interlocutory appeal); see
also Henke Grain Co. v. Keenan, 658 S.W.2d 343, 346 (Tex. App.—Corpus Christi 1983, no writ).
Upon remand, the state court is to proceed from the point reached in the state court action prior to
removal, as if no interruption had occurred. Brogdon, 717 S.W.2d at 677. The Texas Supreme
Court has held that remand is complete and state court jurisdiction revests when the federal court
executes the order of remand and mails a certified copy to the state court. Quaestor Investments,
Inc. v. State of Chiapas, 997 S.W.2d 226, 229 (Tex. 1999).
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The real parties in interest assert that UIW could have filed its plea to the jurisdiction in
federal court during the period of removal, thus avoiding any question as to its timeliness. The
federal court, however, could not have considered UIW’s plea prior to its determination of federal
subject matter jurisdiction. The state court likewise would have had no power to consider the plea
prior to remand. 28 U.S.C. § 1446(d) (“the state court shall proceed no further unless and until the
case is remanded”); Murray v. Ford Motor Co., 770 F.2d 461, 463 (5th Cir. 1985) (actions taken
by state court after removal are void); Meyerland Co. v. F.D.I.C., 848 S.W.2d 82, 83 (Tex. 1993)
(dismissal order entered after removal is void); see also Henke Grain Co., 658 S.W.2d at 346. Had
the plea been filed in state court during the period of removal, it would not have been effective
until after remand. See Henke Grain Co., 658 S.W.2d at 346 (motion filed in state court after
removal may be held and will become effective only in the event of remand). Because the state
court resumes from the point reached prior to remand as if no interruption had occurred, the
timeliness of a plea filed during the period of removal would be calculated without considering
the time spent in federal court. Although UIW could have filed its plea to the jurisdiction during
the period of removal, we conclude that doing so would not have changed the calculation of its
timeliness.
In this instance, UIW’s notice of removal was filed three days after its original answer. Its
plea to the jurisdiction was filed 80 days after the federal court’s order of remand. Thus, when the
period of removal is not considered, UIW’s plea to the jurisdiction was filed 83 days after its
original answer. The trial court denied the plea to the jurisdiction on March 2, 2015, 97 days after
UIW’s answer. Because UIW’s plea to the jurisdiction was filed, heard, and determined by the
trial court within the 180-day time period required by section 51.014(c) when the removal period
is not considered, we conclude UIW is entitled to the automatic stay while its interlocutory appeal
from the denial of its plea to the jurisdiction is pending.
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Automatic Stay
“[T]he stay set forth in section 51.014 is statutory and allows no room for discretion.”
Sheinfeld, Maley & Kay, P.C. v. Bellush, 61 S.W.3d 437, 439 (Tex. App.—San Antonio 2001, no
pet.). The trial court abuses its discretion in conducting hearings and signing orders in violation of
the automatic stay of “all other proceedings in the trial court.” Tex. Educ. Agency, 441 S.W.3d at
750. There is no dispute that the challenged order was signed after UIW’s notice of interlocutory
appeal. We conclude the trial court’s order compelling discovery responses was an abuse of the
trial court’s discretion because it was entered in violation of the automatic stay. See id.
No Adequate Remedy by Appeal
Having determined that the trial court abused its discretion in signing the challenged order,
we must also consider whether UIW has an adequate remedy by appeal. The challenged order is
not an appealable interlocutory order. The only basis UIW asserted in opposition to the motion to
compel was that any action on the motion would violate the automatic stay. The challenged order
has the effect of taking away UIW’s statutory right to an automatic stay of all trial court
proceedings while this court determines the jurisdictional issues raised in the interlocutory appeal.
This right, once violated, cannot be recovered by appeal. See, e.g., In re State Farm Mut. Auto.
Ins. Co., 192 S.W.3d 897, 903 (Tex. App.—Tyler, orig. proceeding). Therefore, we conclude UIW
has no adequate remedy by law.
CONCLUSION
The trial court’s order compelling discovery responses was entered in violation of the
automatic stay under section 51.014(b). The order constitutes a clear abuse of the trial court’s
discretion for which UIW has no adequate remedy by appeal because UIW’s loss of its statutory
right to an automatic stay cannot be remedied by appeal once it has been lost.
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Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial
court to vacate its order compelling discovery responses, signed May 1, 2015, in accordance with
this opinion. We are confident the trial court will comply. The writ will issue only if we are notified
of the trial court’s failure to do as directed within fifteen days from the date of this court’s order.
Patricia O. Alvarez, Justice
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