in Re: City of Tatum, Texas

NO. 12-19-00151-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: §

CITY OF TATUM, TEXAS, § ORIGINAL PROCEEDING

RELATOR §

MEMORANDUM OPINION

Relator, the City of Tatum, Texas, filed this original proceeding to challenge an order

authorizing pre-suit discovery under Texas Rule of Civil Procedure 202. 1 We deny the writ.

BACKGROUND

In January 2019, Real Party in Interest, Linda C. Peterson, filed a verified amended petition

to perpetuate testimony, in which she sought to take oral depositions and the production of

documents to investigate a potential claim. 2 She specifically requested to take the depositions of

the City’s chief of police and the custodian of records for the City and/or the Tatum Police

Department. Peterson alleged that, on May 7, 2018, she called for an ambulance on behalf of an

ill friend. Peterson stated that when Tatum Police Officer Terry Dillon Loftis subsequently

arrived, he forced himself into her apartment, kissed her, and sexually assault her. She alleged that

(1) the City knew Loftis “exhibited indicators” of this type of behavior both before and after being

hired by the City, (2) the City hired, trained, controlled, supervised, and monitored Loftis, and was

negligent in doing so, (3) the City’s actions were based on an official policy or custom, or lack

thereof, the City actively or constructively knew that a policy or custom existed or did not exist

1

Respondent is the Honorable J. Clay Gossett, Judge of the 4th District Court in Rusk County, Texas.

2

In December 2018, this Court conditionally granted the City’s petition for writ of mandamus challenging a

2018 order granting Peterson’s request for pre-suit discovery under Rule 202. In re City of Tatum, 567 S.W.3d 800

(Tex. App.—Tyler 2018, orig. proceeding).

and because of the policy or custom, or lack thereof, her constitutional rights were violated, (4)

she anticipated being a party to a lawsuit involving the City, (5) she could not bring a lawsuit at

the time because she did not have the requested information and documents, (6) the City was

negligent in its background investigation before hiring Loftis and its failure to discover his

“proclivity for this behavior” after his hiring, (7) the City failed to perform adequate screening and

“reflected deliberate indifference to the risk posed by Loftis directly causing [Peterson’s] injury,”

(8) the City’s training or hiring procedures were inadequate and the City was “deliberately

indifferent in adopting adequate hiring and training policies,” which directly caused her injury, (9)

the City failed to institute procedures to adequately monitor Loftis and its continued indifference

directly caused her injury, (10) she has not brought or been a party to a suit arising out of the facts

the subject of her petition, and (11) the City, the Tatum Police Department, and Loftis may have

interests adverse to hers in the anticipated lawsuit.

Peterson anticipated eliciting testimony regarding the Tatum Police Department’s policies

and procedures on the screening of applicants, background checks, qualifications for employment,

the requirement that more than one officer be present when entering a residence, and body cameras

and their availability, and the approximate number of qualified applicants per year. She alleged

that the likely benefit of being allowed to take the depositions to investigate a potential claim

outweighs the burden or expense of the procedure, and the information sought is essential to

deciding the proper forum for further action. She requested that Respondent order the witnesses

to produce discoverable information at the depositions, including any policy, procedure, or training

manuals of the Tatum Police Department, and any personnel records and background checks

regarding Loftis.

At the hearing on Peterson’s petition, her counsel testified that Loftis was indicted for

sexually assaulting Peterson, and the trial court took judicial notice of the indictment against

Loftis. During his testimony, counsel expressed that the primary reason for needing the

depositions was to investigate a potential claim or suit because numerous causes of action may or

may not be available, such as a Section 1983 claim in federal court. He explained that a Section

1983 claim requires that the officer acted under color of state law. Counsel testified as follows:

…before a 1983 action can be sustained, the plaintiff needs to know if there’s any basis for it.

Otherwise, it would be a waste of judicial resources and would be a burden on both sides and would

prevent or delay justice if it was filed without a basis.

2

The taking of this deposition would allow a determination of whether or not there was a basis for a

1983 action. If there is no basis of jurisdiction and all the costs associated with the requirements of

a 1983 litigation or at least the additional cost to prepare and litigate a Section 1983 action could be

avoided. The way that these go, my experience in both prosecuting and defending these cases is, is

that some of the bases for federal jurisdiction include areas such as training deficiencies, inadequate

background checks, and other matters that are coupled with a pattern or patterns of activity that

would lead to a federal jurisdiction under a sustainable Section 1983 action.

Because the federal courts tend to bifurcate discovery in Section 1983 actions involving state actors

in due questions of first discovering the issue of qualified immunity. And so the federal courts, upon

motion of defendant, which they always routinely file, will bifurcate the action and say, okay, well,

first, discovery is going to be limited to the question of qualified immunity….

Counsel explained that the parties then conduct discovery and depositions solely as to qualified

immunity, which may include returning to court for resolution of whether a question relates to that

particular issue. He testified that upon resolution of the qualified immunity question, the parties

then conduct additional discovery and depositions. According to counsel, presuit depositions and

production of documents would allow him to determine whether federal jurisdiction exists and

avoid the “tens, if not hundreds, of thousands of dollars of expense on the defendant and all of that

burden and prevent a potential denial or delay of justice.”

Regarding state law causes of action, counsel testified that the depositions are necessary to

an election of remedies issue under Section 101.106 of the civil practice and remedies code. 3

Counsel testified that:

…And 101.106 says it is an election of remedies and that the filing of a suit under this chapter

against a governmental unit constitutes an irrevocable decision by the plaintiff, and immediately

and forever bars any suit of recovery by the plaintiff against any individual employee of the

governmental unit regarding the same subject matter.

…but if you file a suit against the governmental unit and the employee at the same time, then the

employee is immediately dismissed on the filing of the motion by the governmental unit. And so as

we sit here right now without knowing the questions of whether or not and to what extent there may

be liability on the governmental unit, the plaintiff is put to an almost impossible election. If you file

suit against both trying to be safe, the employee is immediately dismissed.

3

A suit against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and

forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding

the same subject matter. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (West 2019). A suit against any employee

of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit

or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental

unit consents. Id. § 101.106(b). If suit is filed against both the governmental unit and any of its employees, the

employees shall immediately be dismissed on motion by the governmental unit. Id. § 101.106(e).

3

Then if it turns out, when you actually get to do discovery in the case, that there’s no liability on the

governmental unit, the employee is gone, you can't then sue him. And so that is the exact definition

of a denial of justice.

If on the other hand, you sue only the employee, because you’re not sure that you can get and

establish liability on the governmental unit, the minute you file suit on the employee alone, the city

is released. And then when you go through discovery of that case and you get the discovery out that

I’m seeking right now, you may find that there was tons of grounds for liability on the governmental

unit, the one who has the insurance policy. But because you could not do that without having a basis

to do it, you have forever released them when you file suit against the individual employee without

adding them.

So the plaintiff in that situation is put to an absolute Hobson’s choice….that is another grounds

where allowing the taking of this deposition to investigate these claims outweighs the burden or

expense of the procedure. This is going to take a morning. It will take the production of a limited

number of records. And then those questions that will take tens or hundreds of thousands of dollars

to litigate will be decided as to what route the plaintiff in this case needs to take.

On cross-examination, counsel acknowledged that Peterson pleaded that she anticipates being a

party to a lawsuit against the City. Additionally, the City presented an affidavit from the Chief of

Police, in which she stated that she is also the custodian of records and will make herself available

for a deposition upon reasonable notice if a lawsuit is filed against the City.

Respondent granted Peterson’s amended petition to take presuit depositions, finding that

the likely benefit of allowing Peterson to take the requested depositions to investigate a potential

claim outweighs the burden or expense of the procedure. Respondent ordered that the depositions

of the chief of police and the custodian of records shall be taken within forty-five days. Respondent

further ordered the production of any policy, procedure, or training manuals of the Tatum Police

Department, and any personnel records and background checks regarding Loftis. On April 22, the

City filed this proceeding and a motion for emergency relief, in which it sought imposition of a

stay. This Court granted a stay of the Rule 202 depositions pending further order of this Court.

PREREQUISITES TO MANDAMUS

Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623

(Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no

adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re

Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator

has the burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex.

App.—Tyler 2014, orig. proceeding.). “Presuit deposition orders are appealable only if sought

from someone against whom suit is not anticipated[.]” In re Jorden, 249 S.W.3d 416, 419 (Tex.

4

2008) (orig. proceeding). Accordingly, an improper order under Rule 202 may be set aside by

mandamus when sought from an anticipated defendant. In re Wolfe, 341 S.W.3d 932, 933 (Tex.

2011) (orig. proceeding); Jorden, 249 S.W.3d at 419.

AVAILABILITY OF MANDAMUS

The City contends that Respondent abused his discretion by granting the Rule 202

depositions because (1) Peterson may not request presuit depositions for both reasons set forth in

Rule 202, (2) statements in Peterson’s verified petition affect the findings to be made, (3) Peterson

anticipates a lawsuit under Rule 202.1(a), which forecloses the need for depositions to investigate

a potential claim, (4) Respondent failed to make the required finding, and (5) the record does not

support the required finding.

Standard of Review and Applicable Law

A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable

as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply

the law. Cerberus Capital, 164 S.W.3d at 382. This standard has different applications in different

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

reviewing the trial court’s resolution of factual issues or matters committed to its discretion, we

may not substitute our judgment for that of the trial court. Id. The relator must show that the trial

court could reasonably have reached only one conclusion. Id. at 840. Our review of the trial

court’s determination of the legal principles controlling its ruling is much less deferential. Id. This

is because a trial court has no discretion in determining what the law is or applying the law to the

facts. Id.

Presuit discovery is not intended for routine use; it creates practical and due process

problems because discovery demands are made of individuals or entities before they are told what

the issues are. Jorden, 249 S.W.3d at 423. Thus, “[c]ourts must strictly limit and carefully

supervise presuit discovery[.]” Wolfe, 341 S.W.3d at 933. A person may petition the court for an

order authorizing the taking of a deposition on oral examination or written questions for either of

two purposes: (a) to perpetuate or obtain the person’s own testimony or that of any other person

for use in an anticipated suit; or (b) to investigate a potential claim or suit. TEX. R. CIV. P. 202.1(a)-

(b). Rule 202.1’s plain language indicates that a party may request presuit depositions for either

of these two distinct and separate reasons, but not both. In re City of Tatum, 567 S.W.3d 800,

5

805 n.3 (Tex. App.—Tyler 2018, orig. proceeding). “Which path a petitioner chooses dictates

what must be done in the case.” In re Denton, No. 10-08-00255-CV, 2009 WL 471524, at *1

(Tex. App.—Waco Feb. 25, 2009, orig. proceeding) (mem. op.).

A trial court must order a pre-suit deposition to be taken only if it makes one of two

findings: (1) allowing the petitioner to take the requested deposition may prevent a failure or delay

of justice in an anticipated suit or (2) the likely benefit of allowing the petitioner to take the

requested deposition to investigate a potential claim or suit outweighs the burden or expense of

the procedure. TEX. R. CIV. P. 202.4(a); Jorden, 249 S.W.3d. at 423. If a party seeks presuit

depositions for use in an anticipated suit, she must show that allowing her to take the requested

depositions may prevent a failure or delay of justice in an anticipated suit. See TEX. R. CIV. P.

202.4(a)(1); see also In re Contractor’s Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374,

at *4 (Tex. App.—Tyler Aug. 17, 2009, orig. proceeding) (mem. op.). If a party seeks presuit

depositions to investigate a potential claim or suit, she must show that the likely benefit of allowing

her to take the requested depositions to investigate a potential claim outweighs the burden or

expense of the procedure. See TEX. R. CIV. P. 202.4(a)(2); see also In re Denton, 2009 WL 471524

at *2. Rule 202.4(a) “does not permit the findings to be implied from support in the record.” In

re Does, 337 S.W.3d 862, 865 (Tex. 2011). A trial court has no discretion to order presuit

discovery without the required findings and abuses its discretion by doing so. In re Cauley, 437

S.W.3d 650, 657 (Tex. App.—Tyler 2014, orig. proceeding).

Analysis

We first must determine on which ground Peterson sought to take presuit depositions. In

her petition’s prayer for relief, Peterson asked Respondent to order presuit discovery and find that

“(l) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice

in an anticipated suit; or (2) 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.” The

plain language of Rule 202.1 indicates that Peterson could petition the court for an order

authorizing depositions on oral examination or written questions “either: (a) to perpetuate or obtain

the person’s own testimony or that of any other person for use in an anticipated suit; or (b) to

investigate a potential claim or suit.” TEX. R. CIV. P. 202.1 (emphasis added); see also City of

Tatum, 567 S.W.3d at 805 n.3. Accordingly, the City argues that Peterson cannot request presuit

depositions for both reasons, and that the record clearly demonstrates that Peterson seeks presuit

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depositions for use in an anticipated suit. To support this contention, the City points to the

following: (1) statements in Peterson’s petition that she “needs to perpetuate the testimony of these

witnesses…,” “anticipates she will be a party to a lawsuit involving the City of Tatum,” and seeks

“permission to take a deposition by oral examination to perpetuate the testimony…,” (2) counsel’s

testimony during the hearing that “it is necessary to perpetuate the depositions of various persons,

in that the City of Tatum, Texas, has employees who were employed at the time of the hiring of

this police officer, one of whom has left and some others may leave before they’re able to be

deposed in this case and may be outside the subpoena range of this Court, and it’s necessary to

perpetuate that testimony[,]” (3) counsel’s testimony during the hearing that Peterson anticipates

being a party to a lawsuit involving the City, and (4) pleadings, testimony, and arguments that

outline the causes of action to be asserted against the City. 4 Thus, the City maintains that

Peterson’s anticipation of a law suit forecloses investigation of a potential claim. We disagree.

Although the petition, as well as counsel’s statements and testimony, indicate some

intermingling of the two grounds set forth in Rule 202.1, 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 2014, orig. proceeding).

Here, Peterson’s petition specifically alleged that the reason she sought oral depositions and the

production of documents was to “investigate a potential claim by Petitioner” and 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.” At the hearing, counsel expressly informed

Respondent that Peterson’s primary purpose for seeking presuit depositions is to investigate a

potential claim or suit. See TEX. R. CIV. P. 202.1(b). And while some of counsel’s testimony

addresses anticipation of a lawsuit, his testimony, as set forth above, clearly focused on the need

for presuit depositions to investigate potential claims and the burden or expense that would result

if not allowed to do so. Construing Peterson’s petition liberally, we conclude that she sought

presuit depositions to investigate a potential claim or suit. 5

4

The City also refers this Court to statements in pleadings and the reporter’s record from 2018, which predate

Peterson’s 2019 amended petition, the hearing on that petition, and Respondent’s order granting that petition. In the

current proceeding, this Court is only concerned with the 2019 petition, reporter’s record, and order. See Bos v. Smith,

556 S.W.3d 293, 306 (Tex. 2018) (“[a]mended pleadings supersede prior pleadings”).

5

Additionally, when presuit depositions are sought from an anticipated defendant, Rule 202 orders are

considered ancillary to the subsequent suit. In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding). If

Peterson’s petition did not allege anticipation of a suit against the City, the City’s petition for writ of mandamus would

7

Accordingly, Peterson had the burden of showing that the likely benefit of allowing her to

take the requested depositions to investigate a potential claim outweighs the burden or expense of

the procedure. See TEX. R. CIV. P. 202.4(a)(2); see also Denton, 2009 WL 471524, at *2. In doing

so, Peterson was required to introduce evidence to support such a finding. See Contractor’s

Supplies, 2009 WL 2488374, at *5. And if presented with sufficient evidence, Respondent was

required to find that the likely benefit of allowing Peterson to take the requested deposition to

investigate a potential claim outweighs the burden or expense of the procedure, before granting

Peterson’s petition. See Cauley, 437 S.W.3d at 657; see also Denton, 2009 WL 471524, at *2;

TEX. R. CIV. P. 202.4(a)(2).

As set forth above, Peterson presented counsel’s testimony as to the reasons why presuit

depositions are necessary to investigate a potential claim and would outweigh the burden or

expense of the procedure. Counsel explained that Rule 202 depositions would aid in determining

which claims to assert. For instance, with respect to a Section 1983 claim, conducting presuit

depositions would eliminate the lengthy process and expense associated with determining qualified

immunity, thereby avoiding a waste of judicial resources, and possibly eliminating the claim

altogether if there is no basis for it. Counsel also testified that Rule 202 depositions would aid a

determination of which parties to assert claims against, given the election of remedies identified

in Section 101.106 of the civil practice and remedies code. Thus, conducting presuit depositions

would assist in assessing liability and enable Peterson to choose the appropriate defendant without

the expense of later answering that question via litigation.

In light of counsel’s testimony, we conclude that Peterson presented evidence from which

Respondent could reasonably conclude 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.” See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (trial court does

not abuse discretion if some evidence reasonably supports court’s decision). This is particularly

true given that the Chief of Police is also the custodian of records; thus, any burden or expense

would be minimal and is certainly outweighed by the likely benefit of allowing presuit discovery

to investigate a potential claim. And, public policy favors the discovery of information. In re

Johnston, No. 06-10-00095-CV, 2010 WL 3930603, at *4 (Tex. App.—Texarkana Oct. 8, 2010,

not be appropriate for our review. See id. (presuit deposition orders are appealable if sought from someone against

whom suit is not anticipated).

8

orig. proceeding) (mem. op.) (denying petition for writ of mandamus challenging order granting

presuit deposition). Accordingly, we conclude that Respondent did not abuse his discretion when

finding that the likely benefit of allowing Peterson to take the requested depositions to investigate

a potential claim outweighs the burden or expense of the procedure, and acted within his discretion

when granting Peterson’s Rule 202 petition.

DISPOSITION

Having determined that Respondent did not abuse his discretion by ordering the presuit

depositions requested by Peterson in her Rule 202 petition, we conclude that the City fails to

demonstrate an entitlement to mandamus relief. Therefore, we deny the writ. We lift our stay of

proceedings ordered on April 22, 2019.

GREG NEELEY

Justice

Opinion delivered May 15, 2019.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 15, 2019

NO. 12-19-00151-CV

CITY OF TATUM, TEXAS,

Relator

V.

HON. J. CLAY GOSSETT,

Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by the

City of Tatum, Texas; who is the relator in appellate cause number 12-19-00151-CV and a party

in trial court cause number 2018-205, pending on the docket of the 4th Judicial District Court of

Rusk County, Texas. Said petition for writ of mandamus having been filed herein on April 22,

2019, and the same having been duly considered, because it is the opinion of this Court that the

writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said

petition for writ of mandamus be, and the same is, hereby denied. The stay of proceedings ordered

on April 22, 2019, is lifted.

By per curiam opinion.

Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

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