the City of Dallas v. Dallas Companion Animal Project ( 2018 )

Writ Denied and Appeal Dismissed, and Opinion Filed October 26, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00453-CV
IN RE CITY OF DALLAS, Relator
and
CITY OF DALLAS, Appellant
v.
DALLAS COMPANION ANIMAL PROJECT, Appellee
Original Proceeding and Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-17478
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Fillmore
Texas Rule of Civil Procedure 202 allows a trial court to authorize a deposition “to
investigate a potential claim or suit.” See TEX. R. CIV. P. 202.1. Dallas Companion Animal Project
(DCAP) filed an amended petition pursuant to rule 202 requesting it be allowed to take a pre-suit
deposition of the City of Dallas (the City) to investigate potential claims against the City,
employees of the City, or third parties for defamation, business disparagement, and tortious
interference with prospective business relations. The City filed two pleas to the jurisdiction and
responded substantively to DCAP’s petition. The trial court denied both pleas to the jurisdiction
and granted DCAP’s amended rule 202 petition.
The City filed an interlocutory appeal from the trial court’s denial of the second plea to the
jurisdiction. In an amended notice of appeal, the City indicated that, because the order granting
the amended rule 202 petition was a final order, it was appealing not only that order, but the trial
court’s orders denying both pleas to the jurisdiction (the final appeal) and, alternatively, it was
bringing an interlocutory appeal from an order denying “a plea to the jurisdiction” (the
interlocutory appeal). Finally, the City filed a petition for writ of mandamus contending the trial
court clearly abused its discretion by ordering the City to submit to a pre-suit deposition and the
City did not have an adequate appellate remedy. In both its final appeal and its petition for writ of
mandamus, the City argues the trial court erred by ordering the City to submit to a pre-suit
deposition because (1) DCAP failed to plead facts that support a claim against the City or its
employees for which immunity has been waived; (2) the trial court erred by finding the benefit of
the ordered deposition outweighs the burden or expense of the procedure; and (3) DCAP failed to
plead facts establishing the trial court had personal jurisdiction over any potential third-party
defendant.1
We conclude that, because DCAP was seeking, in part, to investigate potential claims
against the City, the trial court’s order granting DCAP’s amended rule 202 petition is not final and
appealable. We, therefore, dismiss the City’s final appeal for lack of jurisdiction. We deny the
City’s petition for writ of mandamus because DCAP alleged sufficient facts to establish the trial
court had jurisdiction over the amended rule 202 petition and the trial court did not clearly abuse
its discretion by determining the benefit of the ordered deposition outweighs the burden or expense
1
By order of May 24, 2018, we consolidated the original proceeding (number 05-18-00597-CV, styled In re City of Dallas), with this appeal,
treating the original proceeding as a closed case. The City’s appeals and the original proceeding were argued together and we dispose of them
together. See Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 566 (Tex. App.—Dallas 2011, no pet.) (citing In re Valero Energy Corp., 968 S.W.2d
916, 916–17 (Tex. 1998) (orig. proceeding.) (per curiam)).
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of the procedure. Based on our resolution of the City’s petition for writ of mandamus, we dismiss
the City’s interlocutory appeal as moot.2
Background
DCAP is a nonprofit organization that has provided goods and services to the City’s
Department of Animal Services (DAS) for a number of years. In December 2016, the head of the
DAS was replaced, and DCAP was informed by the City that there were questions regarding its
activities. The City requested DCAP provide certain financial information, and DCAP did so. The
City also informed DCAP that a memorandum of understanding was required before DCAP could
continue its work with the DAS.
In February 2017, a reporter with the Dallas Morning News (DMN) told DCAP that there
was a purported criminal investigation into DCAP’s activities. DCAP alleges its “good name and
reputation have been besmirched” by rumors of the investigation. DCAP further alleges it is
largely dependent on grants for its funding, one or more individuals have communicated rumors
of the investigation to third parties in an effort to harm DCAP’s relationships with donors, and at
least one of its grant requests was rejected because of the alleged investigation.
DCAP repeatedly attempted to obtain information from the City about the alleged
investigation, culminating in a November 30, 2017 letter to T.C. Broadnax, the City manager,
requesting information about the status of the alleged investigation and who DCAP could contact
about it. After the City failed to respond to the letter, DCAP filed a rule 202 petition seeking
authorization to depose a representative of the City about (a) whether a criminal investigation into
DCAP’s activities existed or had ever existed; (b) the current status of any such investigation; (c)
2
Our opinion in In re City of Dallas, No. 05-18-00289-CV (Tex. App.—Dallas, Oct. 26, 2018, orig. proceeding) (mem. op.), which issued
on the same date as this opinion, addresses similar legal arguments but different facts. In that case, Heather Russell filed a rule 202 petition to
investigate potential claims. As in this case, we concluded that a petition for a writ of mandamus was the appropriate remedy for the City of Dallas
because it was a potential defendant. However, unlike this case, we determined that Russell’s rule 202 petition was insufficient and granted the
City’s petition for a writ of mandamus.
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the general focus of any such investigation; (d) the individuals, either currently or formerly
associated with the City, who had communicated with third parties about the investigation; (e)
what had been communicated by individuals currently or formerly associated with the City to
potential DCAP donors about the investigation; and (f) the contact information for the individuals
currently in charge of any such investigation.
The City filed a plea to the jurisdiction, arguing the trial court did not have jurisdiction
over the rule 202 petition because DCAP failed to allege facts demonstrating a potential injury
caused by the City’s actions that would constitute a claim that was not barred by governmental
immunity. At the hearing on the City’s plea, DCAP’s attorney stated DCAP was not asserting
claims against the City, but was seeking information from the City so that DCAP could ascertain
“the propriety of bringing a lawsuit against currently unknown individuals for damages relating to
defamation, business disparagement, [and] tortious interference [with] prospective business
relations.” The trial court denied the City’s plea to the jurisdiction. The City did not file an
interlocutory appeal of the trial court’s ruling; rather, it filed a second plea to the jurisdiction in
which it argued that, to the extent DCAP intended to assert claims against employees of the City,
those employees were entitled to dismissal of the claims pursuant to section 101.106(f) of the civil
practice and remedies code3 and the City had not waived immunity for those claims.
DCAP filed an amended rule 202 petition in which it alleged it possibly had viable claims
against (1) the City for negligence and negligent defamation, (2) City employees acting in their
individual capacities or acting ultra vires, (3) employees of the City for “violations of U.S. civil
3
Section 101.106(f) provides:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s
employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be
against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall
be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as
defendant on or before the 30th day after the date the motion is filed.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).
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rights laws,” or (4) unknown private individuals. DCAP attached exhibits to the amended petition
that indicated there was, or at one time had been, a criminal investigation of DCAP; the media
obtained information relating to the investigation; individuals who expressed concern to the City
that the investigation was a “witch hunt” were assured it was not; and a Dallas City Councilman
expressed concern over the authority of the DAS to order a criminal investigation, that City staff
had “leaked” information about the investigation to the media, the City was “convicting groups in
the press without due process in an effort to make itself look better,” and the City’s “smearing” of
DCAP had “caused a loss of bundled funders.” Maeleska Fletes, the president of DCAP, testified
the requested deposition would benefit DCAP because it would clear DCAP’s name so that its
grant requests would be approved and it could resume helping the citizens and animals of Dallas.
According to Fletes, the deposition would also enable DCAP to “get the facts” so that it could
determine whether litigation was appropriate.
The trial court denied the City’s second plea to the jurisdiction. The trial court found “the
likely benefit of allowing DCAP to take the requested deposition to investigate a potential claim
outweighs the burden or expense to the City . . . of the procedure,” and granted DCAP’s amended
rule 202 petition. The trial court ordered the deposition could not exceed ninety minutes in length
and was limited to the topics of whether a criminal investigation into DCAP’s activities currently
exists or has ever existed; what the City, or individuals either employed by the City or not, have
communicated with third parties about the investigation; what has been communicated by the City,
or individuals either employed by the City or not, to potential DCAP donors about the
investigation; and whether, if City employees had communicated to third parties about a purported
investigation, they had done so in the general scope of their employment duties and in good faith.
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Appeal or Mandamus
We must first determine whether the City’s complaints about the trial court’s order granting
DCAP’s amended rule 202 petition are appropriately addressed through its final appeal or its
request for mandamus relief. As relevant to requests for a pre-suit deposition to investigate a
potential claim or suit, the supreme court has concluded:
Presuit deposition orders are appealable only if sought from someone against whom
suit is not anticipated; when sought from an anticipated defendant (as here), such
orders have been considered ancillary to the subsequent suit, and thus neither final
nor appealable.
In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding) (internal footnotes omitted); see
also In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (per curiam) (“An improper
order under Rule 202 may be set aside by mandamus.”).
In determining whether the City is a potential defendant, we look to the substance of
DCAP’s pleading. See In re Elliott, 504 S.W.3d 455, 460 (Tex. App.—Austin 2016, orig.
proceeding). In its amended rule 202 petition, DCAP requested the deposition so that it could
investigate potential claims against the City and other parties. Further, at the hearing on the
amended rule 202 petition, DCAP stated that it believed it might have viable claims against the
City. Accordingly, because the City is a potential defendant in a possible subsequent suit, the trial
court’s order granting the requested deposition is ancillary to that possible suit against the City and
is neither final nor appealable. See In re Jorden, 249 S.W.3d at 419. We, therefore, dismiss the
City’s final appeal for lack of jurisdiction and consider whether the City is entitled to relief by writ
of mandamus from the trial court’s order requiring the City to submit to a pre-suit deposition.
Standard of Review
We review a trial court’s order granting a verified petition to take depositions before suit
under an abuse of discretion standard. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 568–69
(Tex. App.—Dallas 2011, no pet.). Mandamus is an extraordinary remedy granted only when a
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relator shows that the trial court clearly abused its discretion and the relator has no adequate
appellate remedy. In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam);
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
A trial court has no discretion in determining what the law is or in applying the law to the
facts, In re Prudential Ins. Co. of Am., 148 S.W.3d at 135, and abuses its discretion when it acts
without reference to guiding rules or principles or in an arbitrary or unreasonable manner. In re
Garza, 544 S.W.3d at 840. Specifically, a trial court abuses its discretion by authorizing a pre-suit
deposition when it does not have subject-matter jurisdiction over the action or personal jurisdiction
over the potential defendant. In re DePinho, 505 S.W.3d 621, 623, 624 (Tex. 2016) (orig.
proceeding) (per curiam) (subject-matter jurisdiction); In re Doe (Trooper); 444 S.W.3d 603, 610–
11 (Tex. 2014) (orig. proceeding) (personal jurisdiction).
Determining whether a party has an adequate remedy by appeal depends on the specific
circumstances and requires a “careful balance of jurisprudential considerations.” In re Garza, 544
S.W.3d at 840. “A party to a rule 202 proceeding has no adequate remedy by appeal if the trial
court abused its discretion by ordering discovery that would compromise procedural or substantive
rights.” In re PrairieSmarts LLC, 421 S.W.3d 296, 304 (Tex. App.—Fort Worth 2014, orig.
proceeding); see also In re Jorden, 249 S.W.3d at 420 (concluding relators did not have adequate
remedy by appeal if trial court erred by granting rule 202 petition to investigate claim against
healthcare provider because provider “unquestionably may lose substantive and procedural rights
[under Chapter 74 of the civil practice and remedies code] if review [was] postponed”).
Rule 202
Rule 202 permits a person to petition a trial court for authorization to take a deposition
before suit is filed either (1) to perpetuate or obtain the person’s own testimony or that of any other
person for use in an anticipated suit; or (2) to investigate a potential claim or suit. TEX. R. CIV. P.
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202.1. Rule 202 does not require a petitioner to plead a specific cause of action. City of Dallas v.
Dallas Black Fire Fighters Ass’n, 353 S.W.3d 547, 557 (Tex. App.—Dallas 2011, no pet.). Rather,
the petition is required to state only the subject matter of the anticipated action, if any, and the
petitioner’s interest therein. TEX. R. CIV. P. 202.2(e); Dallas Black Fire Fighters Ass’n, 353
S.W.3d at 557. The nature of rule 202 as an investigatory tool necessitates some breadth of
pleading and dictates that we liberally construe the petition. In re East, 476 S.W.3d 61, 66 (Tex.
App.—Corpus Christi–Edinburg Aug. 22, 2014, orig. proceeding); see also In re DePinho, 505
S.W.3d at 624 (noting rule 202’s pleading requirement is “fairly liberal”).
Rule 202, like all the rules of civil procedure, was fashioned as a means of “obtain[ing] a
just, fair, equitable and impartial adjudication of the rights of litigants under established principles
of substantive law.” Dallas Black Fire Fighters Ass’n, 353 S.W.3d at 554 (quoting TEX. R. CIV.
P. 1). However, “[r]ule 202 depositions are not now and never have been intended for routine use.
There are practical as well as due process problems with demanding discovery from someone
before telling them what the issues are.” In re Jorden, 249 S.W.3d at 423. Because rule 202 is
not a license for forced interrogations, “[c]ourts must strictly limit and carefully supervise pre-suit
discovery to prevent abuse of the rule.” In re Wolfe, 341 S.W.3d at 933.
Pre-suit discovery under rule 202 is not an end within itself but exists in aid of an
anticipated suit and is ancillary to the anticipated suit. Id. Rule 202, therefore, restricts the scope
of discovery in depositions taken under rule 202 to “the same as if the anticipated suit or potential
claim had been filed.” TEX. R. CIV. P. 202.5. “[A] party ‘cannot obtain by Rule 202 what it would
be denied in the anticipated action,’” and cannot use rule 202 as “‘an end-run around discovery
limitations that would govern the anticipated suit,’” In re DePinho, 505 S.W.3d at 623 (quoting In
re Wolfe, 341 S.W.3d at 933).
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This limitation on pre-suit discovery is due to a court’s inherent jurisdictional
limitations: “a court cannot grant relief when it lacks jurisdiction of the subject
matter,” so “[i]t would make no sense to insist that a court ordering discovery to
perpetuate testimony for a later-filed suit to be one . . . [without] subject-matter
jurisdiction.
In re DePinho, 505 S.W.3d at 623 (quoting In re Doe (Trooper), 444 S.W.3d at 607–08). Allowing
a court without subject-matter jurisdiction over a potential suit to authorize rule 202 depositions
“would untether pre-suit discovery from the suit it purports to be in aid of.” Id. We must look to
the substantive law of the underlying dispute or anticipated suit to determine whether the trial court
had jurisdiction over the rule 202 petition. Dallas Black Fire Fighter’s Ass’n, 353 S.W.3d at 554;
see also In re Dallas Cnty. Hosp. Dist., No. 05-14-00249-CV, 2014 WL 1407415, at *3 (Tex.
App.—Dallas Apr. 1, 2014, orig. proceeding) (mem. op.) (concluding trial court erred by granting
rule 202 petition because “there was no evidence before the trial court that could provide a basis
for concluding that real party’s potential claim would not be barred by sovereign immunity”).
Jurisdiction Over Rule 202 Petition
In its first issue, the City contends the trial court did not have subject-matter jurisdiction
over the potential claims against the City and employees of the City because (1) the City is immune
from DCAP’s potential claims for defamation, business disparagement, and tortious interference
with prospective business relations and DCAP failed to allege a waiver of that immunity, (2)
DCAP failed to allege any facts to support a constitutional violation by the City or its employees,
(3) any City employee who was acting in the course and scope of his employment is entitled to
have the claims against him dismissed pursuant to section 101.106(f) of the civil practice and
remedies code, and (4) DCAP failed to allege facts establishing that any City employee acted in
his individual capacity or ultra vires. In its third issue, the City contends DCAP failed to allege
facts establishing the trial court had personal jurisdiction over potential defendants who are not
affiliated with the City.
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A political subdivision in Texas, including a city, is immune from suit when performing a
governmental function unless there has been a clear and unambiguous constitutional or statutory
waiver of that immunity. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); see also
Wasson Interests, Ltd. v. City of Jacksonville, No. 17-0198, 2018 WL 4838309, at *2 (Tex. Oct.
5, 2018). Governmental immunity from suit deprives a trial court of subject-matter jurisdiction
over lawsuits in which the governmental unit has been sued unless the State consents to suit. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Dallas Black Fire
Fighters Ass’n, 353 S.W.3d at 552. Therefore, “[i]n a suit against a governmental unit, the plaintiff
must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.”
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
In determining whether the petitioner has affirmatively demonstrated the trial court’s
jurisdiction to hear the case, we consider the facts alleged in the petition and, to the extent it is
relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex.
Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001). We examine the
claims in the pleadings, taking as true the facts pleaded, and determine whether those facts support
jurisdiction in the trial court. City of Houston v. U.S. Filter Wastewater Grp., Inc., 190 S.W.3d
242, 244 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also City of Willow Park v. Squaw
Creek Downs, L.P., 166 S.W.3d 336, 339 (Tex. App.—Fort Worth 2005, no pet.). We also take
as true all evidence favorable to the petitioner in evaluating the jurisdictional issue. Miranda, 133
S.W.3d at 227–28.
When discovery from a governmental entity is sought under rule 202, the petition must set
forth specific facts demonstrating that, at least potentially, the petitioner has been injured by
actions that would amount to a claim that would not be barred by governmental immunity. Combs
v. Tex. Civil Rights Project, 410 S.W.3d 529, 536 (Tex. App.—Austin 2013, pet. denied).
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Although, “pre-suit depositions of governmental entities under rule 202 are not, in wholesale,
barred by immunity,” they may not be used “solely to investigate potential claims that are
otherwise barred by sovereign immunity.” Id. at 534, 535. The rule 202 petitioner, however, is
not required to establish the trial court would have jurisdiction over the governmental entity in a
possible future action. Houston Indep. Sch. Dist. v. Durrell, 547 S.W.3d 299, 306 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). Rather, the petitioner is required to establish only that the
trial court would have subject-matter jurisdiction over the anticipated action. In re City of Dallas,
501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam); Durrell, 547 S.W.3d at 306.
Therefore, in this case, regardless of whether the City may be immune from DCAP’s claims in an
eventual lawsuit or whether any City employee may be entitled to have DCAP’s claims dismissed,
the trial court had jurisdiction over DCAP’s amended rule 202 petition if it otherwise had
jurisdiction over the potential action. See Durrell, 547 S.W.3d at 306–07.
In its amended rule 202 petition, DCAP asserted that, in addition to investigating potential
claims against the City, the deposition was necessary to investigate potential claims against (1)
employees of the City acting in their individual capacity and (2) third parties. As to potential
claims against employees of the City, DCAP specifically referenced, and attached to its amended
rule 202 petition, an email from a Dallas City Councilman questioning the DAS’s authority to
initiate a criminal investigation and expressing concern about City staff leaking information about
the investigation in an attempt to make the City “look good” and to “smear” DCAP.4 We conclude
DCAP alleged facts that, if true, could support a finding that a City employee acted outside the
general scope of his employment in initiating, and disclosing information pertaining to, a criminal
investigation of DCAP. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (“Scope of
4
As required in such cases, we accept DCAP’s factual allegations as true for purposes of our analysis. See U.S. Filter Wastewater Grp., Inc.,
190 S.W.3d at 244; Squaw Creek Downs, L.P., 166 S.W.3d at 339.
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employment” is “the performance for a governmental unit of the duties of an employee’s office or
employment and includes being in or about the performance of a task lawfully assigned to an
employee by competent authority.”); Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017)
(“[T]he Tort Claims Act focuses on ‘performance . . . of the duties of an employee’s office or
employment,’ which calls for an objective assessment of whether the employee was doing her job
when she committed an alleged tort[.]” (quoting TEX. CIV. PRAC. & REM. CODE ANN. §
101.001(5)).
Further, DCAP stated in its amended rule 202 petition that it was seeking to investigate
potential claims against third parties who would not have governmental immunity from DCAP’s
claims. A trial court can authorize a rule 202 deposition only if it is has personal jurisdiction over
the potential defendant, and the rule 202 petitioner has the burden to plead allegations showing
personal jurisdiction over the potential defendant. In re Doe (Trooper), 444 S.W.3d at 608, 610.
In its amended rule 202 petition, DCAP alleged that it assisted the City by providing services and
supplies to DAS, the City questioned DCAP’s activities and required it to submit financial
information to the City, a reporter with the DMN told DCAP a criminal investigation had been
instituted by the City into DCAP’s activities, and one or more persons leaked information
regarding the investigation to the DMN and to DCAP’s donors with the intent to “smear” DCAP.
We conclude these pleaded facts, if true, are sufficient to establish that potential third-party
defendants, even if not residents of Texas, may have committed a tort in Texas and are therefore
subject to personal jurisdiction in the trial court. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 17.042(2); TV Azteca, S.A.B. De C.V. v. Ruiz, 490 S.W.3d 29, 36 (Tex. 2016), cert. denied, 137
S. Ct. 2290 (2017) (Texas long-arm statute permits Texas courts to exercise personal jurisdiction
over a nonresident defendant who commits tort in whole or in part in state).5
5
We express no opinion on whether any potential defendant may ultimately be subject to the trial court’s jurisdiction.
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Construing DCAP’s petition liberally and taking the alleged facts as true, we conclude
DCAP pleaded sufficient facts to support a claim that employees of the City acted in their
individual capacities in initiating, and disclosing information about, a criminal investigation into
DCAP’s activities6 and to establish the trial court had personal jurisdiction over an unknown party
or parties who were not affiliated with the City and may have disclosed information regarding the
investigation. Accordingly, the fact the City may be immune from DCAP’s claims or any City
employee who acted in the course and scope of his employment may be entitled to a dismissal of
DCAP’s claims does not deprive the trial court of jurisdiction over DCAP’s rule 202 petition. See
Durrell, 547 S.W.3d at 307; U.S. Filter Wastewater Grp., Inc., 190 S.W.3d at 245 (“Because a
portion of the claim under investigation—a claim against Altivia—is under the jurisdiction of the
state district court, the court did not err in denying the City’s plea to the jurisdiction.”); Squaw
Creek Downs, L.P., 166 S.W.3d at 341 (concluding trial court had jurisdiction over rule 202
petition because it had jurisdiction over one of the claims petitioner wished to investigate).
We resolve the City’s first and third issues against it. Based on our resolution of these two
issues, we conclude the City’s interlocutory appeal is moot. See Tandem Energy Corp. v. State ex
rel. Dep’t of Transp., No. 14-03-00815-CV, 2003 WL 22349032, at *1 (Tex. App.—Houston [14th
Dist.] Oct. 16, 2003, no pet.) (per curiam) (mem. op.) (concluding appeal challenging order
granting rule 202 petition was moot because appellate court had ruled on merits of petition for writ
of mandamus concerning same order).
Benefit Versus Burden
In its second issue, the City asserts the trial court erred by finding the benefit of the
deposition outweighs the burden or expense of the procedure because it is “quite onerous” to
6
Accordingly, we need not consider whether DCAP also pleaded sufficient facts to support a claim that employees of the City acted ultra
vires or committed “violations of U.S. civil rights laws.”
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prepare for and submit to a corporate representative deposition, DCAP did not offer evidentiary
proof that the benefit of the deposition outweighs its burden, and the deposition would compromise
a criminal investigation.7
If, as in this case, a petitioner requests a pre-suit deposition to investigate a potential claim
or suit under rule 202.1(b), the trial court must find that the likely benefit of allowing the petitioner
to take the requested deposition to investigate a potential claim outweighs the burden or expense
of the procedure. In re Heaven Sent Floor Care, No. 05-16-00628-CV, 2017 WL 462352, at *2
(Tex. App.—Dallas Jan. 30, 2017, orig. proceeding) (mem. op.); see also TEX. R. CIV. P.
202.4(a)(2). The petitioner has the burden of producing evidence to support these required
findings, In re Heaven Sent Floor Care, 2017 WL 462352, at *2, and the findings may not be
implied from support in the record. In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig.
proceeding) (per curiam).
The evidence admitted at the hearing relevant to the benefit and the burden of the
deposition consisted of Fletes’s testimony, DCAP’s amended rule 202 petition and the exhibits
attached to it, 8 the November 30, 2017 letter from DCAP to Broadnax, and an email showing the
letter was transmitted to Broadnax. Fletes testified the requested deposition would benefit DCAP
because it could “clear its name,” assist in getting DCAP’s grant applications approved, and
determine whether DCAP has a basis for a lawsuit. In its amended rule 202 petition, DCAP stated
it had “requested the information both orally and in writing” and “submitted an extensive open
7
The City also argued in its brief that the burden of the deposition outweighed the benefits to DCAP because “there is no claim and there is
no jurisdiction.” Because we have already determined the trial court appropriately exercised jurisdiction over DCAP’s amended rule 202 petition,
we will not consider this argument in our analysis.
8
Although we recognize that generally a party’s verified rule 202 petition does not constitute competent evidence and will not support an
order granting the requested deposition, In re Heaven Sent Floor Care, 2017 WL 462352, at *2, DCAP’s amended rule 202 petition and its
attachments were admitted into evidence without objection by the City. See Tex. Health Res. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732,
at *7 (Tex. App.—Dallas Aug. 3, 2016, no pet.) (mem. op.) (“[G]enerally, pleadings and affidavits filed with the court cannot be considered as
evidence unless they are admitted into evidence.”); In re Campo, No. 05-13-00477-CV, 2013 WL 3929251, at *1 (Tex. App.—Dallas July 26,
2013, orig. proceeding) (mem. op.) (concluding trial court abused its discretion by finding benefit of rule 202 deposition outweighed the burden
and expense of procedure because no evidence was presented at hearing and petitioner “did not formally offer or admit its verified pleading at the
hearing”). Accordingly, DCAP’s amended rule 202 petition was before the trial court as evidence and we will consider it on appeal.
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records request,” and had “no other avenue to obtain the requested information.” As to the burden
of the requested deposition, in the amended rule 202 petition, DCAP stated the City could avoid
the burden of a deposition by responding to the November 30, 2017 letter, the City had in-house
counsel and would not incur legal fees for the deposition, DCAP would pay for the cost of the
deposition, the deposition would take place at City Hall, and because of the limited scope of the
requested deposition, the time to prepare and defend a witness would be “inconsequential.” The
trial court limited the deposition to ninety minutes in length and allowed DCAP to question the
witness on only four topics. We conclude DCAP submitted sufficient evidence to support the trial
court’s finding the benefit of the deposition outweighed the burden of the procedure on the City.
We therefore turn to the City’s final argument—that the benefit of the deposition does not
outweigh its burden because the order granting the deposition compromises a criminal
investigation. Under the Texas Public Information Act, certain governmental entities are required
to make “public information” available to the public. TEX. GOV’T CODE ANN. §§ 552.002; .021.
“Public information” includes information that is maintained by a governmental body in
connection with the transaction of its official business. Id. § 552.002. However, as relevant here,
information held by a law enforcement agency or prosecutor, or an internal record or notation of a
law enforcement agency or prosecutor that is maintained for internal use, may be exempt from
disclosure if release of the information would interfere with the detection, investigation, or
prosecution of crime; deals with the detection, investigation, or prosecution of crime that did not
result in conviction; or was prepared by an attorney representing the State in anticipation of or in
the course of preparing for criminal litigation or reflects the mental impression or legal reasoning
of an attorney representing the State. Id. 552.108(a)–(b); see also A&T Consultants, Inc. v. Sharp,
904 S.W.2d 668, 678 (Tex. 1995) (Section 552.108 “specifically excepts from disclosure
information which would reveal law enforcement techniques to the public, unduly interfere with
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law enforcement, and make it more difficult for an agency to do its job.”). The purpose of the
exception is to prevent disclosure of information that, “if released, would permit private citizens
to anticipate weaknesses in a police department, avoid detection, jeopardize officer safety, and
generally undermine police efforts to effectuate the laws of this State.” City of Fort Worth v.
Cornyn, 86 S.W.3d 320, 327 (Tex. App.—Austin 2002, no pet.). The Texas Supreme Court has
“recognize[d] this privilege in civil litigation for law enforcement investigation.” Hobson v.
Moore, 734 S.W.2d 340, 340–41 (Tex. 1987) (orig. proceeding); see also In re Westwood
Affiliates, L.L.C., 263 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding
[mand. denied]).
The trial court ruled the City could not raise the law enforcement privilege against the
deposition globally, but was required to assert it in response to individual questions during the
deposition.9 See In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding) (“[A]
blanket denial of all discovery in a civil case due to a pending criminal case is ‘not good public
policy.’”); Tex. Appleseed v. Spring Branch Indep. Sch. Dist., 388 S.W.3d 775, 781–84 (Tex.
App.—Houston [1st Dist.] 2012, no pet.) (analyzing applicability of law enforcement privilege to
each section of information redacted from school handbook). The trial court further ruled the City
had not waived any privilege and could assert the privilege during the deposition, and the trial
court would rule on each specific assertion of the privilege. See In re R.R., 26 S.W.3d at 574 (“The
trial court has an obligation to weigh each discovery request and apply the law for discovery or
protection to each request by determining the least restrictive way to protect both cases and the
defendant’s right to defend himself in this suit.”). Under these circumstances, we cannot conclude
the trial court clearly abused its discretion by determining the benefit of the deposition outweighed
9
The City has not challenged this ruling.
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the burden on the City of asserting the possible application of the privilege during the deposition.
We resolve the City’s second issue against it.
Conclusion
We deny the City’s petition for writ of mandamus seeking to set aside the trial court’s order
granting the amended rule 202 petition because the City failed to establish the trial court clearly
abused its discretion by ordering the City to submit to the deposition. Because the trial court’s
order granting the amended rule 202 petition is not a final order, we dismiss the City’s final appeal
for lack of jurisdiction. Based on our resolution of the City’s petition for writ of mandamus, we
dismiss the City’s interlocutory appeal as moot.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
180453F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE CITY OF DALLAS, Relator On Appeal from the 116th Judicial District
Court, Dallas County, Texas,
and Trial Court Cause No. DC-17-17478.
Opinion delivered by Justice Fillmore,
THE CITY OF DALLAS, Appellant Justices Lang and Schenck participating.
No. 05-18-00453-CV V.
DALLAS COMPANION ANIMAL
PROJECT, Appellee
In accordance with this Court’s opinion of this date:
The City of Dallas’s appeal from the trial court’s April 12, 2018 Order Granting
Amended Rule 202 Verified Petition Requesting Order to Take Deposition to
Investigate Potential Claims, April 12, 2018 Order Denying the City of Dallas’s
Second Plea to the Jurisdiction, and February 2, 2018 Order Denying the City of
Dallas’s Plea to the Jurisdiction is DISMISSED for want of jurisdiction; and
The City of Dallas’s interlocutory appeal from the trial court’s April 12, 2018
Order Denying the City of Dallas’ Second Plea to the Jurisdiction is DISMISSED
as moot.
It is ORDERED that appellee Dallas Companion Animal Project recover its costs of this
appeal from appellant the City of Dallas.
Judgment entered this 26th day of October, 2018.
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