University of Incarnate Word and Christopher Carter v. Valerie Redus, Individually, and Robert M. Redus, Individually and as Administrator of the Estate of Robert Cameron Redus

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

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