Friday, November 16, 2007

Divorce Court Judge Georgia Dempster found to have signed order that was impossible to comply with; petition for mandamus granted

First Court of Appeals, in memo opinion by Justice Elsa Alcala, orders family court judge to set aside retro-active discovery order, finding it was impossible to meet its conditions. Date of written order conrols, not docket entry.

In re Barner (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Alcala)
(retroactive order, impossible to comply, sanctions order; also see -> contempt of court)
Disposition: GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala; Before Chief Justice Radack, Justices Alcala and Bland01-07-00603-CV In re Celious Barner, III Appeal from 308th District Court of Harris County (Hon. Georgia Dempster)


By petition for writ of mandamus, relator, Celious Barner III, challenged the trial court’s June 20, 2007 order compelling discovery and granting sanctions. [1 The underlying case is In the Interest of T.A.B. and C.J.B, Children, No. 2006-22902, in the308th District Court of Harris County, Texas, the Honorable Georgia Dempster, presiding.]

We conditionally grant the petition for writ of mandamus.


The underlying case is for modification of the parent-child relationship and for enforcement of a child support order, brought by Juanita J. Barner, the real party in interest. On June 20, 2007, the district court signed an “Order on Motion to Compel Discovery and Sanctions.” This order required the relator to respond to certain interrogatories and requests for production “by 5 p.m. on May 16, 2007.” In addition, it required the relator to pay attorney’s fees of $700 by May 16, 2007. Finally, the order stated,

Should CELIOUS BARNER, III fail to provide the above discovery as ORDERED by this court on the date and at the time specified, the pleadings of CELIOUS BARNER III will be stricken and judgment will be granted in favor of JUANITA J. BARNER, together with all attorney’s fees for which let execution issue.

Relator petitioned for writ of mandamus, asserting that the trial court abused its discretion because it is impossible for him to comply with an order that requires performance in the past. The real party in interest argues that the motion to compel was initially granted by an associate judge at a hearing on May 11, 2007, and entered onto the court’s docket sheet. The real party in interest alleges that the signing of the order after its entry on the docket sheet was a purely ministerial act and that the operative date of the order was May 11, 2007.

Standard of Review

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law only where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The writ of mandamus will not lie to correct merely an erroneous or voidable order, but will lie to correct one which the trial court has no power to render. U.S. Fire Ins. Co. v. Millard, 838 S.W.2d 935, 938 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding); Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex.1986). If the trial court’s order was one within its discretionary power, the relator must show that it is a clear abuse of discretion. Id. In general, as long as the court has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the order is not void. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). Errors other than lack of jurisdiction, such as “a court’s action contrary to a statute or statutory equivalent,” merely render the order voidable so that it may be corrected through the ordinary appellate process or other proper proceedings. Id.

For an order to be effective, it must be entered of record in writing or in open court, transcribed by the court reporter. In re Bill Heard Chevrolet, 209 S.W.3d 311, 314–15 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Docket-sheet entries form no part of the court’s record, nor are they a substitute for that record. Id.


The relator asserts that the order in question is void for impossibility of performance. Because the court has subject-matter jurisdiction and jurisdiction over the parties, the order is not void. See Reiss, 118 S.W.3d at 443. Therefore, we will grant mandamus in this case only if the court’s order was a clear abuse of discretion.

The real party in interest asserts that it was not a clear abuse of discretion because the order was effective on May 11,2007, when the associate judge orally rendered his decision and an an notation was made on the docket sheet. The docket-sheet entry from May 11, 2007 is no substitute for the court’s record. See Bill Heard Chevrolet, 209 S.W.3d at 314–15. The appendix before us does not show that the order was made on May 11. We have no reporter’s record or written order that shows an operative date of May 11.

Instead, the trial court ordered sanctions contingent upon relator’s failure to produce certain forms of discovery “as ORDERED by this court on the date and at the time specified,” when such date and time occurred in the past. We hold that the court abused its discretion by ordering relator to provide discovery answers in the past, which is an impossibility. See Walker, 827 S.W.2d at 839.


We conditionally grant the petition for writ of mandamus, and we direct the trial court to vacate its June 20, 2007 “Order on Motion to Compel Discovery and Sanctions.” We are confident that the trial court will promptly comply, and our writ will issue only if it does not.

Also see: Justice Bland Grants Habeas Corpus Relief to Free Mother Held in Contempt and Denied Visitation by Houston Family Court Judge.

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