in Re Richard Jimenez

• Court: Court of Appeals of Texas
• Decided: August 18, 2020
• Docket: 14-20-00466-CV
• Status: Published

Opinion

Petition for Writ of Mandamus Denied and Opinion filed August 18, 2020.

In The

Fourteenth Court of Appeals

NO. 14-20-00466-CV

IN RE RICHARD JIMENEZ, Relator

ORIGINAL PROCEEDING WRIT OF MANDAMUS 61st District Court Harris County, Texas Trial Court Cause No. 2019-04715

MEMORANDUM OPINION

On Tuesday, June 30, 2020, relator, Richard Jimenez, filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In his petition, relator asks this court to compel the Honorable Fredericka M. Phillips, presiding judge of the 61st District Court of Harris County, to vacate her order protecting an apex employee from deposition. Because we hold there is an adequate remedy by appeal, we deny relator’s petition for writ of mandamus. Mandamus Standard of Review

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). With certain exceptions, to obtain mandamus relief a relator must show both that the trial court clearly abused its discretion and that relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The realtor bears the burden of proving both requirements. In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

Adequate Remedy by Appeal?

In his petition, relator fails to address whether there is an adequate remedy by appeal. The case law is clear that mandamus is the appropriate remedy when trial court allows an apex deposition to go forward in violation of the standard governing such discovery. See In re Continental Airlines, Inc., 305 S.W.3d 849, 852 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). We have not found any cases allowing for mandamus review of the granting of a protective order. There are, however, cases where the granting of a protective order is reviewed on appeal. See Bullock v. American Heart Ass’n. 360 S.W.3d 661, 666 (Tex. App.— Dallas 2012, pet. denied); Enercor, Inc. v. Pennzoil Gas Marketing Co., Nos. 01- 98-01026-CV, 01-98-01332-CV, 2001 WL 754773 at *7 (Tex. App.—Houston [1st Dist.] Jul. 5, 2001, pet. denied). Accordingly, we hold that relator failed in meeting his burden to show he does not have an adequate remedy by appeal.

Relator’s petition for writ of mandamus is denied.

PER CURIAM

Panel consists of Justices Wise, Bourliot, and Spain.