Rodriguez v. Cantu, NUMBER 13-19-00230-CV, NUMBER 13-19-00254-CV

• Decision Date: 17 July 2019
• Docket Number: NUMBER 13-19-00230-CV, NUMBER 13-19-00254-CV
• Parties: Hidalgo County District Attorney Ricardo RODRIGUEZ Jr. and Juan L. Villescas, Assistant District Attorney, Appellants, v. Marco A. CANTU, Appellee. In re Hidalgo County Criminal District Attorney Ricardo Rodriguez Jr. and Juan Villescas
• Court: Texas Court of Appeals

581 S.W.3d 859

Hidalgo County District Attorney Ricardo RODRIGUEZ Jr. and Juan L. Villescas, Assistant District Attorney, Appellants,

v. Marco A. CANTU, Appellee.In re Hidalgo County Criminal District Attorney Ricardo Rodriguez Jr. and Juan Villescas

NUMBER 13-19-00230-CV, NUMBER 13-19-00254-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed July 17, 2019

Michael W. Morris, Assistant Criminal District Attorney, Ricardo P. Rodriguez, Hidalgo County District Attorney, 100 N. Closner, Room 303, Edinburg, TX 78539, for Appellants/Relators.

Marco Cantu, 800 Nolana, Ste. 320, McAllen, TX 78504, Pro se Appellee.

Jennifer Garza-Smith, Hidalgo County District Attorney, 100 N. Closner, Room 303, Victor M. Garza, Hidalgo County District Attorney's Office, Civil Division, 100 E. Cano, Edinburg, TX 78539, for Relators.

Alfredo Morales Jr., Attorney at Law, P.0. Box 52942, McAllen, TX 78505, for Real Party in Interest.

Before Chief Justice Contreras and Justices Longoria and Perkes

Opinion by Justice Perkes¹

By both appeal and petition for writ of mandamus, Hidalgo County Criminal District Attorney Ricardo Rodriguez Jr. and Assistant District Attorney Juan Villescas seek to set aside an order allowing Marco A. Cantu to intervene in a proceeding seeking presuit discovery filed pursuant to Texas Rule of Civil Procedure 202.² See TEX. R. CIV. P. 202 (governing depositions taken before an anticipated suit or to investigate a potential claim or suit). We dismiss the appeal filed in our cause number 13-19-00230-CV and conditionally grant the petition for writ of mandamus filed in our cause number 13-19-00254-CV.

I. BACKGROUND

The history of this litigation begins with a Rule 202 petition filed in a separate trial court proceeding. See id. On July 25, 2017, in cause number C-3354-17-A in the 92nd District Court of Hidalgo County, Cantu's spouse, Roxanne Cantu, filed a "Petition for Depositions Before Suit Pursuant to Rule 202 to Investigate Potential Claim or Suit." She sought the deposition of Murray Moore, Assistant District Attorney of Hidalgo County, Texas, "to investigate a potential claim or suit." Roxanne stated that she "anticipates the institution of a suit in which [she] may be a party," and stated that "[t]he subject matter of the anticipated suit is to investigate the role that Murray Moore had in addressing the Grand Jury of Hidalgo County, Texas; and whether or not Moore violated the Penal Code [of] the State of Texas in discussing matters outside of the Grand Jury['s] presence." Roxanne stated that she "expects to take the testimony from Murray Moore to determine who [Moore] made contact with regarding the Grand Jury investigation and or District Attorney investigation regarding attorneys who are engaged in criminal activities." Roxanne asserted that allowing her to take the deposition would "prevent a failure or delay of justice in an anticipated suit because it will allow the parties to streamline the matter and preserve the testimony of Murray Moore." The style of Roxanne's Rule 202 petition included both Rodriguez and Moore as "[r]espondents."

On August 3, 2017, in a separate proceeding in cause number C-3569-17-C in the 139th District Court of Hidalgo County, Roxanne filed a similar "Petition for Depositions Before Suit Pursuant to Rule 202 to Investigate Potential Claim or Suit." In this case, she requested the trial court to authorize Villescas's deposition "in order to investigate a potential claim or suit." She stated that she "anticipates the institution of a suit in which [she] may be a party" and identified the subject matter of the suit as follows:

The subject matter of the anticipated suit is to investigate the role that Juan L. Villescas had in supervising Murray Moore the attorney in charge of the Grand Jury of Hidalgo County, Texas; and whether or not he and or she violated the Penal Code [of] the State of Texas in discussing matters outside of the Grand Jury['s] presence.

Roxanne identified Villescas as a person that she expected to have interests adverse to hers in the anticipated suit and identified the substance of the testimony that she expected to elicit and her reasons for desiring to obtain the testimony as follows: "Petitioner expects to take the testimony from Juan L. Villescas to determine who he made contact with regarding the Grand Jury investigation and or District Attorney investigation regarding attorneys who are engaged in criminal activities." She asserted that allowing her to take the deposition would "prevent a failure or delay of justice in an anticipated suit because it [would] allow the parties to streamline the matter and preserve the testimony." This Rule 202 petition identified both Rodriguez and Villescas as respondents.

On August 9, 2017, Roxanne filed a notice of nonsuit without prejudice regarding her original petition for Rule 202 deposition in cause number C-3354-17-A. She did not similarly nonsuit her petition in cause number C-3569-17-C, which served as the genesis for this appeal and original proceeding.

On August 31, 2017, the presiding judge of the 139th District Court transferred cause number C-3569-17-C to the 370th District Court. The order transferring the case states that "by agreement of the District Judges of Hidalgo County, Texas, under the Local Rules of Hidalgo County, and in the best interest[s] of Justice, the above-styled and enumerated cause is hereby transferred to the 370th State District Court." After the transfer, the case was assigned a new cause number, C-3569-17-G, from which this appeal and original proceeding arise. In this new cause, Rodriguez and Villescas filed objections to Roxanne's petition for a presuit deposition.

On September 21, 2017, at 8:55 a.m., Cantu filed a "Petition in Intervention" in the underlying case. His petition in intervention provided, in its entirety:

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Marco A. Cantu hereinafter referred to as Intervenor, files this Plea in Intervention and shows unto this Honorable Court as follows:

I.

Intervenor Marco A. Cantu is a resident of Hidalgo County, Texas whose address is reflected in this pleading.

II.

Intervenor has a justiciable interest in the matters in controversy in this litigation in that Plaintiff, Marco A. Cantu is the husband of Roxanne Cantu and needs to depose the same party–parties that Roxanne Cantu has to dispose under her 202 Petition.

III.

PRAYER FOR RELIEF

Intervenor, Marco A. Cantu, prays that parties take judicial notice of the filing of this Plea In Intervention and that on final hearing Intervenor recover against the defendants as follows:

1. Intervenor[']s contracted interest;

2. Pre and Post judgment interest as provided by law;

3. Costs of suit;

4. Such other and further relief to which the Intervenor may show himself to be justly entitled.

That same day at 9:06 a.m., soon after Cantu filed his plea in intervention, he filed an "Amended Petition for Removal of District Attorney Ricardo Rodriguez Jr. from his Public Office for Official Misconduct, Requests for Disclosure, and Motion to Suspend the Defendant from Office and Appoint a Temporary Replacement." In this pleading, Cantu sought to remove Rodriguez from office based on allegations of incompetence and official misconduct. See generally TEX. LOC. GOV'T CODE ANN. §§ 87.011 –.019. He stated that he sought an accelerated discovery control plan, propounded requests for disclosure, requested to "review and copy the contents of the District Attorney's file in this matter," and requested a jury trial. And, immediately after Cantu filed this petition, at 10:07 a.m., Roxanne filed a "Notice of Non-Suit Without Prejudice" regarding her Rule 202 petition in the underlying trial court proceedings.

On October 13, 2017, Rodriguez and Villescas filed "Respondents' Motion to Strike Intervenor's Petition in Intervention and in the Alternative, Plea to the Jurisdiction and Motion for Sanctions." In this motion, Rodriguez and Villescas recited the foregoing history, argued that Cantu "improperly forum shopped" his petition in intervention, contended that there was no pending lawsuit to support Cantu's petition in intervention and subsequent pleadings, and argued that the trial court lacked jurisdiction based on official immunity, prosecutorial immunity, and sovereign immunity. They requested sanctions against Cantu for filing a frivolous pleading on grounds, inter alia, that the petition in intervention "is very vague and does not address any basis in law or fact as to why he is entitled to a presuit deposition" of Villescas. Rodriguez and Villescas argued that Cantu merely relied on Roxanne's petition to support his request for a deposition and claims for affirmative relief, and further argued that Roxanne failed to meet her own burden to obtain a Rule 202 deposition. They asserted that "Petitioner, and subsequently Intervenor, fail to provide any evidence, such as an imminent harm or pressing need to obtain the presuit deposition, to assist the trial court in its findings."

The trial court held a series of hearings on Rodriguez and Villescas's motion to strike Cantu's petition in intervention and in the alternative, plea to the jurisdiction and motion for sanctions, on May 1, 2019, May 16, 2019, and May 17, 2019. On May 17, 2019, the trial court signed an "Order Denying Respondents' Motion to Strike Intervenor's Petition in Intervention and in the Alternative, Plea to the Jurisdiction." This order denied both the motion to strike and the plea to the jurisdiction. After the order was signed, the parties discussed proceeding with discovery pertaining to Cantu's requests for substantive relief; however, the trial court stayed this discovery and the underlying proceedings pending resolution of this appeal and original proceeding. Based on the record presented, Cantu's most recent pleading in the underlying proceeding is his "Ninth Amended Petition For Removal Of Ricardo Rodriguez Hidalgo County District Attorney...