In Re Wolfe
341 S.W.3d 932
| Tex. | 2011Background
- This is a Texas Supreme Court mandamus proceeding concerning pre-suit discovery under Rule 202 in an ouster context.
- The Harris County Department of Education sought a Rule 202 deposition of Trustee Michael Wolfe to investigate grounds for removal.
- Department's stated anticipated testimony concerned Wolfe's meeting attendance and a possible homestead exemption issue.
- Wolfe argued only the county attorney has standing to prosecute an ouster action and that joinder of the proper state official is required; the county attorney did not join the petition.
- The trial court granted the petition; the court of appeals denied relief; the issue is whether the Department may obtain discovery without joinder of a proper state official.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 202 pre-suit discovery may be obtained without joinder of a proper state official. | Department contends discovery is permissible without joinder. | Wolfe argues proper state official must join to preserve jurisdiction. | No; requires joinder of the proper state official. |
| Whether the county attorney may be bypassed in pre-suit discovery for an ouster action. | Department argues Rule 202 permits discovery irrespective of county attorney joinder. | Wolfe argues the State’s representation and discovery control lie with the county attorney. | No; the county attorney must join and supervise due to state representation. |
| Whether the trial court abused its discretion in ordering Wolfe to testify without the county attorney's request or involvement. | Department seeks information to anticipate an ouster suit. | Wolfe contends discovery cannot proceed without proper state authorization. | Yes; the court abused Rule 202 limits and ordered relief is warranted. |
Key Cases Cited
- Garcia v. Laughlin, 285 S.W.2d 191 (Tex. 1955) (private ouster interest belongs to state; no jurisdiction without proper joinder)
- State ex rel. Dishman v. Gary, 359 S.W.2d 456 (Tex. 1962) (ouster is a sovereignly owned remedy; public welfare protection)
- Office Emps. Int'l Union Local 277 v. Sw. Drug Corp., 391 S.W.2d 404 (Tex. 1965) (pre-suit discovery is in aid of a contemplated suit and limited by rules)
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (improper Rule 202 orders may be set aside by mandamus)