NO. 14-17-00886-CV IN THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT HOUSTON, TEXAS

______________________________ ________________________ In re ERNIE R. WEST,
Relator.

______________________________ ________________________ Original Proceeding from Cause No. 2016-85288 312th District Court, Harris County, Texas Honorable David Farr, Judge Presiding, Respondent

RELATOR’S MOTION FOR REHEARING

MILLARD A. JOHNSON State Bar No. 10772500 C. KEITH LEA State Bar No. 24048269 SARA J. SHERMAN State Bar No. 24068168 Johnson DeLuca Kurisky & Gould, A Professional Corporation 4 Houston Center 1221 Lamar, Suite 1000 Houston, Texas 77010 Tel.: (713) 652-2525 Fax: (713) 652-5130
ATTORNEYS FOR RELATOR ACCEPTED 14-17-00886-CV FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 12/20/2017 3:29 PM CHRISTOPHER PRINE

CLERK1 REHEARING POINT

Point One: West was denied due process for his Motion for Protection. Implicit in the Court’s denial of mandamus relief is the determination that the subseque nt hearing, relating to other issues, served to cure the cons titutional invalidity of the pri or orders. The only remedy for a denial of due process is due process. Because the October 4, 2017 hearing was not a rehearing of West’s Motion for Protection and was not an evidentiary hearing that hearing could not cure the constitutional infirmities tha t resulted from the Court’s prior due process violations.2 RELATOR’S MOTION FOR REHEARING Pursuant to Texas Rule of Appellate Procedure 52.9, Relator We st respectfully requests that the Court take another look at West’ s Amended Petition for Writ of Mandamus. The record reflects that the trial court refused to apply the law to West, carving out unwritten exceptions for certain non-p arties, and denying him a full and meaningful hearing on his requested relief. Imp licit in this Court’s ruling is that West’s denial of due process was cured by later hearings. A later hearing, however, unless conducte d with the same evidentiary bu rdens, cannot cure prior constitutionally defective proceedings. Thus, without a writ of mandamus, this Court will be endorsing the Texas family court’s practice of selectively applying the law and violating non-parties’ due process rights afforded under Texas law. Because West is a non-party, he has no adequate remedy on appea l as a matter of law. See e.g. , City of Hous. v. Chambers , 899 S.W.2d 306, 308 (Tex. App.—Houston [14th Dist.] 1995, no writ); Cent. Mut. Ins. Co. v. Dunker , 799 S.W.2d 334, 336 (Tex. App.—Housto n [14th Dist.] 1990, writ deni ed); Gunn v. Cavanaugh , 391 S.W.2d 723, 724 (Tex. 1965). 1 The Court, therefore, must have based its denial of mandamus re lief on the first prong only—whe ther the trial court

1 While in certain circumstances non-parties may be joined in th e lawsuit—in which they would be provided an adequate remedy on appeal—here, the record estab lishes that West would never be joined in this litigation.3 committed a clear abuse of discretion. Accordingly, this Motio n for Rehearing will be limited to the trial cour t’s clear abuse of discretion. The trial court abused its discretion when it refused to apply the law to West and carved out exceptions for certain non-parties—“[p]rocess wh ich is a mere gesture is not due process.” Texas Rule of Civil Procedure 176.6(e) provides that any perso n commanded to appear at deposition and/or to produce documents, may move for a protective order under Rule 192.6(b). West did that. The tria l court had the authority to protect West from the discovery only if West could establish that the discovery was unduly burdensome , harassing, annoying, or an inv asion of personal, constitutional, or property rights. Tex. R. Civ. P. 192.6(b). Inherent in the rule is the requirement that the resisting party produce ev idence and establish the right to relief. See, e.g. , In Matter of Issuance of Subpoenas Depositions of
Bennett , 502 S.W.3d 373, 380–81 (Tex. App. —Houston [14th Dist.] 2016, no pet.) (citing Garcia v. Peeples , 734 S.W.2d 343, 345 (Tex.1987)). Here, the trial court refused to apply the law when it refused West the opportunity t o have a full hearing on his evidentiary burden. The record is replete with the trial court’s own admissions th at it was not following the rules or the law:

THE CO URT: ... there is not a reason for me to not allow them to depose a non-party who they believe has relevant information. App. 714:4–5.4 ... ... there is not a reason that he would not be somebody they would have a right to depose. App. 715:6–8.

**...** So, Mr. Johnson, your client is going to be deposed. ... The Court finds he is subject to being deposed. App. 723:12–13; 15–16.

... THE COURT: In our world in family court is not going to block that deposition. App. 731:13–14.

... Well, the appellate court is going to love this. I can't imagine why the deposition will be quashed. I can't imagine my doing that. As far as how it's limited and when it occurs, I can certainly see working on that. If that helps at all, let's see if we can move this along. App. 467:4–9. These statements, all but one mad e prior to the presentation of any evidence and the other made in middle of West’s presentation of evidence, un equivocally broadcasts that non-parties will be treated differently in the family courts and that Rule 192.6 will be ignored because of that status. The trial c ourt has no discretion to carve out an exception that abridges the rights to due proce ss of non-parties mandated by Texas law—stated in other words; the opportunity to move for protection is meaningless without a fair opportunity to meet th e evidentiary burden5 placed on the movant. The trial court ignored the law, which w as a clear abuse of discretion. Because the trial court openly disregarded the law and refused to allow West a meaningful evidentiary hear ing on his requested relief —full protection from the discovery because of its improper purpose, among other issues—e verything that followed was hollow. “[P]rocess which is a mere gesture is not due process.”
Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 315, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950). The United States Supreme Court has obse rved the follows: The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposi ng party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Morgan v. United States , 304 U.S. 1, 18, 58 S. Ct. 773, 776, 82 L. Ed. 1129 (1938). The United States Supreme Court has also recognized that “the r ight to procedural due process is ‘abso lute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions.” Carey v. Piphus , 435 U.S. 247, 266, 98 S. Ct. 1042, 1054, 55 L. E d. 2d 252 (1978) (citing Boddie v. Connecticut , 401 U.S. 371, 375, 91 S.Ct. 780, 784, 28 L.Ed.2d 113 (1971); Anti-Fascist Comm. v.
McGrath , 341 U.S., at 171–72, 71 S.Ct., at 648–49 (Frankfurter, J., co ncurring) (analyzing this principle when de termining whether nominal dama ges should be6 afforded for due process violations). This same concept was ad ditionally examined by the Texas Supreme Court in Ex parte Davis , when the Court noted that while “the receipt of add itional evidence [among other fac tors] might not have led to a different judgment, due process required that a reason able opportunity for exerting those influences on the court’s judgment be afforded.” Ex parte Davis , 161 Tex. 561, 566, 344 S. W.2d 153, 157 (1961). Thus, the determination here i s not, and cannot be, whether the outcome may be different or that the trial court may have reached the right results. The law is clear that no result can stand in the face of due process viola tions. Once the trial court violated West’s due process rights on his motion for protection, the constitutional in firmities could only be cured by a second evidentiary hearing on his motion. As the trial court’s admission that it was not applying the la w constitutes an abuse of discretion and denial o f due process, this Court’s den ial of mandamus relief implies that this Court found that future hearings cured the constitutional violations. They cannot because West was never given the oppor tunity to fully present evidence and thus, meet h is burden of proof on his moti on for protection. The evidentiary burden placed on West for establishing a right for protection is real and not purely theoretical. The law requires West to m eet his evidentiary burden in order to obtain the relief he requested. During the April 25, 2017 hearing, after hearing only a brief amount of evidence, the Cou rt advised West that7 his request for complete protec tion was denied and he would onl y be allowed to present evidence for the purpos e of imposing certain limitation s. 2 Thus, he was curtailed from the having the opportunity to meet his burden of proof. Then, during the October 4, 2017 heari ng, while some of the issues we re discussed, it was not a motion for protection hearing and there was no eviden ce presented. 3 “A fundamental requirement of due process is the opportunity to be heard.” Armstrong v. Manzo , 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965) (quoting Grannis v. Ordean , 234 U.S. 385, 394, 34 S.Ct. 779, 783) (internal quotation marks omitted). “It is an opportunity whic h must be granted at a meaningful time and in a meaningful manner.” Id. As the Texas Supreme Court stated in University of Texas Medical School v. Than , “the remedy for a denial of due process is due process.” Univ. of Tex. Med. Sch. at Hous. v. Than , 901 S.W.2d 926, 933 (Tex. 1995) (citing Perry v. Sindermann , 408 U.S. 593, 603, 92 S.Ct. 2694, 2700–01, 33 L.Ed.2d 570 (1972) (upon proof of protected i nterest, professor whose contract was not renewed is not entitled to reinstatement but to hearing comporting with due process); McIntire v. State , 698 S.W.2d 652, 661–62 (Tex. Crim. App. 1985) (remedy for failure to grant hearing on motion for new trial is a hearing, not a new trial). In Than , the Supreme Court held that because of due

2 App. 467:4–9. 3 See generally Supp. App. 2–165.8 process violations occurring in the medical student’s original expulsion proceedings, he must be entitled to another expulsion hearing t o cure the constitutional defects. See id. at 933–34. Here, the trial court could have only fully accorded West due p rocess by either allowing a full hearing prior to its ruling or by consid ering the issue anew under the same evidentiary standards. Once his due process rig hts were violated, only a second hearing on the same standards would have wiped th e slate clean. Only that would have restored West to the position he would hav e occupied had due process of law been accorded to him in the first place. See Armstrong , 380
U.S. at 552. Accordingly, West has not asked this Court to grant any relief on his motion for protection. Instead, as Texas law provides, West respectfu lly requests that this Court reconsider his request for mandamus and, after full brief ing and oral argument, direct the trial court to provide West a full and mea ningful evidentiary hearing on his motion that comports with due process.

PRAYER For these reasons, Ernie R. West asks the Court to reconsider its denial of West’s petition for writ of mandamus, that the Court order oral argument, and that with or without oral argument, this Court grant West’s petition for writ of9 mandamus, and order the relief s ought therein. The relief is n ot onerous and is not beyond what the law provides. West only asks this Court to ord er that the trial court provide West his due proce ss rights, which dictate a comp lete and meaningful hearing on his Motion for Protection. West also pra ys for all other relief to which he may be entitled.

Respectfully submitted, JOHNSON, DELUCA, KURISKY & GOULD, a Professional Corporation By: /s/ Millard A. Johnson Millard A. Johnson Texas Bar No. 10772500 mjohnson@jdkglaw.com C. Keith Lea Texas Bar No. 24048269 klea@jdkglaw.com Sara J. Sherman Texas Bar No. 24068168 ssherman@jdkglaw.com 4 Houston Center 1221 Lamar Street, Suite 1000 Houston, Texas 77010 (713) 652-2525 (Telephone) (713) 652-5130 (Facsimile)
ATTORNEYS FOR RELATOR ERNIE R. WEST10 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading has been delivered via the court’s electronic filing system to all counsel of record on this, the 20th day of Dec ember, 2017, as follows: Maisie A. Barringer Adam Dietrich Jenkins & Kamin LLP Two Greenway Plaza, Suite 600 Houston, Texas 77046 Phone: 713-600-5500 Fax: 713-600-5501 Attorneys for Real Party in Interest Jon Monroe Ruby Bolton The Bolton Law Firm, PC 724 W. Main St. Tomball, TX 77375 Phone: 281-351-7897 Attorney for Real Party in Interest Shawna Monroe

/s/ Millard A. Johnson Millard A. Johnson11 CERTIFICATIONS
The undersigned counsel for Relator hereby certifies that the computer program used to prepare this Motion for Rehearing shows that th e applicable word count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1) i s 1,765 words, including footnotes. This document also complies with the type face requirement of Texas Rule of Appellate Procedure because it has been prepar ed in 14 point Times New Roman font.

/s/ Millard A. Johnson Millard A. Johnson