in the Estate of Rhogena Ann Nicholas

Affirmed and Memorandum Opinion filed March 26, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00716-CV
IN THE ESTATE OF RHOGENA ANN NICHOLAS, DECEASED
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Cause No. 474728-401
MEMORANDUM OPINION
John Nicholas, Temporary Administrator of the Estate of Rhogena Nicholas,
and Jo Ann Nicholas, Rhogena Nicholas’s mother (collectively, “Petitioners”),
filed a petition to take pre-suit depositions. Tex. R. Civ. P. 202. The City of
Houston appeals an order denying its plea to the jurisdiction. We affirm.
I. Background1
Rhogena Nicholas and her husband Dennis Tuttle lived at 7815 Harding
Street, in Houston, Texas. On January 28, 2019, armed members of Narcotics
Squad 15 with the City of Houston (“the City”) Police Department (“HPD”)
conducted a raid on the residence (“the Harding Street Incident”). During the
course of the raid, Narcotics Squad 15 fired several rounds, killing Rhogena and
Tuttle, and their dog. Five members of Narcotics Squad 15 also were injured
during the raid.
In the City’s public narrative about the Harding Street Incident, City
officials and police command staff described a ferocious assault by both Rhogena
and Tuttle on a “hero,” Gerald Goines, when he led Narcotics Squad 15 into a
well-known black tar heroin “drug house” with residents so dangerous the entry
into the house required a “no-knock” forced entry.2
Petitioners maintain there were no documented confidential informant
“significant meeting” records in the HPD files to support the raid on the Harding
Street home.
After the Harding Street Incident, the City did not contact Petitioners and did
not respond to Petitioners’ request to publicly correct or retract what Petitioners
contended were factually incorrect statements. For example, Rhogena’s neighbor
provided a cell phone video that suggested a different account of what happened at
the Harding Street home than that set forth by the City. The City has resisted
1
The facts asserted are taken from the Petition filed on July 25, 2019. When a plea to the
jurisdiction challenges the pleadings, we take allegations in the pleadings as true. See Westbrook
v. Penley, 231 S.W.3d 389, 405 (Tex. 2007); see also Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004).
2
The raid was conducted under the authority of a warrant authorizing a “no-knock”
procedure by which the squad may execute the search warrant without notifying the occupants
before entering the premises.
2
efforts by Petitioners to secure the 911 records related to the Harding Street
Incident. Moreover, HPD has refused to disclose what physical materials may
have been removed from the scene.
Petitioners retained an independent forensic investigator to conduct an
independent investigation at the Harding Street home. After analyzing the scene,
the investigator concluded that HPD failed to conduct a full ballistic recovery and
left significant forensic materials untouched and unrecovered, preventing a full
reconstruction of the incident. Petitioners’ investigator made preliminary findings
as to the firing position of the fatal bullets to Rhogena and to Tuttle. Petitioners
contend materials collected, documentation, and lab testing during HPD’s control
of the Harding Street home are important to confirm or modify the preliminary
findings. Additionally, Petitioners contend that full scene reconstruction requires
comparison with statements of persons present during the Harding Street Incident.
According to Petitioners, there are indications that the City’s story does not line up
with the physical facts at the scene, which provides sufficient basis to order the
depositions requested, in order to investigate the wrongful death, violation of civil
rights, and other claims arising from the Harding Street Incident.
Petitioners further assert that in a “legitimate police operation,” there is
never any doubt about the identity of confidential informants (“CIs”). Pursuant to
an internal HPD order, the identity of CIs offering specific information about
criminal activities (called “significant meetings”) is required to be documented and
readily accessible to police managers. Petitioners contend that the policy of
identifying CIs to police managers is a “basic safeguard to maintain the integrity of
the department and the individual officers and ensure accountability.” Here,
however, Petitioners allege that HPD’s managers knew from the beginning that
there were no documented CI significant meeting records in its files supporting the
3
assault on the Harding Street home. Nevertheless, while HPD managers searched
for a non-existent CI related to the Harding Street Incident, the City, in press
conferences continued to repeat the justification for the raid as a “black tar heroin
drug house.”
According to Petitioners, overseeing practices that allow officers such as
Gerald Goines to make up CIs, or to fabricate a criminal activity used to justify
warrants, would violate the Fourth Amendment to the United States Constitution.
Petitioners further plead that local news media revealed that in the last 109 cases
filed by Gerald Goines based on a sworn affidavit in support of a search warrant:
“In every one of those cases in which he claimed confidential informants observed
guns inside, no weapons were ever recovered, according to evidence logs Goines
filed with the court.” On this basis, Petitioners request the depositions of the two
HPD managers responsible for oversight of Gerald Goines in the HPD Narcotics
Division.
Finally, Petitioners contend the depositions are necessary to investigate the
HPD practices that led to the Harding Street Incident, because HPD’s
investigations of past officer-involved shooting incidents indicates that for years
HPD found 100% of the intentional shootings of persons by its officers “justified.”
On July 25, 2019, Petitioners filed a sworn petition for an order authorizing
the taking of pre-suit depositions pursuant to Rule 202 of the Texas Rules of Civil
Procedure. See Tex. R. Civ. P. 202. The Petitioners seek to investigate potential
claims against the City, including those available under the Texas Wrongful
Death / Survival Statute, Tex. Civ. Prac. & Rem. Code § 71.021, and potential
claims as applied through 42 U.S.C. §§ 1983, 1988 on behalf of the Estate, as well
as Jo Ann Nicholas as a legal heir. Petitioners also seek to investigate potential
claims arising from the alleged violation of Rhogena’s rights under the Fourth
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Amendment of the United States Constitution (wrongful search and seizure;
excessive force) enforced pursuant to 42 U.S.C. § 1983. Further, Petitioners seek
to investigate a potential claim under the Texas Tort Claims Act as a result of the
misconduct of agents, managers, and representatives of the City, leading to the
Harding Street Incident, and the deaths of Rhogena and Tuttle.
Petitioners requested authorization to depose designated representatives of
the City of Houston (Police Department Narcotics Division), Captain Paul Q.
Follis, and Lieutenant Marsha Todd. Petitioners seek deposition testimony from a
designated representative or representatives of the City regarding:
(1) the alleged reason(s) for targeting the Harding Street home for a
“no knock” warrant execution;
(2) the policies and practices for enrollment and supervision of
confidential informants, including handling of money and drugs
with such persons;
(3) the policies and practices for investigation of officer-involved
shootings; and
(4) Audits, if any, of the Narcotics Division (specifically including
audit of the use of CI’s; documentation of CI work and
“significant meetings”; affidavits filed in support of warrants,
and the use of no-knock warrants by Gerald Goines or in
Narcotics) in the past 3 years.
Additionally, Petitioners assert that Follis and Todd oversaw the HPD
Narcotics Division, including Gerald Goines and Narcotics Squad 15. Petitioners
seek deposition testimony from both as to the following:
(1) the alleged reason(s) for targeting the Harding Street home for a
“no knock” warrant execution;
(2) the supervision of Narcotics Squad 15, including Gera[l]d
Goines and Stephen Bryant;
(3) the supervision and monitoring of applications for warrants by
Narcotics Squad 15; [and]
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(4) the supervision and monitoring of use of confidential
informants by Narcotics Squad 15, including tracking of money
and drugs with such persons.
The City filed a plea to the jurisdiction, asserting that Petitioners’ Rule 202
petition fails as a matter of law because: (a) the court, Probate Court No. 1, lacks
statutory subject-matter jurisdiction; (b) the petition is devoid of any facts
establishing waiver of the City’s immunity under the Texas Tort Claims Act;
(c) Petitioners lack standing to assert a § 1983 claim; and (d) the probate court is
not a proper court for a Rule 202 proceeding because any claim asserted pursuant
to 42 U.S.C. § 1983 is subject to removal. Thus, the City requested dismissal for
lack of subject matter jurisdiction. Petitioners filed a response to the City’s plea,
rebutting each of its points.
After holding a hearing, the trial court denied the City’s plea to the
jurisdiction from the bench, and on September 16, 2019, signed an order denying
the City’s request. This interlocutory appealed followed.3
II. Analysis
The City raises one issue on appeal: whether the probate court erred in
denying the plea to the jurisdiction when that court has “no express statutory
jurisdiction” to consider the Rule 202 petition.
A. Standard of Review
“A party may contest a trial court’s subject matter jurisdiction by filing a
plea to the jurisdiction.” Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999). We review a trial court’s order granting or denying a plea to the
jurisdiction de novo. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004).
3
Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
6
A plea to the jurisdiction challenges a trial court’s authority to determine
the subject-matter of the cause of action, but without defeating it on the merits.
Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004);
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of
the plea is not to preview or delve into the merits of the case, but to establish the
reason why the merits of the underlying claims need not be reached. Id.
The plaintiff bears the burden of alleging facts affirmatively showing that
the trial court has subject-matter jurisdiction. Texas Ass’n of Bus. v. Texas Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When, as here, a plea to the
jurisdiction challenges the pleadings, we take allegations in the pleadings as true
and construe the pleadings liberally in favor of the plaintiff. See Westbrook, 231
S.W.3d at 405; Miranda, 133 S.W.3d at 226. We indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Id. at 228. “‘Whether
a pleader has alleged facts that affirmatively demonstrate a trial court’s subject
matter jurisdiction is a question of law reviewed de novo.’” Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 502 (Tex. 2010) (quoting Miranda, 133 S.W.3d at
226); TRST Corpus, Inc. v. Financial Ctr., Inc., 9 S.W.3d 316, 320 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied).
B. Harris County Statutory Probate Court’s Subject Matter Jurisdiction
Probate Court No. 1 of Harris County is a statutory probate court. Tex.
Gov’t Code § 25.1031(c). “A court may exercise only the jurisdiction accorded it
by the constitution or by statute.” See Goodman v. Summit at W. Rim, Ltd., 952
S.W.2d 930, 933 (Tex. App.—Austin 1997, no pet.). Our analysis begins,
therefore, with a review of the jurisdiction accorded to a statutory probate court.
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1. Exclusive Jurisdiction of Probate Proceeding in a County with
Statutory Probate Court
Section 32.005 of the Texas Estates Code provides that a “statutory probate
court has exclusive jurisdiction of all probate proceedings, regardless of whether
contested or uncontested.” Tex. Est. Code § 32.005(a) (emphasis added). In a
county in which there is a statutory probate court, “a claim brought by a personal
representative on behalf of an estate” is also a claim “related to [a] probate
proceeding.” See Tex. Est. Code § 31.002(a)(3), (c)(1)-(2) (defining “matters
related to a probate proceeding”).
2. Concurrent Jurisdiction with District Court
In addition, Section 32.005(a) recognizes that the Estates Code provides for
concurrent jurisdiction over some causes of action related to a probate proceeding.4
Specifically, the statutory probate court has concurrent jurisdiction with district
courts in actions enumerated in Section 32.007. Tex. Est. Code § 32.005(a); see
also Tex. Est. Code § 32.007. Section 32.007 of the Texas Estates Code provides
that a statutory probate court has concurrent jurisdiction with a district court over
several types of actions, including “a personal injury, survival, or wrongful death
action by or against a person in the person’s capacity as a personal representative.”
See id. § 32.007(1).
C. Rule 202
Texas Rule of Civil Procedure 202 provides a mechanism for requesting
court authorization of pre-suit depositions to either (1) perpetuate or obtain
testimony for use in an anticipated lawsuit, or (2) investigate a potential claim or
4
“A cause of action related to the probate proceeding must be brought in a statutory
probate court unless the jurisdiction of the statutory probate court is concurrent with the
jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other
court.” Tex. Est. Code § 32.005(a).
8
suit. Tex. R. Civ. P. 202.1. It is undisputed that this case involves the investigation
of a potential claim or suit. In such cases, we must construe Petitioners’ Rule 202
petition liberally. See Houston Indep. Sch. Dist. v. Durrell, 547 S.W.3d 299, 305
(Tex. App.—Houston [14th Dist.] 2018, no pet.).
Rule 202 does not require a petitioner to plead a specific cause of action;
instead, it requires only that the petitioner state the subject matter of the anticipated
action, if any, and the petitioner’s interest therein. See In re Emergency
Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App.—Houston [14th Dist.] 2007, orig.
proceeding). Requiring a Rule 202 petitioner to plead a viable claim “would
eviscerate the investigatory purpose of Rule 202 and essentially require one to file
suit before determining whether a claim exists” and would place “counsel in a
quandary, considering counsel’s ethical duty of candor to the court and the
requirements of [rule 13].” Id. Thus, the nature of Rule 202 as an investigatory
tool necessitates some breadth of pleading and dictates that we liberally construe
the petition.
Rule 202 depositions, however, are not intended for routine use. In re
Jorden, 249 S.W.3d 416, 423 (Tex. 2008) (orig. proceeding). “There are practical
as well as due process problems with demanding discovery from someone before
telling them what the issues are.” Id. Accordingly, courts must strictly limit and
carefully supervise pre-suit discovery to prevent abuse of the rule. In re Wolfe,
341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding).
Rule 202 does not authorize a party to obtain otherwise unobtainable
discovery. See In re Wolfe, 341 S.W.3d at 933 (noting that petitioner “cannot
obtain by Rule 202 what it would be denied in the anticipated action”). Indeed,
Rule 202 expressly limits the scope of discovery in pre-suit depositions to “the
same as if the anticipated suit or potential claim had been filed.” Tex. R. Civ. P.
9
202.5. Rule 202, like all the rules of civil procedure, was fashioned by the Texas
Supreme Court as a means of “obtain[ing] a just, fair, equitable and impartial
adjudication of the rights of litigants under established principles of substantive
law.” City of Dallas v. Dallas Black Fire Fighters Ass’n, 353 S.W.3d 547, 554
(Tex. App.—Dallas 2011, no pet.) (citing Tex. R. Civ. P. 1).
A Rule 202 petition must “be filed in the proper court of any county . . . .”
Tex. R. Civ. P. 202.2(b). This court has previously held that “[a] proper court to
entertain a Rule 202 petition is a court that would have subject-matter jurisdiction
over the underlying dispute or anticipated lawsuit; thus, we must look to the
substantive law of the underlying dispute or anticipated action to determine
jurisdiction.” See Durrell, 547 S.W.3d at 305 (citations omitted). The Durrell
holding follows that of the Supreme Court. In In re Doe (Trooper), the Supreme
Court analyzed the antecedents to and history of Rule 202 before determining the
“proper court” to entertain a Rule 202 petition:
While Rule 202 is silent on the subject, we think it implicit, as it has
always been, that the court must have subject-matter jurisdiction over
the anticipated action. The rule cannot be used, for example, to
investigate a potential federal antitrust suit or patent suit, which can be
brought only in federal court.
444 S.W.3d 603, 608 (Tex. 2014) (orig. proceeding).5 Thereafter, in 2016, the
Supreme Court squarely held that a Rule 202 proceeding is proper if the trial court
has subject-matter jurisdiction over the anticipated action. See City of Dallas¸ 501
S.W.3d 71, 73–74 (Tex. 2016) (orig. proceeding) (holding case must be remanded
5
Because the issue in In re Doe (Trooper) was whether the appellee was subject to the
trial court’s personal jurisdiction rather than whether the lawsuit fell with the trial court’s subject
matter jurisdiction, its holding as to subject matter jurisdiction falls under judicial dictum.
Notwithstanding, the Supreme Court’s analysis and judicial dictum warrants being “followed
unless found to be erroneous.” Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 399 (Tex. 2016)
(citation omitted).
10
to determine if the amount in controversy exceeded the jurisdictional limits of the
county court at law); see also In re DePinho, 505 S.W.3d 621, 624–25 (Tex. 2016)
(orig. proceeding) (per curiam) (holding trial court would lack subject-matter
jurisdiction because petitioner’s claims were not ripe; thus, Rule 202 depositions
not allowed). In summarizing its prior holdings, the court in City of Dallas
observed that “for a party to properly obtain Rule 202 pre-suit discovery, ‘the court
must have subject-matter jurisdiction over the anticipated action.’” See City of
Dallas, 501 S.W.3d at 73 (citing In re DePinho, 505 S.W.3d at 623) (citing In re
Doe (Trooper), 444 S.W.3d at 608) (emphasis in original).
Thus, we must look to the substantive law of the underlying dispute or
anticipated action to determine jurisdiction. See In re Wolfe, 341 S.W.3d 932, 933
(Tex. 2011) (per curiam).
D. The Statutory Probate Court has Jurisdiction Over the Potential Claims
The City contends that the trial court erred by denying its plea to the
jurisdiction because a Rule 202 proceeding is not contemplated by the Estates
Code—the code that defines a statutory probate court’s jurisdiction—as a matter
over which such a court has jurisdiction. Specifically, the City argues that
Petitioners’ Rule 202 proceeding is not a “probate proceeding” because it is not
included in any of the specific actions listed in Section 31.001 of the Estates Code,6
which defines the term. Additionally, the City says, this proceeding is not a
“matter related to a probate proceeding.” Id. § 31.002. Thus, the City concludes
the probate court does not have jurisdiction under the Estates Code. We disagree.
6
The term “probate proceeding” is defined as probate of a will, issuance of letters
testamentary and of administrations, determination of heirship, action regarding the probate of a
will or estate administration, a claim arising from an estate administration, settling the account of
an estate, a will construction suit, or a will modification or reformation proceeding. Tex. Est.
Code § 31.001(1)-(8).
11
“All probate proceedings must be filed and heard in a court exercising
original probate jurisdiction.” Tex. Est. Code § 32.001(a). “The court exercising
original probate jurisdiction also has jurisdiction of all matters related to the
probate proceeding as specified in Section 31.002 for that type of court.” Id.
Relevant here, matters “related to a probate proceeding” include “any cause of
action in which a personal representative of an estate pending in the statutory
probate court is a party in the representative’s capacity as personal representative.”
Id. § 31.002(c). According to the City, a Rule 202 proceeding is not “related to a
probate proceeding” because a Rule 202 petition is not a “cause of action.” See
Combs v. Tex. Civil Rights Project, 410 S.W.3d 529, 534 (Tex. App.—Austin
2013, pet. denied). But the question is not whether the Rule 202 request is related
to a probate proceeding; the question is whether the probate court has jurisdiction
over the potential claims Petitioners seek to investigate. City of Dallas, 501
S.W.3d at 73; Durrell, 547 S.W.3d at 306. If the court lacks jurisdiction over the
anticipated action, then the court lacks jurisdiction over the Rule 202 proceeding.
Id.
The claims Petitioners seek to investigate include survival claims. “A
personal injury action survives to and in favor of the heirs, legal representatives,
and estate of the injured person.” See Act of May 4, 1895, ch. 89, 1895 Tex. Gen.
Laws 143 (codified at Tex. Civ. Prac. & Rem. Code § 71.021(b)). The personal
representative of Rhogena’s estate is the proper party to bring a survival claim to
recover damages Rhogena suffered before her death. See Austin Nursing Ctr., Inc.
v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005). Thus, the personal representative of
Rhogena’s estate, John Nicholas, would be a party to the anticipated action.
Accordingly, the potential survival claims Petitioners seek to investigate by the
Rule 202 proceeding are matters “related to a probate proceeding” and therefore
12
fall within a statutory probate court’s subject matter jurisdiction. Id. § 31.002(c);
see Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 620 (Tex. 2005) (statutory
probate court had jurisdiction over survival action under predecessor statute).
Moreover, Estates Code section 32.007 provides separately that a statutory
probate court has concurrent jurisdiction with the district court in, among other
lawsuits, “a personal injury, survival, or wrongful death action by or against a
person in the person’s capacity as a personal representative.” Tex. Est. Code
§ 32.007(1). Jo Ann Nicholas is alleged to be Rhogena’s mother and has explained
in the Rule 202 petition her desire to investigate, and her interest in, a potential
wrongful death claim against the City. An action to recover damages for the
wrongful death of a decedent is for the exclusive benefit of the surviving spouse,
children, and parents of the deceased. Tex. Civ. Prac. & Rem. Code § 71.004(a).
For these reasons, the statutory probate court has subject matter jurisdiction
over the anticipated action under the Estates Code. Hence, the trial court did not
err in denying the City’s plea to the jurisdiction regarding the Rule 202 proceeding.
See City of Dallas, 501 S.W.3d at 73; Gonzalez, 159 S.W.3d at 620; Durrell, 547
S.W.3d at 306.
The City’s issue is overruled.
III. Conclusion
The probate court’s order denying the City’s plea to the jurisdiction is
affirmed.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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