In Re Texas Association of School Boards Risk Management Fund v. the State of Texas

Opinion filed May 30, 2025

In The

Eleventh Court of Appeals
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No. 11-25-00036-CV
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IN RE TEXAS ASSOCIATION OF SCHOOL BOARDS RISK
MANAGEMENT FUND

Original Mandamus Proceeding

MEMORANDUM OPINION
The Texas Association of School Boards Risk Management Fund (the Fund)
filed this mandamus action requesting that we compel the trial court to vacate its
order denying the Fund’s motion for protective order and its motion to quash the
deposition of Ted Beard, which Real Party in Interest, Colorado Independent School
District (CISD), noticed. The Fund also requests that we direct the trial court to sign
an order granting the motion for protective order.
Beard is the chair of the board of trustees that oversees the Fund. In each of
its motions, the Fund argued that (1) the noticed deposition of Beard sought a so-
called “apex” deposition and (2) CISD had not satisfied the necessary requirements
for proceeding with such a deposition. See, e.g., Crown Cent. Petroleum Corp. v.
Garcia, 904 S.W.2d 125, 127 (Tex. 1995) (quoting Liberty Mut. Ins. Co. v. Superior
Ct., 10 Cal. App. 4th 1282 (1992)).
After this mandamus action was filed, CISD withdrew its deposition notice
and informed the Fund that it did not intend to depose Beard “at this time.” As a
result, the trial court signed an order that vacated its previous denials of the Fund’s
motions on the merits and instead denied the motions as moot. CISD now claims
that this mandamus action is likewise moot.
Because the Fund’s motion for protective order has not been granted and the
possibility remains that the deposition of Beard will again be sought as the
underlying litigation progresses, this mandamus action is not moot. See In re
Contract Freighters, Inc., 646 S.W.3d 810, 813–14 (Tex. 2022) (The “[u]nilateral
and unenforceable withdrawal of discovery, without any assurances that the
withdrawal is definite, and at the very hour ‘appellate courts are looking,’ does not
moot a discovery dispute.”); see also In re Allied Chem. Corp., 227 S.W.3d 652, 655
(Tex. 2007). Further, mandamus is an extraordinary remedy that is “not issued
solely as a matter of right,” but at the discretion of the reviewing court. In re Walker,
683 S.W.3d 400, 402 (Tex. 2024); see also Rivercenter Associates v. Rivera, 858
S.W.2d 366, 367 (Tex. 1993).
In exercising our discretion, we must determine, among other things, whether
there is an adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 135–36 (Tex. 2004). In assessing this question, the word “adequate” is “simply
a proxy for the careful balance of jurisprudential considerations that determine when
appellate courts will use original mandamus proceedings to review the actions of
lower courts.” Id. at 136. “An appellate remedy is ‘adequate’ when any benefits to
mandamus review are outweighed by the determinants.” Id.

2
Because of CISD’s withdrawal of its deposition notice and the trial court’s
subsequent action in vacating its order, and for those reasons only, we conclude that
denying mandamus relief is proper in this instance. In so doing, we presume that,
by its actions and representations, CISD is acting in good faith, and that it does not
intend to re-notice and attempt to proceed with deposing Beard in the future, barring
some unforeseen development.
We also emphasize that we have not addressed the question of whether CISD
is even entitled to depose Beard. We have merely concluded that the delay and the
expenses to be incurred in proceeding with mandamus relief at this time outweighs
the potential benefits. See Wagner v. Apache Corp., 627 S.W.3d 277, 288 n.4 (Tex.
2021) (“[T]he writ of mandamus is a discretionary writ, and we decline
to exercise our discretion to issue it in this case.”). The Fund is free to seek
mandamus relief in the future should CISD again seek to depose Beard. See TEX. R.
APP. P. 52.8(a).
For the reasons we have stated, the petition for writ of mandamus is denied.

W. STACY TROTTER
JUSTICE
May 30, 2025
Panel consists of: Trotter, J.,
Williams, J., and Wright, S.C.J.1

Bailey, C.J., not participating

1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3