in Re: Robert Troy McClure

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-13-00070-CV

IN RE: ROBERT TROY MCCLURE

Original Mandamus Proceeding

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Prompted by inmate Robert Troy McClure’s personal injury action against employees of

the Texas Department of Criminal Justice (Department), the Department filed a motion to

dismiss his petition and a motion to have McClure declared a vexatious litigant. The motion to

have McClure declared vexatious had the effect of staying all aspects of the litigation until the

hearing on that motion. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.052(a) (West 2002).

Because the trial court has now delayed that hearing until November 25, 2013, 1 about two

months before the January 28, 2014, trial date, McClure now seeks a writ of mandamus to get

some relief so he can adequately prepare for trial on his underlying civil action against

Department employees. We deny the requested writ, because McClure has an adequate remedy

by law.

To be entitled to mandamus relief, a petitioner must show that the trial court clearly

abused its discretion and that the relator has no adequate remedy by appeal. In re McAllen Med.

Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (orig. proceeding).

The trial court’s scheduling order sets the pretrial date as November 25, 2013, and the

trial date as January 28, 2014. The scheduling order also sets the following deadlines:

• To Add Parties: 180 days before trial date (8/1/2013, during the stay)

• To Amend Pleadings: 120 days before trial date (9/30/2013, during the stay)

1 The trial court originally set a hearing on the vexatious-litigant issue for July 7, 2013. On the Department’s motion, the trial court has now continued that hearing until the pretrial hearing date, November 25, 2013. 2 • Plaintiff to Designate Expert Witnesses: 90 days before trial date (10/30/2013, during the stay)

• Defendant to Designate Expert Witnesses: 60 days before trial date (11/29/2013, a maximum of four days after the stay could be lifted)

• Parties to Designate Fact Witnesses: 60 days before trial date (11/29/2013, a maximum of four days after the stay could be lifted)

Given the current trial date, the deadlines detailed in the scheduling order, and the stay

mandated by Section 11.052 of the Texas Civil Practice and Remedies Code, the trial court’s

decision to continue the vexatious-litigant hearing until just two months before trial effectively

denies McClure the ability to conduct meaningful discovery, add parties, amend his pleadings, or

designate expert witnesses. However, mandamus is inappropriate because McClure has an

adequate remedy by appeal, assuming he preserves error by raising any claimed error before the

trial court in a timely manner. “[A] party seeking review of a discovery order by mandamus

must demonstrate that the remedy offered by an ordinary appeal is inadequate.” Walker v.

Packer, 827 S.W.2d 833, 842 (Tex. 1992). McClure has failed to do so here.

We deny the petition for writ of mandamus.

Josh R. Morriss, III Chief Justice Date Submitted: July 25, 2013 Date Decided: July 26, 2013