DENY and Opinion Filed January 18, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-21-00794-CV IN RE XTC CABARET (D ALLAS), INC., Relator Original Proceeding from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-13178 MEMORANDUM OPINION Before Justices Schenck, Nowell, and Garcia Opinion by Justice Garcia Relator’s September 13, 2021 petition for writ of ma ndamus asks us to set aside the trial court’s August 20, 2021 order pa rtially granting real party in interest’s motion to compel discovery. Entitlement to mandamus relief require s relator to show that the trial court has clearly abused its discretion and that rela tor has no adequate appellate remedy. In re Prudential Ins. Co. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Based on the petition, real party in interest’s response, relator’s reply, and the record before us, we c onclude that relator has failed to show entitlement to the relief requested. Accord ingly, we vacate the September 17, 2021 partial stay of the trial court’s August 20, 2021 order and deny the petition for writ of mandamus. See T EX

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. P. 52.8(a).2 The dissenting opinion maintains that the discovery of gross income is irrelevant to exemplary da mages. We do not disagree. Our conclusion is premised on the fact that the information is nonethele ss relevant to determ ine whether the risk of a foreseeable crime outweighs the burden placed on relator and society at large to prevent the risk. See UDR Tex. Props., L.P

. v. Petrie , 517 S.W.3d 98, 102 (Tex. 2017). It is a well-settled general rule that property owners have no legal duty to protect persons from criminal acts of a third person. See Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996). However, a property owner who “controls the premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreason able and foreseeable risk of harm to the invitee.” UDR , 517 S.W.3d at 100. The Texas Supreme Court has “consistently said that a risk must be foreseeable and unreasonable to impose a duty on a property owner.” Id .; see also Timberwalk Apartmen ts, Partners, Inc. v. Cain , 972 S.W.2d 749, 756 (Tex. 1998) (“The fores eeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty . . . .”). “Unreasonableness turns on the risk a nd likelihood of injury to the plaintiff . . . as well as the magnitude and cons equences of placing a duty on the defendant.”
UDR , 517 S.W.3d at 102 (internal quotation marks omitted). U nder this test, a court “considers, indeed balances, the burden on the defendant of preventing the harm3 against the severity and likelihood of the injury the plaintiff faces.” Id . at 107 (Willett, J., concurring). A trial court’s conclusion that the fore going necessarily involves a financial evaluation does not constitute an abuse of discretion. Such an evaluation might measure, for example, relator’s profits ba lanced against the co st of employing off duty police officers to secure the premises . Relator’s gross revenues and profits go to the reasonableness of placing the burden on relator rather than the taxpayers at large. Accordingly, we deny the requested relief.

Schenck, J., concurring and dissenting
210794F.P05 /Dennise Garcia/ DENNISE GARCIA JUSTICE