in Re Terri Cox Ferguson

Opinion issued March 12, 2013

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00607-CV

———————————

IN RE TERRI COX FERGUSON, Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION

Relator, Terri Cox Ferguson, has filed a motion for rehearing. See TEX. R.

APP. P. 49.3. We deny Ferguson’s motion for rehearing. I withdraw my January

10, 2013 opinion and substitute this opinion in its place.

By petition for writ of mandamus, Ferguson challenges the trial court’s order

compelling her response to certain requests for admissions in the underlying suit

filed by real party in interest, Mario Bernal. 1 In her sole issue, Ferguson contends

that the trial court abused its discretion in ordering her to respond in violation of

the United State Constitution’s Fifth Amendment privilege against self-

incrimination.

We deny the petition for writ of mandamus.

Background

In her petition, Ferguson represents that Bernal has filed a suit against her

for wrongful death and survival, alleging that Ferguson negligently caused the

death of Gabriela Deyanira Rodriguez. In his response to Ferguson’s petition,

Bernal asserts that Ferguson, “[w]hile intoxicated,” struck Rodriguez, a pedestrian,

with her car and “continued driving for approximately 14.5 miles” before being

stopped by a police officer. Bernal asserts that Rodriguez’s injuries “were so

severe that [she] eventually died.”

Ferguson also represents that a grand jury issued a true bill of indictment,

accusing her of committing the offenses of intoxication manslaughter, failure to

stop and render aid, and felony murder. And Bernal has attached to his response a

copy of an indictment in which it is alleged that Ferguson committed the offense of

1

The underlying trial court case is styled Mario Bernal, Individually, as Heir at

Law, as Representative of the Estate of Gabriela Deyanira Rodriguez, Deceased,

and as Next Friend of Minors Mario Alberto Bernal, Yaniss Victoria Bernal and

Jennifer Yareth Bernal, in the 133rd District Court, Harris County, Texas, No.

2011-72784, the Honorable Jaclanel McFarland presiding.

2

intoxication manslaughter by “operating a motor vehicle in a public place while

intoxicated and by reason of that intoxication, caus[ing] the death of . . .

Rodriguez.”

Bernal served Ferguson with requests for admissions, in which he asked

Ferguson to:

1. Admit that You do not contend that any defect or failure on the

part of Your Vehicle caused the Incident.

2. Admit that You do not contend there is a Responsible Third

Party not named by Plaintiff as a defendant in this lawsuit.

3. Admit that You were not on any prescription medication at the

time of the Incident.

4. Admit that You are not claiming that You suffered from any

medical condition immediately prior to the Incident that caused

the Incident.

5. Admit that You are not claiming that You suffered from any

medical condition immediately prior to the Incident that

contributed to causing the Incident.

6. Admit that Your Vehicle was involved in the Incident.

7. Admit that Gabriela Deyonira Rodriguez was killed as a result

of the Incident.

8. Admit that You suffered no physical injuries as a result of the

Incident.

9. Admit that You did not stop at the scene to render aid following

the Incident.

10. Admit that You did not call 911 at any [time] following the

Incident.

3

11. Admit that You did not return to the scene of the Incident

voluntarily.

12. Admit that You struck Gabriela Deyonira Rodriguez with Your

Vehicle.

14. Admit that You failed to maintain a single marked lane of travel

at the time of the Incident.

15. Admit that You failed to drive in a single lane at the time of the

Incident.

16. Admit that You operated Your Vehicle in a reckless manner at

the time of the Incident.

17. Admit that You failed to control Your speed at the time of the

Incident.

18. Admit that Gabriela Deyonira Rodriguez did not cause the

Incident.

19. Admit that You owed a duty to Gabriela Deyonira Rodriguez to

use ordinary care in the operation of Your Vehicle.

20. Admit that at the time of the Incident You breached the duty to

use ordinary care in the operation of Your Vehicle.

21. Admit that Gabriela Deyonira Rodriguez sustained fatal injuries

in the Incident.2

In her “Defendant’s Objections and Responses to Plaintiff’s Request for

Admissions,” Ferguson responded, for each of the above requests, “On the advice

of counsel, I hereby assert my rights under the Fifth Amendment to the United

2

There was no request for admission number 13.

4

States Constitution and decline to answer this question.” She then, “[s]ubject to

and without waiving the foregoing objection,” responded, “DENY” for each of the

above requests.

Bernal then filed a Motion to Compel Ferguson’s responses to the requests.

Both Ferguson and Bernal represent that the trial court held two hearings on the

motion. The trial court granted Bernal’s motion and overruled Ferguson’s

assertion of the Fifth Amendment privilege for each of Bernal’s requests.

Standard of Review

Mandamus is an extraordinary remedy that is available only when (1) a trial

court clearly abuses its discretion and (2) there is no adequate remedy by appeal.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). A trial court clearly abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law.

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With

respect to a trial court’s determination of legal principles, “[a] trial court has no

‘discretion’ in determining what the law is or applying the law to facts.” In re

Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840).

Requests for Admissions and the Fifth Amendment Privilege

In her sole issue, Ferguson argues that the trial court erred in ordering her to

respond to Bernal’s requests for admissions because her responses “might tend to

5

subject her to further criminal prosecution and/or aid the criminal prosecutor in the

preparation of the criminal case currently pending against her.”

The United States Constitution both guarantees that a person may not be

compelled to testify or give evidence against herself. See U.S. CONST. amend. V;

Maness v. Meyers, 419 U.S. 449, 461, 95 S. Ct. 584, 592 (1975); In re

Commitment of Lowe, 151 S.W.3d 739, 745 (Tex. App.—Beaumont 2004, no pet.).

The Fifth Amendment can be asserted in civil cases “wherever the answer might

tend to subject to criminal responsibility [she] who gives it.” Tex. Dept. of Pub.

Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995) (quoting

McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S. Ct. 16, 17 (1924)). Thus, it may be

asserted to avoid general civil discovery if the person invoking it reasonably fears

the answer would tend to incriminate her. Id.; see also Wehling v. Columbia

Broad. Sys., 608 F.2d 1084, 1086 (5th Cir. 1979). However, blanket assertions of

the privilege in civil cases are impermissible. See Lowe, 151 S.W.3d at 745; In re

Commitment of Browning, 113 S.W.3d 851, 862 n.10 (Tex. App.—Austin 2003,

pet. denied). And the privilege must be asserted on a question-by-question basis.

Lowe, 151 S.W.3d at 745; In re Verbois, 10 S.W.3d 825, 828 (Tex. App.—Waco

2000, orig. proceeding).

Moreover, in a civil suit, a witness’s decision to invoke the privilege is not

absolute. In re Speer, 965 S.W.2d 41, 45 (Tex. App.—Fort Worth 1998, orig.

6

proceeding). A trial court is entitled to determine whether the assertion of the

privilege appears to be based upon the good faith of the witness and is justifiable

under all of the circumstances. Ex Parte Butler, 522 S.W.2d 196, 198 (Tex. 1975);

In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding); Speer,

965 S.W.2d at 45. Before compelling answers to discovery in a civil case over an

assertion of the Fifth Amendment privilege, the court must be “perfectly clear,

from a careful consideration of all the circumstances in the case, that the witness is

mistaken, and that the answer(s) cannot possibly have such tendency to

incriminate.” Butler, 522 S.W.2d at 198. Upon a party’s assertion of the Fifth

Amendment privilege to a discovery request in a civil suit, the trial court reviews

the discovery request, applies the law of privilege, discovery, and protection to the

request, and determines how best to protect the privilege, the right to proceed with

the case, and the right to defend the suit. Speer, 965 S.W.2d at 45–46; see In re

R.R., 26 S.W.3d at 574. “It is the trial court’s duty to consider the witness’s

evidence and argument on each individual question and determine whether the

privilege against self-incrimination is meritorious.” Lowe, 151 S.W.3d at 745

(quoting Speer, 965 S.W.2d at 46).

The inquiry by the court is necessarily limited because the witness only has

to show that a response is likely to be hazardous to her. Speer, 965 S.W.2d at 45.

The witness cannot be required to disclose the very information the privilege

7

protects. Butler, 522 S.W.2d at 198; Speer, 965 S.W.2d at 45. Each question for

which the privilege is claimed must be studied, and the court must forecast whether

an answer to the question could tend to incriminate the witness in a crime. Speer,

965 S.W.2d at 45.

Critical to the analysis, in regard to requests for admissions, the Texas Rules

of Civil Procedure provide that,

Any admission made by a party under this rule may be used solely in

the pending action and not in any other proceeding.

TEX. R. CIV. P. 198.3 (emphasis added). And the primary purpose of requests for

admissions is to simplify trials by eliminating matters about which there is no real

controversy. Boulet v. State, 189 S.W.3d 833, 838 (Tex. App.—Houston [1st

Dist.] 2006, no pet.); Peralta v. Durham, 133 S.W.3d 339, 341 (Tex. App.—Dallas

2004, no pet.).

In In re Speer, the First State Bank of Texas served Speer with “requests for

admissions, requests for production of documents, and interrogatories” in the

bank’s suit against Speer for breach of contract. 965 S.W.2d at 44. Speer denied

all the requests for admissions and answered only some of the interrogatories;

asserting the Fifth Amendment privilege, he raised numerous objections to the

unanswered interrogatories and the requests for production. Id. The bank filed a

motion to compel, arguing that Speer had waived his right to assert the Fifth

8

Amendment privilege by answering the requests for admissions and some of the

interrogatories. Id. The Fort Worth Court of Appeals held that Speer did not

waive his Fifth Amendment privilege by answering the requests for admissions.

Id. at 46. Noting that the Texas Rules of Civil Procedure specifically provide that

an admission may not be used against a party “in any other proceeding,” the court

reasoned that “a party may not assert the privilege against self-incrimination as a

reason for refusing to answer requests for admission.” Id.

In support of its reasoning, the court in Speer relied on Katin v. City of

Lubbock, 655 S.W.2d 360 (Tex. App.—Amarillo 1983, writ ref’d n.r.e.). In Katin,

the defendant challenged the trial court’s rendition of summary judgment in which

it declared that Katin had violated a zoning ordinance. Id. at 361. Some of the

evidence supporting the summary judgment consisted of facts deemed to be

admitted after Katin, asserting the Fifth Amendment privilege, had refused to

admit or deny certain requests for admissions. Id. at 362. The Amarillo Court of

Appeals held that Katin could not assert the Fifth Amendment privilege in refusing

to answer requests for admissions of fact because “the rule language prevents the

requested admissions, if made, from being used against the answerer in any other

proceeding.” Id. at 163. Accordingly, the court held that the trial court did not err

in deeming admitted the facts asserted in the City’s requests for admissions. Id.

9

In support of her argument that she properly asserted the Fifth Amendment

privilege in reply to Bernal’s requests for admissions, Ferguson relies on two

federal court opinions: Davis-Lynch v. Moreno, 667 F.3d 539 (5th Cir. 2012) and

Gordon v. Federal Deposit Insurance Corp., 427 F.2d 578 (D.C. Cir. 1970). In

Moreno, the United States Court of Appeals for the Fifth Circuit stated generally,

without elaboration, that “a party may invoke the Fifth Amendment privilege

during the discovery process to avoid answering questions at a deposition,

responding to interrogatories or requests for admissions, or to produce documents.”

667 F.3d at 547 (citing 8 Charles Wright, Arthur R. Miller and Richard L. Marcus,

Federal Practice and Procedure § 2018, 3d ed. 2005)).

In Gordon, a civil defendant asserted the Fifth Amendment privilege in

response to the plaintiff’s requests for admissions because “the matters and things

requested involve the circumstances and subject matter of a pending indictment.”

427 F.2d at 579. The federal district court, “without explanation,” directed the

defendant to answer the requests for admissions and, when the defendant further

refused, it granted summary judgment in favor of the plaintiff “‘solely’ on [the

order directing the defendant to respond] and defendant’s failure to comply”

because “the matters on which plaintiff requested an admission are deemed

admitted by defendant.” Id. In the defendant’s appeal from the summary

judgment, the United States Court of Appeals for the District of Columbia Circuit

10

noted that the federal rule regarding requests for admissions provided that an

answer to a request for admission may not be used in “any other proceeding.” Id.

at 311 (citing FED. R. CIV. P. 36(b)). However, the court recognized the possibility

that such answers could be used by a criminal prosecutor “as a confirmation that

facilitates preparation of the criminal case, or perhaps as a lead to other evidence,

which is part of the protection of the constitutional privilege.” Id. Because the

federal district court “made no findings” regarding why it had denied the

defendant’s motion to strike the request for admissions, the court concluded that

there was “no indication” that the trial court “had considered the possibility of

incrimination through more indirect use of any admissions.” Id. The court

reversed the summary judgment and remanded the case back to the district court

“to clarify the reasons” for denying the defendant’s motion to strike the requests

for admissions. Id.

Here, although both parties assert that the trial court held two oral hearings

on Bernal’s motion to compel, Ferguson has not provided this court with a

reporter’s record of the hearings. A party bringing a petition for writ of mandamus

must file with this Court:

(1) a certified or sworn copy of every document that is material to

the relator’s claim for relief and that was filed in any underlying

proceeding; and

11

(2) a properly authenticated transcript of any relevant testimony

from any underlying proceeding, including any exhibits offered

in evidence, or a statement that no testimony was adduced in

connection with the matter complained.

TEX. R. APP. P. 52.7(a). And it is the burden of the relator to bring forth a

sufficient record demonstrating that the trial court has abused its discretion, so as

to entitle her to mandamus relief. See Walker, 827 S.W.2d at 837; In re Bill Heard

Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, orig.

proceeding).

When a party asserts the Fifth Amendment privilege in a civil case, the trial

court applies the law of privilege, discovery, and protection to the request, and

determines how best to protect the privilege, the right to proceed with the case, and

the right to defend the suit. Speer, 965 S.W.2d at 45–46. The trial court is to

“consider the witness’s evidence and argument on each individual question and

determine whether the privilege against self-incrimination is meritorious.” Lowe,

151 S.W.3d at 745 (quoting Speer, 965 S.W.2d at 46).

Here, as in Gordon, there is no indication of how or why the trial court

overruled Ferguson’s assertion of the Fifth Amendment privilege and granted

Bernal’s motion to compel. Ferguson has not provided this Court with an

12

authenticated transcript of any relevant testimony. 3 From the record before us, it

cannot be determined whether Ferguson established to the trial court how her

answers may tend to incriminate her in the criminal proceedings despite the

provision in rule 198.3 that her answers could “not be used against [her] in any

other proceeding.” And it cannot be determined whether the trial court properly

applied the law of privilege as to each individual request for which Ferguson

asserted her Fifth Amendment privilege. Accordingly, I would hold that Ferguson

has not presented us with a record that is adequate to support the issuance of a writ

of mandamus.

In sum, it cannot be concluded that the trial court acted in an arbitrary or

unreasonable manner in overruling Ferguson’s assertion of the Fifth Amendment

privilege and ordering her to respond to Bernal’s requests for admissions. See,

e.g., In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana

2006, orig. proceeding) (holding that appellate court could not determine whether

trial court abused its discretion in denying relator’s motion to compel the other

3

In her motion for rehearing, Ferguson asserts that at both oral hearings, “there was

no evidence heard and no record made.” She also asserts, without any support in

the record, that the trial court ruled that any use of the Fifth Amendment privilege

is unavailable in response to requests for admissions. However, the only

indication we have of the trial court’s ruling is its order overruling her assertion of

the Fifth Amendment privilege to the specific requests for admissions, not an

order ruling that any use of the privilege is unavailable under the same

circumstances. And Ferguson also did not include in the record Bernal’s motion

to compel, her response to the motion to compel, or Bernal’s response, all of

which are referenced in the trial court’s order.

13

party to produce documents because it could “only speculate whether there was

evidence to support the trial court’s denial”); see also In re Le, 335 S.W.3d. 808,

813–14 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (holding that

record was inadequate to conclude that trial court abused its discretion in awarding

“death penalty” sanctions where relator did not provide court with hearings on

sanctions or motion to compel).

Conclusion

We deny the petition for writ of mandamus.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Chief Justice Radack, concurring in result only.

Justice Keyes, dissenting.

14