In Re: Rep Dennis H. Bonnen--Appeal from 23rd District Court of Brazoria County

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed February 10, 2005

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed February 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00029-CV

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IN RE DENNIS H. BONNEN, Relator

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ORIGINAL PROCEEDING

WRIT OF MANDAMUS

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

On December 31, 2004, relator filed a petition for writ of mandamus in the Court of Appeals for the First District of Texas. See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. Along with his petition, relator filed an Emergency Motion for Temporary Relief. See Tex. R. App. P. 52.10. The Court of Appeals for the First District of Texas issued an order staying the trial court=s December 10, 2004 order in the underlying cause, Paul Barnard, Jr., et al. v. Burlington Northern Santa Fe Corporation, et al., No. 16509-1 in the 23rd District Court in Brazoria County, Texas. On January 12, 2005, the Court of Appeals for the First District of Texas transferred this original proceeding to this Court. See Tex. Gov=t Code Ann. ' 22,202(i) (Vernon 1998). This Court requested a response to the petition, which was filed on January 27, 2005. See Tex. R. App. P. 52.4. We conditionally grant the writ.

On October 27, 2004, the plaintiffs in the underlying case served deposition subpoenas and document requests on both relator and Bobby Verdine. Relator represents Legislative District 25 in the Texas House of Representatives, and Representative Bonnen=s legislative office employed Verdine as a Special Assistant from on or about January 1999 through March 2000.[1] Relator has asserted that the plaintiffs= requests seek discovery of privileged and confidential information regarding certain contacts between relator=s legislative office and his constituents related to the railway crossing accident that is the subject of the underlying suit, and he has moved to quash the deposition subpoenas and subpoenas duces tecum.

The trial court conducted a hearing on the motion, and on December 10, 2004, signed an order granting relator=s motion in part with respect to the production of most of the requested documents. The court denied the motion to quash the deposition subpoenas. In relevant part, the court ordered that:

Representative Bonnen and Mr. Verdine should make themselves available for deposition by Plaintiffs= counsel by December 31, 2004, but that the examination shall be limited only to matters, if any, not protected by the legislative privilege set forth in Section 306 of the Texas Government Code, and provided further that Plaintiffs= counsel is limited to no more than two hours of examination of the witness in each of the depositions.

In his petition, relator seeks to have this court compel the Honorable Ben Hardin, presiding judge of the 23rd District Court in Brazoria County, Texas, to set aside that portion of his December 10, 2004, order directing that relator and Verdine to comply with the deposition subpoenas served upon them in the underlying case.[2] In two issues, he asserts the trial court abused its discretion and/or committed a clear error of law by ordering relator and Verdine to comply with deposition subpoenas in violation of sections 306.001 through 306.006 of the Texas Government Code,[3] which provides for the confidentiality of communications between a member of the legislature and citizens of this state, because all such contacts were made pursuant to relator=s official duties and occurred after the accident at issue in the underlying suit.

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., Inc., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)(orig. proceeding). Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. An appellate remedy will be inadequate when an appellate court cannot cure the trial court=s discovery order. Id. at 843.

Although not addressed by the parties, we find that the doctrine of legislative immunity controls the issues raised in this proceeding. Texas and federal courts have recognized that individuals acting in a legislative capacity are immune from liability for those actions. See, e.g., Bogan v. Scott Harris, 523 U.S. 44, 46, 118 S. Ct. 966 (1998); Camacho v. Samaniego, 954 S.W.2d 811, 823B24 (Tex. App.CEl Paso 1997, pet. denied). Because the immunity doctrine serves important public purposes, courts have affirmed that the doctrine generally shields legislators not only from liability, but also from being required to testify about their legislative activities. See, e.g., Gravel v. United States, 408 U.S. 606, 615B16, 92 S. Ct. 2614 (1972) (holding that senator could not be made to answer questions about events that occurred in senate subcommittee meeting); Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S. Ct. 1425 (1967) (noting that legislators Ashould be protected not only from the consequences of litigation=s results but also from the burden of defending themselves@); Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347, 349B50 (Tex. App.CHouston [14th Dist.] 1989, orig. proceeding) (holding that members of water authority could not be questioned about legislative activities). Legislative immunity also extends to the legislator=s aides because their assistance is Aso critical to the [legislator=s] performance that they must be treated as the latter=s alter egos@ to avoid thwarting the purposes legislative immunity furthers. In re Perry, 60 S.W.3d 857, 861 (Tex. 2001) (quoting Gravel, 408 U.S. at 616 17, 92 S. Ct. 2614, and holding that legislative immunity applies to activities of Legislative Redistricting Board=s members and their aides in developing redistricting plan).

Legislative immunity encompasses a testimonial privilege precluding compulsory disclosure in discovery.[4] See In re Perry, 60 S.W.3d at 861. Thus, relator and his aide are protected by legislative immunity from complying with the deposition subpoenas in this case.[5] We hold that the trial court abused its discretion by compelling a member of the state legislature and his former aide to testify in violation of legislative immunity. Furthermore, relator is entitled to mandamus relief because there is no adequate remedy by appeal when the trial court erroneously orders the disclosure of privileged information. See TransAmerican Natural Gas Corp. v. Flores, 870 S.W.2d 10, 12 (Tex. 1994).

Accordingly, we conditionally grant relator=s petition for writ of mandamus. In light of this opinion, we are confident that the trial court will vacate its order compelling relator to appear for his deposition. The writ of mandamus will issue only if the trial court does not do so.

PER CURIAM

Petition Denied and Memorandum Opinion filed February 10, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

[1] Verdine is not a relator in this proceeding.

[2] Relator has not challenged the portion of the order requiring production of documents described in Section 1D of the Subpoena Duces Tecum.

[3] For example, Section 306.004 provides in relevant part:

(a) To ensure the right of the citizens of this state to petition state government, as guaranteed by Article I, Section 27, of the Texas Constitution, by protecting the confidentiality of communications of citizens with a member of the legislature of the lieutenant governor, the public disclosure of all or part of a written or otherwise recorded communication from a citizen of this state received by a member or the lieutenant governor in his official capacity is prohibited unless:

(1) the citizen expressly or by clear implication authorizes the disclosure;

(2) the communication is of a type that is expressly authorized by statute to be disclosed; or

(3) the official determines that the disclosure does not constitute an unwarranted invasion of personal privacy of the communicator or another person.

Tex. Gov=t Code Ann. ' 306,004 (Vernon 1998).

[4] Whether this immunity is absolute or subject to very limited exceptions in extraordinary circumstances is immaterial to this proceeding because no extraordinary circumstances were alleged or established. See In re Perry, 60 S.W.3d at 860 (noting legislator=s testimonial privilege may be subject to limited, very closely guarded exceptions when invidious legislative intent is an element of a cause of action as discussed in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 268, 97 S. Ct. 555 (1977)).

[5] The 79th Legislature convened in Austin on January 11, 2005. Therefore, the Legislative Continuance statute, section 30.003 of the Civil Practice and Remedies Code, also protects relator. The statute applies to any suit, Aand to any matters ancillary to the suit that require action by or the attendance of an attorney.@ Tex. Civ. Prac. & Rem. Code Ann. ' 30,003 (Vernon 1997). The inclusion of Amatters ancillary@ in the 1973 amendment to the statute applies to depositions. See Schwartz v. Jefferson, 520 S.W.2d 881, 886 (Tex. 1975).