“Individual citizens ... have no right to maintain an ouster suit without being joined by a proper state official.”
Garcia v. Laughlin,
The Harris County Department of Education and four of its seven trustees, Angie Chestnut, Roy Morales, Jim Henley, and Debra Kerner (collectively, the Department), petitioned the district court under Rule 202 to order the deposition of another trustee, Michael Wolfe, in order to investigate suspected wrongdoing that might lead to a removal suit. The Department asserted that “[t]he substance of the testimony [it] expect[ed] to elicit ... include[d] the reasons why, if any, Wolfe has failed to attend numerous meetings” and whether he “claim[ed] a homestead exemption to which he was not entitled.... ” Wolfe responded that the Department was “angry” with him “because he has not voted to increase the tax rate ... and he has actively supported] certain candidates running against [other trustees] and he himself ran political campaigns against ... Chestnut.” Wolfe contended that only the county attorney had standing to seek discovery that might lead to his ouster because by statute, “[t]he county attorney shall represent the state in a proceeding for the removal of [a county] officer” other than himself or the district attorney. Tex. Loc. Gov’t Code § 87.018(d). The trial court granted the petition and ordered Wolfe’s deposition. The court of appeals denied Wolfe’s petition for mandamus.
A “county officer[ ] may be removed by the Judges of the District Courts for incompetency, official misconduct, habitual drunkenness, or other causes defined by law_” Tex. Const. art. V, § 24. A removal proceeding “is begun by filing a written petition ... in a district court....” Tex. Loc. Gov’t Code § 87.015(a). “Any resident of this state who has lived for at least six months in the county in which the petition is to be filed and who is not currently under indictment in the county may file the petition.”
Id.
§ 87.015(b). But “[individual citizens have no private interest [in ouster] distinguishable from the public as a whole.... ”
Garcia,
The State, the proper party to prosecute the ouster action against Wolfe that the Department allegedly anticipates, would be represented by the county attorney. Tex.
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Loc. Gov’t Code § 87.018(d). The county attorney did not join the Department in petitioning for pre-suit discovery. The Department argues that the county attorney’s joinder is not required because a Rule 202 proceeding is not a removal proceeding. But pre-suit discovery “is not an end within itself’; rather, it “is in aid of a suit which is anticipated” and “ancillary to the anticipated suit.”
Office Emps. Int’l Union Local 277 v. Sw. Drug Corp.,
Rule 202 is not a license for forced interrogations. Courts must strictly limit and carefully supervise pre-suit discovery to prevent abuse of the rule. The trial court here clearly abused its discretion in ordering Wolfe to testify regarding grounds for his removal from office without the request of the county attorney who must prosecute an ouster action for the State. An improper order under Rule 202 may be set aside by mandamus.
In re Jorden,