Rule 202 Petition for Oral Depositions Duces Tecum and respectfully show this Court the following :

Transcription

1 CAUSE NO. MARTHA GARCIA-ROMERO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUBEN GARCIA VILLALPANDO, DECEASED, Petitioners, Vs. IN THE DISTRICT COURT OF TARRANT COUNTY, TEXAS OFFICER ROBERT CLARK, GRAPEVINE POLICE DEPARTMENT, AND TARRANT COUNTY CRIMINAL DISTRICT ATTORNEY'S OFFICE, Respondents. JUDICIAL DISTRICT RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Petitioners MARTHA GARCIA-ROMERO, Individually and as Personal Representative of the Estate of RUBEN GARCIA VILLALPANDO, Deceased, who file this their Rule 202 Petition for Oral Depositions Duces Tecum and respectfully show this Court the following : I. Petitioners request that this Court, after hearing, enter an Order authorizing the taking of the depositions duces tecum on oral examination of Officer Robert Clerk of the Grapevine Police Department and of the Custodians of Records for the Police Department of the City of Grapevine, Texas and for the Tarrant County Criminal District Attorney's Office pursuant to Rule 202 of the Texas Rules of Civil Procedure. The address and telephone number for both Officer Clark and the Custodian of Records at the Grapevine Police Department is 3 07 W. Dallas Road, Grapevine, Texas 76051, 81 7/ The address and telephone number for the Tarrant County Criminal District Attorney' s Office is 401 W. Belknap st., Fort Worth, Texas 76196, 81 7/ Citation should RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM/bii Page l

2 be issued to Officer Robert Clark and the Custodian of Records for the Grapevine Police Department and served on each of them, along with a Notice of the hearing on this petition, at 307 W. Dallas Road, Grapevine, Texas Citation should be issued to the Custodian of Records for the Tarrant County District Attorney's Office and served on that person, along with a Notice of the hearing on this petition, in the Tim Curry Criminal Justice Center at 401 W. Belknap st., Fort Worth, Texas II. Petitioners file thi s petition to take these oral depositions to investigate their potential claim or suit against Officer Clark or the City of Grapevine related to Officer Clark's shooting of the decedent RUBEN GARCIA VILLALPANDO on February 20, MARTHA GARCIA- ROMERO is the decedent's surviving widow. The substance of the testimony which Petitioners expect to elicit from Officer Clark are the facts related to his shooting of the decedent, and the substance of the testimony of the Custodians of Records which Petitioners expect to elicit is that the records, video(s), and other documents and things related to Officer Clark' s shooting of the decedent are true and correct copies of the originals in the possession and/or subject to the control of the Grapevine Police Department and/or the Tarrant County District Attorney's Office. Petitioners desire to obtain this testimony in order to determine the merits of their claim(s) against Officer Clark or the City of Grapevine for the damages they have sustained due to the decedent's being shot and killed. III. In this case, Grapevine' s Police Chief initially said that the police dash-cam video would be made public two weeks after the shooting. This decision was then reversed after the Tarrant County Criminal District Attorney asked that the video tape not be released until the police investigation was RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM/bii Page2

3 finished. The Euless Police Department concluded their investigation and made no arrest of Officer Clark. As a result, there is no pending criminal case against Officer Clark or anyone else; however, both the Tarrant County Criminal District Attorney's Office and the Grapevine Police Department have refused to release the videotape, which is fully discoverable under the Texas Open Records Act and the U. S. Freedom of Information Act, despite repeated requests from the family of the decedent and the news media. The lack of transparency and the failure to respond to requests under the Texas Open Records Act and the U. S. Freedom of Information Act casts a cloud over the length of the delay in releasing this key piece of evidence. Several eyewitnesses have stated that the decedent was unarmed and had his arms in the air when he was shot. Almost two months have passed since the fatal shooting of the decedent, and the Grapevine Police Department and the Tarrant County District Attorney' s Office have done everything they can to prevent the legal release of the videotape. There is no known Texas criminal statute or law which allows the Respondents to violate the Texas Open Records Acts and the U. S. Freedom of Inforrnation Act. IV. Petitioners request that this Court find that: A. Allowing Petitioners to take the oral depositions duces tecum of Officer Clark and the Custodians of Records for the Grapevine Police Department and for the Tarrant County Criminal District Attorney may prevent a failure or delay of justice in an anticipated suit; or B. ThelikelybenefitofallowingPetitionerstotaketheoraldepositionsducestecumofOfficer Clark and the Custodian of Records for the Grapevine Police Department and for the Tarrant County Criminal District Attorney to investigate a potential claim outweighs the burden or expense of the procedure. Petitioners also request that this Court find that no protections are necessary or appropriate to protect RULE 202 PETITION FOR ORAL DEPOSIT?ONS DUCES TECUM/bn Page3

4 Officer Clark, the Custodians of Records, or any person who may be affected by the procedure. V. In a 2009 Memorandum Opinion, the Twelfth District Court of Appeals found that "a petition for presuit deposition does not interfere with the exclusive jurisdiction of an administrative agency,? a governmental unit, or employees of a governmental unit. In re.' Contractor's Supplies, Inc., 2009 Tex. App. LEXIS 6396, 9 (Tex. App. - Tyler, orig. proceeding)(memo. opin.), citing TEX. R. CIV. PROC and City of Willow Park v. Squaw Creek Downs, L.P., 166 S.W.3d 336, 341 (Tex. App. - Fort Worth 2005, no pet.). In Contractor 's Supplies, Inc., the Tyler Court of Appeals held, "Therefore, we conclude that the exhaustion of administrative remedies doctrine does not apply here and the respondent trial court has jurisdiction of Oak's petition for presuit deposition." In re: Contractor 's Supplies, Inc., 2009 Tex. App. LEXIS 6396 at 9. VI. In 2013, U. S. District Judge Gregg Costa of Galveston found,?texas Rule of Civil Procedure 202 allows presuit depositions 'to investigate a potential claim or suit.?' In re.' Petition of Priscilla Johnson to Perpetuate Testimony of the Corporate Representative of Carnival Corp., 2013 U.S. Dist. LEXIS , l (S.D. Tex.), citing TEX. R. CIV. PROC In a 2007 opinion, the Fourteenth District Court of Appeals held that "a potential litigant should be permitted to explore whether claims exist without having to file a lawsuit to do so. Any other holding would eviscerate the investigatory purpose of Rule 202 and essentially require one to file suit before determining whether a claim exists? against a particular person or entity. In re Emergency Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App. - Houston [1 4'h Dist.], orig. proceeding%per curiarn), citing TEX. R. CIV. PROC This petition was filed, in part, because Petitioners have been unable to obtain the dashcam video of Officer Clark' s shooting of the decedent, which would be the best evidence of whether RULE 202 PETIT?ON FOR ORAL DEPOS?TIONS DUCES TECUM/bn Page 4

5 the decedent' s civil rights were violated by Officer Clark and/or the City of Grapevine. Judge Costa held that Rule "202 prevents potential litigants from having 'to file suit before determining whether a claim exists,' which is inefficient and runs counter to the rule against filing groundless claims.? In re.' Petition of Priscilla Johnson to Perpetuate Testimony of the Corporate Representative of Carnival Corp., 2013 U.S. Dist. LEXIS at 1, quoting In re Emergency Consultants, 292 S.W.3d at 79. The Fourteenth Court of Appeals agrees and explains that, without a Rule 202 petition, a party' s "counsel? i s "potentially? placed?in a quandry, considering counsel ' s ethical duty of candor to the court and the requirements of Texas Rule of Civil Procedure 13.? In re Emergency Consultants, Inc., 292 S.W.3d at 79, quoting TEX. R. CIV. PROC. 13. VII. Judge Costa also found, "A Rule 202 proceeding cannot result in any recovery. It does not assert any claim or cause of action upon which a court could grant relief; rather, it is simply a mechanism that allows a presuit deposition.? In re.' Petition of Priscilla Johnson to Perpetuate Testimony ofthe Corporate Representative ofcarnival Corp., 2013 U.S. Dist. LEXIS at s-6. In other words, Petitioners cannot recover damages on behalf of herself, the decedent, or anyone else from Respondents or any other person or entity "until an actual lawsuit is filed,? and "'A Rule 202 petition may never"' even? lead to a civil lawsuit,...'? Id. at 7, citing In re Enable Commerce, Inc., 256 F.R.D. 527, 531 (N.D. Tex. 2009) and quoting Davidson v. S. Farm Bureau Cas. Ins. Co., 2006 WL , 2 (S.D. Tex.). "Because this presuit procedural device is not a vehicle for obtaining any damages or other quantifiable relief,? this Court should conclude that official immunity does not bar or impede Petitioner's Rule 202 petition from being granted" and?that this Court "has jurisdiction over? Petitioner's "rule 202 petition;? therefore, Respondents' oral depositions should be Ordered to take place at a certain date, time, and place. In re: Petition of Prescilla Johnsorx to RULE 202 PETITION FOR ORAL DEPOS TIONS DUCES TECUM/bn Page5

6 Perpetuate Testimony of the Corporate Representative of Carnival Corp., 2013 U.S. Dist. LEXIS at 1 ; City of Willow Park v. Squaw Creek Downs, L.P., 166 S.W.3d 336, 341 (Tex. App. - Fort Worth 2005, no pet.). VIII. The Third District Court of Appeals agrees that "a petition under rule 202 is ultimately a petition that asserts no substantive claim or cause of action upon which relief can be granted. A successful rule 202 petitioner simply acquires the right to obtain discovery - discovery that may or may not lead to a claim or cause of action." Combs v. Tex. Civil Rights Project, 410 S.W.3d 529, 534 (Tex. App. - Austin 2013, pet. filed), citing TEX. R. CIV. PROC Consequently, in Combs, the Austin Court of Appeals stated,?we cannot agree that a rule 202 petition is itself a 'suit,' nor can we agree that all rule 202 proceedings involving govermnental entities are a suits' that seek to control state action,... Consequently, we conclude that pre-suit depositions of governmental entities" and their employees or agents "under rule 202 are not, in wholesale, barred by immunity." Id. IX. Furthermore, the First and Thirteenth District Courts of Appeals hold,?there is no requirement in Rule 202 that the person sought to be deposed be a potentially liable defendant in the claim under investigation.? In re.' Donna Indep. Sch. Dist., 299 S.W.3d 456, 460 (Tex. App. - Corpus Christi 2009, orig. proceeding), quoting City ofhouston v. U S. Filter Wastewater Group, Inc., 190 S.W.3d 242, 245 (Tex. App. - Houston [1 a' Dist.] 2006, no pet.). Similarly, the Fourteenth Court of Appeals holds, "Rule 202 does not require a potential litigant to expressly state a viable claim before being permitted to take a pre-suit deposition.? In re Emergency Consultants, Inc., 292 S.W.3d at 79, citing City ofhouston v. US. Filter Wastewater Group, Inc., 190 S.W.3d at 245. The Austin Court of Appeals adds that "the pleading requirements of rule 202, on their face, are less stringent than RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM/bn Page6

7 those normally required to demonstrate a trial court' s jurisdiction. More importantly, as a practical matter, a party filing a rule 202 petition will often not know enough facts or have enough information to allege facts that, if true, would establish the trial court' s jurisdiction. If a party could sufficiently plead these factual allegations without violating rule 13, it is likely that the party could not demonstrate a need for the rule 202 deposition at all.? Combs v. Tex. Civil Rights Project, 410 S.W.3d at 536, citing In re Emergency Consultants, Inc., 292 S.W.3d at 79. The First Court of Appeals then went further and found, "Rule 202 does not require a petitioner to plead a cause of action; instead, it requires only that the petitioner ' state the subj ect matter of the anticipated action, if any, and the petitioner's interest therein,?' which this Court should find that Petitioner has done in this petition. City of Houston v. US. Filter Wastewater Group, Inc., 190 S.W.3d at 245, quoting TEX. R. CIV. PROC (e). X. Regardless, if Petitioners file a lawsuit against Officer Clark or the City of Grapevine, it will be "based on conduct within the general scope of' Officer Clark's "employment,? that "suit" will be?considered to be against? Officer Clark "in" his?official capacity only.? TEX. CIV. PRAC. & REM. CODE ANN lol.l06(f)(vernon 2008). "Sovereign immunity to suit is waived and abolished to the extent liability is created by? Chapter 101 of the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN (a)(Vernon 2008). Section of the Texas Civil Practice & Remedies Code states that sovereign immunity is waived and abolished if Officer Clark or the City of Grapevine is liable to Petitioners for damages. Section states that the City of Grapevine is liable to Petitioners for damages arising from its governmental functions, which include police protection and control. Officer Clark or the City of Grapevine are liable to Petitioners pursuant to Section for the decedent's personal injuries and death proximately caused by RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM/bn Page7

8 the wrongful act or omission or the negligence of Officer Clark acting within the scope of his employment because the decedent' s personal injuries and subsequent death were caused by Officer Clark's use of tangible personal property, such as the gun with which Officer Clark shot the decedent, and because the City of Grapevine would be liable to Petitioners according to Texas law if it was a private person. XI. Because the injuries "and death? of the decedent were "proximately caused by the wrongful act or omission or the negligence of" an employee of the City' s Police Department "acting within? the?scope of' his "employment,? that employee?liable? because the decedent' s mortal injuries were?caused by a... use of tangible personal property," such as when a bullet was fired from the gun or pistol being used by that employee. TEX. CIV. PR?AC. & RF,M. CODE ANN (2) (Vernon 2008). In addition, Officer Clark is liable in his "individual? capacity for the resulting damages "arising our of assault, battery, false imprisonment, or any other intentional tort,..." TEX. CIV. PRAC. & REM. CODE ANN (2)(Vernon 2008); Rodriguez v. Gonzalez, 2006 U.S. Dist. LEXIS 71334, 13 (S.D. Tex.). Consequently, such employees as Respondents?are? not "entitled to official immunity... on? any"intentiona1... tort claim..." Gonzalez v. City of Corpus Christi, 2005 U.S. Dist. LEXIS 28939, (S.D. Tex.). XII. Both the Third and Fifth District Courts of Appeals hold?that a role 202 petition may often have to plead more than the minimum required by rule 202 in order to affirmatively demonstrate the trial court' s subj ect-matter jurisdiction over the proceedings. When discovery from a governmental entity is sought under rule 202, the petition must also set forth specific facts demonstrating that, at least potentially, the petitioner has been injured by actions that would amount to a claim which RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM/bn Page8

9 would not be barred by sovereign immunity? by demonstrating a "waiver of liability under? the Texas Tort Claims Act or other?local government code." Combs v. Tex. Civil Rights Project, 410 S.W.3d at 536, quoting City ofdallas v. Dallas Black Fire Fighters Ass'n, 3 53 S.W.3d 547, s s 7-s 8 (Tex. App. - Dallas 2011, no pet.). See also In re Dallas Cnty. Hosp. Dist., 2014 Tex. App. LEXIS 3542, 7 (Tex. App. - Dallas, memo. opin., orig. proceeding), citing City of Dallas v. Dallas Black Fire Fighters Ass'n, 3 53 S.W.3d at 55 7 and quoting Combs v. Tex. C ivil Rights Project, 410 S.W.3d at536. XIII. In a 2013 per curiam Memorandum Opinion, the First Court of Appeals addressed the relators' contention?that the trial court abused its discretion by... ordering the production of documents in connection with the Rule 202 depositions." In re Vikas Anarxd, 2013 Tex. App. LEXIS 4?57, 7 (Tex. App. - Houston [1"' Dist.], orig. proceeding)(memo. opinion per curiam). In that opinion, the First Court of Appeals found that?there is nothing in the language of Rule 202 that prohibits the petitioner from requesting that documents be produced along with the depositions. Furthermore, Rule expressly provides that 'depositions authorized by this rule are governed by the rules applicable to depositions of nonparties in a pending suit"' and?that '[t]he scope of discovery in depositions authorized by this rule is the same as if the anticipated suit or potential claim had been filed.?' Id. at 8, quoting TEX. R. CIV. PROC The First Court of Appeals then found, "Rule 205, which governs discovery of nonparties, permits a party to compel discovery from a nonparty by serving a subpoena compelling 'a request for production of documents or tangible things... served with a notice of deposition on oral examination or written questions.?' In re VikasAnand, 2013 Tex. App. LEXIS 4157 at 8, quoting TEX. R. CIV. PROC (c). The First Court of Appeals then held,?therefore, the language of these rules when read together permits a RULE 202 PETITION FOR ORAL DEPO!3?TIONS DUCES TECUM/bn Page 9

10 petition seeking a pre-suit deposition under Rule 202 to also request the production of documents." In re Vikas Anand, 2013 Tex. App. LEXIS at 8. This Court' s Order, accordingly, should allow Petitioners to obtain videos, documents, and other tangible things from Respondents to use when Respondents appear for their oral depositions. No statute prevents the release of the dash-cam video of Officer Clark's shooting of the decedent. The Euless Police Department, which has investigated the decedent's shooting, has filed no charges against Officer Clark or anyone else and arrested no one in connection with the decedent's shooting. Accordingly, that video is subject to disclosure under both the Open Records and Freedom of Information Acts, since no criminal investigation is on-going. Based upon the foregoing, that dash-cam video is a proper subject of a subpoena duces tecum in connection with the oral depositions of both Officer Clark and the Custodians of Records for the Grapevine Police Department and for the Tarrant County Criminal District Attorney. WHEREFORE, PREMISES CONSIDERED, Petitioners pray that this Court issue citations to Officer Robert Clark and the Custodians of Records for the Grapevine Police Department and for the Tarrant County Criminal District Attorney and a Notice of the hearing on this petition for service upon those Respondents; find that: A. Allowing Petitioners to take the oral depositions duces tecum of Officer Clark and the Custodians of Records for the Grapevine Police Department and for the Tarrant County Criminal District Attorney may prevent a failure or delay of justice in an anticipated suit; or B. The likely benefit of allowing Petitioners to take the oral depositions duces tecum of Officer Clark and the Custodians of Records for the Grapevine Police Department and for the Tarrant County Criminal District Attorney to investigate a potential claim outweighs the burden or expense of the procedure; find that no protections are necessary or appropriate to protect Officer Clark, the Custodians of RULE 202 PETIT?ON FOR ORAL DEPOSITIONS DUCES TECUM/bn Page 10

11 Records, or any person who may be affected by the procedure; and enter an Order granting this Petition for Oral Depositions Duces Tecum Pursuant to Texas Rule of Civil Procedure 202 and stating the Petitioners must notice the oral depositions duces tecum of Officer Clark and the Custodians of Records as required by Rule 199 of the Texas Rules of Civil Procedure. Petitioners also pray for such other and further relief to which they may be justly entitled at law or in equity, specific or general. Respectfully submitted, LAW OFFICES OF DOMINGO A. GARCIA, p.c. i By:,-,,.. Domingo A. Garci,,/- State Bar No. 076 Paul R. Hornung State Bar No. OO Albert Villegas State Bar No ! 600 Bank of America Twr. - Oak Cliff 400 S. Zang Blvd. Dallas, Texas Telephone: (214) Facsimile: (214) avillegas@,dgley.com ATTORNEYS FOR PETITIONERS RULE 202 PETITION FOR ORAL DEPOSITIONS DUCES TECUM/bn Page 11