Texas = Judiciary Online

Petition for Writ of Mandamus Denied and = Memorandum Opinion filed July 10, 2007.

In The

Fourteenth=20 Court of Appeals

____________

NO. = 14-07-00190-CV

____________

IN RE CITIZENS = SUPPORTING=20 METRO SOLUTIONS, INC.,=20

Relator

ORIGINAL=20 PROCEEDING

WRIT OF=20 MANDAMUS

M E M O R=20 A N D U M O P I N I O = N

In this = original=20 proceeding, the relator/plaintiff in = the court=20 below seeks a writ of mandamus based on the trial = court=3Ds alleged clear abuse = of=20 discretion by (1) signing orders abating all discovery, (2) = sustaining all=20 six categories of objections that the real party in = interest/defendant=20 asserted as to all of the discovery requests at issue, (3) denying = the=20 relator=3Ds motion to compel = discovery,=20 and (4) improperly addressing the merits of relator=3Ds claims in a = discovery=20 order. Although the parties have extensively briefed the = First=20 Amendment issues relating to two of the six categories of = discovery=20 objections, relator has not challenged = three of=20 the six independent grounds upon which the trial court based its = order=20 denying the motion to compel discovery. Furthermore, relator has asserted that the trial court = held at=20 least two hearings on relator=3Ds motion to compel. = The parties=20 have not taken a position in this proceeding as to whether any = party=20 presented evidence at any of these hearings. On this record, = even if=20 relator had challenged the other three = grounds=20 for the trial court=3Ds discovery ruling, = this court=20 would be required to presume that the proceedings at the hearings = in=20 question would show that the trial court did not clearly abuse its discretion in denying the motion to = compel. In addition, relator has = not shown=20 that the trial court clearly abused its discretion by abating=20 discovery. Accordingly, we deny relator=3Ds petition for writ = of=20 mandamus.

Background

Relator Citizens Supporting = Metro=20 Solutions, Inc. (ACitizens@) filed suit against = real party=20 in interest Texans for True Mobility (ATrue Mobility@), and its = unnamed=20 contributors and Aconspirators,@ regarding True=20 Mobility=3Ds advocacy against = the transit=20 system plan proposed in August of 2003 by the Metropolitan Transit = Authority of Harris County (AMetro@). The transit = plan,=20 which included construction and extension of a light rail system, = was=20 placed on the November 2003 ballot and approved by Harris = County voters (the = Aballot measure@). In the = underlying=20 suit, Citizens alleges that True Mobility violated Election Code=20 provisions by seeking political contributions and making political = expenditures in connection with the ballot measure, without filing = the=20 required disclosures under the Election Code.^[1]

Citizens served = discovery=20 requests on True Mobility in the summer of 2004. True = Mobility=20 responded to several interrogatories and requests for production, = but=20 objected on various grounds to much of the requested = discovery. As=20 to all of the discovery requests at issue in this mandamus = proceeding,=20 True Mobility asserted the following objections:

(1) = The=20 information and documents sought are protected by True=20 Mobility=3Ds right to freedom of speech under the = First=20 Amendment of the United States Constitution and Article I, Section = 8, of=20 the Texas Constitution.

(2) = The=20 information and documents sought are protected by True=20 Mobility=3Ds right to freedom of association under = the First=20 Amendment of the United States Constitution and Article I, Section = 8, of=20 the Texas Constitution.

(3) = The=20 information and documents sought are neither relevant nor = reasonably=20 calculated to lead to the discovery of admissible = evidence.

(4) = The=20 request or interrogatory is vague.

(5) = The=20 request or interrogatory is overly broad.

(6) = The=20 request or interrogatory is unduly burdensome.

Citizens filed a = motion to=20 compel asserting that the trial court should overrule True=20 Mobility=3Ds discovery = objections and=20 order True Mobility to produce the responsive documents and=20 information. Citizens asserts, = and True=20 Mobility does not deny, that the trial court conducted a hearing = on this=20 motion on April 4, 2005. Subsequently and before the trial = court=20 ruled on this discovery motion, the parties agreed to abate the = suit=20 pending the Texas Supreme Court=3Ds decision in a case = involving=20 similar issues, In re William O. Hammond, Cause No. = 04-0089. =20 The Texas Supreme Court, however, denied mandamus in that case = without=20 opinion.^[2]

Thereafter, Citizens = filed a=20 supplemental memorandum of authorities in support of its motion to = compel. Citizens asserts, and True Mobility does not deny, = that the=20 trial court held a second hearing on Citizens=3D motion to compel on = October=20 30, 2006. At this hearing, the trial court invited True = Mobility to=20 file a motion for summary judgment, which True Mobility filed on = November=20 2, 2006. The following day, Citizens amended its discovery = and filed=20 a ANotice of Amendment of = Pending=20 Written Discovery and Supplemental Motion Compelling = Discovery,@ = agreeing=20 Athat in responding to = outstanding=20 written discovery or in depositions, True Mobility may withhold = the names=20 of donors or contributors whose names are not already public . . . = .@ Citizens also = served=20 True Mobility with amended discovery requests and filed a motion = to=20 shorten the time for responses to the written discovery. In=20 response, True Mobility moved to stay all discovery pending disposition of its summary = judgment=20 motion, again asserting, among other objections, that the = requested=20 discovery was privileged under the First Amendment and the Texas=20 Constitution. Citizens then moved to continue consideration = of the=20 motion for summary judgment. On November 17, 2006, the trial = court=20 granted True Mobility=3Ds motion to abate = discovery=20 pending a ruling on True Mobility=3Ds motion for summary=20 judgment. The record indicates that the trial court heard=20 Citizens=3D motion to continue=20 consideration of True Mobility=3Ds motion for summary = judgment=20 on December 11, 2006. The trial court=3Ds docket sheet = indicates that=20 the trial court granted this motion in open court on December 11, = 2006,=20 with a written order to follow. On February 7, 2007, the = trial court=20 signed an order in which it granted Citizens=3D motion to continue = and ruled=20 that True Mobility=3Ds summary-judgment = motion is=20 continued Auntil such time that the = issues on=20 appeal regarding discovery and [Citizens=3D] Motion to Compel = same are=20 determined by the Court of Appeals.@ To=20 date, the trial court has not ruled on True Mobility=3Ds summary-judgment=20 motion.

On February 16, 2007, = however,=20 the trial court signed an order denying Citizens=3D motion to compel = discovery=20 (the AFebruary 16 order@). Even though = the scope=20 of discovery is measured based on the live pleadings regarding the = pending=20 claims, and even though the trial court has not dismissed any of=20 Citizens=3D claims, the trial = court stated=20 in the February 16 order that Athe Court finds that = none of the=20 mailers disseminated by [True Mobility] constitute express = advocacy as a=20 matter of law, and therefore none of [True Mobility=3Ds] conduct is = regulated by the=20 Texas Election Code,@ which Citizens = contends is an=20 improper consideration of the merits of its claims while ruling on = discovery issues. The trial court also denied = Citizens=3D motion to compel in = its=20 entirety and sustained all of True Mobility=3Ds objections to the = discovery=20 requests in question. The trial court then withdrew all = then-pending=20 docket-control deadlines, including the trial date.

In its mandamus = petition in=20 this case, Citizens asserts the following:

! =20 Citizens challenges (1) the order of November 17, 2006 abating = discovery=20 pending a ruling on True Mobility=3Ds summary-judgment motion, (2) the order = of=20 February 7, 2007 continuing consideration of True = Mobility=3Ds summary-judgment motion, and (3) the = February 16=20 order.

! =20 The trial court clearly abused its discretion in denying=20 Citizens=3D motion to compel discovery and in = abating all=20 discovery based on True Mobility=3Ds claim that the First Amendment grants = it=20 immunity from discovery relating to claims against it under the = Texas=20 Election Code.

! =20 Citizens is entitled to conduct = discovery, and=20 the First Amendment does not provide True Mobility with a blanket=20 privilege to avoid participation in discovery. The First = Amendment=20 does not protect True Mobility from discovery that does not = require True=20 Mobility to identify contributors whose names are not already=20 public. For various reasons, the trial court erroneously = sustained=20 True Mobility=3Ds constitutional objections to=20 discovery.

! =20 This court should issue mandamus because in denying = Citizens=3D discovery motion, the trial court = improperly=20 prejudged the merits of Citizens=3Ds claims and excused True Mobility from = the=20 obligation to engage in discovery.

! =20 The discovery that Citizens seeks is essential for Citizens to = develop=20 admissible evidence in support of its claims.

! =20 The information and documents sought are relevant.

Citizens has = thoroughly briefed=20 its argument that the trial court clearly abused its discretion by = sustaining True Mobility=3Ds objections to = discovery under=20 the First Amendment, providing ample legal authorities and record=20 citations to support its contentions. However, the trial=20 court=3Ds ruling was not = based solely=20 on First Amendment grounds. As to Citizens=3D assertion that the = trial court=20 is subject to mandamus for signing the February 16 order, Citizens = has not=20 argued that the trial court clearly abused its discretion by = denying the=20 motion to compel based on True Mobility=3Ds objections that the = discovery=20 sought is vague, overly broad, and unduly burdensome. See = Tex. R. App. P. = 52.3=20 (h); In re Lausch, 177 S.W.3d = 144, 154=20 (Tex. App.CHouston [1st=20 Dist.] 2005, orig. proceeding); In re Kuhler, 60 S.W.3d 381, 384 (Tex. App.CAmarillo 2001,=20 orig. proceeding). Therefore, even if this court were to = find merit=20 in Citizens=3D arguments that the = trial court=20 clearly abused its discretion in sustaining True = Mobility=3Ds first three = categories of=20 discovery objections, this court still could not grant=20 Citizens=3D petition because = Citizens has=20 not argued or demonstrated that the trial court clearly abused its = discretion as to each of the other three independent grounds upon = which=20 the trial court denied the discovery in question. See In = re=20 SWEPI, L.P., 103 S.W.3d 578, 588B90 & n.9 (Tex. = App.CSan = Antonio=20 2003, orig. proceeding) (limiting mandamus inquiry to the issues = argued in=20 the mandamus petition and holding that trial court clearly abused = its=20 discretion in denying motion to compel discovery, but only after = court=20 concluded that trial court clearly abused its discretion in = sustaining=20 each of the objections to the discovery in question). =

Furthermore, Citizens = asserts=20 that the trial court held two hearings on its motion to = compel. =20 Citizens has not made an assertion in its petition or provided an=20 affidavit regarding the issue of whether evidence was presented at = these=20 hearings or whether any other event occurred that was material to = this=20 court=3Ds determining whether = mandamus=20 should be granted as to the trial court=3Ds order. = Therefore, we=20 presume that evidence was offered and that events transpired that = show the=20 trial court did not clearly abuse its discretion.^[3] See Walker v. = Packer,=20 827 S.W.2d 833, 837 & n.3 (Tex. 1992) (stating (1) relator has burden of providing appellate = court with=20 record establishing right to mandamus relief, (2) court could not = rule=20 that trial court clearly abused its discretion in ruling on motion = to=20 compel absent reporter=3Ds record from hearing = on=20 motion, and (3) even if no evidence were presented at hearing on = motion to=20 compel, relator would be required to = file an=20 affidavit to this effect with its mandamus petition); Humphreys = v.=20 Caldwell, 881 S.W.2d 940, 944 (Tex. App.CCorpus Christi=20 1994, orig. proceeding) (stating that, unless all parties agree = that no=20 evidence was submitted at discovery hearing, relator must file an affidavit proving that = no=20 evidence was presented at discovery hearing or present appellate = court=20 with reporter=3Ds record from the = hearing);=20 Ward v. Cornyn, 700 S.W.2d 281, = 282 (Tex.=20 App.CSan = Antonio=20 1985, orig. proceeding) (denying mandamus petition and stating = mandamus=20 could not be granted without a reporter=3Ds record from = discovery hearing=20 that resulted in trial court=3Ds signing the = discovery order=20 challenged in the mandamus proceeding).

For these reasons, we = deny=20 Citizens=3D petition for = mandamus as to=20 the February 16 order.

On one page in its = petition,=20 Citizens states that it also challenges (1) the trial = court=3Ds November 17, 2006 = order=20 abating discovery pending the trial court=3Ds ruling on True=20 Mobility=3Ds motion for summary = judgment,=20 and (2) the trial court=3Ds February 7, 2007 = order=20 continuing consideration of True Mobility=3Ds summary-judgment=20 motion. Citizens has not = presented argument=20 that the trial court clearly abused its discretion by signing the = November=20 17, 2006 order or the February 7, 2007 order. Therefore, we = deny=20 relator=3Ds petition for = mandamus as to=20 these orders. See Tex. R. App. P. 52.3 = (h); In=20 re Lausch, 177 = S.W.3d at=20 154; In re Kuhler, 60 = S.W.3d at=20 384.

Accordingly, we deny=20 Citizens=3D petition for writ of = mandamus.

/s/ =20 Charles W.=20 = Seymore = =20 = &= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 = &= nbsp; Justice<= /SPAN>

Petition Denied and Memorandum Opinion = filed July=20 10, 2007.

Panel consists of Justices Frost, = Seymore, and=20 Guzman.

^[1] = ;=20 The Election Code provides a claim = to=20 opposing political committees for violations of the code = provisions. =20 See Tex. Elec. Code Ann. ' 253.132 (Vernon=20 2003). Specifically, Citizens alleged = that True=20 Mobility violated sections 253.096 and 253.097, which provide,=20 respectively, that a corporation (1) Amay=20 make campaign contributions from its own property in connection = with an=20 election on a measure only to a political committee for supporting = or=20 opposing measures exclusively,@ and (2) Anot=20 acting in concert with another person may make one or more direct = campaign=20 expenditures from its own property in connection with an election = on a=20 measure if the corporation@ makes the expenditures in accordance = with the=20 reporting requirements contained in the Election Code. = Id.=20 '' = 253.096,=20 253.097.

^[2] = ;=20 According to Citizens, in = Hammond, the=20 Texas Association of Business made the same constitutional = privilege=20 arguments against discovery as True Mobility asserts in this = case. =20 However, in that case, the trial court=3Ds orders compelled = discovery.

^[3] = ;=20 In its February 16 order, the trial court does not state that it=20 considered evidence at these two hearings; however, the trial = court does=20 not state that these hearings were nonevidentiary. In fact, the trial = court does=20 not refer to these two hearings at all in the February 16=20 = order.