Key Points

  • The Supreme Court of Texas denied Juan Pardo's petition for a writ of mandamus.
  • Justice Kyle D. Hawkins, joined by Justices Young and Sullivan, concurred to say Texas Rule of Civil Procedure 592 authorizes writs of attachment for property and appears not to permit the arrest and confinement of an uncooperative deponent.
  • The concurrence said a trial-court order directing any sheriff or constable to take Pardo into custody, issued on his opponent's affidavit, is hard to justify as an application of Rule 592.
  • Hawkins wrote that Rule 176.8, Rule 215.2, and Government Code contempt provisions give trial courts tools to punish litigation misconduct, that Rule 176.8 provides for confinement subject to due process, and that justifying the arrest would have required a different authority and a higher showing than Rule 592 demands.
  • The three justices joined the denial because the parties dispute whether the trial court relied on Rule 592, the writ has expired, and the claims have been nonsuited, but said the court should intervene in an appropriate case if the practice recurs.

Three justices of the Supreme Court of Texas wrote Oct. 9 that a court rule allowing judges to freeze a defendant's property before judgment likely cannot be used to arrest and jail an uncooperative deponent. They said the court should intervene in an appropriate case if the practice recurs.

The warning came in a concurring opinion by Justice Kyle D. Hawkins, joined by Justices Young and Sullivan, in In re Juan Pardo. The court denied a petition for a writ of mandamus filed by Pardo, the relator. Pardo told the justices that a trial court had used the property rule, Texas Rule of Civil Procedure 592, to order him taken into custody.

Hawkins agreed that the court should deny relief in this case. But his opinion separates Rule 592, which he described as a tool for freezing assets, from the subpoena, discovery-sanction and contempt powers that he said already let trial courts rein in and punish litigation misconduct. Under that view, a trial court seeking to jail a deponent would have to invoke a different authority and make "a higher showing than Rule 592 demands."

Hawkins framed the issue as whether the rule permits "the arrest and confinement of an uncooperative deponent." He wrote, "I would think the answer is no. Yet the Relator here tells us that the trial court deployed the rule for that very purpose."

Rule 592 governs writs of attachment for property. Its purpose, Hawkins wrote, "seems clear enough: to freeze the defendant's assets so that they are available to satisfy whatever judgment the plaintiff eventually wins." He said the rule "combats the age-old problem of defendants rendering themselves judgment-proof by liquidating assets or moving them out of state over the course of protracted litigation."

Hawkins then listed the rule's safeguards for property owners. A plaintiff seeking attachment must file an application backed by sworn statements, and the judge, rather than a clerk, must issue a written order supported by findings, he wrote. The rule also sets valuation ceilings, bond and replevy terms, and preservation requirements, "all to guard against error and abuse." Hawkins cited a 2007 San Antonio appeals court decision, In re Argyll Equities, LLC, and Section 61.001 of the Texas Civil Practice and Remedies Code, which sets out prerequisites for the writ.

"Each of these features is incongruous with the seizure of a person," Hawkins wrote. He followed with a series of questions drawn from the rule's text: "What is the maximum value of a deponent? What does it mean to keep him 'safe and preserved subject to further orders'? What bond does he post to replevy himself?" He concluded that "None of those provisions makes sense when it comes to depriving someone of his liberty."

"And yet, that appears to be what happened here," the concurrence said. Pardo had submitted an order signed by the trial judge and styled "Order for Issuance of Writ of Attachment of Juan Pardo." According to the concurrence, the order directed "any sheriff or constable" to "immediately take" Pardo into "custody" in "jail with cash [b]ond," and the judge issued it "[o]n the basis of" an affidavit from Pardo's litigation opponent.

"It is hard to see how this order could be justified as an application of Rule 592," Hawkins wrote. The concurrence does not name the trial judge, the court or the opposing party. It also does not describe the underlying lawsuit.

Hawkins pointed to other authorities that he said give trial courts "ample tools to rein in and, when appropriate, punish litigation misconduct." He cited Rule 176.8, which governs enforcement of subpoenas, and Rule 215.2, which addresses failure to comply with an order or with a discovery request. He also cited two contempt provisions of the Texas Government Code, Sections 21.002 and 82.061.

Rule 176.8, Hawkins wrote, "specifically provides for 'confinement' as a punishment for the failure to 'obey a subpoena,' subject to the requirements of due process." For that limit he cited the Fourteenth Amendment and the court's 2008 decision in In re Zandi. That decision quoted a 1983 ruling, Ex parte Johnson, for the principle that "alleged constructive contemnors are entitled to procedural due process protections before they may be held in contempt."

"These rules come with critical protections to guard against a wrongful deprivation of freedom," Hawkins wrote. He allowed that the trial court "perhaps could have justified the Relator's arrest, but it would have required invoking a different authority."

Hawkins gave two reasons for joining the denial. First, he wrote, the parties dispute "whether the trial court really understood itself to be applying Rule 592, or whether it simply mislabeled its order, or misidentified the source of its authority." The parties' briefs "largely talk past each other," he wrote, and Pardo "has filed no reply brief to rebut his opponent's characterization of the proceedings below."

Second, the writ had expired, and the claims had been nonsuited. Hawkins wrote that "nothing suggests the Relator faces a similar punishment again."

The court denied review without ruling on how far Rule 592 reaches. Hawkins left that question for a later case. "That said, if this arises again in a future case, our intervention may be warranted," he wrote.