Opinion issued March 12, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00607-CV
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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(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
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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.
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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.
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