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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-18-00151-CV

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IN RE BNSF RAILWAY COMPANY

Original Proceeding

284th District Court of Montgomery County, Texas

Trial Cause No. 17-06-07457

MEMORANDUM OPINION

In this mandamus proceeding, BNSF Railway Company (BNSF) contends the 

trial court clearly abused its discretion by signing a protective order that is preempted 

by the Railway Labor Act and creates an unconstitutional prior restraint of speech. 

We deny the petition.

Background and Procedure in the Trial Court

John Austin Hill (Hill) is a railroad worker who alleges that he was injured 

while employed by BNSF. Hill filed an Original Petition against BNSF and another 

named defendant, wherein he alleged “FELA Negligence and Strict Liability” claims 

to recover for his alleged personal injuries. BNSF filed an answer to the claims, 
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asserting special exceptions, a general denial, and affirmative defenses. Hill later 

filed a Motion for Protective Order and for Sanctions against BNSF, alleging that he 

needed a protective order “to stop BNSF’s unethical and illegal ex parte

communications directly with him . . . in direct contravention of BNSF’s written 

agreement not to, and in direct contravention of Texas Disciplinary Rule 4.02(a) and 

the Texas discovery rules.”1 Hill alleged that a BNSF medical department employee 

 

1 Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct is 

titled “Communication with One Represented by Counsel,” and provides:

In representing a client, a lawyer shall not communicate or 

cause or encourage another to communicate about the 

subject of the representation with a person, organization or 

entity of government the lawyer knows to be represented 

by another lawyer regarding that subject, unless the lawyer 

has the consent of the other lawyer or is authorized by law 

to do so.

Tex. Disciplinary Rules of Prof’l Conduct R. 4.02(a) (“Texas Rule 4.02”), reprinted 

in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. 

X, § 9. 

Comments to rule 4.02 emphasize that the rule is directed at efforts to 

“circumvent the lawyer-client relationship” existing between other persons, 

organizations or entities and their respective counsel. As such, the rule prohibits 

communications that “in form are between a lawyer's client and another person, 

organization or entity [] represented by counsel where, because of the lawyer's 

involvement in devising and controlling their content, such communication in 

substance [is] between the lawyer and the represented person . . .” Nevertheless, it 

does not prohibit communication between a lawyer's client and persons, 

organizations, or entities represented by counsel, “as long as the lawyer does not 
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had direct communications with Hill and that such communication violated Texas 

discovery rules and represented a breach of opposing counsel’s ethical 

responsibilities. Hill also complained that the communications occurred after his 

counsel notified BNSF in writing not to contact Hill, and argued BNSF’s conduct 

justified imposition of sanctions and a protective order from abusive discovery under 

Texas Rule of Civil Procedure 192.6.

BNSF filed a written response to the Motion for Protective Order and argued 

that such communications by the Medical and Environmental Health Department 

did not violate the rules of discovery or of professional conduct, were expressly 

allowed by and required by the applicable collective bargaining agreement (CBA), 

were of the same nature as their pre-suit communications, and were entirely work 

related. 

BNSF also argued that Hill is a BNSF employee subject to and receiving

medical management to process insurance claims and vocational rehabilitation 

services through a CBA. BNSF supported its response with an affidavit from the 

medical department employee, who explained that the CBA required BNSF to 

perform a return-to-work assessment and provide additional training if necessary, 

 

cause or encourage the communication without the consent of the lawyer for the 

other party.”
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and it required Hill to communicate with BNSF regarding his medical status.

Additionally, BNSF argued that no rule of professional conduct had been violated 

by routine communications between a BNSF medical department employee to an 

injured employee to provide assistance with an employee benefit. BNSF maintained 

that communications with an FELA Plaintiff about matters of employment that are 

governed by a CBA constitute “minor disputes” that must be resolved under the 

Railway Labor Act dispute resolution procedure.

The trial court entered an Order granting the protective order but the trial court 

did not fund that BNSF had violated any discovery rules or rules of professional 

responsibility and did not sanction BNSF. The trial court’s Order provides that 

BNSF is prohibited from having any ex parte communications with Hill during the 

course of the lawsuit “concerning any issues the subject of the lawsuit.”

On March 21, 2018, BNSF filed a motion for reconsideration or modification

of the protective order. In the motion for reconsideration, BNSF complained for the 

first time that the protective order is overly broad and acts as a prior restraint on 

commercial speech, was not narrowly tailored to reflect the least restrictive means 

to protect the harm asserted by Hill, improperly includes any direct communication 

between Hill and any BNSF employee about when and in what capacity Hill can 

work, and precludes both Hill and BNSF from complying with the CBA or obtaining 
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work for Hill. For the first time, BNSF also attached a copy of the CBA agreement.

The trial court has not ruled on the motion for reconsideration. 

On March 29, 2018, Hill filed a motion for sanctions in which he argued that 

BNSF violated the protective order by sending a letter concerning vocational

rehabilitation services directly to Hill after the protective order was entered. The trial 

court has not ruled on the motion for sanctions.

Mandamus Arguments

In its mandamus petition, BNSF initially argues the protective order is an 

impermissible prior restraint on protected speech. In the trial court, arguments 

regarding the First Amendment and prior restraint were first raised in BNSF’s 

motion for reconsideration. We expressly decline to address these arguments 

because the trial court has not yet ruled upon the Motion for Reconsideration or 

Modification. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding)

(“A party’s right to mandamus relief generally requires a predicate request for some 

action and a refusal of that request.”). The record now before us indicates that on 

May 8, 2018, BNSF objected to the lack of a ruling but there is no complaint before 

us that the trial court has unreasonably delayed ruling on the motion for 

reconsideration. 
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Next, BNSF argues the dispute over BNSF’s direct communications with Hill 

constitutes a “minor dispute” under the RLA and therefore the protective order is 

preempted by federal law, which grants the National Railroad Adjustment Board 

exclusive jurisdiction over all disputes between a railway and a railway employee 

regarding matters governed by a CBA. See 45 U.S.C. § 153(i) (“The disputes 

between an employee or group of employees and a carrier or carriers growing out of 

grievances or out of the interpretation or application of agreements concerning rates 

of pay, rules, or working conditions, . . . shall be handled in the usual manner up to 

and including the chief operating officer of the carrier designated to handle such 

disputes; but, failing to reach an adjustment in this manner, the disputes may be 

referred by petition of the parties or by either party to the appropriate division of the 

Adjustment Board with a full statement of the facts and all supporting data bearing 

upon the disputes.”). Furthermore, BNSF argues the protective order is void because

it exceeds the trial court’s jurisdiction by encroaching on a subject that is preempted 

by the RLA. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (mandamus 

relief is available if a trial court issues an order beyond its jurisdiction). Furthermore, 

if the order is void and beyond the trial court’s jurisdiction, the relator need not show 

it did not have an adequate remedy by appeal. Id.
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Analysis

In its Mandamus Petition, BNSF refers this Court to several sections of the 

CBA. One section referenced by BNSF requires that an injured employee furnish his 

supervisor with a doctor’s recommendation indicating that he is able to return to 

service or that he be allowed to remain off duty for an approximate period of time.

Another section of the CBA provides a procedure for terminating an employee for 

being absent without authority, and BNSF must send a notice to the employee’s last 

address. BNSF argues that the protective order actively impedes the procedures in 

the CBA. For instance, BNSF argues, the protective order appears to preclude BNSF 

from accepting a doctor’s recommendation from Hill unless it is willing to pay a 

lawyer to participate in the communication. BNSF also complains that the protective 

order precludes it from conducting a disciplinary hearing without attendance by 

lawyers for Hill and BNSF. 

We agree that BNSF’s examples hypothetically demonstrate that the 

protective order may possibly alter the ordinary communication and exchange of 

information between the employer and the employee under the CBA. However, 

BNSF has not shown that the protective order is void, or that it will interfere with 

the CBA. There is no active disciplinary proceeding or termination. BNSF has not 

established why if such were to arise, BNSF could not ask the trial court to modify 
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the protective order to allow it to proceed in the manner set forth in the CBA. Indeed, 

there is a pending motion to modify that the trial court has not yet ruled upon. 

Furthermore, BNSF does not explain why the required communications under the 

CBA could not be addressed to Hill in care of Hill’s lawyer’s office.

To obtain mandamus relief, BNSF “must establish that an underlying order is 

void or a clear abuse of discretion and that no adequate appellate remedy exists.” In

re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). 

An abuse of discretion occurs when a trial court’s ruling is arbitrary and 

unreasonable or is made without regard for guiding legal principles or supporting 

evidence. Id. “The adequacy of an appellate remedy must be determined by 

balancing the benefits of mandamus review against the detriments.” In re Team 

Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). After examining 

and considering the mandamus petition and appendix, the mandamus record, the 

response and appendix, the CBA, and the applicable law, we conclude that BNSF 

has not established that it is entitled to mandamus relief. Accordingly, the petition 

for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM
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Submitted on April 30, 2018

Opinion Delivered June 14, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.