IN THE
TENTH COURT OF APPEALS
No. 10-96-121-CV
        WARREN LEE UNDERWOOD,
Relator
        v.
        HON. WAYNE BRIDEWELL, JUDGE,
        249TH JUDICIAL DISTRICT COURT,
        SOMERVELL COUNTY, TEXAS,
Respondent
Original Proceeding
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O P I N I O N
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          Warren Lee Underwood seeks a writ of mandamus compelling a district judge to set aside an order abating a civil forfeiture action until a federal criminal prosecution has been completed. In the underlying forfeiture case, brought under Chapter 59 of the Code of Criminal Procedure, the State seeks to forfeit $3,000, a night-vision scope, guns, a scanner, and other items. Tex. Code Crim. Proc. Ann. arts. 59.01-.11 (Vernon Supp. 1996).
BACKGROUND
          Underwood was the subject of an on-going investigation by the S.T.O.P. Task Force ("a multijurisdictional, multiagency task force dealing almost exclusively in illegal narcotics") and the Somervell County Sheriff's Department. On February 29, 1996, he was arrested in Bakersfield, California on federal charges of conspiracy to possess a controlled substance with intent to distribute and attempted possession of a controlled substance with intent to deliver. The federal authorities seized $102,163 when they arrested Underwood. On March 1, having obtained a search warrant, Texas authorities searched Underwood's residence in Somervell County and seized the items that the State seeks to forfeit. The forfeiture proceeding was filed on March 28.
          Underwood filed an answer and requested discovery, including oral depositions of two S.T.O.P. officers, interrogatories, requests for admissions, and requests for production of documents. Tex. R. Civ. P. 166b.1. The State, fearing that the discovery would prejudice the federal criminal proceeding, filed a plea in abatement, asking the court to abate the forfeiture proceeding until the federal criminal case was completed. After a hearing on April 10, the Respondent, Honorable Wayne Bridewell, signed an order granting the plea in abatement and ordering that "all litigation and discovery should be stayed . . . until disposition of the criminal case is completed."
CONTENTIONS
          Underwood asserts that Respondent abused his discretion when he abated the action because (1) the federal criminal proceeding in California is not related to the Texas civil forfeiture proceeding, (2) different parties, issues, and evidence are involved, (3) no basis exists in fact or in law for the abatement, and (4) the order presents "serious due process concerns" because he is being deprived of his property for an indefinite time without a hearing.
          The State asserted at the hearing that the abatement was necessary to prevent Underwood from using civil discovery as a "fishing expedition" for the criminal case. In response to Underwood's petition in this court, the State says that he cannot meet the requirements for issuance of a writ of mandamus because he had an adequate remedy at law by filing a bond to replevy the property and that, in any event, the abatement was within the Respondent's discretion.
STANDARD FOR DECISION
          A writ of mandamus may be issued to correct a "clear abuse of discretion." Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Mandamus will not issue where there is a clear and adequate remedy at law, such as a normal appeal. Id. at 840 (citing State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding)). The determination of whether a court abused its discretion is a question of law. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983).
          Abatement is generally a discretionary, incidental ruling not susceptible to mandamus relief. Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). However, mandamus may be proper when the directed course of action is the only proper course and relator has no other remedy. Id. An example of the issuance of a writ of mandamus to set aside an abatement order is Gebhardt v. Gallardo, 891 S.W.2d 327, 332-33 (Tex. App.âSan Antonio 1995, orig. proceeding), where the court held that the relator had no adequate remedy by appeal.
ANALYSIS AND DECISION
          We understand the dilemma the State faces. Article 59.04 requires that a forfeiture proceeding be filed within thirty days after property is seized. Tex. Code Crim. Proc. Ann. art. 59.04(a). Thus, the State could not wait for the criminal case to be resolved before filing its petition for forfeiture. Because forfeiture proceedings are "civil," Underwood had the right to institute discovery proceedings after the petition was filed. State v. Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976) (proceedings are civil); Tex. R. Civ. P. 2 (civil procedural rules apply to "all actions of a civil nature"). When he did, the State chose to seek an abatement rather than a protective order, a choice that we believe set the stage for Respondent's abuse of discretion.
alternatives to abatement
          The Rules of Civil Procedure provide that the court may, on motion, "make any order in the interest of justice necessary to protect the movant from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights." Tex. R. Civ. P. 166b.5. Under this rule, the State could have sought a protective order that (1) Underwood not take the requested depositions of S.T.O.P. officers or that he be permitted to take depositions that were limited in scope and (2) the offending interrogatories, requests for admissions, and requests for production of documents not be permitted. Id. 166b.5.a. Such a request would have allowed the Respondent, if he decided that the State had a legitimate interest to protect, to tailor his order to protect that interest but not interfere with Underwood's legitimate right to conduct discovery through means available to him under the Rules of Civil Procedure. Instead, by his abatement order, Respondent foreclosed all discovery and other action in the case and, in doing so, abused his discretion.
other authority
          The State relies on Money of the U.S. in Amount of $8,500 v. State as authority for the abatement order. 774 S.W.2d 788 (Tex. App.âHouston [14th Dist.] 1989, no writ). There, the state sought protective orders delaying interrogatories and motions for production until after a pending state criminal prosecution was concluded. "The trial court found that as a criminal action involving the same parties, common issues of law and fact and the same evidence was pending, the discovery motions should be stayed until May 16, 1986." Id. at 793. On appeal, the state asserted that the court had properly delayed discovery, arguing that "appellants should not be permitted to take advantage of the liberal discovery procedures afforded them under civil law to gather evidence that they would not be entitled to under the more restrictive criminal rules." Id. The Houston court, although noting that the points concerning discovery had been waived, found no abuse of discretion.
          We find three distinctions in Amount of $8,500: (1) the court delayed specific discovery until a date certain; (2) the delay was granted by a protective order, not an abatement; and (3) although the criminal case was not tried by May 16, 1986, the appealing party had not renewed his request for the discovery prior to trial. Id. Because of these distinctions, we find that the opinion does not control our decision in this matter.
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adequate remedy at law
          Because Respondent's order denied Underwood the right to all discovery, even that to which the State had no legitimate objection, we find that neither the replevy procedure available under Chapter 59 nor an appeal is an adequate remedy for the improper abatement. See Gebhardt, 891 S.W.2d at 332-33; Tex. Code Crim. Proc. Ann. art. 59.02(b).
CONCLUSION
          Having found that Respondent abused his discretion in granting an abatement of the entire case and that Underwood has no adequate remedy at law, we conditionally grant the writ of mandamus directing him to vacate the order dated April 10, 1996. The writ will issue only if he refuses to do so.
                                                                                             BILL VANCE
                                                                                             Justice
Before Chief Justice Davis,
          Justice Cummings, and
          Justice Vance
Writ conditionally granted
Opinion delivered and filed July 25, 1996
Publish
evidence, in conducting a legal sufficiency review we review all the evidence in the light most favorable to the finding, to determine whether reasonable and fair-minded people could have formed a firm belief or conviction regarding the finding being reviewed. City of Keller, 168 S.W.3d at 827; see also Qwest IntÂl Communications, Inc. v. AT & T Corp., 167 S.W.3d 324, 326 (Tex. 2005) (finding of malice).
When reviewing the factual sufficiency of the evidence to support a finding required to be based on clear and convincing evidence, we must give due consideration to any evidence the factfinder could reasonably have found to be clear and convincing.  J.F.C., 96 S.W.3d at 266-67. We must consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id.  The evidence is factually insufficient if, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of its finding is so significant that a factfinder could not have reasonably formed a firm conviction or belief. Id. (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Both legal and factual sufficiency reviews of a finding required to be based on clear and convincing evidence must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter required to be established by clear and convincing evidence. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25.
In reviewing a court's factual determinations for an abuse of discretion, we may not substitute our judgment for that of the trial judge.  Kiehne v. Jones, --- S.W.3d ---, No. 08-07-00075-CV, 2007 Tex. App. LEXIS 4869, at *6 (Tex. App.ÂEl Paso June 21, 2007, pet. denied). We give a great deal of deference to the trial court, as the factfinder, in its determination of both the credibility of the witnesses and the weight of their testimony.  Id.; Slusher, 896 S.W.2d at 245.  Moreover, the trial court possesses the discretion to resolve any conflicts arising from the evidence.  Id. Consequently, we may not overturn the trial court's ruling unless it is apparent from the record that the trial court could have reached only one result.  Id.
Willet elicited testimony from Cauthen, the Walker County Tax Assessor-Collector, who said that a voter in Texas may have more than one residence for voting purposes. But Cole presented evidence from the phone directory and public records, including Dr. LongÂs homestead exemption affidavit, that the Longs sole residence was outside of the city at Rosenwall Road and that 1411 Fourteenth Street is only a veterinary clinic and kennel. Further, Cole presented testimony from several witnesses who corroborated those facts without exception. The witnesses had been to both locations and testified that the Longs did not live, reside, sleep, or stay at the vet clinic. No evidence was presented that the Longs lived at the clinic; rather, the overwhelming evidence shows that their residence was outside the city.
Because the evidence is legally and factually sufficient to produce in the mind of the factfinder a firm belief or conviction that the Longs did not reside in Ward One and were therefore ineligible to vote in this election, the trial court did not abuse its discretion in overturning the election.  Willet does not challenge the exercise of the trial courtÂs discretion on any other basis. We overrule his third issue.
Conclusion
Having overruled all of WilletÂs issues, we affirm the judgment of the trial court. Â
Mandate
ColeÂs motion to issue the mandate immediately is granted, good cause therefor having been shown. The Clerk is directed to issue the mandate at the same time as our judgment affirming the trial courtÂs judgment. Tex. R. App. P. 18.1(c).
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BILL VANCE
Justice
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Before Chief Justice Gray,
           Justice Vance, and
           Justice Reyna
Affirmed
Opinion delivered and filed January 23, 2008
[CVPM]
(With regard to the CourtÂs ruling on the motion to immediately issue the mandate, and to limit the time before the final disposition of this proceeding, Chief Justice Gray would shorten the time for filing a motion for rehearing to seven days after the date of the CourtÂs judgment, ordering that any motion for rehearing must be received at the CourtÂs offices by 3:00 PM on January 30, 2008. See Tex. R. App. P. 49.4. If the motion for rehearing is not received by the date and time so designated, he would order that the CourtÂs mandate issue on that date. See Tex. R. App. P. 18.6. If a motion for rehearing is timely filed, the mandate will issue at the time of the disposition of the motion for rehearing. Id.)
[1] WagnerÂs correct name is Wagamon, but is referred to throughout the record as Wagner. We will refer to him as Wagner for consistency.
[2] The origin of the requirement that the plaintiff in an election contest prove the allegations by clear and convincing evidence is not clear to us. We find no such requirement in the applicable part of the Election Code. Tex. Elec. Code Ann. § 221.003 (Vernon 2003). The earliest case we have found imposing the burden is Johnston v. Peters, 260 S.W. 911, 916 (Tex. Civ. App.ÂSan Antonio 1924, no writ). Thus, it appears to be a judge-made rule. Nevertheless, we have followed the majority of election-contest cases in reviewing this appeal under the higher standard.
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[3] That finding is: ÂDr. Basil Long, DVM and Carolyn Long did not reside at 1411 14th Street in Huntsville, Texas, a veterinary clinic. Instead, at the time of the subject election, they resided in their publicly declared residence home at 428 Rosenwall Road, north and outside of Ward One and the city limits of Huntsville.ÂÂ
[4] We review WilletÂs sufficiency complaints under an abuse of discretion standard of review. See In re Z.A.T., 193 S.W.3d 197, 202-04 (Tex. App.ÂWaco 2006, pet. denied); In re A.C.S., 157 S.W.3d 9, 20 (Tex. App.ÂWaco 2004, no pet.). When a finding of fact is challenged and the standard of review is abuse of discretion, legal and factual sufficiency are factors that can be considered in determining whether an abuse of discretion has occurred. A.C.S., 157 S.W.3d at 20.
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