445 S.W.3d 270
Tex. App.2013Background
- Relator Ferguson filed a mandamus petition challenging a trial court order compelling her to respond to Bernal’s requests for admissions in a related civil suit.
- Bernal alleges Ferguson’s intoxicated driving caused a fatality and includes an indictment for intoxication manslaughter, failure to stop, and felony murder.
- Ferguson asserted the Fifth Amendment privilege on each admission request and answered with a blanket denial via “On the advice of counsel” statements, subject to the privilege.
- The trial court held two hearings and granted Bernal’s motion to compel, overruling Ferguson’s Fifth Amendment objections for all requests.
- The factual and legal record for mandamus review lacks an authenticated transcript of the hearings, raising questions about the trial court’s reasoning and record adequacy.
- The court ultimately denied the mandamus petition; a dissent would grant relief, but the lead opinion denies based on record insufficiency and discretionary review limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion compelling admissions despite Fifth Amendment privilege | Ferguson argues privilege precludes answering individual admissions; improper blanket compelled response. | Bernal contends Rule 198.3 allows compelled responses; privilege does not bar admissions when properly applied. | Petition denied; no mandamus relief due to record insufficiency and discretionary rulings. |
Key Cases Cited
- In re Speer, 965 S.W.2d 41 (Tex.App.-Fort Worth 1998) (selective privilege application in civil discovery; blanket waivers forbidden)
- Lowe, 151 S.W.3d 739 (Tex.App.-Beaumont 2004) (trial court must assess per-question privilege merit)
- Ex Parte Butler, 522 S.W.2d 196 (Tex.1975) (requires careful, case-specific consideration before compelling answers)
- Denton, 897 S.W.2d 757 (Tex.1995) (fifth amendment privilege may limit discovery; offensive use not allowed)
- Speer, 965 S.W.2d 45-46 (Tex.App.-Fort Worth 1998) (per-question privilege analysis; cannot be used as blanket waiver)
- Katin v. City of Lubbock, 655 S.W.2d 360 (Tex.App.-Amarillo 1983) (context where admissions may be unavailable due to civil penalties; distinguishable here)
- Gordon v. FDIC, 427 F.2d 578 (D.C.Cir.1970) (federal rule on admissions; potential use in criminal cases requires scrutiny)
- Moreno (Davis-Lynch v. Moreno), 667 F.3d 539 (5th Cir.2012) (fifth circuit recognizes privilege may be invoked in discovery to avoid incrimination)
- McCarthy v. Arndstein, 266 U.S. 34 (U.S. Supreme Court 1924) (constitutional privilege against self-incrimination applies to evidence)
- Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084 (5th Cir.1979) (civil privilege extendable to discovery; protection of self-incrimination)