In a complex intersection of civil and criminal law, the Texas Supreme Court recently addressed an interesting Fifth Amendment application to civil discovery proceedings. The case arose from a personal injury lawsuit filed by plaintiffs who sustained injuries when their vehicle was rear-ended by the defendant, Taylor Brock Peters. Following the accident, Peters faced not only civil liability but also criminal charges for two counts of intoxication assault with a motor vehicle. During discovery, the trial court ordered Peters to disclose the establishments that served him alcohol on the night of the accident. Peters refused, invoking his Fifth Amendment right against self-incrimination.
The case of In re Peters, No. 23-0661 (October 4, 2024), posed a critical question: to what extent does the Fifth Amendment protect individuals from being compelled to disclose potentially self-incriminating information in civil litigation, especially when criminal proceedings are also pending? By addressing this question, the Supreme Court of Texas provided useful guidance on the applicability of constitutional privileges in situations potentially involving both criminal and civil liability. Ultimately, the court held that the Fifth Amendment privilege against self-incrimination shielded Peters from disclosing information that could be used in his criminal case, and conditionally granted his petition for writ of mandamus.
Background Facts
Austin police received several 911 calls reporting a serious car accident on the IH-35 service road. Responding officers found that a Toyota Tacoma driven by Taylor Brock Peters had rear-ended a Toyota 4Runner that was stopped at a red light. The 4Runner, occupied by brothers Constantino Palma Jr. and his minor sibling E.P., had sustained catastrophic damage. The impact of the crash was so forceful that the 4Runner's tailgate was crushed through the cargo compartment, shoving debris into the second-row seating area.
The brothers were treated for multiple serious injuries. Constantino suffered several fractures, while E.P. faced even more critical injuries, including a skull fracture and brain hemorrhage that required intubation and intensive treatment. Peters was also admitted to the hospital for injuries stemming from the accident.
Shortly after Peters' arrival at the hospital, Officer Andrew Upton, tasked with investigating the crash, found Peters confined to a hospital bed, exhibiting clear signs of intoxication. His face was swollen, his forehead bandaged, and his clothing was heavily soiled. Peters' eyes were bloodshot, and he spoke in a mumbled, slurred tone, appearing visibly confused and disoriented. Upton detected a strong odor of alcohol and began questioning Peters about his activities that night. Peters admitted he had been drinking at two bars, though he could not recall their names, and claimed he had consumed only three beers. He also mentioned that he felt "buzzed" before attempting to drive home.
In the hospital, Upton administered a preliminary breath test, which revealed Peters' blood alcohol level was .196, well above the legal limit. Following these findings, Peters was arrested and charged with two counts of intoxication assault with a motor vehicle under Texas Penal Code section 49.04.
The Palmas filed a civil lawsuit against Peters, alleging both negligence and gross negligence due to the severity of the injuries that they sustained in the crash. To build their case, they served Peters with detailed interrogatories, asking him to disclose his destination at the time of the accident, his whereabouts earlier in the evening, and the names of the establishments that had served him alcohol. This information was essential to the Palmas' case, as it would allow them to pursue a potential dram shop action against any bars that might have overserved Peters in violation of Texas law.
In addition to written interrogatories, the Palmas raised similar questions during Peters' deposition, attempting to uncover the sequence of events leading up to the collision; however, in both written and oral discovery, Peters refused to answer, invoking his Fifth Amendment right against self-incrimination.
The Palmas subsequently filed a motion to compel, urging the trial court to mandate Peters' responses, arguing that the information was pivotal to their case. The trial court sided with the Palmas, ordering Peters to disclose the requested information despite his Fifth Amendment assertion of privilege. Seeking relief, Peters filed a petition for writ of mandamus with the Court of Appeals, requesting that the appellate court reverse the trial court's orders on constitutional grounds. However, the Court of Appeals denied his request, effectively upholding the trial court's decision to compel the disclosures. The Texas Supreme Court disagreed and upheld Peters' right to avoid self-incrimination.
The Fifth Amendment
The Fifth Amendment to the United States Constitution provides that "no person shall be compelled in any criminal case to be a witness against himself," establishing a fundamental right against self-incrimination. This privilege, although more often invoked in criminal law proceedings, also extends to civil cases and can act as a barrier to discovery when disclosure could potentially incriminate a witness.
The Texas Supreme Court recognized this application in Texas Department of Public Safety Officers Association v. Denton, 897 S.W.2d 757 (Tex. 1995), confirming that the Fifth Amendment privilege can shield a civil litigant from answering questions in discovery if the responses could be self-incriminating. Furthermore, in Ex Parte Butler, 522 S.W.2d 196 (Tex. 1975), the court clarified that the privilege applies not only to statements that directly incriminate but also to answers that could provide an "evidentiary link" that might tend to incriminate.
However, the privilege is not absolute. Courts have discretion to determine whether a witness's refusal to answer is in good faith and justifiable under all of the circumstances. In assessing the invocation of privilege, the trial court must carefully consider the facts and only compel an answer if it is "perfectly clear" that the testimony could not have any incriminating effect. Hoffman v. United States, 341 U.S. 479 (S. Ct. 1951).
In this case, the Palmas argue that Peters' refusal to answer discovery questions undermines their ability to access the civil justice process. They contend that without Peters' disclosure of the bars where he had alcoholic drinks the night of the accident, they cannot pursue a potential dram shop claim against the establishments that may have overserved him. Despite this hard truth, the Texas Supreme Court held that a valid Fifth Amendment assertion takes precedence over civil justice in this case. Peters' responses could indeed link him to further incriminating evidence, especially in light of the concurrent criminal proceedings arising from the same incident. The Texas Supreme Court was clear, "Active criminal proceedings are not required to claim the privilege, of course. Where such proceedings are ongoing, however, courts should be loath to second-guess the privilege's application." In re Peters, No. 23-0611, 2024 WL 4394982, at *2 (Tex. Oct. 4, 2024).
The Palmas further argue that Peters waived his Fifth Amendment privilege by voluntarily disclosing details about his drinking to Officer Upton at the hospital. They rely on Rogers v. United States, 340 U.S. 367 (1951), which holds that once a witness voluntarily reveals an incriminating fact, they may not withhold further details. However, this does not fully support the Palmas' position. Although Peters admitted to visiting bars and drinking, the record does not reflect a knowing and voluntary waiver of his privilege. According to Upton's arrest affidavit, Peters was visibly disoriented, with a swollen face and head injury, and appeared confused during questioning. His blood alcohol level was well above the legal limit at the time of the questioning as well. These facts suggest that Peters was not in a condition to make a conscious and informed waiver of his rights. Although Peters statements to Upton were voluntary, they do not demonstrate a voluntary, knowing and intelligent waiver of privilege. Miranda v. Arizona, 384 U.S. 436, *6 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Moreover, Peters' disclosures at the hospital do not eliminate the risk of further incrimination. Disclosing the names of the bars he visited could lead to additional evidence that Peters consumed more alcohol than he claimed, potentially increasing his criminal liability. As established in Ex parte Butler, 522 S.W.2d 196, 199 (Tex. 1975), a witness need only demonstrate that answering could present a reasonable risk of incrimination, without having to prove that it would certainly harm him.
Given these considerations, the court conditionally granted Peters' petition for mandamus relief without oral argument. It directed the trial court to vacate its order compelling Peters to respond to the specific interrogatories about his pre-accident activities, preserving his Fifth Amendment protections in light of the ongoing criminal case. This decision reaffirms that constitutional safeguards against self-incrimination apply equally to civil litigation when a genuine risk of criminal exposure exists.
This article originally appeared on Wood Smith Henning & Berman LLP. https://www.wshblaw.com/
About the Authors:
Spencer E. Dunn is a partner at Wood Smith Henning & Berman LLP. sdunn@wshblaw.com
Daniel J. Paret is a partner at Wood Smith Henning & Berman LLP. dparet@wshblaw.com