In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-09-00194-CV
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IN RE BENJIE F. JOHNSON
Benjie F. Johnson filed a petition for writ of mandamus and a motion for temporary relief. Johnson is a residential tenant whose eviction is currently in the county court on de novo review of the forcible detainer suit filed by Hope Village Apartments, Inc. Johnson is also under indictment for securing execution of a document by deception. See Tex. Pen. Code Ann. § 32.46 (Vernon Supp. 2008). According to Johnson, the indictment concerns his failure to indicate his felony convictions on the application form for the apartment from which he has been evicted, and the issue is asserted in both the criminal prosecution and the civil suit. Johnson contends the trial court abused its discretion in ordering Johnson to give his deposition to the plaintiff while a criminal proceeding remains pending.
In a civil case, the privilege against self-incrimination is asserted on a question-by-question basis. In re Edge Capital Group, Inc., 161 S.W.3d 764, 768 (Tex. App.--Beaumont 2005, orig. proceeding). "Blanket assertions of the Fifth Amendment privilege generally are not permitted in civil cases." Id. In a civil case, adverse inferences may be drawn from an assertion of the privilege. Id. at 769. "A motion for protection should not be filed solely to avoid the assertion of the Fifth Amendment privilege in a civil case." Id. at 769-70 (citations omitted). Abating a plaintiff's civil claims during a criminal investigation of the defendant is akin to a blanket assertion of the Fifth Amendment privilege, which is improper in a civil case. Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex. App.--San Antonio 1995, orig. proceeding). The assertion of the privilege against self-incrimination alone does not present a legal basis for an abatement in the civil case. Id. at 331. Although a trial court must give consideration to the effect of discovery in a civil case on pending criminal proceedings, the existence of a criminal case does not impair the trial court's proceeding with a contemporaneous civil matter, and a witness's right to claim Fifth Amendment protection as to a particular question in a civil case does not stop all proceedings in the civil case involving the witness. Kugle v. Daimler Chrysler Corp., 88 S.W.3d 355, 361-62 (Tex. App--San Antonio 2002, pet. denied).
Johnson argues that a proper balancing of the various interests involved supports abating the eviction suit until his criminal case is concluded. The case he relies on is not a mandamus proceeding, but is an appeal in which the issue was whether the trial court abused its discretion in dismissing the plaintiff's suit for refusing to answer questions under the "offensive use" doctrine. Denton v. Tex. Dep't of Pub. Safety Officers Ass'n, 862 S.W.2d 785, 788 (Tex. App--Austin 1993), aff'd, 897 S.W.2d 757 (Tex. 1995). In affirming the intermediate appellate court, "for different reasons," the Supreme Court held that, although the trial court exceeded its discretion in dismissing the suit, each prong of the offensive use doctrine was satisfied, and that by choosing not to waive his privilege against self-incrimination, the plaintiff exposed himself to remedial action by the trial court. Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 761-63 (Tex. 1995). In the case before us, no sanction has been imposed on Johnson as a result of his invocation of his privilege against self-incrimination. Instead, Johnson seeks a prophylactic abatement of the civil case that will leave him in possession of the premises for as long as he is under indictment. Under appropriate circumstances, the trial court might exercise its discretion to stay a civil case in light of pending criminal proceedings, but in this case the relator has not shown that the trial court abused its discretion in declining to do so.
Mandamus relief is available only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). In this case, the relator has not established a clear abuse of discretion by the trial court for which appeal will not be an adequate remedy. The petition for writ of mandamus is denied. All pending motions are denied as moot.
PETITION DENIED.
PER CURIAM
Submitted on May 26, 2009
Opinion Delivered June 11, 2009
Before McKeithen, C.J., Kreger and Horton, JJ.