IN RE: Conrado “Connie” de la GARZA (2001)

The relators in this mandamus proceeding, the City of Harlingen's mayor and four city commissioners, seek relief from a trial court order denying their amended motion to quash subpoenas requiring their appearance at trial.   Obra Homes, Inc., seeks the relators' testimony concerning information presented to them in connection with Obra's request to rezone land that it intended to develop as a residential subdivision.   Although the city's Planning and Zoning Commission preliminarily approved Obra's proposal, when it went before the Harlingen City Commission for final approval, a motion to adopt an ordinance changing the zoning died for lack of a second.

Obra filed the lawsuit underlying this proceeding and served the relators with trial subpoenas.   The trial court ruled that the relators were acting in a legislative capacity when they were considering Obra's proposal, but nevertheless refused to quash the subpoenas.   The relators, who are not parties in the underlying action, contend that the trial court abused its discretion in refusing to quash the subpoenas because they are entitled to legislative immunity.

 We recently held that persons acting in a legislative capacity generally may not be compelled to testify about their legislative activities.   In re Perry, 60 S.W.3d 857, 862, (Tex.2001).   When it ruled, the trial court did not have the benefit of our Perry decision.   We therefore deny the mandamus petition, without prejudice, to allow the trial court to reconsider its ruling in light of our Perry decision.

PER CURIAM.