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

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/20/2017 3:29:01 PM CHRISTOPHER A. PRINE Clerk
1

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 subsequent hearing, relating to other 

issues, served to cure the constitutional invalidity of the prior 

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 that 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 West 

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-parties, and denying 

him a full and meaningful hearing on his requested relief. Implicit in this Court’s 

ruling is that West’s denial of due process was cured by later hearings. A later 

hearing, however, unless conducted with the same evidentiary burdens, 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 appeal 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.—Houston [14th Dist.] 1990, writ denied); Gunn v. 

Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965).1

 The Court, therefore, must have 

based its denial of mandamus relief on the first prong only—whether the trial court 

                                                            

1

 While in certain circumstances non-parties may be joined in the lawsuit—in which they would 

be provided an adequate remedy on appeal—here, the record establishes that West would never 

be joined in this litigation. 
3

committed a clear abuse of discretion. Accordingly, this Motion for Rehearing 

will be limited to the trial court’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 which is a mere 

gesture is not due process.” 

 

 Texas Rule of Civil Procedure 176.6(e) provides that any person 

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 trial 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 invasion 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 evidence 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 to have a full 

hearing on his evidentiary burden. 

 The record is replete with the trial court’s own admissions that it was not 

following the rules or the law: 

THE COURT: ... 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 made prior to the presentation of any evidence and 

the other made in middle of West’s presentation of evidence, unequivocally 

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 court has no discretion 

to carve out an exception that abridges the rights to due process 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 the evidentiary burden 
5

placed on the movant. The trial court ignored the law, which was a clear abuse of 

discretion. 

 Because the trial court openly disregarded the law and refused to allow West 

a meaningful evidentiary hearing on his requested relief—full protection from the 

discovery because of its improper purpose, among other issues—everything 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 observed 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 opposing 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 right to 

procedural due process is ‘absolute’ 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. Ed. 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., concurring) 

(analyzing this principle when determining whether nominal damages should be 
6

afforded for due process violations). This same concept was additionally 

examined by the Texas Supreme Court in Ex parte Davis, when the Court noted 

that while “the receipt of additional evidence [among other factors] might not have 

led to a different judgment, due process required that a reasonable 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 is 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 violations. 

Once the trial court violated West’s due process rights on his motion for 

protection, the constitutional infirmities could only be cured by a second 

evidentiary hearing on his motion. 

 As the trial court’s admission that it was not applying the law constitutes an 

abuse of discretion and denial of due process, this Court’s denial of mandamus 

relief implies that this Court found that future hearings cured the constitutional 

violations. They cannot because West was never given the opportunity to fully 

present evidence and thus, meet his burden of proof on his motion 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 meet 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 Court advised West that 
7

his request for complete protection was denied and he would only be allowed to 

present evidence for the purpose of imposing certain limitations.2

 Thus, he was 

curtailed from the having the opportunity to meet his burden of proof. Then, 

during the October 4, 2017 hearing, while some of the issues were discussed, it 

was not a motion for protection hearing and there was no evidence 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 which 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 interest, 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 to cure the 

constitutional defects. See id. at 933–34. 

Here, the trial court could have only fully accorded West due process by 

either allowing a full hearing prior to its ruling or by considering the issue anew 

under the same evidentiary standards. Once his due process rights were violated, 

only a second hearing on the same standards would have wiped the slate clean. 

Only that would have restored West to the position he would have 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 respectfully requests that this 

Court reconsider his request for mandamus and, after full briefing and oral 

argument, direct the trial court to provide West a full and meaningful 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 of 
9

mandamus, and order the relief sought therein. The relief is not onerous and is not 

beyond what the law provides. West only asks this Court to order that the trial 

court provide West his due process rights, which dictate a complete and 

meaningful hearing on his Motion for Protection. West also prays 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. 

WEST
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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 December, 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. Johnson 
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CERTIFICATIONS 

 The undersigned counsel for Relator hereby certifies that the computer 

program used to prepare this Motion for Rehearing shows that the applicable word 

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1) is 1,765 words, 

including footnotes. This document also complies with the typeface requirement 

of Texas Rule of Appellate Procedure because it has been prepared in 14 point 

Times New Roman font. 

 

 /s/ Millard A. Johnson 

 Millard A. Johnson