NO. 04-15-00120-CV

______________________________________________________

IN THE FOURTH COURT OF APPEALS

OF THE STATE OF TEXAS

______________________________________________________

UNIVERSITY OF THE INCARNATE WORD,

Defendant – Appellant,

V.

VALERIE REDUS, ET AL.,

Plaintiffs – Appellees.

______________________________________________________

APPEAL FROM 150TH JUDICIAL DISTRICT COURT

OF BEXAR COUNTY, TEXAS

______________________________________________________

APPELLANT’S RESPONSE TO

APPELLEES’ MOTION TO ISSUE MANDATE

______________________________________________________

Laurence S. Kurth

State Bar No. 11768450

Matthew F. Wymer

State Bar No. 24005234

BEIRNE, MAYNARD & PARSONS, L.L.P.

112 East Pecan Street, Suite 2750

San Antonio, TX 78205

(210) 582-0220 - Telephone

(210) 582-0231 – Facsimile

E-mail – lkurth@bmpllp.com

E-mail – mwymer@bmpllp.com

Attorneys for Defendant/Appellant

University of the Incarnate Word

ACCEPTED

04-15-00120-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

9/4/2015 3:23:44 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 09/4/2015 3:23:44 PM KEITH E. HOTTLE Clerk
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TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant the University of the Incarnate Word (“UIW”)

and files this Response to Appellees’ Opposed Motion to Issue Mandate. In

support thereof, UIW would show the Court the following:

FACTS AND ARGUMENT

Appellees have failed to advise this court of the pertinent fact UIW has

conferred with them and informed them it is presently preparing a Petition for

Review to the Supreme Court of Texas. UIW will not file a Motion for Rehearing

or Motion for En Banc Reconsideration in this Court, because this matter has been

fully preserved for disposition in the Supreme Court of Texas. UIW does not

presently intend to seek an extension of time to file its Petition for Review, unless

its efforts and resources are substantially diverted by motions practice or other

efforts spurred by the Appellees. See TEX. R. APP. P. 53.7(f).

Furthermore, Appellees have wholy failed to meet their burden of

demonstrating “good cause” for the issuance of the mandate — indeed, Appellees

fail to state any cause whatsoever for why this court should issue the mandate

before the “appeal is finally disposed of.” See TEX. R. APP. P. RULE 18.1(C), 18.6.

A Petition for Review in the Supreme Court of Texas may be filed

regardless of whether a motion for rehearing or motion for en banc reconsideration

is filed. TEX. R. APP. P. 49.9. If neither a motion for rehearing nor a motion for en
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banc reconsideration is filed in the court of appeals, UIW’s Petition for Review is

due 45 days from the August 26, 2015 Opinion of the court of appeals. TEX. R.

APP. P. 53.7(a)(1). Therefore, because no motions will be filed in this court of

appeals, UIW’s Petition for Review will be due in the Supreme Court on October

12, 2015. (The 45th day is on Saturday October 10, so the deadline is the following

Monday).

Texas Rule of Appellate Procedure 18.6 provides:

18.6 Mandate in Accelerated Appeals. --The appellate court’s

judgment on an appeal from an interlocutory order takes effect

when the mandate is issued. The court may issue the mandate

with its judgment or delay the mandate until the appeal is

finally disposed of. If the mandate is issued, any further

proceeding in the trial court must conform to the mandate.

TEX. R. APP. P. 18.6 (emphasis added); see also TEX. CIV. PRAC. & REM. CODE §

51.014(b)(“An interlocutory appeal under Subsection (a) ... stays the

commencement of a trial in the trial court pending resolution of the appeal.”).

This court of appeals did not issue the mandate with its August 26, 2015

Opinion. In view of that, Appellees conferred with the undersigned and requested

the parties agree to the issuance of the mandate under Texas Rule of Appellate

Procedure 18.1(c). Rather Appellee was informed Appellant opposes issuance of

Mandate. Notably, Appellees fail to cite that rule to this court of appeals now,

because they cannot show good cause for the issuance of the mandate – Appellees

fail in their motion to this court to address their burden.
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Agreement to Issue. --The mandate may be issued earlier if the

parties so agree, or for good cause on the motion of a party.

TEX. R. APP. P. RULE 18.1(C) (emphasis added).

Appellees argue incorrectly that “This Court’s judgment substantively ends

UIW’s interlocutory appeal ....”, while simultaneously citing two cases that

expressly hold this proposition is incorrect, William Marsh Rice Univ. v. Refaey,

459 S.W.3d 590, 592 (Tex. 2015) and Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex.

2010). See Motion at 2.

In Refaey, the Texas Supreme Court quoting Klein held:

As a threshold inquiry, we first consider whether the Court has

jurisdiction over this interlocutory appeal, as such appeals are

generally final in the courts of appeals. See Klein v. Hernandez,

315 S.W.3d 1, 3 (Tex. 2010); see also TEX. GOV’T CODE §

22.225(b)(3). “[W]e always have jurisdiction to determine

whether the court of appeals correctly applied its jurisdiction.”

Klein, 315 S.W.3d at 3 (citations omitted). We therefore have

jurisdiction to consider whether the court of appeals’ dismissal

for lack of jurisdiction was proper. See id.

Refaey, 459 S.W.3d at 592.

Appellees have failed to satisfy the requirement of good cause required by

rule 18.1(c) for the early issuance of the mandate. “An appellate court can issue a

mandate earlier than the rules ordinarily prescribe if it has good cause for making

its judgment more immediately final and enforceable.” Edwards Aquifer Auth. v.

Chem. Lime, Ltd., 291 S.W.3d 392, 416 (Tex. 2009) (Willett, J., concurring). Here,

this Court has no need to make its judgment more immediately final and
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enforceable. When a party represents to the court of appeals that it intends to file a

petition for review in the Supreme Court of Texas, that representation is due

mindful consideration and respect. See City of Cresson v. City of Granbury, 245

S.W.3d 61, 70 (Tex. App.—Fort Worth 2008, pet. denied). Otherwise, this Court

would risk interfering with the jurisdiction of the Texas Supreme Court. See In re

Jerry F., 294 S.W.3d 297, 300 n.1 (Tex. App.—Fort Worth 2009, orig.

proceeding) (explaining that the court of appeals would not interfere with the

jurisdiction of the supreme court by granting relief while petition for review was

pending).

Accordingly, Appellees’ Motion to Issue the Mandate should be denied.

PRAYER

WHEREFORE, PREMISES CONSIDERED, for these reasons, UIW

respectfully requests this honorable court of appeals deny Appellees’ Motion to

Issue the Mandate, and further prays for such other legal and equitable relief to

which Appellant may be entitled.
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Respectfully submitted,

BEIRNE, MAYNARD & PARSONS, L.L.P.

The Weston Centre

112 East Pecan Street, Suite 2750

San Antonio, TX 78205

(210) 582-0220 - Telephone

(210) 582-0231 – Facsimile

By: /s/ Matthew F. Wymer

Laurence S. Kurth

State Bar No. 11768450

E-mail – lkurth@bmpllp.com

Matthew F. Wymer

State Bar No. 24005234

E-mail – mwymer@bmpllp.com

ATTORNEYS FOR RELATOR THE

UNIVERSITY OF THE INCARNATE WORD
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CERTIFICATE OF CONFERENCE

The undersigned conferred with opposing counsel on September 2, 2015,

wherein he stated to opposing counsel:

We do not agree to the early issuance of the mandate or the

commencement of discovery before the final resolution of this

appeal. We are presently drafting a Petition for Review to the

Texas Supreme Court. We have been quite open about our

intention to do this. As you know, CPRC 51.014(b) provides

our appeal “stays the commencement of a trial in the trial court

pending resolution of the appeal.” This appeal will be resolved

in the Texas Supreme Court. This question of the status and

immunity of a TECOLE established private university police

department must be resolved by our highest court before

substantial police department resources are expended

responding to a suit, which the Court may later dismiss based

on these same immunity issues.

/s/ Matthew F. Wymer

Matthew F. Wymer

Dated: September 4, 2015
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been

forwarded to the following counsel of record in accordance with the Texas Rules

of Civil Procedure this 4th day of September, 2015:

Brent C. Perry

Law Office of Brent C. Perry, PC

800 Commerce Street

Houston, Texas 77002

brentperry@brentperrylaw.com

Mason W. Herring

Herring Law Firm

4640 Banning Drive

Houston, Texas 77027

mherring@herringlawfirm.com

Jorge Herrera

Herrera Law Firm

111 Soledad, Suite 1900

San Antonio, Texas 78205

jherrera@herreralaw.com

Robert A. Valadez

Javier T. Duran

Shelton & Valadez

600 Navarro Street, Suite 500

San Antonio, Texas 78205

rvaladez@shelton-valadez.com and jduran@shelton-valadez.com

/s/ Matthew F. Wymer

Matthew F. Wymer

2220982v.1 005538/107036