DENY and Opinion Filed January 18, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00794-CV 

IN RE XTC CABARET (DALLAS), 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 mandamus asks us to set 

aside the trial court’s August 20, 2021 order partially granting real party in interest’s 

motion to compel discovery. Entitlement to mandamus relief requires relator to show 

that the trial court has clearly abused its discretion and that relator 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 conclude that relator has failed to show 

entitlement to the relief requested. Accordingly, 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 TEX. R. APP. P. 52.8(a). 
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The dissenting opinion maintains that the discovery of gross income is 

irrelevant to exemplary damages. We do not disagree. Our conclusion is premised 

on the fact that the information is nonetheless relevant to determine 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 unreasonable 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 Apartments, Partners, Inc. v. Cain, 

972 S.W.2d 749, 756 (Tex. 1998) (“The foreseeability of an unreasonable risk of 

criminal conduct is a prerequisite to imposing a duty . . . .”). 

 “Unreasonableness turns on the risk and likelihood of injury to the plaintiff 

 . . . as well as the magnitude and consequences of placing a duty on the defendant.” 

UDR, 517 S.W.3d at 102 (internal quotation marks omitted). Under this test, a court 

“considers, indeed balances, the burden on the defendant of preventing the harm 
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against the severity and likelihood of the injury the plaintiff faces.” Id. at 107 

(Willett, J., concurring). 

A trial court’s conclusion that the foregoing necessarily involves a financial 

evaluation does not constitute an abuse of discretion. Such an evaluation might 

measure, for example, relator’s profits balanced against the cost 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