Opinion issued January 10, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00607-CV ——————————— IN RE TERRI COX FERGUSON, Relator
Original Proceeding on Petition for Writ of Mandamus
DISSENTING OPINION
Relator, Terri Cox Ferguson, has 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 denies the petition. I respectfully dissent. I would grant the petition for writ of
mandamus and would provisionally order the trial court to vacate its order.
Background
Ferguson is the defendant in the underlying wrongful-death lawsuit filed by
Bernal, in which he alleges that Ferguson negligently struck and killed his family-
member, Gabriela Deyanira, with her car. Ferguson is also a defendant in criminal
proceedings arising from the same underlying events for intoxicated manslaughter,
failure to stop and render aid resulting in a fatality, and felony-murder. In this civil
suit, Bernal sent Ferguson twenty-one requests for admission. These requests
asked Ferguson to admit the facts and legal duties necessary to establish each of
the elements Bernal is required to prove to establish his wrongful-death cause of
action and to admit the elements going to the ultimate issue of her culpability for
each of the crimes with which she is charged.
Specifically, Bernal requested that Ferguson admit that: (1) she “do[es] not
contend that any defect or failure on the part of [her] vehicle caused the Incident”;
(2) she “do[es] not contend there is a Responsible Third party not named by
Plaintiff as a defendant in this lawsuit”; (3) she was “not on any prescription
medication at the time of the Incident”; (4) she is “not claiming that [she] suffered
from any medical condition immediately prior to the Incident that caused the
Incident”; (5) she is “not claiming that [she] suffered from any medical condition
2 immediately prior to the Incident that contributed to causing the Incident”; (6) her
“Vehicle was involved in the Incident”; (7) “Gabriela Deyonira Rodriguez was
killed as a result of the Incident”; (8) she “suffered no physical injuries as a result
of the Incident”; (9) she “did not stop at the scene to render aid following the
Incident”; (10) she “did not call 911 at any ti[m]e following the Incident”; (11) she
“did not return to the scene of the Incident voluntarily”; (12) she “struck Gabriela
Deyonira Rodriguez with [her] Vehicle”; (14) she “failed to maintain a single
marked lane of travel at the time of the Incident”; (15) she “failed to drive in a
single lane at the time of the Incident”; (16) she “operated [her] Vehicle in a
reckless manner at the time of the Incident”; (17) she “failed to control [her] speed
at the time of the Incident”; (18) “Gabriela Deyonira Rodriguez did not cause the
Incident”; (19) she “owed a duty to Gabriela Deyonira Roriguez to use ordinary
care in the operation of [her] Vehicle”; (20) she “breached the duty to use ordinary
care in the operation of [her] Vehicle”; and (21) “Gabriela Deyonira Rodriguez
sustained fatal injuries in the Incident.”1
Ferguson asserted her Fifth Amendment privilege against self-incrimination
in response to each request individually and, subject to the assertion of the
privilege, denied each of the requests. Bernal filed a Motion to Compel Ferguson
to respond, and, after two oral hearings, the trial court issued a blanket order
1 Bernal’s requests for production did not include a number 13. 3 overruling all of Ferguson’s assertions of her Fifth Amendment privilege without
explanation and compelled her to respond to each of Bernal’s requests for
admission.
Standard of Review
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). 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). 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).
Discussion
The United States Constitution and the Texas Constitution both guarantee
that a person may not be compelled to testify or give evidence against himself. See
U.S. CONST. amend. V; TEX. CONST. art. I, § 10; Maness v. Meyers, 419 U.S. 449,
464, 95 S. Ct. 584, 594 (1975); In re Commitment of Lowe, 151 S.W.3d 739, 745
(Tex. App.—Beaumont 2004, pet. denied). The Fifth Amendment can be asserted
in both civil and criminal trials “wherever the answer might tend to subject to
4 criminal responsibility him who gives it.” Tex. Dept. of Public 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 (1924)). Thus it may be asserted to
avoid civil discovery if the person invoking it reasonably fears the answer would
tend to incriminate him. Id.; see also Wehling v. Columbia Broadcasting Sys., 608
F.2d 1084, 1086 (5th Cir. 1979) (“[T]he Fifth Amendment would serve as a shield
to any party who feared that complying with discovery would expose him to a risk
of self-incrimination.”).
In a civil suit, however, the 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). Rather, each assertion of the privilege rests on its own circumstances,
and blanket assertions of the Fifth Amendment privilege are not permitted in civil
cases. In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding);
Speer, 965 S.W.2d at 45–46. Instead, the privilege must be asserted on a question-
by-question basis. Lowe, 151 S.W.3d at 745. The trial court is entitled to
determine whether 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); Speer, 965 S.W.2d at 45.
“Because the privilege against self-incrimination must be asserted
selectively in civil litigation, it follows that selective assertion of the privilege does
5 not result in waiver.” Speer, 965 S.W.2d at 46. Rather, 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. Id. at 45; 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). “Before the judge may compel the witness to answer, he
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 (quoting Hoffman v.
United States, 341 U.S. 479, 488, 71 S. Ct. 814, 819 (1951)); Speer, 965 S.W.2d at
45.
The inquiry by the court is necessarily limited because the witness only has
to show that a response is likely to be hazardous to him. 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,
6 965 S.W.2d at 45. In some instances, the ramifications of answering the question
will be apparent; in others, not so. Id. It is the latter situation that presents a
difficult problem. Id.
Generally, the exercise of the privilege should not be penalized. See
Spevack v. Klein, 385 U.S. 511, 514, 87 S. Ct. 625, 628 (1967); Denton, 897
S.W.2d at 760. However, because of the difference between civil and criminal
contexts, the United States Supreme Court has allowed juries in civil cases to draw
negative inferences based on the assertion of the privilege. Denton, 897 S.W.2d at
760 (citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558 (1976));
Speer, 965 S.W.2d at 46. For example, an exception to the general free exercise of
the self-incrimination privilege in a civil suit, inapplicable in this case, is when the
plaintiff in a civil suit invokes the privilege offensively to protect information that
is privileged but also essential to the defense. Denton, 897 S.W.2d at 760–61. “A
plaintiff who uses the privilege to protect relevant information from a defendant
‘use[s] his Fifth amendment shield as a sword.’” Id. at 760–61 (quoting Wehling,
608 F.2d at 1087). The theory underlying the offensive use of the privilege against
self-incrimination is that “a plaintiff who is seeking affirmative relief should not be
permitted to maintain the action, and at the same time maintain evidentiary
privileges that protect from discovery outcome determinative information not
otherwise available to the defendant.” Id. at 761. In such a case, the general rule
7 against penalizing the assertion of the privilege does not prohibit the trial court
from taking acts to ensure that the proceeding remains fair, such as barring the
plaintiff asserting the privilege from introducing evidence on the subject matter of
the privilege. Id. at 760.
In a recent case, the federal Fifth Circuit Court of Appeals held that “a party
may invoke the Fifth Amendment privilege during the discovery process to avoid
answering . . . requests for admissions,” among other discovery procedures. Davis-
Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012). This opinion accords
with the opinion in Denton, which applied the law set forth above to deny the
protection of privilege for offensive use by a plaintiff in response to requests for
admission by defendants in the suit. Denton, 897 S.W.2d at 760–61. Likewise, in
Gordon v. Federal Deposit Insurance Corp., the federal Court of Appeals for the
District of Columbia Circuit analyzed the application of the privilege against self-
incrimination to requests for admission in a civil suit in light of Federal Rule of
Civil Procedure 36(b), which, like the parallel Texas rule, Texas Rule of Civil
Procedure 198.3, provides that a response to a request for admission “cannot be
used against the party in any other proceeding.” 427 F.2d 578, 581 (D.C. Cir.
1970) (citing FED. R. CIV. P. 36(b)). Reasoning that the responses could be used
“as a confirmation that facilitates the preparation of the criminal case, or perhaps
as a lead to other evidence, which is part of the protection of the constitutional
8 privilege,” the federal court of appeals held that the constitutional right of a party
to a civil suit not to incriminate himself applies to requests for admission in a civil
suit and that the protection afforded by the prohibition in Rule 36 is insufficient to
protect that right. Id.
Thus, both the United States Supreme Court and the Texas Supreme Court
have held that the Fifth Amendment can be asserted in both civil and criminal trials
“wherever the answer might tend to subject to criminal responsibility him who
gives it.” McCarthy, 266 U.S. at 40, 45 S. Ct. at 17; Denton, 897 S.W.2d at 760.
Both federal and Texas state courts have also held that the privilege may be
asserted to avoid civil discovery if the person invoking it reasonably fears the
answer would tend to incriminate him. Denton, 897 S.W.2d at 761; see Wehling,
608 F.2d at 1087.
Here, Ferguson asserted the privilege against self-incrimination on a
question-by-question basis, in accordance with both federal and state constitutional
law. See, e.g., Lowe, 131 S.W.3d at 745. The trial court was obligated to
determine whether her assertion of the privilege appears to be based upon good
faith and is justifiable under all of the circumstances. See Butler, 522 S.W.2d at
198; Speer, 965 S.W.2d at 45. Although the parties agree that the trial court held
two hearings on Ferguson’s assertion of the privilege, the mandamus record
contains no indication that the trial court reviewed each discovery request, applied
9 the law of privilege, discovery, and protection to the request, and determined how
best to protect the privilege, Bernal’s right to proceed with the case, and
Ferguson’s right to defend herself against his suit. See Speer, 965 S.W.2d at 45; In
re R.R., 26 S.W.3d at 574. Nor is there any evidence that the trial court exercised
its “duty to consider the witness’s evidence and argument on each individual
question and determine whether the privilege against self-incrimination is
meritorious.” See Lowe, 151 S.W.3d at 745 (quoting Speer, 965 S.W.2d at 46).
Rather, the record shows that, although each request for admission went to proof of
the ultimate questions of Ferguson’s liability to Bernal for Rodriguez’s wrongful
death or Ferguson’s guilt in the criminal case, the trial court issued a blanket order,
without exception or explanation, denying Ferguson the privilege against self-
incrimination and granting each of Bernal’s demands that Ferguson be forced to
answer his requests that she admit the elements of his suit and the crimes with
which she is charged.
The ramifications of requiring Ferguson to answer Bernal’s questions
without the protection of the privilege are clearly apparent. Bernal is plainly
asking Ferguson to subject herself to criminal responsibility and is seeking to deny
her the privilege against self-incrimination in response to requests for admission
that go directly to proof of the elements of Bernal’s wrongful death suit and to
10 proof of the criminal charges outstanding against her. See Speer, 965 S.W.2d at
I would hold that the trial court’s order denying Ferguson the privilege
against self-incrimination and requiring her to answer Bernal’s requests for
admission is so arbitrary and unreasonable as to amount to a clear and prejudicial
error of law. See Walker, 827 S.W.2d at 839. Therefore, I would hold that the trial
court clearly abused its discretion in ordering Ferguson to answer Bernal’s requests
for admission. See id.
Bernal argues, however, that federal and state constitutional law is
“superseded by Texas Rule of Civil Procedure 198.3 with regard to requests for
admissions.” Thus, he argues, while federal courts have allowed the Fifth
Amendment privilege to be invoked in response to requests for admissions, Texas
courts have not allowed invocation of the privilege because, under the wording of
Rule 198.3, their responses cannot be used in “any other proceeding.”
Specifically, he argues that, regarding requests for admissions, the Texas Rules of
Civil Procedure provide that “[a]ny 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; cf. FED. R. CIV. P. 36(b) (“An admission under this rule is not an
admission for any other purpose and cannot be used against the party in any other
proceeding.”). As support for his argument, Bernal cites to Speer and Katin v. City
11 of Lubbock, 655 S.W.2d 360 (Tex. App.—Amarillo 1983, writ ref’d n.r.e.).
Bernal’s argument, in my view, is without merit.
First, it is well established in Texas law that, “[w]here the parties have not
argued that there are any material differences between the state and federal
versions of a constitutional provision, we typically treat the two clauses as
congruent.” City of Dallas v. VSC, LLC, 347 S.W.3d 231, 234 n.3 (Tex. 2011); see
also Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004)
(stating that, in applying provisions of state and federal constitutions that are not
significantly different, Texas courts “look to federal jurisprudence for guidance”).
Here, the Texas courts have historically cited to both state and federal law in
applying both the Fifth Amendment to the United States Constitution and the
parallel provision in the Texas Constitution, article 1, section 10. Lowe, 151
S.W.3d at 745 (stating that both United States and Texas Constitution “guarantee a
person may not be compelled to testify or give evidence against himself”) (citing
Maness, 419 U.S. at 464, 95 S. Ct. at 594); see Butler, 522 S.W.2d at 198.
Second, Bernal’s construction of Katin and Speer is not supported by a
reasonable reading of either case. In Katin, the defendant business owner, Katin,
was permanently enjoined from maintaining a portable sign on his business
premises in violation of a city zoning ordinance. 655 S.W.2d at 361. Katin
answered interrogatories, but he refused to answer requests for admissions of fact
12 on the basis of his Fifth Amendment privilege, arguing that a violation of a zoning
ordinance can also be punished by criminal sanctions. Id. at 362. The court
observed, “Because the rule language [in former Texas Rule of Civil Procedure
169, precursor to current Rule 198.1] prevents the requested admissions, if made,
from being used against the answerer in any other proceeding, the Federal courts
have held that the claim of a privilege against self-incrimination is unavailing as a
reason to refuse to answer a request of admissions of act in a civil injunctive action
. . . or in an action that involves only civil sanctions imposed as deterrents rather
than punishment.” Id. at 363 (citing Sec. & Exch. Comm’n v. MacElvain, 417 F.2d
1134, 1137–38 (5th Cir. 1969)). The court held that Katin’s claim of a Fifth
Amendment privilege against self-incrimination was “unavailing as the reason to
refuse to either admit or deny the Rule 169 request for admissions of fact in this
civil injunctive action involving only civil sanctions, because his admissions, if
made, could not be used against him in any other proceeding.” Id.
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 could not be used “as a confirmation
that facilitates preparation of the criminal case, or perhaps as a lead to other
13 evidence” in any criminal action. See Gordon, 427 F.2d at 581. This is the only
reasonable interpretation of Katin that is consistent with its facts and the body of
state and federal law upon which it relies. 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
14 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
15 where the trial court’s careful examination of the totality of the circumstances
under which the privilege is invoked clearly demonstrates that the party invoking
the privilege has not waived the privilege by offensive use or that the privilege is
being invoked because the party invoking it 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
16 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 as a matter of law—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).
17 Conclusion
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.
Evelyn V. Keyes Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Chief Justice Radack, concurring in result only.
Justice Keyes, dissenting.