NUMBER 13-23-00370-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

 

IN RE CITY OF MCALLEN, TEXAS

 

On Petition for Writ of Mandamus. 

 

OPINION

Before Chief Justice Contreras and Justices Longoria and Silva

Opinion by Justice Silva1

By petition for writ of mandamus, relator the City of McAllen, Texas (the City), 

contends that the trial court2 abused its discretion by ordering its Mayor and one of its 

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 

47.4 (distinguishing opinions and memorandum opinions).

2 This original proceeding arises from trial court cause number C-0074-19-D in the 206th District 

Court of Hidalgo County, Texas, and the respondent is the Honorable Rose Guerra Reyna. See id. R. 52.2.
2

Commissioners to personally attend mediation in an inverse condemnation suit. We agree 

with the City, and we conditionally grant its petition for writ of mandamus.

I. BACKGROUND

Real parties in interest Matthew Crocker and Marianna Wright filed suit against 

Artillery, L.L.C. (Artillery), Cutler Repaving, Inc. (Cutler), and the City. According to the 

real parties’ second amended petition, these defendants excavated, leveled, and repaved 

the 1300 block of Highland Avenue in North McAllen, and their work caused flooding and 

damage to the real parties’ residence. The real parties alleged a cause of action for 

negligence against Artillery and Cutler and alleged a cause of action for inverse 

condemnation against the City. According to the real parties, the City “intentionally 

designed the repaving project to use [their] property within its drainage plan” and their 

property “has been taken for a public purpose without adequate compensation, or consent 

in violation of Article I, Section 17 of the Texas Constitution.” See TEX. CONST. art. I, § 17

(“No person’s property shall be taken, damaged, or destroyed for or applied to public use 

without adequate compensation being made . . . .”).

On or about August 1, 2023, the real parties filed a motion to compel mediation. 

According to this motion:

1.1 [Real parties’] counsel has diligently pursued the scheduling of a 

mediation between the parties. After mutual agreement, the mediation is set 

to take place on August 17, 2023, with the mediator Scott McLain. 

Considering this, [real parties] request the Court’s intervention to ensure 

that [the City] is required to have a non-quorum number of decision-makers 

present at the mediation, fully empowered to settle this case.

1.2 [Real parties’] counsel holds the belief that [d]efense counsel might 

intentionally refrain from having someone with proper authority attend the 

mediation, possibly as an indirect attempt to avoid settling this case. [Real 
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parties have] been informed that they plan to not have any of the 

commissioners present and only taking [sic] employees that can make 

recommendations to the decision makers.

1.3 In addition, [real parties] respectfully request that this Court mandate 

the personal attendance of all necessary parties involved in negotiation and 

authorization of settlement at the mediation.

On August 9, 2023, the City filed a response to the motion to compel mediation. 

The City’s response stated that the parties had previously mediated the matters raised in 

this litigation, but did not reach an agreement, and that the parties thereafter “agreed that 

a second mediation would be prudent.” The City disputed the real parties’ allegations that 

they had assiduously attempted to schedule mediation. The City further responded to the 

real parties’ contention that the City might “intentionally refrain from having someone with 

proper authority attend mediation” as follows:

[Real parties’] attempt to compel the attendance of elected officials is 

nothing more than harassment and in no way increases the chances of 

settlement. [City] is a self-insured, home-rule municipality, and [City] has 

advised [real parties] that both the City Engineer and City Management will 

attend mediation with settlement authority. If this case were brought against 

an insurance company, [real parties] would surely not insist the company’s 

board of directors attend in lieu of an insurance adjuster.

Moreover, attendance by a non-quorum of City Commissioners is not 

attendance of a decision-maker. Only a quorum of the City Commission can 

confer authority, and said authority must be conveyed at a properly noticed 

meeting in compliance with the Texas Open Meetings Act. Therefore, even 

if a non-quorum of elected officials desired to confer more settlement 

authority at mediation, they would not have the authority to do so.

[Real parties’] baseless allegation that [d]efense counsel intends to 

attend mediation without proper authority in an attempt to avoid settlement 

is beyond comprehension and sanctionable. Defense counsel has diligently 

pursued mediation and has communicated the intent to attend mediation 

with settlement authority, just as is done in every other case.
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The trial court held a non-evidentiary hearing on the real parties’ motion to compel 

mediation. On August 14, 2023, the trial court signed an order granting the motion. The 

order states that “all parties with authority to settle must be present in person” and

requires “a designated Commissioner and Mayor” to attend mediation.

The City thus filed this original proceeding and requested temporary relief. By one 

issue, the City asserts that the trial court abused its discretion by ordering the Mayor and 

a Commissioner to personally attend mediation. The City requested that we order an 

immediate stay and continuance of the mediation, which was scheduled to occur on 

August 17, 2023. We granted the City’s request for an immediate stay and ordered the 

mediation to be stayed pending the resolution of this original proceeding. See TEX. R.

APP. P. 52.10(b). We requested the real parties, or any others whose interest would be 

directly affected by the relief sought, to file a response to the petition for writ of mandamus. 

See id. R. 52.2, 52.4, 52.8. We have now received and reviewed the real parties’ response 

to the petition. The real parties assert, inter alia, that the City waived its right to object to 

the trial court’s mediation order and that the trial court did not err in ordering the Mayor, 

“a decision maker for the City who has independent authority” to settle the case, and a 

Commissioner, “who is responsible for investigating [C]ity claims,” to appear at mediation.

II. STANDARD OF REVIEW

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. 

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial 
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court abused its discretion; and (2) the relator lacks an adequate remedy on appeal. In re 

USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re 

Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833, 

839–40 (Tex. 1992) (orig. proceeding). “A trial court abuses its discretion when its ‘ruling 

is arbitrary and unreasonable, made without regard for guiding legal principles or 

supporting evidence.’” In re State Farm Mut. Auto. Ins., 629 S.W.3d 866, 872 (Tex. 2021)

(orig. proceeding) (quoting In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 

2016) (orig. proceeding)). We determine whether the relator possesses an adequate 

appellate remedy by balancing the benefits of mandamus review against the detriments

in a fact-specific inquiry based on the circumstances of the case. In re Acad., Ltd., 625 

S.W.3d 19, 32 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 

at 136.

III. MEDIATION

“It is the policy of this state to encourage the peaceable resolution of 

disputes . . . and the early settlement of pending litigation through voluntary settlement 

procedures.” TEX. CIV. PRAC. & REM. CODE ANN. § 154.002; see LaLonde v. Gosnell, 593 

S.W.3d 212, 226–27 (Tex. 2019) (“Consistent with the state’s strong public policy favoring 

the peaceable resolution of disputes, mediation is an effective tool for resolving claims 

outside of litigation.”); Klinek v. LuxeYard, Inc., 596 S.W.3d 437, 447 (Tex. App.—

Houston [14th Dist.] 2020, pet. denied) (noting that Texas courts support a public policy 

that encourages settlement). To implement this policy, § 154.021(a) of the Texas Civil 

Practice and Remedies Code authorizes a court to refer a dispute to an alternative dispute 
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resolution procedure. See TEX. CIV. PRAC. & REM. CODE ANN. § 154.021(a); In re Vinson, 

632 S.W.3d 1, 3 (Tex. App.—El Paso 2019, orig. proceeding). The court may do so either 

sua sponte or on the motion of a party. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 154.021(a). The court must confer with the parties regarding which alternative dispute 

resolution procedure would be “the most appropriate.” Id. § 154.021(b). If the court 

determines that a dispute is appropriate for such a referral, the court must notify the 

parties of its determination. See id. § 154.022(a). Thereafter, any party may file a written 

objection to the referral within ten days after receiving notice. See id. § 154.022(b). If the 

court finds that there is a reasonable basis for an objection, the court may not refer the 

dispute to an alternative dispute resolution process. See id. § 154.022(c); Beldon Roofing 

Co. v. Sunchase IV Homeowners’ Ass’n, Inc., 494 S.W.3d 231, 238 (Tex. App.—Corpus 

Christi–Edinburg 2015, no pet.).

Thus, if there is no objection or if the trial court finds there is no reasonable basis 

for an objection, the trial court may compel litigants to engage in mediation or another 

format for the alternative resolution of the dispute. See In re Vinson, 632 S.W.3d at 3; 

Beldon Roofing Co., 494 S.W.3d at 240; In re Daley, 29 S.W.3d 915, 918 (Tex. App.—

Beaumont 2000, orig. proceeding). However, “it cannot force or compel them to settle 

their differences.” In re Vinson, 632 S.W.3d at 3; see In re Daley, 29 S.W.3d at 918; 

Nueces County v. De Pena, 953 S.W.2d 835, 836 (Tex. App.—Corpus Christi–Edinburg

1997, orig. proceeding); Decker v. Lindsay, 824 S.W.2d 247, 250–51 (Tex. App.—

Houston [1st Dist.] 1992, orig. proceeding). In this regard, the trial court has no power to 
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require the parties to negotiate in good faith. Beldon Roofing Co., 494 S.W.3d at 240; In 

re Acceptance Ins., 33 S.W.3d 443, 451 (Tex. App.—Fort Worth 2000, orig. proceeding).

IV. ANALYSIS

By one issue, the City contends that the trial court abused its discretion by ordering 

the Mayor and a Commissioner to attend mediation. We begin our review by addressing 

the real parties’ argument that the City failed to preserve error. Specifically, the real 

parties contend that the trial court signed its mediation order on August 14, 2023, but the 

City did not subsequently file an objection to the mediation order within ten days as 

required by the code of civil procedure. The real parties thus allege that the City has 

waived the arguments presented in this original proceeding.

We disagree with the real parties’ contention that the statutory requirement for an 

objection applies to bar mandamus relief under the facts at hand. The code provides that 

when the trial court determines that it is appropriate to refer a dispute to an alternative 

dispute resolution, a party “may” file a written objection to the referral within ten days after 

receiving notice of the referral. See TEX. CIV. PRAC. & REM. CODE ANN. § 154.022(a), (b). 

Thereafter, if the court agrees that there is a reasonable basis for the objection, the court 

may not proceed with the referral. See id. § 154.022(c). Here, the City agreed to mediate 

this case, not once, but twice. The City did not object to mediating the dispute. Rather, 

the City objected to a requirement for mediation suggested by the real parties. In their 

motion to compel mediation, the real parties alleged that the City “might intentionally 

refrain from having someone with proper authority attend the mediation, possibly as an 

indirect attempt to avoid settling this case,” and that the City was not planning to send a 
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Commissioner to mediation but instead only planned to “tak[e] employees that can make 

recommendations to the decision makers.” The real parties specifically requested the trial 

court to “mandate the personal attendance of all necessary parties involved in negotiation 

and authorization of settlement at the mediation.” The City’s response to the real parties’

motion to compel mediation explicitly provides that the real parties’ “attempt to compel 

the attendance of elected officials is nothing more than harassment and in no way 

increases the chances of settlement”; that “[the City] has advised [the real parties] that 

both the City Engineer and City Management will attend mediation with settlement 

authority”; and that the City “has communicated the intent to attend mediation with 

settlement authority, just as is done in every other case.” After the City filed its response, 

the trial court nevertheless ordered the Mayor and a Commissioner to attend mediation. 

The City timely made the trial court aware of its objection regarding the identity of those

individuals who should attend mediation. See TEX. R. APP. P. 33.1(a); USAA Tex. Lloyds 

Co. v. Menchaca, 545 S.W.3d 479, 510 (Tex. 2018). 

We turn our attention to the merits. It is abundantly clear that in referring a case to 

mediation, the trial court may require the parties to send representatives with full 

settlement authority to attend mediation. In re Vinson, 632 S.W.3d at 3; Nueces County, 

953 S.W.2d at 836. However, the trial court does not have the authority to choose the 

representative of a party, or to mandate that one representative rather than another must 

attend. In re Vinson, 632 S.W.3d at 4; Nueces County, 953 S.W.2d at 836–37. This Court 

has previously addressed the specific issue presented in this case. See Nueces County, 

953 S.W.2d at 836–37. In Nueces County, two plaintiffs filed an employment suit against 
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the Texas Workforce Commission and Nueces County. See id. at 836. The trial court 

issued a mediation order requiring each party and a representative having settlement 

authority to attend mediation. See id. Acting through its commissioners’ court, Nueces 

County provided authority to its county attorney to appear at mediation and to settle the 

plaintiffs’ lawsuit within a specified range. See id. The plaintiffs thereafter filed a motion 

requesting the trial court to compel the County Judge of Nueces County to appear at 

mediation. See id. The trial court granted the plaintiffs’ motion and required Nueces 

County Judge Richard Borchard to personally attend the mediation conference. See id.

Nueces County sought mandamus relief. See id. In resolving this original proceeding, we 

noted that the county judge was not a party to the lawsuit and had not been given the 

authority to settle the lawsuit on the county’s behalf. See id. We further noted that a county 

can act only through its commissioners’ court and that individual members had no 

authority to bind the county by their separate actions and agreements. See id. at 836–37. 

We thus reasoned:

Accordingly, Judge Borchard has no authority on his own to settle the 

underlying dispute absent action by the commissioners’ court. His presence 

at the mediation conference may indirectly encourage, or operate as an 

informal vehicle for, the eventual settlement of the dispute. However, a 

person’s indirect influence over settlement proceedings does not render 

that person subject to mandatory attendance at mediation. Otherwise, the 

trial court could arguably require a party’s relatives, close friends, or 

business associates to attend mediation for advice and support. Such 

authority is not provided in the mediation statute.

Though the issue appears to be of first impression with regard to courtordered mediation, in the related context of “apex depositions” the Texas 

Supreme Court has held that a party seeking to depose the chief executive 

or other high corporate officer of his opponent may not do so arbitrarily and 

without any real need for that officer’s presence, but must first show (1) that 

there is a reasonable indication that the official’s deposition is calculated to 
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lead to the discovery of admissible evidence, and (2) that less intrusive 

methods of discovery are unsatisfactory, insufficient or inadequate. Crown 

Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995) [(orig. 

proceeding)].

The county judge, as presiding officer of a county, like the chief executive 

officer of a private corporation, is an important official whose presence at 

deposition or mediation should not be ordered absent compelling reasons. 

Because no compelling reason has been shown for Judge Borchard’s 

presence at mediation, we conclude that the trial court abused its discretion.

Id. at 837.

The real parties argue that Nueces County is distinguishable from the case at bar 

because the Mayor possesses decision making authority for the City under the City 

Charter, and similarly, a Commissioner has the responsibility to investigate claims against 

the City.3 The real parties further contend that the trial court possesses discretion to 

require the Mayor and a Commissioner to attend mediation on public policy grounds. 

According to the real parties, to hold otherwise would set “a dangerous precedent” which 

would “undermine[] the democratic values of our justice system.” In this regard, the real 

3 Under the Charter for the City of McAllen, “the governing board of McAllen shall . . . consist of a 

Board of Commissioners composed of a Mayor and six (6) commissioners.” MCALLEN, TEX., CHARTER, art. 

3, § 1. The Charter provides that:

The Mayor shall be the chief executive officer of McAllen and shall see that all laws thereof 

are enforced. He shall be clothed with all the authority that is now or may hereafter be 

vested in a Mayor by the General Laws of the State of Texas so far as the same may be 

applicable and not in[]consistent with this Charter. He shall have and exercise full power 

prerogative and authority acting independent or in concert with the Board of 

Commissioners as are conferred by the provisions of this Charter, or as may be conferred 

upon him by the Board of Commissioners not inconsistent with the general purposes and 

provisions of this Charter, and shall have the power to administer oath and sign all 

contracts. 

Id. art. 3, § 13. The Charter further provides the Mayor and the Commissioners with the “duty . . . to 

investigate” the City’s departments and “the official acts and conduct of the city officers.” Id. art. 3, § 22. 
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parties reject any concept that the Mayor and Commissioners “are too important and busy 

to attend mediation.”

We disagree with the real parties’ analysis of Nueces County. Our holding in 

Nueces County rested not only on the fact that the County Judge “ha[d] no authority on 

his own to settle the underlying dispute absent action by the commissioners’ court,” but 

also on policy considerations similar to those underlying the apex deposition doctrine.

4

See id. In fact, we specifically held that high ranking governmental officials may not be 

required to personally attend mediation absent “compelling reasons.” See id. And with 

regard to the real parties’ public policy arguments, we note that high ranking 

governmental officials owe duties and have responsibilities to all of the citizens that they 

serve, and those obligations are not limited to the litigants in a specific case.

Ultimately, the real parties have not offered any evidence showing that the City 

representatives who will attend mediation lack the requisite authority to settle the suit, 

and they have not offered compelling reasons that would require the presence of the 

Mayor and a Commissioner at mediation. We conclude that our decision in Nueces 

County controls, and accordingly, the trial court abused its discretion in ordering the 

Mayor and a Commissioner to attend mediation. See id.; see also In re Vinson, 632 

4 Under the apex deposition doctrine established in Crown Central, a party seeking to depose a 

corporate president or other high-level corporate official must show that the official arguably has unique or 

superior personal knowledge of discoverable information in order to obtain the deposition. In re Am. Airlines, 

Inc., 634 S.W.3d 38, 40 (Tex. 2021) (orig. proceeding) (per curiam); see Crown Cent. Petroleum Corp. v. 

Garcia, 904 S.W.2d 125, 128 (Tex. 1995). If that showing is not made, the trial court must grant a protective 

order in favor of the official and require the party seeking the deposition to attempt to obtain the discovery 

through other methods. In re Am. Airlines, Inc., 634 S.W.3d at 40. After making such good faith efforts to 

acquire the discovery through less intrusive methods, the requesting party may depose the apex official 

only after establishing “(1) that there is a reasonable indication that the official’s deposition is calculated to 

lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are 

unsatisfactory, insufficient, or inadequate.” Id. (quoting Crown Cent., 904 S.W.2d at 128).
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S.W.3d at 4. Similarly, examining the facts and circumstances of this case, we conclude 

that the City lacks an adequate remedy by appeal to address this error. See Nueces 

County, 953 S.W.2d at 837. We sustain the City’s sole issue.

V. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus, 

the response filed by the real parties in interest, and the applicable law, is of the opinion 

that the City has met its burden to obtain mandamus relief. Accordingly, we lift the stay 

previously imposed in this case. See TEX. R. APP. P. 52.10. We conditionally grant the 

petition for writ of mandamus, and we direct the trial court to vacate its August 14, 2023 

order insofar as it requires the presence of “a designated Commissioner and Mayor” at 

mediation. Our writ will issue only if the trial court fails to promptly comply.

CLARISSA SILVA

Justice

Delivered and filed on the

18th day of September, 2023.