In re Ferguson

Justice KEYES

Petition denied.

Radack, C.J., concurred in the result only.

Keyes, J., filed dissenting opinion on rehearing.

Jeffrey A. Fanaff, Acosta, Shrode & Soule, Houston, TX, for Relator. Robert E. Ammons, The Ammons Law Firm, LLP, Houston, TX, for Real Party in Interest.

TERRY JENNINGS, Justice.

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. 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.
In her “Defendant's Objections and Responses to Plaintiffs 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 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.

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).

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 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, 42 L.Ed.2d 574 (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, 69 L.Ed. 158 (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. 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 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 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 363. 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.

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 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

(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 authenticated transcript of any relevant testimony. 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 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).

We deny the petition for writ of mandamus. Chief Justice RADACK, concurring in result only.
Justice KEYES, dissenting.

Relator, Terri Cox Ferguson, filed a petition for writ of mandamus complaining about the trial court's June 27, 2012 order overruling her assertion of the Fifth Amendment privilege against self-incrimination in the underlying civil suit and compelling her response to certain requests for admissions. We requested and received a response from the real party in interest, Mario Bernal. The majority denied the petition in an opinion issued January 10, 2013. I dissented. In response to Ferguson's motion for rehearing, the majority reaffirms its denial of the petition for mandamus on the ground that Ferguson has presented insufficient evidence of the potential harm of self-incrimination from the trial court's order compelling her to admit all of the essential facts necessary to prove both the wrongful death claim against her in the underlying suit and her guilt for intoxication manslaughter in the pending criminal proceedings on which Bernal's wrongful death claim is based.

In my view, the majority misconstrues Ferguson's mandamus as seeking a ruling on an evidentiary point peculiar to this case rather than a ruling on a point of law applicable to all civil cases in which a trial court orders a defendant in simultaneous criminal and civil proceedings to admit to all of the elements of the charged crime and all of the elements of a civil claim based on the commission of that crime. It, therefore, erroneously employs a sufficiency of the evidence standard of review rather than a legal one.

I believe the majority opinion contradicts the mandate of both the United States Supreme Court and the Texas Supreme Court that a trial court cannot compel a witness to answer requests for admission in a civil suit unless, after a careful consideration of all the circumstances, it determines that “the answer(s) cannot possibly have [a] tendency to incriminate” her. I would hold that Ferguson, a defendant in a civil case who is simultaneously subject to ongoing criminal proceedings alleging crimes that form the basis of the civil case, cannot be legally compelled to answer requests for admission of all the facts necessary to prove both the elements of each of the crimes with which she is charged and her liability in the civil case, as her answers would necessarily have a tendency to incriminate her. Indeed, the requests for admission she is compelled by court order to answer seek nothing but her self-incrimination or the potential basis for a perjury charge. I would grant the petition for writ of mandamus, and I would provisionally order the trial court to vacate its order.

Katin supports the premise that the privilege against self-incrimination in the civil context is not available to protect a party against discovery necessary to the development of the opposing party's case when the only penalties faced by the party asserting the privilege are a civil injunction and fine, not criminal penalties, and when any answer to the discovery request cannot be used “as a confirmation that facilitates preparation of the criminal case, or perhaps as a lead to other evidence” in any criminal action. See Gordon, 427 F.2d at 581. Thus, the privilege against self-incrimination is unavailable as protection against answering requests for admissions in a civil case where the answer cannot reasonably be interpreted as tending to subject the person asserting the privilege to criminal responsibility under the totality of the circumstances. See Denton, 897 S.W.2d at 760. Because the only penalties faced by Katin were civil, and he demonstrated no reasonable expectation that his answers would subject him to criminal prosecution, the privilege was unavailable. Katin is, therefore, inapplicable to this case, where the admissions the trial court ordered Ferguson to answer go directly to proof of the elements of both the civil action and the criminal charges pending against her.

Nor can Speer reasonably be interpreted as supporting Bernal's interpretation of the law. In that case, the trial court found that Speer's answering five interrogatories in a civil case without asserting the privilege against self-incrimination did not waive his right to assert the privilege against self-incrimination in response to other interrogatories to which he did object; nor did Speer “waive his privilege against self-incrimination by denying the requests for admissions” of fact made by the opposing party without asserting the privilege. 965 S.W.2d at 45–46. The court then stated that former Rule 169 “provides protection to a party in Speer's predicament.... Therefore, a party may not assert the privilege against self-incrimination as a reason for refusing to answer requests for admission.” Id. at 46 (citing Katin, 655 S.W.2d at 363). Despite the court's sweeping statement of the rule, it did not apply it in a sweeping manner, but merely asserted that the fact that Speer had not asserted the privilege in responding to requests for admission in “compliance with the law did not result in waiver of the right to assert the privilege as to other requested discovery.” Id.

Speer, like Katin, had shown no reasonable expectation that his answering the requests for admission would reasonably subject him to criminal prosecution under the totality of the circumstances in his particular case. The law regarding the availability of the privilege had already been set out fully and accurately in the Speer opinion without any indication that the privilege does not apply to requests for admissions under any circumstances as a matter of law. See id. at 45–46. Thus, Speer, like Katin cannot reasonably be read as holding that the privilege against self-incrimination does not apply to requests for admission regardless of the circumstances. Moreover, if it did, it would conflict with federal law as set out in Moreno and Gordon, both of which must be viewed as persuasive, with the United States Supreme Court cases cited above, and with Denton.

I would hold that Katin and Speer both stand for the proposition that the Fifth Amendment privilege against self-incrimination is available in a civil action where the trial court's careful examination of the totality of the circumstances demonstrates that the party invoking the privilege has not waived the privilege by offensive use or that the party is invoking the privilege because the party reasonably fears the answer would tend to incriminate him or would facilitate the preparation of a criminal case, or would perhaps lead to other evidence in any criminal action. See Gordon, 427 F.2d at 581.

This construction is supported by other Texas court of appeals cases construing the privilege as inapplicable only when it is not invoked in good faith, or to protect against a reasonable fear of self-incrimination, but to prevent discovery necessary to the development of the opposing party's case. See Denton, 897 S.W.2d at 760; Marshall v. Ryder Sys., Inc., 928 S.W.2d 190, 195–96 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (upholding sanctions against plaintiff who used privilege against criminal activity offensively to refuse to answer request for admission concerning “other criminal activity” where assertion of privilege would “deny appellees information crucial to their defense”); Stewart v. Frazier, 461 S.W.2d 484, 486 (Tex.Civ.App.-Dallas 1970, no writ) (holding that trial court properly deemed defendant's responses to requests for admission “admitted” because defendant's “real purpose in refusing to answer the request for admissions was, not to prevent being a witness against himself in a criminal prosecution, but to hinder [the plaintiff] in this common law damage suit from proving an essential element in his case”).

The construction of Katin and Speer that Bernal urges—namely that the Fifth Amendment privilege against self-incrimination does not apply to requests for admission in a civil suit because, under Rule 198.3, the answers cannot be used in any other proceeding—is contrary to established law and leads to absurd consequences. Here, the trial court's blanket order denying the Fifth Amendment privilege to Ferguson—even in response to Bernal's requests that she admit each of the elements of guilt in the criminal charges brought against her and each of the elements of liability in his wrongful death suit—can be sustained only by a reading of Katin and Speer that is unreasonable in the context of those cases themselves, is contrary to established federal and Texas Supreme Court law, and has the absurd consequence of rendering the federal and state constitutional privilege against self-incrimination unavailable as a matter of law in response to requests for admission in a civil suit brought in Texas state court. Thus, I would hold that the trial court's blanket order denying the privilege is arbitrary and unreasonable and, therefore, a clear abuse of the court's discretion. See Walker, 827 S.W.2d at 839 (holding that trial court clearly abuses its discretion if it reaches decision so arbitrary and unreasonable as to amount to clear and prejudicial error of law).

I would grant the petition for writ of mandamus and would direct the trial court to vacate its order. I would issue the writ only if the trial court failed to do so. -------- Notes: