McALLEN - The 15th Court of Appeals has sided with Catholic Charities of the Rio Grande Valley, blocking Attorney General Ken Paxton from taking pre-suit depositions.
Back in December 2022, Gov. Greg Abbott sent a letter to Paxton citing “recent reports that non-governmental organizations may have assisted with illegal border crossings,” calling on him to investigate the role of the NGOs, states the 15th Court’s Aug. 4 opinion.
In March 2024, the Office of the Attorney General served a “Notice of Demand for Sworn Statement” on Catholic Charities, directing it to designate a representative to testify on a series of topics regarding alleged aid for illegal border crossings in violation of Texas law.
Catholic Charities declined to present a representative to testify under oath, but instead provided over 100 pages of documents and a sworn statement from its executive director, Sister Norma Pimentel.
After the OAG deemed this response insufficient, the parties tried for 10 weeks to reach a compromise without success, after which the OAG filed a Rule 202 petition for a pre-suit deposition, claiming the deposition was in anticipation of a possible quo warranto suit, the opinion states.
The trial court denied the petition and the OAG appealed, claiming it is entitled to pre-suit depositions as a matter of law due to its statutory visitorial powers, or in the alternative under the standards required by Rule 202.
Justices rejected the argument on both grounds.
“It was the OAG’s burden of proof to demonstrate that the benefits of forcing a pre-suit deposition outweigh the burdens to Catholic Charities,” the opinion states. “Given Catholic Charities’ cooperation with the investigation, the documents it produced, and its provision of a sworn statement answering the OAG’s questions, the trial court was within its discretion to deny the Rule 202 petition.
“Accordingly, we deny the OAG’s request for mandamus relief.”
Chief Justice Scott Brister dissented, opining that the case presented unique circumstances.
“For four years, a state of disaster has existed in our border counties due to the flood of persons lawfully or unlawfully crossing the Rio Grande,” he opined. “Whether the OAG’s inquiry is well-founded or a waste of time is not before us; the only issue here is whether the benefits outweigh the burdens of a Rule 202 deposition in the unique circumstances of a public safety and humanitarian crisis that OAG was expressly tasked with investigating for illegal activity, and a charitable corporation whose meager books and records make it hard to tell.
“In these circumstances, the trial court abused its discretion in denying OAG’s petition for a pre-suit deposition. Because the Court holds otherwise, I respectfully dissent.”
Case No. 15-24-00091-CV
