Parallel criminal and civil cases arising out of the same event occur with some frequency. They can occur, for example, in a premises liability case involving a criminal assault, or in a dram shop case involving a drunk driver who was over-served by a bar. When there are parallel criminal and civil cases, the criminal defendant or the civil defendant sometimes tries to have the civil case abated, on the grounds that the criminal’s actual or anticipated assertion of a Fifth Amendment privilege against self-incrimination will unfairly impede the defense of the civil case.
State and federal courts in Texas balance a number of factors in determining whether the civil proceedings may proceed forward without abatements in such circumstances. These courts usually reason that the pendency of a criminal matter does not prevent proceeding with a contemporaneous civil matter involving the same issues or parties, and that abatement of the civil proceedings is akin to a blanket assertion of the Fifth Amendment privilege against self-incrimination, which is not permitted.
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