Opinion
No. 10-07-00272-CV
Opinion delivered and filed December 19, 2007.
Original Proceeding.
Petition conditionally granted.
Before Chief Justice, GRAY, Justice VANCE, and Justice REYNA (Justice VANCE dissents from the judgment with a note)
"(I respectfully disagree with the majority's determination that a writ of mandamus should issue. The motion filed by Reed in the disposed expunction proceeding did not invoke the jurisdiction of the Ellis County District Court, which the Judge of that Court essentially found at a hearing held on July 20, 2007. Thus, when Reed filed the same motion in Johnson County, she invoked the jurisdiction of that court under Rule 176.6(e) of the Rules of Civil Procedure. The Judge of the Johnson County District Court determined, after hearing, that the records should be produced, and in my view, Reed has not demonstrated that the ruling is such that relief by mandamus is warranted.)"
MEMORANDUM OPINION
Relator Melanie Reed, Ellis County District Clerk, seeks relief from the discovery order of Respondent William C. Bosworth, Jr., judge of the 413th District Court of Johnson County, which orders Reed to produce expunged records of the arrest of Real Party in Interest G. H. See TEX. CODE CRIM. PROC. ANN. arts. 55.01-55.06 (Vernon 2006). We conditionally grant Reed's petition for writ of mandamus.
In Reed's first two issues, she argues that Respondent abused his discretion by ordering Reed to produce the expunged records. In Reed's third issue, she contends that she lacks a remedy by appeal.
The 40th District Court of Ellis County ordered the records of the arrest of G. H. expunged after G. H.'s acquittal of theft charges in Ellis County. G. H. has now filed a civil suit for malicious prosecution in the 413th District Court against the complainant in the theft case. G. H. served Reed in Ellis County with a subpoena duces tecum to produce the expunged records. Reed filed a motion for protection from the subpoena in the 40th District Court. Reed also filed, in the 413th District Court, a plea in abatement. Respondent overruled Reed's plea, and signed the order from which Reed seeks relief.
"In order to obtain mandamus relief a relator must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal." In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) (orig. proceeding); accord Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); see In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). "A trial court abuses its discretion if it fails to analyze or apply the law correctly." Sw. Bell Tel. at 403 (citing In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (orig. proceeding)). A person not a party to a suit has no remedy by appeal in that suit. See In re Cobb, No. 05-98-01965-CV, 1999 Tex. App. LEXIS 6760, at *8 (Tex.App.-Dallas Sept. 7, 1999, orig. proceeding) (not designated for publication); City of Houston v. Chambers, 899 S.W.2d 306, 308 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding).
The Texas Rules of Civil Procedure provide for motions for protection from discovery in the following terms:
A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b) — before the time specified for compliance — either in the court in which the action is pending or in a district court in the county where the subpoena was served. . . . A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.
TEX. R. CIV. P. 176.6(e); see id. 192.6(b); In re Diversicare Gen. Partner, Inc., 41 S.W.3d 788, 794 (Tex.App.-Corpus Christi 2001, orig. proceeding), overruled on other grounds, In re Arriola, 159 S.W.3d 670, 677 (Tex.App.-Corpus Christi 2004, orig. proceeding). The court in which an action is pending must "dismiss its actions and accede to the protective order" of the court in which a motion for protection is filed. See Latham v. Thornton, 806 S.W.2d 347, 350 (Tex.App.-Fort Worth 1991, orig. proceeding).
In Reed's first two issues, she argues that she timely filed her motion for protection from G. H.'s subpoena in a district court in the county in which she was served, as permitted by the Rules of Civil Procedure, and thus was protected from the discovery order of the court in which the civil action was pending. G. H. argues that the records of his arrest became discoverable when he filed his civil suit, citing W.V. v. Texas. See W.V. v. State, 669 S.W.2d 376 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). G. H. may address that argument to the 40th District Court, but the argument has no bearing on the issue before us, namely whether Reed's motion for protection must be heard in the 40th or the 413th District Court. Respondent abused his discretion in ordering Reed to comply with G. H.'s subpoena in spite of Reed's motion for protection from that subpoena pending in the 40th District Court. We sustain Reed's first and second issues.
At oral argument, G. H. noted that Reed's motion for protective order, filed in Ellis County, is captioned in the 40th District Court in the cause number and style of G. H.'s expunction proceeding, and is captioned also in the 249th District Court of Johnson County, where G. H. first filed his malicious-prosecution suit, in the cause number and style of that suit; and argued thus that the 40th District Court's plenary power in the expunction proceeding had expired. ( See G. H. Br. at 8); TEX. R. CIV. P. 306a; Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985) (orig. proceeding). "[A] court of appeals should attend to substance over form." Bynog v. Prater, 60 S.W.3d 310, 312 (Tex.App.-Eastland 2001, pet. denied); see City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (per curiam). The Rule of Civil Procedure provides for the filing of a motion for protective order in the county of service, and Reed timely filed hers there, in Ellis County. See TEX. R. CIV. P. 176.6(e). G. H. has notice of the filing of the motion.
In Reed's third issue, she argues, moreover, that she had no adequate remedy by appeal. G. H. argues only that Reed has not "demonstrated irreparable harm." (Br. at 15.) Reed, being no party to G. H.'s suit, has no remedy by appeal of a judgment in that suit. We sustain Reed's third issue.
Having sustained Reed's issues, we conditionally grant Reed's petition. The writ will issue only if Respondent fails to withdraw his Order Regarding Discovery signed on September 6, 2007, within 14 days from the date of this opinion.