Criminal case not a factor in civil eviction proceeding, justices decide

Steve Korris Jun. 17, 2009, 2:26pm

Among renters who have devised novel ways to frustrate evictions, Bernie Johnson may take the prize by claiming possession of an apartment under his Fifth Amendment right against self incrimination.

Johnson appealed to Ninth District judges in Beaumont to stop his eviction proceedings so his testimony wouldn't spill into a criminal case, but on June 11 three judges sent him off to start packing.

Chief Justice Steve McKeithen and Justices Charles Kreger and Hollis Horton cleared Montgomery County Court Judge Mark Allen to continue the eviction action.

"Under appropriate circumstances, the trial court might exercise its discretion to stay a civil case in light of pending criminal proceedings, but in this case the relator has not shown that the trial court abused its discretion," they wrote in an unsigned opinion.

Johnson allegedly concealed felony convictions when he applied for his apartment.

Grand jurors indicted him on a charge of deceptively securing execution of a document.

His landlord, Hope Village Apartments, filed a civil suit for forcible detainer. Judge Allen ordered Johnson to appear for deposition by Hope Village.

Johnson's lawyer, David Van Susteren, petitioned the Ninth District for a writ of mandamus and temporary relief on May 6.

In 36 days the judges reached a decision.

"Abating a plaintiff's civil claims during a criminal investigation of the defendant is akin to a blanket assertion of the Fifth Amendment privilege, which is improper in a civil case," they wrote.

"Although a trial court must give consideration to the effect of discovery in a civil case on pending criminal proceedings, the existence of a criminal case does not impair the trial court's proceeding with a contemporaneous civil matter," they wrote.

A Fifth Amendment claim on a particular question in a civil case does not stop all proceedings in the case involving the witness, they wrote.

Johnson relied on a case where sanctions were imposed, they wrote.

"In the case before us, no sanction has been imposed on Johnson as a result of his invocation of his privilege against self incrimination," they wrote.

"Instead, Johnson seeks a prophylactic abatement of the civil case that will leave him in possession of the premises for as long as he is under indictment," they wrote.

Larry Simmons represented Hope Village.

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