## NO. 17
- 0818

=========================================================== IN THE SUPREME COURT OF TEXAS AUSTIN, TEXAS
=========================================================== In re VCC, LLC, VRATSINAS CONSTRUCTION CO., NATO GARCIA D/B/A

NATO GARCIA COMPANY, AND PHI SERVICE AGENCY, INC., Relators
========================================================== From the 93rd Judicial District Court of Hidalgo County, Texas Cause No. C

- 1269

- 16B, Honorable Rudy Delgado, presiding
=========================================================== RESPONSE TO THE PETITION FOR WRIT OF MANDAMUS
===========================================================

Lorien Whyte Anthony F. Constant lorienwhyte@pozzaandwhyte.com office@constantlawfirm.com State Bar No. 24042400 State Bar No. 04711000 Dan Pozza 800 N. Shoreline Blvd., Ste. 2700 S danpozza@pozzaandwhyte.com Corpus Christi, TX 78401 State Bar No. 16224800 (361) 698

- 8000 Office POZZA & WHYTE, PLLC. (361) 887

- 8010 Fax 239 East Commerce Street San Antonio, Texas 78205 Telephone: 210

- 226

- 8888 Facsimile: 210

- 222

- 8477

Attorneys for Pharr
- San Juan
- Alamo Independent School District FILED 17-0818 12/22/2017 11:17 AM tex-21458098 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERKii TABLE OF CONTENTS TABLE OF CONTENTS

.......................................................................................... ii INDEX OF AUTHORITIES

.................................................................................... iii SUMMARY OF ARGUMENT

................................................................................. 1 PROCEDURAL HISTORY

....................................................................................... 2 ARGUMENT

............................................................................................................. 4 A. The petition for writ of mandamus has been r endered moot by the trial court’s willingness to move the trial to February 5, 2018.

....................................................... 4 B. The remaining unbriefed complaints should not r emain pending before this Court.

......................................................... 7 1. The unbriefed discovery complaints do not pr esent any error that is subject to mandamus review.

......................................................................................... 7
a. Orders related to “49 million emails” ( Tabs 16

- 17 of relators’ Amende d Em ergency Motion).

......................................................... 7 b. Remai nin g discovery orders (Tabs 9

- 15 of relators’ Amended Emergency Motion).

............................................................................ 9
c. Joinder Order.

................................ ................................ . 11 2. There is no reason to continue this pr oceeding based on numerous unspecified discovery complaints.

............................................................... 12 3. It is not judicially efficient to maintain an e xtraordinary writ on the Court’s docket when the only briefed issue addressed in the petition for writ of mandamus is moot.

..................................... 13 PRAYER

.................................................................................................................. 15 TRAP 52.3(J) CERTIFICATION

............................................................................ 17 CE RTIFICATE OF COMPLIANCE

....................................................................... 17 CERTIFICATE OF SERVICE

................................................................................ 18iii I NDEX OF AUTHORITIES Case(s) Page(s)
G en. Motors Corp. v. Gayle , 951 S.W.2d 469 (Tex. 1997) (orig. proceeding)

.......................................... 15
I

n re Allied Chem. Corp., 227 S.W.3d 652 (Tex. 2007) (orig. proceeding)

............................................. 6
In re Bernard, 99 S.W.3d 929 (Tex. App.

— Houston [14th Dist.] 2003, orig. proceeding)

............................ 5
I

n re County of El Paso, 104 S.W.3d 741 (Tex. App.

— EI Paso 2003, orig. proceeding)

...................... 5
I

n re Duncan, 62 S.W.3d 333 (Tex. App.

— Houston [1st Dist.] 2001, orig. proceeding)

..... 5
I

n re Fackrell, No. 12

- 10

- 00086

- CV, 2010 WL 3232250 (Tex. App.

— Tyler Aug. 17, 2010, orig. proceeding)

..................................... 5
I

n re Home State County Mut. Ins. Co., No. 12

- 07

- 00062

- CV, 2007 WL 1429584 (Tex. App.

— Tyler May 16, 2007, orig. proceeding)

................................................ 5
I

n re Kellogg Brown & Root, Inc., 166 S.W.3d 732, (Tex. 2005) (orig. proceeding)

............................................ 5
I

n re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding)

........................................... 13iv In re Scoggins Const. Co., Inc., No. 13

- 08

- 00548

- CV, 2008 WL 4595202 (Tex. App.

— Corpus Christi Oct. 15, 2008, mand. denie d)

.......................... 12
W alker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) .................................... 10, 13
Ru les Page(s)
T ex. R. App. P. 52.1

................................................................................................ . 14
T ex. R. App. P. 52.3(e)

............................................................................................ 14
T ex. R. App. P. 56.2

................................................................................................... 61

TO THE HONORABLE SUPREME COURT OF TEX AS: Real Party i n Interest, P harr -S an J uan -A lamo Independent S chool District (Pharr ISD) files th is Response to th e P etition for W rit of M andamus as follows:
SUMMARY OF AR GUMENT The B riefed I ssue Pharr I SD is unopposed to gr antin g the r elief r equeste d by r elators i n their s o le b riefed issue. Relators reque st that t h is co urt “d irec t the tria l court t o (1 ) vacate i ts ruling s den y ing Relators’ m o tions f or c ontinuance, ( 2 ) c o ntinu e the tr ia l settin g to Feb ruary 5, 20 17 [sic], ( 3) iss ue a n e w sc heduling order...” Petition at 30

. The t rial

cour t ha s indicated its willing ness to move the tria l setting t o February 5, 20 18, a nd Pharr I SD is unopposed. The Unb riefed I ssues Relators have indicated in their Supplemen tal Petition for Writ of Mandamus that they intend to mandamus nin e orders they have attached to their Amended Emergency Motio n should this Court order full briefing on the merits. Amended Emergency Mo tion Tabs 9-1 7

. Rel ators also list one u nbriefed issue regarding joinder in their petition for writ of mandamus. Howev er, none of the orders that have been issued by the trial cou rt require correction via mandamu s review. Ph arr ISD addresses the un briefed issues in Section B , 1.2 PROCEDURAL H ISTORY On October 5, 2017, relators VCC, LLC, Vratsinas Construction Co., Nato Garcia d/b/a Nato Garcia Company, and Phi Service Agency, Inc. (“relators”) filed the underlying petition for writ of mandamus. See Petition for Writ of Man damus. The following day, on October 6, 2017, relators filed an Emergency Motion for Temp orary Relief Arising from Hurricane Harv ey. See Emergency Motion for Temporary Relief. The Emerg ency Motion requested a stay of: (1) the discovery deadlin e; (2 ) the November 27 trial setting; and (3) any further ruling by the trial court regarding deadlines (unless it grants a continuance until February 5, 2018). Id. at 18. On October 30, 2017, relators filed an Amended Emerg ency Motion fo r Tempo rary Relief Arising fro m Hurricane Harvey. See Amended Emergen cy Mo tion. The Amended Motion added a request that this Court stay “the Octo ber 25 order regarding the 49 million emails.” Id

. at 23 (October 2 5, 2 017 o rder found in Tab 14 of Relato rs’ Amended Motion). On Octo ber 31, 2017, this Court issued an order that stayed the following: (1) the trial court order issu ed October 24, 2017, Third Amended Discovery Control Order and Trial Setting fo r Southwest Early College High School, and (2) the trial cou rt order issued Oct ober 25, Order on Motion to Compel, Supplemental Motion to Compel, and First Amended Supplemen tal Motion to Compel. October 31, 2017 Order. The order3

also requested that real parties in interest f ile a r espon se t o the pe tition for w rit of mandamus. Id

. O n November 2, 2017, Pharr ISD filed in the trial court a Motion to Enter Proposed Fourth Amended Discovery Control Order and Trial Setting, requesting that the trial d ate be mo ved to February 5, 2018. Supp. Mand amus Record Tabs 6, 8. Shortly after Pharr IS D filed its req uest asking for th e February 5, 2018 trial setting, relators filed a Supplement to Petition for Writ of Mandamus in this Court, informing this Court of their intent to add mu ltiple other comp laints relating to the discovery rulings if th is Co urt grants briefing o n the merits. See Supp lement to Petition for Writ of Ma ndamus. On Novemb er 13, 2017, the trial court held a h earing on Pharr ISD’s motions. Supplemental Mandamu s Record Tab 9. The trial court indicated its desire to move the trial da te to February 5, 2018, but was con cerned that it did no t have the authority to do so due to this Cou rt’s October 31, 20 17 o rd er grantin g the stay. At that time, the trial court declined to sign the order. Id. at 44. On Novemb er 14, 2017, Pharr ISD filed a Motion to Clarify this Court’s October 31, 2017 Order Granting Stay, Or, Alternatively, Motio n to Lift Stay In Part. After th is Court o rdered relators to file a response, and Pharr ISD subsequently filed a reply in support of the motion, this Cou rt issued a Revised Stay Order on December 15, 2017 . December 15, 2017 Order. The revised order provided that: “Th e trial court is also stay ed from issuing further discovery an d trial deadlines4

pending f urther order o f t his Court.” Id. As a r esult, P harr I SD files t his R esp onse t o the P etition for W rit of Mandamus.
ARGUMENT
A. The petition for writ of mandamus has been rendered moot by the trial court’s willingness to move the trial to February 5, 2018. The basis of relators’ petition for writ of mandamus was that the trial c ourt erred by not continuing the trial setting to February 5, 2018 and entering a new scheduling order. Petition at 30. Specifically, relators limited their request to the following: “Relators respectfully request that this Court grant their Petition for Writ of Mandamus and direct the trial court to (1) vacate its rulings denying Relators’ motions for continuance, (2) continue the trial setting to February 5, 2017[sic], (3) issue a new scheduling order, and (4) grant Relators’ motion for leave to file a th ird

- party petition against Armko Industries, Inc.” Id

. And, on October 30, 2017 in their Amended Emergency Motion, relators reiterated their position: “Granting a stay of the discovery deadline and the trial setting

— and ultimately granting mandamus r elief

— will cure much of this harm. It will allow the affected law firms [sic] fully recover from the storm. It will allow the parties to complete the necessary depositions and to review and process the millions of emails.” Amended Emergency Motion at 17

- 18. The trial court has indicated its intent to giverelator s the ve ry r elief th ey sou gh t via m andamus from the c ourt of appeals an d now this Court. The pe tition for w rit of m andamus is now moot.

Texas courts hav e consistently held that a mandamus is moot when a trial court
vacates o r sets aside the order made the basis of a petition for writ of mandamus. See, e.g., In re Fackrell , No. 12 -1 0

- 00086

- CV, 2010 WL 3232250, at *4, n.4 (Tex. App.

— Tyler Au g. 17 , 2010, orig. p roceedin g) (“a trial court can render a petitio n for writ of mandamus mo ot b y withdrawing the order at issu e.”) ; In re Home State County
Mut. Ins. Co ., No. 12 -0 7 -0 0062 -C V, 2007 WL 1429584, at *2 (Tex. App. —T yler May 1 6, 2007, orig

. proceeding) (same); In re County of El Paso , 104 S.W.3d 741, 74 3 (Tex

. App. —E I Paso 2003, orig. proceeding) (dismissing mandamus proceeding as moot after trial court v acated order that formed the basis of the petition for writ of mandamus); In re Bernard , 99 S.W.3d 929, 929 (Tex. App. —H ouston [14th Dist.] 2003, orig. proceeding) (same); In re Dun can , 62 S.W.3d 33 3, 33 4 (Tex. App.
—H ouston [1st Dist.] 20 01, orig. proceeding ) (same). The trial court h as indicated its willingness to do so if allowed by this Court. And, this Court has been clear that “[a] case b ecomes moot if a controversy ceases to exist between the parties at any stag e of the legal pro ceedings, including the appeal.” In re Kellogg Brown & Ro ot , Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding )

. The controversy over the trial date is no w over sin ce the trial court is willing to give relators the o nly da te the y ha ve e ver a ske d for: February 5 , 20 18. G rantin g mandamus 56

relief at this point would be useless and unavailing, which is an improper use of a petition for writ of mandamus. See In re Allied Chem. Corp

. , 227 S.W.3d 652, 666 (Tex

. 2007) (orig. proceeding)

. Therefore, the trial court sho uld be allowed to grant th e Febru ary 5, 2018 trial date and the petition for writ of mandamus sho uld be dismissed as moot pursuant to Texas Rule of Appellate Procedu re 56.2

. Relators have never requested from the tria l court any trial date other than Febru ary 5, 2018. Relators have also never pinpointed a specific trial date beyond February 5, 2018 for this Court to consider. In their Amended Emergency Motion , they simply argued: “In their mandamus petition, Relato rs s eek a writ directing the trial court to grant a continuance to the February 5, 2018 back -u p trial date. Given everything that has transpired in the last th ree weeks, even that date may no t be enough. But the most important thing is to stay wh at is cu rrently happening in Hidalgo County.” Amended Emergency Motion pg . 3 , n.2. Therefore, the only requ est that has ever been made to the trial court and this Court is to move the trial setting to Feb ruary 5, 2018. Th ere is no request that has been refused that could su ppo rt mand amusing the trial court and ordering a trial setting b eyond February 5, 20 18.7 B. The remaining unbriefed complaints should not remain pending before this Court.
The only issue briefed in the petition for writ of mandamus pertains to the trial setting. Petition at 11. Relators’ second issue presents an unbriefed complaint that the trial court failed to grant relators’ motion for leave to file a third

- party petition against the company Armko

. Id . But relators’ unbriefed complaints do not end the re. Shortly after Pharr ISD requested the new trial setting of February 5, 2018, relators filed a supplement to their petition for writ of mandamus, attempting to expand this Court’s review to an unspecified number of discovery rulings should this Court g rant briefing on the merits. See Supplement to Petition for Writ of Mandamus

. 1. The unbriefed discovery complaints do not present any error that i s subject t o mandamus review. Relators’ Supplement to Petition for Writ of Mandamu s indicates relato rs intend
to incorporate the orders attached to their Amend ed Emergency Motion if this Court orders full briefing on the merits. (Relators attached orders labeled Tabs 9

- 17 to their Ame nded Emergency Motion ). Howev er, none of the rulings that resu lted in those orders warrant mandamus relief.

a. O rders related to “49 million emails” (Tabs 16
- 17 of relators’ Amended Emergency Motion).
In t heir Amended Emergency Motion, relators complained that there were “49 million emails” they needed to review. Amended Emergency Motion 13

- 14. However,8

the “ 49 million emails” tha t have be e n generated by P harr I SD a re th e r esu lt of
tw o orders en tered by the tr ial cou rt at the request of relators

. On Oc tober 3, 2 017,

r elators were m ade a ware that t he searches relators requeste d g enerate d 49 million emails. Supp

. Ma nd

amus Record Tab 3 (October 3, 2 0 17 letter f rom P harr I SD in dicating relators’ se arc h terms generated over 4 9 million emails). Then, o n October 10 , 2 017 the tr ial cou rt entere d the f irst order w hich require d Pharr I SD “ to conduct electronic s earche s of t he term pr o vide d by VCC’ s counse l at th e hearing of August 21, 2 017 and in the l etter of September 22, 2017 a nd provide the r equired (n on -p rivileged) doc uments to counsel for VCC o n o r befo re 5:0 0 p.m. on October 2, 201 7 in e ither p aper or e lectronic f orm.” Sup

p. Manda mus Record Tab 4 (Tab 16 of r elators’ Am ended Emerg ency M otio n). The secon d order,

e ntered o n October 1 8 , 2 017, granted r elators’ “ Motion to Comp el E -M ails” an d

o rdere d Pharr ISD t o produce “any a nd al l e -m a ils foun d by implementing the 1 60

searc h terms that Plaintiff, V CC, L LC, pr ovide d to Defendant, P harr -S an Juan Alamo Independent Schoo l District o n September 2 2, 2 017. ” Id. a t Ta b 5 (Tab 17 of

r elators’ Am end ed Emerg ency M otion ); T ab 10, Ex hibit A, p g . 375 (September 2 2,
2 017 le tter from r elator s with 160 search terms that returned millions of e mails); Tab 2 (Pharr I SD’s response to September 22, 2017 request for production). Both o rders were submitted b y r elators to the tr ial cou rt requ esti ng they be

s igned and e ntered. T

a bs 4 & 5

. Pharr I SD pr odu ce d the or ig ina l docume nts by
p r oviding direct a ccess t o the server h o ldin g the a rchives. Tabs 2 & 10

.9 The “49 million emails” are the direct result of the trial court granting relators the very relief they asked for, ordering production of seven years of archived emails on the District’s server using 160 terms chosen by relators

. Id . Therefore, the unbriefed
comp laint regarding the “49 million emails” does not present any abuse of discretion.
b. Remaining discovery orders (Tabs 9
- 15 of relators’ Amended Emergency Motion).
The orders found at Tabs 9

- 15 of relators’ Amended Emergency Motion all sustain an objection to an identical request for production for “All documents and communications regarding...” or “related to” or “reflecting” something where “document” includes all personal text, email, and internet messages of all of Pharr ISD’s thousands of employees. Amended Emergency Motion Tabs 9

- 15

. 1 Tabs 9 through 14 are the individual rulings on the objections, and Tab 15 is the order that encompasses all of the individual rulings. Id . All of the orders sustain the same objection to the same requests which defined “document” as: The term ‘document’ also includes any electronically stored information including text messages; emails from all email accounts, whether personal or for work; data; wall postings; and images sent and/or received via any social networking or internet site, including Facebook, Twitter, and MySpace.

1 Note that t he October 25, 2017 order that was the subject of relators’ Amended Emergency Motion to Stay , and subsequently this Court’s stay entered on October 31, 2017, merely sustained objections to relators’ requests for production. Amended Emergency Mo tion Tab 14

.10

Supp. Mandamus Record pg. 7, Tab 1; Tab 12 (Pharr ISD 's Response to First Request for Production). The request requires respondent to read each text message and email to d etermine if it resulted from the category in the request. There was

no error in sustaining the ob jection. Nothing abo ut these orders requires correction

. Relators are asking this Court t o freeze the trial court’s discretionary ability to manage its own docket and evolve with a fluid case when it has shown a willingness to

accommo date the parties. Relators want to dep rive th e trial court of its role and substitute this Court as the discov ery master over the myriad o f discovery matters that may need to be addressed in this case. Those types of discovery matters are properly relegated to the trial cou rt. Yet, relators wou ld like this Court to step in and become the parties’ trial court. Re lato rs should not be permitted to deprive the trial court of its role and flood this Court with all

o f the discov ery issu es that are approp riately within the trial court’s discretion and that are not the subject of this mandamus proceeding. This Court has long held that without imposing significant restrictions on mandamus review, “appellate courts would ‘embroil themselves un necessarily in incidental pre -t rial rulings of the trial courts’ and man damus ‘would soon cease to be an extraordinary writ.’” Walker , 82 7 S.W.2d at 842 (citing Braden v. Downey , 811 S.W.2d 922, 928 (Tex. 1991)). That is exactly what relators are seeking.11 c. Joinder Order.
Re lators provide the following in their Issues Presented: (Unbriefed Issue) The joinder deadline (April 7) passed before the parties had taken any depositions in the case. In early August, two of the school district’s experts testified at depositions that a third party

— Armko Industries, Inc.

— potentially shared responsibility for i ts alleged damages. Armko was the consultant who inspected, approved, and warranted the “building envelope” for the schools at issue. Within a week after the depositions, Relators filed a motion for leave to file a third

- party petition against Armko. Did t he trial court abuse its discretion by denying the motion for leave?
Petition at 11. However, the trial court did not abuse its d iscretion wh en it made its ruling on th e join der issu e. VCC deliberately chose not to join Armko even though on April 7,
2 017 (which was also the joinder deadline) relators designated Armko as a responsible third party. Supp. Man damus Record Tab 11 . Relators’ petition indicates that in early August two witnesses testified that Armko “potentially shared responsibility for it s alleged damages.” Petition at 11 . But clearly back in April of 2017 relators alread y k new that Armko “potentially shared respon sibility for [th e] alleged damages” since relators designated Armko as a responsible third party. The trial court did not abuse its discretion by enforcing a joinder deadline in a discovery contro l

o rder when VCC knew Armko was a responsible third party who “potentially shared respo nsibility for [the] damages” at the time of the joinder d eadline.12 Furthermore, a complaint regarding the trial court’s denial of the motion for leave to file a third

- party petition against Armko is not subject to mandamus review. See, e.g., In re Scoggins Const. Co., Inc. , No. 13

- 08

- 00548 - CV, 2008 WL 4595202, at *1 (Tex

. App.

— Corpus Christi Oct. 15, 2008, mand. denied)

. 2. There is no reason to continue this proceeding based on numerous u nspecified discovery c omplaints. It is unclear which rulings relators intend to challenge and how many of them there are since the complaints hav e never been briefed to this Cou rt. Relators h ave failed to adequately describe the additional issues they inten d to incorporate in this extraordinary writ should this Court o rder briefing on the merits. In their Supp lemental Petition, relators inform this Court that “Relators file this supplement to clarify that their petition for writ of mandamus presents the issu es stated in their original petition, as well as all issues and o rders discussed in and attached to their amended emergency motion.” S up plemen t to Petition for Writ of Mandamus at 2. However, even the Amended Emergency Motion is unclear as to what rulings will b e challenged. 2 As
prev iously discussed , there are no less than nine orders attached to the Amen ded Emergency Motion , most of which are never even mentioned relators' mo tion.

2 On pa ge 2 of the ir Amended E mergency M otion, r elators indi cate the irint ent to c hallenge several d iscovery r uling s.” Amended Emergency Motion at 2 , n.1. Then, on page 13, relators assert: “VCC believes that many if not all of these rulings constitute an abuse of discretion and will include challenges to some of them in this original proceeding should the Court ask for briefing on the merits.” Amended Emerg ency Motion at 13.13

Relators are attempting to use what is a very limited issu e before this Court (the d enial of a motion for continuance) and turn it into a vehicle by which they can as k this Court to consider a number of “discovery rulings” and a ruling on a motion for leave to file a third -p arty petition. None o f which have been pro perly id entified nor briefed for this Court. The current proceeding is brought on by the filing of an ex traordinary writ where relators have the high bu rd en of establishing the trial court abused its discretion and that relators lack an adequate remedy by appeal Walker v. Packer , 827 S.W.2 d 833, 839

– 4 0 (Tex. 1 992) (orig. proceeding) ; see also In re Prudentia l Ins. Co. of Am. , 148 S.W.3d 12 4, 135 (Tex. 2004) (orig. proceed ing) . The lack of identification of the specific issu es and the lack of briefing on the infinite number of issues leaves this Court witho ut the ability to even make a threshold determination as to whether this extraordinary review is warranted.
3. It is not judicially efficient to maintain an extraordinar y writ on the Court’s docket when the only briefed issue addressed in the petition for writ of mandamus is moot.

Re lators contend that for the sake of judicial efficiency “those issues” should be part of this mandamus proceeding rather than to file a conc urrent proceeding in the court of appeals. Supplement to Petition for Writ of Mandamus at 2. Relators provide no support for this Court to continue on its docket unbriefed and unidentified complaints when the only briefed complaint has been rendered moot. Relators simply cite to Texas14 Rule of Appellate Procedure 52.1(e). Id . However, Rule 52.1 addresses the commencement of a petition for writ of mandamus with the clerk and the appropriate caption that is necessary. Tex. R. App. P. 52.1. There is no subsection “(e)” in Rule 52.1. To the extent relators intended to cite to Texas Rule of Appellate Procedure 52.3(e) , which addresses the Court’s jurisdiction, there is no basis here to skip the court of appeals and retain the proceeding on this Court’s docket when the sole issue before the Court is now moot and the remaining issues are not identified or briefed. Rule 52.3(e) requires that a petition be presented to the court of appeals before being filed in the Supreme Court, unless there is a compelling reason not to do so. Tex. R. App. P. 52.1. There are no “compelling reasons” here for this Court to retain this petition on its docket and address the unidentified, unbriefed, and unknown number of issues, since the sole basis of the petition is now moot. There is nothing efficient about retaining a case on the Court’s docket and requiring Pharr ISD to respond to unrelated issues. In their Amended Emergency Motion to Stay, relators cited Gen. Motors Corp.

v. G ayle , 951 S.W.2d 469, 477 (Tex. 1997) (orig. proceeding) when referring to the “other error” they intend to later address. Amended Emergency Motion at 21, n.6. To the extent relators’ reliance on this Court’s opinion i n General Motors is to argue additional issues should be decided in this mandamus proceeding, General Motors is unpersuasive. In General Motors , this Court determined that there were “special15 circumstances” that warranted the Court issuing mandamus relief from the trial court’s order denying a jury trial since it was already issuing mandamus relief on the improper crash

- test order. See Gen. Motors , 951 S.W.2d at 477. This Court should not be lured into deciding unrelated and unbriefed issues that are not typically subject to mandamus especially when the sole issue that was the subject of the petition is now moot.
PRAYER

P harr ISD requests this Court deny the petition for writ of mandamus. Alternatively, Pharr ISD requests this Court either reconsider its stay order and authorize the trial court to reset the trial date to February 5, 2018 without the issuance of mandamus relief, or issue a limited and conditional writ directing the trial court to set the case for February 5, 2018. Relator further request s that all other relief requested be denied. Relator further prays for any additional relief to which it may be entitled. /s/ Lorien Whyte POZZA & WHYTE, PLLC Dan Pozza State Bar No. 16224800 Lorien Whyte State Bar No. 24042440 239 East Commerce Street San Antonio, Texas 78205 (210) 226

- 8888 – Phone (210) 22 2

- 8477 – Fax lorienwhyte@pozzaandwhyte.com16 Juan J. Hinojosa State Bar No. 09701400 THE HINOJOSA LAW FIRM, P.C. 612 West Nolana Ave., St e. 410 McAllen, Texas 78504 Telephone: (956) 686

- 2413 Fax: (956) 686

- 8462 jjhinojosa@bizrgv.rr.com

Rose Vela State Bar No. 16958050 224 Calle Cenzio Brownsville, TX 78520 (956) 24 8

- 7673 Office Rose.vela@me.com
Rene Ramirez State Bar No. 16475600 2918 South Jackson Rd., Ste. 200 McAllen, Texas 78503 (956) 78 3

- 7880 Office (956) 78 3

- 7883 Fax rramirezlaw@me.com
Pruett Moore, III State Bar No. 14362225 555 N. Carancahua Street, Suite 1400 Corpus Christi, TX 78401 (361) 88 8

- 9100 Office (361) 88 8

- 9199 Fa x pm ooreiii@sbcglobal.net17 Anthony F. Constant State Bar No. 04711000 800 N. Shoreline Blvd., Ste. 2700 S Corpus Christi, TX 78401 (361) 69 8

- 8000 Office (361) 88 7

- 8010 Fax office@constantlawfirm.com Attorneys for Pharr

- San Juan

- Alamo Independent School District TRAP 52.3(J) CERTIFICATION

I certify that I have reviewed Real Parties in Interest’s Response to the Petition for Writ of Mandamus and have concluded that every factual statement in the petition is supported by competent evidence included in the record before this Court.
/s/ Lorien Whyte
CERTIFICATE OF COMPLIANCE

I certify that this document complies with the typeface and word

- count requirements set forth in the Texas Rules of Appellate Procedure. This document was prepared with Microsoft Word, and that, according to that program’s word

- count function, the sections covered by TRAP 9.4(i)(1) contain 3 648 words using 14

- point typeface for all text, except for footnotes which are in 12

- point typeface, which is less than the word count allowed by Texas Rule of Appellate Procedure 9.4(i)(2)(D).

/s/ Lorien Whyte18 CERTIFICATE OF SERVICE
This is to certify tha t on December 2 2 , 2 017 , a tr ue a nd correct copy of t he above a nd foregoin g Response w as forward ed via e lectronic tr ansmission, t o: The Honorable R udy D elgado Hidalgo County C ourthouse 10 0 N. C losner 2nd Floor Edinburg, Te xas 78 53 9
Jessica Z

. B arger Bradley W. S nead Wright & C lose, LLP One R iverway, S uite 2 20 0 Houston, Te xas 7 7 056
Gil P

. P eralez Chris Franz Peralez F ranz, L LP 14 16 W

. Dove A ve. McAllen, Texas 7 8 50 4
Patrick E. “Gene” B lanton Step hen C. B olline I I Slates Ha rwell, LLP 170 0 P acific Av enue, S uite 380 0 Dallas, T exas 75201

- 4761
Keith N. U hles Esteban Delgadillo 55 C ove C ircle Brownsville, Te xas 7 8 25 119 Andrew J. McCluggage Pierce T. Cox Thompson, Coe, Cousins & Irons, L.L.P. One Riverway, Suite 1400 Houston, Texas 77056
Da vid Funderburk Diane Davis Funderburk Courtois LLP 2777 Allen Parkway, Suite 1000 Houston, Texas 77019

/s/Lorien Whyte