Fourth Court holds automatic stay in interlocutory appeal is not affected by removal time to federal court; discovery order was an abuse of discretion.

In re University of the Incarnate Word 04-15-00242-CV (Tex. App. – San Antonio, June 24, 2015)

This is a mandamus case regarding discovery and will be in interest primarily for litigators. However, it addresses the interlocutory appeal and automatic stay provisions and how they affect the entity.

The Redus family filed suit against the University of Incarnate Ward (“Incarnate Word”) after one of its law enforcement officers shot and killed their son.  Incarnate Word filed a plea to the jurisdiction which was denied and Incarnate Word filed a notice of interlocutory appeal.  While the appeal is pending, the Redus family obtained a discovery order which required responses to production.  Incarnate Word filed a mandamus action to quash the discovery order asserting it violated the automatic stay provision of TEX. CIV. PRAC. & REM. CODE ANN. § 51.014.

The court first analyzed whether Incarnate Word was entitled to the automatic stay. A procedural element posed a possible wrinkle since the case was removed to federal court first, then remanded. However, the court held because “the state court resumes from the point reached prior to remand as if no interruption had occurred, the timeliness of a plea filed during the period of removal would be calculated without considering the time spent in federal court.”  As a result, Incarnate Word timely filed its plea to the jurisdiction and request for a hearing in order to trigger the automatic stay upon the filing of a notice of appeal. And since the automatic stay was properly in effect, the discovery order was issued in violation of the stay and was an abuse of discretion.  The trial court was ordered to vacate its order to compel discovery.

If you would like to read this opinion click here. Panel: Justice Martinez, Justice Alvarez and Justice Chapa. Opinion by Justice Alvarez. The attorneys for Incarnate Word are listed as Laurence S. Kurth Matthew Fisher Wymer.  The attorneys for the real parties in interest are Robert A. Valadez, Javier T. Duran, Mason Herring, Jorge Herrera, and Brent Clark Perry.