ACCEPTED
04-15-00120-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/4/2015 3:23:44 PM
KEITH HOTTLE
CLERK
NO. 04-15-00120-CV
______________________________________________________
FILED IN
IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
OF THE STATE OF TEXAS
09/4/2015 3:23:44 PM
______________________________________________________
KEITH E. HOTTLE
Clerk
UNIVERSITY OF THE INCARNATE WORD,
Defendant – Appellant,
V.
VALERIE REDUS, ET AL.,
Plaintiffs – Appellees.
______________________________________________________
APPEAL FROM 150TH JUDICIAL DISTRICT COURT
OF BEXAR COUNTY, TEXAS
______________________________________________________
APPELLANT’S RESPONSE TO
APPELLEES’ MOTION TO ISSUE MANDATE
______________________________________________________
Laurence S. Kurth BEIRNE, MAYNARD & PARSONS, L.L.P.
State Bar No. 11768450 112 East Pecan Street, Suite 2750
San Antonio, TX 78205
Matthew F. Wymer (210) 582-0220 - Telephone
State Bar No. 24005234 (210) 582-0231 – Facsimile
E-mail – lkurth@bmpllp.com
E-mail – mwymer@bmpllp.com
Attorneys for Defendant/Appellant
University of the Incarnate Word
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant the University of the Incarnate Word (“UIW”)
and files this Response to Appellees’ Opposed Motion to Issue Mandate. In
support thereof, UIW would show the Court the following:
FACTS AND ARGUMENT
Appellees have failed to advise this court of the pertinent fact UIW has
conferred with them and informed them it is presently preparing a Petition for
Review to the Supreme Court of Texas. UIW will not file a Motion for Rehearing
or Motion for En Banc Reconsideration in this Court, because this matter has been
fully preserved for disposition in the Supreme Court of Texas. UIW does not
presently intend to seek an extension of time to file its Petition for Review, unless
its efforts and resources are substantially diverted by motions practice or other
efforts spurred by the Appellees. See TEX. R. APP. P. 53.7(f).
Furthermore, Appellees have wholy failed to meet their burden of
demonstrating “good cause” for the issuance of the mandate — indeed, Appellees
fail to state any cause whatsoever for why this court should issue the mandate
before the “appeal is finally disposed of.” See TEX. R. APP. P. RULE 18.1(C), 18.6.
A Petition for Review in the Supreme Court of Texas may be filed
regardless of whether a motion for rehearing or motion for en banc reconsideration
is filed. TEX. R. APP. P. 49.9. If neither a motion for rehearing nor a motion for en
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banc reconsideration is filed in the court of appeals, UIW’s Petition for Review is
due 45 days from the August 26, 2015 Opinion of the court of appeals. TEX. R.
APP. P. 53.7(a)(1). Therefore, because no motions will be filed in this court of
appeals, UIW’s Petition for Review will be due in the Supreme Court on October
12, 2015. (The 45th day is on Saturday October 10, so the deadline is the following
Monday).
Texas Rule of Appellate Procedure 18.6 provides:
18.6 Mandate in Accelerated Appeals. --The appellate court’s
judgment on an appeal from an interlocutory order takes effect
when the mandate is issued. The court may issue the mandate
with its judgment or delay the mandate until the appeal is
finally disposed of. If the mandate is issued, any further
proceeding in the trial court must conform to the mandate.
TEX. R. APP. P. 18.6 (emphasis added); see also TEX. CIV. PRAC. & REM. CODE §
51.014(b)(“An interlocutory appeal under Subsection (a) … stays the
commencement of a trial in the trial court pending resolution of the appeal.”).
This court of appeals did not issue the mandate with its August 26, 2015
Opinion. In view of that, Appellees conferred with the undersigned and requested
the parties agree to the issuance of the mandate under Texas Rule of Appellate
Procedure 18.1(c). Rather Appellee was informed Appellant opposes issuance of
Mandate. Notably, Appellees fail to cite that rule to this court of appeals now,
because they cannot show good cause for the issuance of the mandate – Appellees
fail in their motion to this court to address their burden.
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Agreement to Issue. --The mandate may be issued earlier if the
parties so agree, or for good cause on the motion of a party.
TEX. R. APP. P. RULE 18.1(C) (emphasis added).
Appellees argue incorrectly that “This Court’s judgment substantively ends
UIW’s interlocutory appeal ….”, while simultaneously citing two cases that
expressly hold this proposition is incorrect, William Marsh Rice Univ. v. Refaey,
459 S.W.3d 590, 592 (Tex. 2015) and Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex.
2010). See Motion at 2.
In Refaey, the Texas Supreme Court quoting Klein held:
As a threshold inquiry, we first consider whether the Court has
jurisdiction over this interlocutory appeal, as such appeals are
generally final in the courts of appeals. See Klein v. Hernandez,
315 S.W.3d 1, 3 (Tex. 2010); see also TEX. GOV’T CODE §
22.225(b)(3). “[W]e always have jurisdiction to determine
whether the court of appeals correctly applied its jurisdiction.”
Klein, 315 S.W.3d at 3 (citations omitted). We therefore have
jurisdiction to consider whether the court of appeals’ dismissal
for lack of jurisdiction was proper. See id.
Refaey, 459 S.W.3d at 592.
Appellees have failed to satisfy the requirement of good cause required by
rule 18.1(c) for the early issuance of the mandate. “An appellate court can issue a
mandate earlier than the rules ordinarily prescribe if it has good cause for making
its judgment more immediately final and enforceable.” Edwards Aquifer Auth. v.
Chem. Lime, Ltd., 291 S.W.3d 392, 416 (Tex. 2009) (Willett, J., concurring). Here,
this Court has no need to make its judgment more immediately final and
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enforceable. When a party represents to the court of appeals that it intends to file a
petition for review in the Supreme Court of Texas, that representation is due
mindful consideration and respect. See City of Cresson v. City of Granbury, 245
S.W.3d 61, 70 (Tex. App.—Fort Worth 2008, pet. denied). Otherwise, this Court
would risk interfering with the jurisdiction of the Texas Supreme Court. See In re
Jerry F., 294 S.W.3d 297, 300 n.1 (Tex. App.—Fort Worth 2009, orig.
proceeding) (explaining that the court of appeals would not interfere with the
jurisdiction of the supreme court by granting relief while petition for review was
pending).
Accordingly, Appellees’ Motion to Issue the Mandate should be denied.
PRAYER
WHEREFORE, PREMISES CONSIDERED, for these reasons, UIW
respectfully requests this honorable court of appeals deny Appellees’ Motion to
Issue the Mandate, and further prays for such other legal and equitable relief to
which Appellant may be entitled.
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Respectfully submitted,
BEIRNE, MAYNARD & PARSONS, L.L.P.
The Weston Centre
112 East Pecan Street, Suite 2750
San Antonio, TX 78205
(210) 582-0220 - Telephone
(210) 582-0231 – Facsimile
By: /s/ Matthew F. Wymer
Laurence S. Kurth
State Bar No. 11768450
E-mail – lkurth@bmpllp.com
Matthew F. Wymer
State Bar No. 24005234
E-mail – mwymer@bmpllp.com
ATTORNEYS FOR RELATOR THE
UNIVERSITY OF THE INCARNATE WORD
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CERTIFICATE OF CONFERENCE
The undersigned conferred with opposing counsel on September 2, 2015,
wherein he stated to opposing counsel:
We do not agree to the early issuance of the mandate or the
commencement of discovery before the final resolution of this
appeal. We are presently drafting a Petition for Review to the
Texas Supreme Court. We have been quite open about our
intention to do this. As you know, CPRC 51.014(b) provides
our appeal “stays the commencement of a trial in the trial court
pending resolution of the appeal.” This appeal will be resolved
in the Texas Supreme Court. This question of the status and
immunity of a TECOLE established private university police
department must be resolved by our highest court before
substantial police department resources are expended
responding to a suit, which the Court may later dismiss based
on these same immunity issues.
/s/ Matthew F. Wymer
Matthew F. Wymer
Dated: September 4, 2015
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
forwarded to the following counsel of record in accordance with the Texas Rules
of Civil Procedure this 4th day of September, 2015:
Brent C. Perry
Law Office of Brent C. Perry, PC
800 Commerce Street
Houston, Texas 77002
brentperry@brentperrylaw.com
Mason W. Herring
Herring Law Firm
4640 Banning Drive
Houston, Texas 77027
mherring@herringlawfirm.com
Jorge Herrera
Herrera Law Firm
111 Soledad, Suite 1900
San Antonio, Texas 78205
jherrera@herreralaw.com
Robert A. Valadez
Javier T. Duran
Shelton & Valadez
600 Navarro Street, Suite 500
San Antonio, Texas 78205
rvaladez@shelton-valadez.com and jduran@shelton-valadez.com
/s/ Matthew F. Wymer
Matthew F. Wymer
2220982v.1 005538/107036
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