NUMBER 13-19-00111-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE SOUTHWESTERN PUBLIC SERVICE COMPANY,

XCEL ENERGY, INC., AND XCEL ENERGY SERVICES, INC.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Benavides1

By petition for writ of mandamus, relators Southwestern Public Service Company 

(SPS), Xcel Energy Inc., and Xcel Energy Service Inc., seek to set aside (1) an order 

denying their motion to recuse the judge of the trial court, and (2) an order granting death 

penalty sanctions against relators.2 We deny the petition for writ of mandamus regarding 

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see 

also id. R. 47.4 (distinguishing opinions and memorandum opinions).

2 This original proceeding arises from trial court cause number C-4964-16-1 in the 398th District 

Court in Hidalgo County, Texas. Relators seek mandamus relief against the judge of that court, the 

Honorable Keno Vasquez, who issued the death penalty sanction order against relators, and the Honorable 
2

recusal and conditionally grant the petition for writ of mandamus regarding the imposition 

of death penalty sanctions. 

I. BACKGROUND

On October 26, 2016, Eduardo Munoz Jr. suffered severe personal injuries, 

including burns and permanent spinal cord injuries resulting in paralysis, from an electrical 

arc arising from a high voltage power line that was owned and operated by relators. 

Munoz had loaded a tractor-trailer rig with peanuts near the power line and was 

attempting to cover his load with a tarp when the accident occurred. The parties to this 

original proceeding offer different scenarios regarding the factual basis for the accident 

and its cause. However, the basic underpinnings of the incident are as follows, and 

additional facts will be discussed in connection with the specific issues raised in this 

original proceeding. 

Wilco Peanut Co., Ltd. (Wilco) hired Munoz to pick up peanuts and deliver them to 

its peanut processing facility. Marco Sustayta, a Wilco employee, dispatched Munoz to 

retrieve peanuts from a peanut farm owned or operated by Dustin Nelson. Nelson’s 

peanut farm utilized a conveyer belt, with a loading area beneath the conveyer belt, for 

trucks to use in loading the peanuts. The conveyer belt was positioned either underneath 

or near the power line operated by relators. After loading the peanuts into his trailer, 

Munoz had difficulty in covering his load with a tarp. Munoz’s trailer was equipped with a 

crank rod which allowed the tarp to be rolled over the load; however, the tarp failed to 

unroll across the peanuts. Munoz climbed on top of the trailer to attempt to manually roll 

the tarp, and during his efforts, the metal crank arm which rolled the tarp either came in 

Missy Medary, the Presiding Judge of the Fifth Administrative Judicial Region, who denied relators’ motion 

to recuse Judge Vasquez. See id. R. 52.2.
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contact with or came into extreme proximity to the power line, thereby creating the 

electrical arc that caused Munoz’s injuries. The day after the accident, relators 

investigated the incident with a team of ten employees who measured the height of the 

power line at the point of contact at 25.38 feet high. 

Plaintiffs3 brought suit against Wilco, Sustayta, Nelson, and relators. The 

defendants other than relators have settled their claims with the plaintiffs and are not 

parties to this original proceeding. At the beginning of the lawsuit, the plaintiffs alleged a 

general negligence claim against relators.4In their third amended petition filed on October 

1, 2018, the live pleading at the time the orders subject to review were signed, the 

plaintiffs alleged that relators were negligent and grossly negligent in: transmitting 

excessive current on the subject power line causing it to sag dangerously; failing to timely 

de-energize the power line to prevent it from excessively sagging; violating Texas Utilities 

Code §§ 38.004, 181.045, “and/or similar statutes,” by failing to operate and/or maintain

the power line in accordance with the minimum ground clearance required by the National 

Electric Safety Code (NESC), that is, negligence per se; failing to maintain the height of 

the power line in accordance with the NESC, Part 2, § 23; failing to properly monitor the

height of the power line; negligently operating and monitoring the electrical power

transmission and communication systems; and failing to properly inspect the height of the

3 The plaintiffs include Eduardo Munoz Jr. and Kasandra Girela Munoz, individually and as next 

friend to their minor child.

4

In their Original Petition, filed in this case on November 1, 2016, the plaintiffs alleged that SPS 

was negligent. In their First Amended Petition, filed on February 27, 2017, the plaintiffs alleged that relators 

were negligent, negligent per se, and grossly negligent. At least based on the record, plaintiffs did not 

request service of citation on relators until April 5, 2017. Relators filed their motion to transfer venue and 

answer on May 8, 2017. Plaintiffs’ Second Amended Petition, filed on July 5, 2017, specified that relators 

were negligent and grossly negligent in failing to maintain, monitor, and inspect the height of the power line.
4

power line. The plaintiffs also invoked the doctrine of res ipsa loquitur, pleading that “the 

character of the subject event is such that it would not ordinarily occur in the absence of 

negligence, and that the subject power line was under the management and control of 

[relators] at the time of the occurrence.” The plaintiffs sought compensatory damages in 

the aggregate sum of $245,000,000.

In contrast, the relators asserted that their power line was properly maintained and 

operated, that the power line was maintained at an appropriate height, and that there 

were no overcurrent events or faults which would have caused the power line to sag. 

They asserted that Munoz climbed on top of the peanut trailer and physically lifted the 

tarp rod into contact with the power line, or otherwise brought the tarp rod into such close 

proximity to the power line that an electrical contact occurred. The relators further 

contended that, though the Texas Health and Safety Code required that they be notified 

if anyone planned to work near the power line, they did not receive any such required 

notification. The relators further filed a counterclaim against the plaintiffs and cross-claims 

against Wilco, Sustayta, and Nelson for indemnity.

Early in the case, the defendants in the lawsuit sought to transfer venue from 

Hidalgo County, Texas, to Yoakum County, Texas. In response, the plaintiffs requested 

that the trial court grant “emergency relief” allowing extensive discovery regarding the 

venue facts underlying the case. On June 27, 2017, the trial court signed an Emergency 

Discovery Order at the plaintiffs’ behest. This order is not limited in scope to discovery 

regarding venue but extends to substantive discovery on the merits. The Emergency 

Discovery Order, which is twenty-four pages long, included industry definitions, ordered 

the relators to designate Rule 199.2 corporate representatives to testify about twenty-
5

seven topics, and required the production of fifty-seven categories of documents. See 

TEX. R. CIV. P. 199.2. The Emergency Discovery Order provided, inter alia, that the 

plaintiffs’ depositions were to take place after all of the defendants’ depositions had been 

taken. After entry of this order, the plaintiffs thereafter propounded requests for production 

and interrogatories to relators requesting the same and similar information as designated 

in the Emergency Discovery Order.

On July 10, 2017, the plaintiffs filed a Motion to Compel Disclosures, Motion for 

Order Shortening Time to Answer Interrogatories, and Motion for Rule 215 Sanctions. 

The plaintiffs alleged that the relators had not responded to the plaintiffs’ requests for 

disclosure which had been due between June 1 and June 6, 2017. The plaintiffs further 

alleged that relators had violated the Emergency Discovery Order by noticing Munoz’s 

deposition even though the relators’ witnesses had not yet been deposed. The plaintiffs 

asked the trial court to shorten the time for relators to respond to interrogatories and to 

impose sanctions because of the relators’ “bad faith conduct” and “discovery abuse.” On 

July 25, 2017, the trial court granted the plaintiffs’ motion, in part, and ordered relators to 

provide responses to requests for disclosure and answer interrogatories by July 28, 2017.

The parties continued to engage in a series of protracted and rancorous discovery 

disputes. Of relevance here, on June 13, 2018, the plaintiffs filed a Motion to Compel 

Deposition of Maria Vasquez and Motion for Rule 215 Sanctions. The plaintiffs alleged 

that, although the Emergency Discovery Order required relators to produce witnesses 

“with the best knowledge” of various topics, which included “all aspects of the 

investigation of the incident,” relators produced only Cory Wood, who worked in the 

construction department and did not participate in the accident investigation, and not 
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Vasquez, who actually handled the accident investigation and interviewed the witnesses 

to the incident. On July 27, 2018, the trial court entered an Order Compelling Deposition 

of Maria Vasquez and also entered an Order Granting Plaintiffs’ Motion to Compel 

Deposition of Maria Vasquez and Motion for Rule 215 Sanctions against relators. The 

July 27, 2018 sanction order concludes that relators violated the June 27, 2017 

Emergency Discovery Order and various rules of civil procedure by: (1) producing only 

one corporate representative, Wood, to testify about twenty-seven different topics, 

because he lacked relevant knowledge, was evasive, and was unprepared for the 

deposition; and (2) failing to produce Vasquez for deposition, even though she was the 

claims investigator who examined the scene immediately after the accident. The trial court 

concluded that relators’ alleged discovery abuse hindered and obstructed the plaintiffs’ 

prosecution of their lawsuit. The trial court ordered relators to:

[D]esignate as many individuals as necessary to testify on their behalf 

regarding all aspects of the investigation of the [relators regarding] the 

incident made the basis of suit, and the [relators] shall fully prepare all such 

individuals as to all matters that are known or reasonably available to the 

[relators] in accordance with TEX. R. CIV. P. 199.2(b)(1) and this Court’s 

order of June 27, 2017.

The trial court ordered relators to pay: (1) “all court reporter and videographer fees and 

costs in connection with the deposition of the corporate representative witness(es),” (2) 

“monetary sanctions for the preparation and prosecution of this Motion in the amount of 

hotel, air flight, rental car & meals” to plaintiffs’ counsel, (3) “travel and lodging costs 

incurred to attend the hearing of this motion” to plaintiffs’ counsel, and (4) “monetary 

sanctions for the preparation and prosecution of the Joinder in Plaintiffs’ Motion to Compel 

Oral Deposition of Maria Vasquez and Motion for Sanctions, filed by [Wilco] in the amount 

of hotel, air flight, rental car & meals,” to counsel for Wilco.
7

On February 28, 2018, SPS moved for partial summary judgment on its pending 

cross-claims against Sustayta, Wilco, and Nelson. SPS argued that Sustayta, Wilco, and 

Nelson were each liable to SPS for indemnity pursuant to provisions of the Texas Health 

and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 752.001–.008. Chapter 752 

of the Texas Health and Safety Code pertains to persons engaged in activities near high 

voltage power lines. See id.; McCaughtry v. Barwood Homes Ass’n, 981 S.W.2d 325, 334 

(Tex. App.—Houston [14th Dist.] 1998, pet. denied); Martinez v. Gulf States Util. Co., 86 

S.W.2d 802, 804 (Tex. App.—Houston [14th Dist.] 1993, writ denied). Section 752.003 

requires persons responsible for temporary work or activities within certain prescribed 

proximities to high voltage overhead lines to notify the operator at least forty-eight hours 

before any work begins and to arrange for de-energization of the lines or the 

implementation of other safety precautions. See TEX. HEALTH & SAFETY CODE ANN. § 

752.003(a)–(b). Section 752.004 restricts activities “within six feet” of a high voltage line 

unless a person first complies with § 752.003. See id. § 752.004. When a person or entity 

fails to comply with Chapter 752, and physical or electrical contact with high voltage 

overhead lines results, the person or entity who committed the violation is liable “for all 

liability that the owner or operator incurs as a result of the contact.” Id. § 752.008; see 

Trail v. Friedrich, 77 S.W.3d 508, 513–14 (Tex. App.—Houston [1st Dist.] 2002, pet. 

denied) (holding that a plaintiff who violates Chapter 752 cannot recover damages from 

the line owner because, under § 752.008, the plaintiff must indemnify the line owner for 

his or her own damages). The purpose of the indemnification provision, § 752.008, is to 

place liability for losses resulting from noncompliance with the statute’s notification and 

safety provisions on the person responsible for having workers near a power line. See 
8

Chavez v. City of San Antonio ex rel. City Pub. Serv. Bd. of San Antonio, 21 S.W.3d 435, 

439 (Tex. App.—San Antonio 2000, pet. denied); Martinez, 864 S.W.2d at 805.

SPS’s motion for partial summary judgment was supported by a January 7, 2018 

affidavit from relators’ expert B. Don Russell. This affidavit provided, in relevant part:

I have been advised that Plaintiff Eddie Munoz suffered electrocution 

injuries while standing on the rear deck of a peanut trailer, the height of 

which was 13 feet. I have been advised that there was a power line above 

the peanut trailer, and that the line was a 69 KV (phase-to-phase) 

transmission line measuring 25.38 feet above ground level the day after the 

contact. I have also been advised that the peanut trailer had a tarp system 

across the top which was operated by use of a tarp rod that was metal at 

the end and about 12 feet in length, but connected to a PVC pipe after a 

few feet.

. . . .

It is my professional opinion that with reasonable engineering certainty the 

tarp rod came into electrical contact with the 69 KV conductor, that is, the 

tarp rod was within 1 inch of the conductor when an arc was initiated. That 

being said, there is a reasonable engineering certainty that the tarp rod was 

well within 6 feet of the power line at the time electrical contact was made,

referencing that the trailer height was 13 feet, the transmission line 

measured 25.38 feet the day after the accident, and the tarp rod was about 

12 feet in length.

As relators now recognize, and as will be discussed further, Russell’s statement in 

his affidavit that the tarp rod was “about 12 feet in length” was factually incorrect—instead, 

the tarp rod was actually 9 feet and 8 inches long. 

On March 1, 2018, relators filed a traditional and no evidence motion for summary 

judgment against the plaintiffs on grounds that (1) the plaintiffs’ pleadings failed to state

a viable cause of action because the relators did not owe Munoz any duty under a 

negligent activity or contemporaneous omission theory, and (2) there was no evidence

that Xcel Energy or Xcel Services owed Munoz a duty sounding in premises liability. 
9

Relators supported this motion for summary judgment with the same Russell affidavit 

referenced previously. 

On September 17, 2018, SPS moved for partial summary judgment against 

plaintiffs on the “six-foot rule.” Through this motion, SPS alleged that “Munoz’s claims 

against SPS fail as a matter of law” because “SPS was not notified at least 48 hours prior 

to any work, temporary activity, or function that would cause a person or object to come 

within six feet of the transmission line.” SPS alleged that it “received no notification that 

work would be conducted underneath or near the line in question.” It argued that it was 

entitled to partial summary judgment as to Munoz’s causes of action pursuant to Texas 

Health and Safety Code §§ 752.001–.008 and the doctrine of circular indemnity.

On October 23, 2018, the plaintiffs filed a traditional and no evidence motion for 

summary judgment on SPS’s Chapter 752 affirmative defense and counterclaim and 

SPS’s contention that Munoz was contributorily negligent. According to the plaintiffs’ 

motion for summary judgment, Munoz’s “injuries occurred when the SPS Defendants 

violated the Texas Utilities Code § 38.004, and therefore committed negligence per se, 

when their high voltage (69,000 Volt) transmission line was sagged below the statutorily 

required minimum ground clearance” while Munoz was on top of the trailer, and the 

transmission line contacted the tarp rod attached to the trailer. The plaintiffs asserted that 

the height of the trailer was thirteen feet unloaded and twelve feet and ten inches loaded, 

the total length of the tarp rod was nine feet and eight inches, and the tarp rod was affixed 

to the top of the trailer. The relators claimed that the height of the line the day after the 

accident was 25.38 feet. The plaintiffs asserted that the tarp rod would reach, at most, 

only twenty-two feet and eight inches above the ground if erected fully vertically from a 
10

position directly under the power line, and it would require a physical contact or a oneinch space or less between the power line and the tarp rod to create an electrical arc. 

According to the plaintiffs, a gap of approximately two feet and eight inches between the 

tarp rod and the power line was insufficient to generate an arc.5 Thus, according to the 

plaintiffs, the power line must have sagged lower than 25.38 feet at the time of the 

accident.

On November 9, 2018, the plaintiffs filed “Plaintiffs’ Motion to Strike the Pleadings 

of Southwestern Public Service Company, Xcel Energy Inc. and Xcel Energy Services, 

Inc. Pursuant to Texas Rule of Procedure Rule 215.2(b)(5) and Inherent Power to 

Sanction and for Entry of Default Judgment.” This motion engendered the death penalty 

sanctions against relators. In this motion, the plaintiffs alleged that relators committed 

various sanctionable acts including: (1) lying to the court, (2) deliberately violating 

discovery orders and the rules of discovery, (3) refusing to produce and destroying “vital”

documentary evidence, committing perjury and fabricating evidence, and (4) hiding the 

identities of “potentially” key witnesses. The motion is voluminous and comprises, 

including exhibits, almost eight hundred pages of the record. 

Generally speaking, plaintiffs’ allegations centered on four categories of discovery: 

(1) historical data regarding the power line found in “SCADA,” the relators’ supervisory 

control and data acquisition control system, and the Schweitzer relay, which senses 

faults, trips breakers, and has the capacity to record data, (2) repair records for the power 

line, (3) the identification of witnesses with knowledge of the power line operations 

5 Relators characterize the motion for summary judgment as claiming “there were only two ways”

that contact with the line could have happened—either he raised the rod and hit the line or the line “sagged 

9-feet and caused the contact.” We have closely scrutinized the motion for summary judgment and see no 

such claim regarding a sag of nine feet.
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immediately before, on the day of, and after the accident, including the investigation 

performed by relators, and (4) the Russell affidavit with its false assertion regarding the 

length of the tarp rod. The motion to strike included the following specific “examples” of 

the alleged abuse: 

• SCADA data gap fraudulent misrepresentations made to the court;

• violation of express court orders to produce all SCADA data;

• hiding and failing to produce complete SCADA [sequence of events] 

logs;

• fabrication and/or fraudulent manipulation of SCADA data printout 

documents;

• lies, cover up and hiding made in sworn answers to interrogatories

and responses to requests for production about the very existence

of the Schweitzer recording relay, and the existence of Schweitzer

relay data;

• deliberate destruction of Schweitzer relay critical data evidence and 

spoliation,

• hiding repair records pertaining to the actually involved or related 

circuit breakers and relays;

• false testimony about the repair records and deliberate withholding 

and hiding of these records;

• knowingly presenting a false affidavit in support of their motions for 

summary judgment in order to mislead, bias and deceive the court; 

and
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• hiding the identities and relevant knowledge of potential key

witnesses when the identity of such witnesses has been well-known 

to these defendants for 2 years.

The plaintiffs argued that the trial court had previously imposed lesser sanctions, but the 

relators had nevertheless continued to abuse the discovery process. The plaintiffs 

requested that the trial court strike the relators’ pleadings and enter a default judgment. 

That same day, the trial court set the plaintiffs’ motion for hearing on November 14, 2018. 

On November 9, 2018, relators filed an Emergency Motion for Continuance of the 

hearing on the plaintiffs’ motion to strike and also filed an Amended Emergency Motion 

for Continuance. Relators argued that the case was set for trial on November 26, 2018, 

with a pretrial hearing set for November 19, 2018 and hearings on all motions for summary 

judgment set for November 13, 2018. Relators asserted that the plaintiffs’ motion to strike 

was “untimely and interposed for improper strategic purposes.”

Also on November 9, 2018, relators filed multiple motions to exclude the expert 

testimony of plaintiffs’ witnesses: engineer J. Roger Craddock, P.E., Earl Shockley, 

metallurgist Richard P. Barn, mechanical engineer Dan Wilkerson, and Joe G. Gonzalez, 

M.D. The plaintiffs, in turn, filed motions to strike the testimony of various of relators’ 

witnesses, including Kenneth Munsell, Byron Craig, Cory Wood, and David Wheeler. 

Relators further filed a motion to continue the trial of this matter. 

On November 12, 2018, relators filed a “Motion to Strike Plaintiffs’ Motion to Strike 

Pleadings of [Relators].” They asserted, inter alia, that the plaintiffs’ motion was filed 

seventeen days before trial and the plaintiffs were “complaining of actions of which 

Plaintiffs have been aware for months, if not years.”
13

The trial court held a hearing on the foregoing issues on November 13, 2018. 

Following a conference in chambers, the trial court granted the relators’ emergency 

motion for continuance. 

On November 14 and 15, 2018, the trial court issued rulings on the pending 

motions for summary judgment. The trial court denied SPS’s motion for partial summary 

judgment, granted the plaintiffs’ traditional and no evidence motion for summary judgment 

“in all respects and for all purposes,” and denied the relators’ motion for summary 

judgment against the plaintiffs. 

On November 19, 2018, the relators filed their response to the plaintiffs’ motion to 

strike. It is seventy-five pages long and has fifty-two exhibits. That same day, the plaintiffs 

filed a “Memorandum of Law Regarding the Scope of the Court’s Inquiry for Plaintiffs’ 

Motion to Strike.” The plaintiffs asserted that the trial court should not address the merits 

of relators’ claims and defenses, but instead focus on whether their alleged “willful bad 

faith abuse of the discovery process is deserving of a presumption of no merit.”

On November 21, 2018, the plaintiffs filed “Objections to Late/Non-Disclosed 

Witnesses under Rule 193.6 and Supplement to Motion to Strike [Relators’] Pleadings.”

They asserted that relators’ response to the motion to strike included “identities of . . . 

new witnesses accompanied with the inclusion of deliberately secreted information.” The 

plaintiffs criticized the relators’ provision of untimely discovery responses and decried 

relators’ attempt to discuss the merits of the case. The plaintiffs asserted that relators 

failed to timely and properly disclose witnesses Robert DeLong, David Wheeler, Phillip 

Fetzer, Corby White, Mike Harrison, David Wheeler, Tim Dillon, Sean Ellibee, and Jesus 

Rodriguez.
14

On Wednesday, November 21, 2018, the trial court advised the parties by email 

regarding the scope and conduct of the sanction hearing:

Please be advised that I WILL NOT have a trial within a trial. I will be 

addressing the issue whether the alleged offensive discovery abuse 

(conduct) and any sanction or lesser sanction I may impose, if any [sic]. I 

definitely want to address SPS exhibit 25, [counsel for relators’] Affidavit. I 

will email you all on Friday if I can identify any other particular witnesses I 

want to hear from. So, please have your witnesses ready that you may need 

to address the limited scope that I have outlined above. That does not mean 

that I will allow SPS to call every witness identified in their November 9th, 

2018 letter. I’m also concerned that witnesses may be called that have not 

been disclosed and I want to avoid dragging this hearing on because I’m 

sure Plaintiffs will object to witnesses that have not been disclosed.

On Friday, November 23, 2018, the trial court emailed the parties that he wished 

to hear testimony at the sanction hearing from: (1) Maria Vasquez, (2) counsel for relators, 

Christopher L. Jensen, (3) Kenneth Munsell, and (4) Cory Wood. Relators notified the trial 

court that Vasquez was unavailable to appear, and the trial court responded: 

That’s fine she does not need to come down if you all stand by her 

deposition testimony. . . . Your response was very detailed, including all the 

exhibits. If you believe you need her, then maybe you can have her come 

Tuesday, but I have enough information to make a ruling. . . . Mr. Wood is 

no longer needed, but if you feel you need him then bring him down. Please 

consider Mediation because I plan on ruling this week. I can delay my ruling 

if you all want to mediate this case.

On November 26, 2018, the plaintiffs filed a “Reply to Response of [Relators] to 

Plaintiffs’ Motion to Strike the Pleadings of [Relators].” This reply included the affidavit of 

expert witness Dan Wilkerson. Wilkerson testified, inter alia, that based on his 

investigation, the power line and associated structures had numerous visible repairs; the 

logistics of the rolled up tarp prevented the tarp rod from reaching the conductor and 

measurements taken “preclude[d] any other conclusion of causation other than a drop of 

the involved conductor to the tarp rod at the time of the incident”; and, though the available 
15

SCADA information showed well over one hundred alarms indicating deviations outside 

preset limits on the date of the accident, the information “which would be most valuable 

for [the] investigation” was missing. Wilkerson testified that relators’ discovery responses 

included “significant fabricated, made-up evidence in the period immediately before the 

occurrence of the incident,” including false representations made about when the incident 

occurred, that the data provided was complete, and that that the data included actual 

measurements and values for the power line. Wilkerson testified that the SCADA data 

was “critical in order to make an exact determination of the cause of the incident.”

The trial court held a four-day hearing on sanctions beginning on November 26, 

2018. The plaintiffs called three of the four witnesses that the trial court had requested: 

Jensen, Munsell, and Wood. Relators did not produce Vasquez to testify at any point 

during the proceedings. After the plaintiffs rested their case, the relators asked to present 

their witnesses. As will be discussed in more detail herein, the trial court refused to allow 

relators to present their witnesses on grounds that relators’ witnesses had not been 

disclosed until recently and their testimony was either cumulative or irrelevant. At the 

conclusion of the hearing, the trial court took the issue of sanctions under consideration.

After the sanction hearing concluded, relators filed a motion to recuse the judge of 

the trial court, the Honorable Keno Vasquez, arguing that “[plaintiffs’ counsel] had 

engaged in ‘judge shopping’” based on circumvention of the random case assignment 

system. Judge Vasquez referred the motion to Judge Missy Medary, the Presiding Judge 

of the Fifth Administrative Judicial Region, for further proceedings. After a hearing, Judge 

Medary denied the relators’ motion to recuse on January 8, 2019. 
16

On February 19, 2019, Judge Vasquez signed an order granting death penalty 

sanctions against relators. The trial court’s February 19, 2019 order: (1) strikes relators’ 

pleadings, including all defenses, counter-claims, and cross claims; (2) enters a default 

judgment in favor of plaintiffs and against relators on all issues of liability; and (3) requires 

a jury trial regarding the amount of plaintiffs’ damages; and (4) provides that “no issues 

with regard to liability, including proportionate responsibility, shall be submitted to the 

jury.”

This original proceeding ensued. Relators raise four issues. In their first issue, they 

assert generally that the respondents abused their discretion and mandamus relief should 

be granted. The relators do not brief this issue separately, and accordingly, we do not 

treat it separately in this opinion. In their remaining issues, relators assert that: respondent

Judge Vasquez abused his discretion by ordering death penalty sanctions and entering 

a default judgment on liability, including on the issues of proportionate responsibility and 

gross negligence; respondent Judge Medary abused her discretion by denying relators’

timely motion to recuse Judge Vasquez where “there was uncontroverted evidence of

‘judge shopping’” by plaintiffs’ counsel “through manipulation of the random assignment 

procedures”; and relators lack an inadequate remedy by appeal. This Court requested 

and received a response to the petition for writ of mandamus from plaintiffs and received 

a reply thereto from relators.

II. STANDARD FOR MANDAMUS REVIEW

Mandamus is both an extraordinary remedy and a discretionary one. In re Garza, 

544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam). For mandamus to issue, 

the relator must show that the trial court abused its discretion and that no adequate 
17

appellate remedy exists to cure the error. In re N. Cypress Med. Ctr. Operating Co., 559 

S.W.3d 128, 130 (Tex. 2018) (orig. proceeding); In re Christus Santa Rosa Health Sys., 

492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the burden of 

proving both requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) 

(orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. 

proceeding).

An abuse of discretion occurs when a trial court’s ruling is arbitrary and 

unreasonable or is made without regard for guiding legal principles or supporting 

evidence. In re Garza, 544 S.W.3d at 840; In re Nationwide Ins. Co. of Am., 494 S.W.3d 

708, 712 (Tex. 2016) (orig. proceeding). Under this standard of review, we defer to the 

trial court’s factual determinations that are supported by evidence, but we review the trial 

court’s legal determinations de novo. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 

643 (Tex. 2009) (orig. proceeding). We determine the adequacy of an appellate remedy 

by balancing the benefits of mandamus review against the detriments. In re H.E.B. 

Grocery Co., 492 S.W.3d at 304; In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) 

(orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 

(Tex. 2004) (orig. proceeding). In deciding whether the benefits of mandamus outweigh 

the detriments, we weigh the public and private interests involved, and we look to the 

facts in each case to determine the adequacy of an appeal. In re United Servs. Auto. 

Ass’n, 307 S.W.3d 299, 313 (Tex. 2010) (orig. proceeding); In re McAllen Med. Ctr., Inc., 

275 S.W.3d 458, 469 (Tex. 2008) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 

S.W.3d at 136–37.
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III. RECUSAL

In their third issue, which we take out of order, relators assert that respondent 

Judge Medary abused her discretion by denying relators’ motion to recuse Judge 

Vasquez where “there was uncontroverted evidence of ‘judge shopping’” by plaintiffs’ 

counsel “through manipulation of the random assignment procedures.” Relators filed their 

motion to recuse Judge Vasquez on December 4, 2018. Relators argued that they 

discovered, during the pendency of the lawsuit, that plaintiffs’ counsel had filed a series 

of “bogus” lawsuits before “selecting” Judge Vasquez’s court to litigate the underlying 

case, and they argued that Judge Vasquez should be recused as a result of the plaintiffs’ 

alleged forum shopping. Relators asserted that recusal is warranted in cases involving 

alleged forum shopping because “the judge’s impartiality might reasonably be 

questioned.” See TEX. R. CIV. P. 18b(b)(1); In re E.R.C., 496 S.W.3d 270, 279 (Tex. 

App.—Texarkana 2016, pet. denied) (discussing the standard for recusal under Texas 

Rule of Civil Procedure 18b). Judge Vasquez referred the relators’ motion to recuse to 

Judge Medary, who denied it. See TEX. R. CIV. P. 18a(f)(2), (g). Relators contend that 

Judge Medary abused her discretion by refusing to recuse Judge Vasquez. 

“An order denying a motion to recuse can be reviewed only for abuse of discretion 

on appeal from the final judgment.” TEX. R. CIV. P. 18a(j)(1)(A);6 see In re Estate of 

6 Relators did not address the application of Rule 18a in their petition for writ of mandamus but 

contend in their reply brief that this rule does not supplant a traditional mandamus review. We interpret our 

rules of civil procedure using the same principles we apply when construing statutes. In re City of Dickinson, 

568 S.W.3d 642, 645 (Tex. 2019) (orig. proceeding); In re Bridgestone Americas Tire Operations, LLC, 459 

S.W.3d 565, 569 (Tex. 2015) (orig. proceeding). We perform a de novo review of the trial court’s 

interpretation and our primary objective is to give effect to the drafter’s intent as expressed in the rule’s 

language. In re City of Dickinson, 568 S.W.3d at 645–46; Galbraith Eng’g Consultants, Inc. v. Pochucha, 

290 S.W.3d 863, 867 (Tex. 2009). We look first to the rule’s language and construe it according to its plain 

meaning. In re Bridgestone Americas Tire Operations, LLC, 459 S.W.3d at 569. We are not at liberty to 

ignore the express text of the rule. See Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992) 

(op. on reh’g) (stating that “it is not in the interest of justice to apply the rules of procedure unevenly or 
19

Calkins, 580 S.W.3d 287, 295 (Tex. App.—Houston [1st Dist.] May 30, 2019, no pet.); 

Hawkins v. Walker, 233 S.W.3d 380, 401 (Tex. App.—Fort Worth 2007, no pet.). The 

denial of a motion to recuse is not reviewable on mandamus because there is generally 

an adequate remedy by appeal from the final judgment. See In re Union Pac. Res. Co., 

969 S.W.2d 427, 427–29 (Tex. 1998) (orig. proceeding). In Union Pacific, the supreme 

court concluded that it was an abuse of discretion for the court of appeals to review an 

order denying recusal by mandamus because the complaining party had an adequate

remedy by appeal. Id. at 427. In so holding, the supreme court compared and contrasted 

appellate review of orders denying disqualification and recusal:

Judges may be removed from a particular case either because they are 

constitutionally disqualified, TEX. CONST. art. V, § 11, because they are 

subject to a statutory strike, TEX. GOV’T CODE § 74.053(d), or because they 

are recused under rules promulgated by this Court. TEX. R. CIV. P. 18a, 18b; 

TEX. R. APP. P. 16. The grounds and procedures for each type of removal 

are fundamentally different. See generally Kilgarlin & Bruch, Disqualification 

and Recusal of Judges, 17 ST. MARY’S L.J. 599 (1986). When a judge 

continues to sit in violation of a constitutional proscription, mandamus is 

available to compel the judge’s mandatory disqualification without a 

showing that the relator lacks an adequate remedy by appeal. Cf. Mitchell 

Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997) (addressing 

the mandatory disqualification of assigned judges under TEX. GOV’T CODE

§ 74.053(d)). This makes sense, because any orders or judgments 

rendered by a judge who is constitutionally disqualified are void and without 

effect. See, e.g., Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 

148 (Tex. 1982); Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218, 221 (1947). 

Likewise, on timely objection, the disqualification of an assigned judge who 

is not a retired judge is mandatory under section 74.053(d) of the Texas 

Government Code and any orders entered by a trial judge in a case in which 

he is disqualified are void. See Mitchell Energy Corp., 943 S.W.2d at 440–

441; Fry, 202 S.W.2d at 221. Therefore, the objecting party is also entitled 

to mandamus relief without a showing that there is no adequate remedy by 

appeal. See Dunn v. Street, 938 S.W.2d 33, 34–35 (Tex. 1997); Flores v. 

Banner, 932 S.W.2d 500, 501 (Tex. 1996).

inconsistently”); First State Bank of Miami v. Fatheree, 847 S.W.2d 391, 394 (Tex. App.—Amarillo 1993, 

writ denied) (concluding that appellate courts “are not at liberty to add to or change” the rules of civil 

procedure).
20

In contrast, the erroneous denial of a recusal motion does not void or nullify 

the presiding judge’s subsequent acts. While a judgment rendered in such 

circumstances may be reversed on appeal, it is not fundamental error and 

can be waived if not raised by proper motion. See Buckholts Indep. Sch. 

Dist., 632 S.W.2d at 148; Gulf Maritime Warehouse Co. v. Towers, 858 

S.W.2d 556, 559 (Tex. App.—Beaumont 1993, writ denied); Aguilar v. 

Anderson, 855 S.W.2d 799, 809–810 (Tex. App.—El Paso 1993, writ 

denied); AmSav Group, Inc. v. Amer. Sav. & Loan Ass’n, 796 S.W.2d 482, 

485 (Tex. App.—Houston [14th Dist.] 1990, writ denied). Recognizing this 

distinction, our Rules of Civil Procedure expressly provide for appellate 

review from a final judgment after denial of a recusal motion. See TEX. R.

CIV. P. 18a(f); Thomas v. Walker, 860 S.W.2d 579, 581 (Tex. App.—Waco 

1993, orig. proceeding). If the appellate court determines that the judge 

presiding over the recusal hearing abused his or her discretion in denying 

the motion and the trial judge should have been recused, the appellate court 

can reverse the trial court’s judgment and remand for a new trial before a 

different judge. This procedure is no different than the correction of any trial 

court error through the normal appellate process. As we have observed, “an 

appellate remedy is not inadequate merely because it may involve more 

expense or delay than obtaining an extraordinary writ . . . . [T]he ‘delay in 

getting questions decided through the appellate process . . . will not justify 

intervention by appellate courts through the extraordinary writ of 

mandamus.’” Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (quoting 

Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 652 (1958)). 

In re Union Pac. Res. Co., 969 S.W.2d at 428–29 (construing former TEX. R. CIV. P. 18a(f), 

current version at TEX. R. CIV. P. 18a(j)(1)(A)). 

In 2007, the supreme court revisited this issue and reiterated that “mandamus is 

not available for the denial of a motion to recuse,” but acknowledged that “our mandamus 

standards have evolved” since it decided Union Pacific, and “we now ask whether ‘any 

benefits to mandamus review are outweighed by the detriments.’” In re McKee, 248 

S.W.3d 164, 165 (Tex. 2007) (orig. proceeding) (per curiam) (quoting In re Prudential Ins. 

Co. of Am., 148 S.W.3d at 136). In that case, however, the supreme court concluded, 

again, that the relator had an adequate remedy at law. Id. 

Subsequent cases conclude that, as a general rule, appeal after final judgment is 

ordinarily an adequate remedy to review an order denying a motion to recuse. See In re 
21

Rodriguez, 583 S.W.3d 268, 269 (Tex. App.—Corpus Christi–Edinburg 2019, orig. 

proceeding) (mem. op.) (“As applicable to this case, the denial of a motion to recuse can 

be reviewed only on appeal from a final judgment; however, the denial of a motion to 

disqualify is reviewed by mandamus and may be appealed in accordance with other 

law.”); In re Sigmar, 270 S.W.3d 289, 308 (Tex. App.—Waco 2008, orig. proceeding) 

(“Because Axel has an adequate legal remedy, he is not entitled to mandamus relief in 

connection with his efforts to have Respondent removed from the case.”); In re Norman, 

191 S.W.3d 858, 860 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (stating that “a 

relator challenging the denial of a recusal motion ordinarily has an adequate remedy by 

appeal of the denial of a motion to recuse”); In re Lutz, 164 S.W.3d 721, 723–24 (Tex. 

App.—El Paso 2005, orig. proceeding) (“Review of the denial of a motion to recuse via 

the normal appellate process is an adequate remedy, and thus intervention in trial court 

proceedings by appellate courts through the extraordinary remedy of writ of mandamus 

is not justified.”).7In terms of exceptions to this general rule, we note that mandamus is 

available to compel compliance with Rule 18a’s mandatory recusal-or-referral 

requirement. See, e.g., In re Thompson, 330 S.W.3d 411, 417 (Tex. App.—Austin 2010, 

orig. proceeding); In re Norman, 191 S.W.3d at 860. We further note that at least one of 

our sister courts has held that mandamus review of an order denying a motion to recuse 

7 See also In re Runnels, No. 06-19-00061-CV, 2019 WL 3366793, at *1 (Tex. App.—Texarkana 

July 26, 2019, orig. proceeding) (mem. op.); In re Smale, No. 05-17-01466-CV, 2018 WL 360050, at *1 

(Tex. App.—Dallas Jan. 11, 2018, orig. proceeding) (mem. op.); In re Miller, No. 01-16-00132-CV, 2016 

WL 5851904, at *4 (Tex. App.—Houston [1st Dist.] Oct. 6, 2016, orig. proceeding) (mem. op.); In re Harrell, 

No. 01-12-00859-CV, 2012 WL 5878113, at *1 (Tex. App.—Houston [1st Dist.] Nov. 21, 2012, orig. 

proceeding) (mem. op.) (per curiam); In re Stafford, No. 06-11-00090-CV, 2011 WL 3768866, at *1 (Tex. 

App.—Texarkana Aug. 24, 2011, orig. proceeding) (mem. op.); In re ES Energy Sols., LP, No. 05-10-01158-

CV, 2010 WL 3720219, at *1 (Tex. App.—Dallas Sept. 24, 2010, orig. proceeding) (mem. op.); In re King, 

No. 06-08-00064-CV, 2008 WL 2545431, at *1 (Tex. App.—Texarkana June 27, 2008, orig. proceeding) 

(mem. op.).
22

is available if the grounds for recusal are established as a matter of law. In re State ex 

rel. Durden, 587 S.W.3d 78, 80 (Tex. App.—San Antonio 2019, orig. proceeding).

This case does not involve ministerial duties applicable to the recusal procedures 

and does not involve allegations pertaining to recusal as a matter of law. We see no 

extraordinary circumstances which would impact the adequacy of a remedy by appeal 

and necessitate review by mandamus. We note that relators do not suggest that the 

forum-shopping allegations underlying their motion to recuse should be addressed in the 

context of their issue pertaining to the trial court’s imposition of death penalty sanctions. 

Thus, leaving aside the merits of the allegations regarding recusal, we deny the petition 

for writ of mandamus insofar as it requests that we order the recusal of Judge Vasquez.8

IV. SANCTIONS

In their second issue, relators assert that respondent Judge Vasquez abused his

discretion by ordering death penalty sanctions and entering a default judgment on liability, 

including on the issues of proportionate responsibility and gross negligence. By multiple 

sub-issues, relators assert: (1) the trial court failed to apply the proper standard for 

spoliation with regard to missing data; (a) relators had no duty to preserve the missing 

data and thus did not breach a duty to preserve it; (b) relators did not intentionally or 

negligently destroy the missing data; and (c) plaintiffs did not suffer any prejudice as a 

result of the alleged spoliation; (2) the trial court failed to apply the proper standard 

regarding death penalty sanctions for “other discovery infractions”; (a) the sanction was 

8 The plaintiffs contend that we lack mandamus jurisdiction over Judge Medary as the Presiding

Judge of the Fifth Administrative Judicial Region. See, e.g., In re Cook, 394 S.W.3d 668, 671 (Tex. App.—

Tyler 2012, orig. proceeding); In re Lopez, 286 S.W.3d 408, 410 (Tex. App.—Corpus Christi–Edinburg

2008, orig. proceeding [mand. denied]); In re Hettler, 110 S.W.3d 152, 154 (Tex. App.—Amarillo 2003, orig. 

proceeding). Having concluded that mandamus is unavailable here, we need not address this argument. 

See TEX. R. APP. P. 47.1. 
23

disproportionate to any harm; (b) the sanction was not “visited upon the offender”; (c) 

relators did not show bad faith or callous disregard; (d) plaintiffs bore some responsibility 

for the alleged infractions; (e) plaintiffs did not suffer prejudice; (f) the trial court did not 

appropriately consider lesser sanctions; (3) the trial court violated relators’ due process 

rights by precluding “any meaningful participation” by relators at the sanctions hearing; 

and (4) the trial court erroneously curtailed the impending trial on damages. 

A. Review by Mandamus

“A sanctions order is subject to review on appeal from the final judgment, TEX. R.

CIV. P. 215.3, but, under certain circumstances, is subject to review before final judgment 

by writ of mandamus.” In re Garza, 544 S.W.3d at 840. “An appeal is inadequate for 

mandamus purposes when parties are in danger of permanently losing substantial rights,”

such as “when . . . the party’s ability to present a viable claim or defense is vitiated, or 

when the error cannot be made part of the appellate record.” In re Van Waters & Rogers, 

Inc., 145 S.W.3d 203, 210–11 (Tex. 2004) (orig. proceeding) (per curiam); see also 

Walker, 827 S.W.2d at 843 (stating that an appeal is not an adequate remedy where “the 

party’s ability to present a viable claim or defense at trial is vitiated or severely 

compromised by the trial court’s discovery error”).

“Sanctions that thwart effective appellate review by precluding a decision on the 

merits” and “sanctions that have the effect of adjudicating all or a substantial part of a 

dispute and for which appeal is realistically an inadequate remedy” are reviewable by 

mandamus. In re Garza, 544 S.W.3d at 840. Stated otherwise, when death penalty 

sanctions have the effect of adjudicating a dispute, there is no adequate remedy by 

appeal. TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (orig. 
24

proceeding); see In re Noble Drilling (Jim Thompson), LLC, 449 S.W.3d 625, 632 (Tex. 

App.—Houston [1st Dist.] 2014, orig. proceeding). Accordingly, this issue is susceptible 

to mandamus review, and we proceed accordingly.

B. Applicable Law

Here, the trial court imposed a death penalty sanction for discovery abuse and 

spoliation.

1. Discovery Abuse

Texas Rule of Civil Procedure 215.2 allows a trial court to impose “just” sanctions 

for discovery abuse. TEX. R. CIV. P. 215.2; see Paradigm Oil, Inc. v. Retamco Operating, 

Inc., 372 S.W.3d 177, 184 (Tex. 2012). Rule 215 of the Texas Rules of Civil Procedure 

enumerates a wide array of remedies available to a trial court in addressing discovery 

abuse, such as an award of attorney’s fees or costs to the harmed party, the exclusion of 

evidence, striking a party’s pleadings, or dismissing a party’s claims. See TEX. R. CIV. P. 

215.2–.3; Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014). Sanctions 

may be imposed, after notice and a hearing, on parties who refuse to respond, or who 

give inadequate responses, to valid discovery requests or orders. See TEX. R. CIV. P. 

215.1–.5. For purposes of these provisions, evasive or incomplete answers are treated 

as a failure to answer. Id. R. 215.1(c). Further, sanctions may be appropriate even when 

a party eventually complies with a discovery request. See Horizon Health Corp. v. Acadia 

Healthcare Co., 520 S.W.3d 848, 884 (Tex. 2017); Drozd Corp. v. Capitol Glass & Mirror 

Co., 741 S.W.2d 221, 223 (Tex. App.—Austin 1987, no writ).9

9 We note that relators have alleged, and the record indicates, that the plaintiffs failed to confer on 

many of the discovery issues that the trial court here ultimately determined were sanctionable misconduct.

Parties are expected to cooperate in discovery and make reasonable efforts to resolve discovery disputes 

without the necessity of court intervention. TEX. R. CIV. P. 191.2 & cmt. 2. Nevertheless, the certificate of 
25

We review a Rule 215 sanctions award for abuse of discretion. Medina v. Zuniga, 

593 S.W.3d 238, 244 (Tex. 2019); Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 489 

(Tex. 2014); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The broad discretion 

granted to trial courts to impose discovery sanctions is not unlimited, however, and the 

award must further one of the recognized purposes of discovery sanctions. Horizon 

Health Corp., 520 S.W.3d at 884. The purposes of discovery sanctions are to: (1) secure 

the parties’ compliance with the rules of discovery; (2) deter other litigants from violating 

the discovery rules; (3) punish parties that violate the rules of discovery; and (4) rectify 

discovery abuse by compensating the aggrieved party for expenses incurred. Id. (citing 

Christus Health Gulf Coast v. Carswell, 505 S.W.3d 528, 540 (Tex. 2016); Bodnow Corp. 

v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986) (per curiam)). We must conduct an 

independent review of the entire record in determining whether the trial court abused its 

discretion by imposing sanctions. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 

583 (Tex. 2006) (per curiam); Westergren v. Jennings, 441 S.W.3d 670, 677 (Tex. App.—

Houston [1st Dist.] 2014, no pet.); Gunn v. Fuqua, 397 S.W.3d 358, 366 (Tex. App.—

Dallas 2013, pet. denied). 

Courts generally follow a two-part test in determining whether a particular sanction 

for discovery abuse is just. Christus Health Gulf Coast, 505 S.W.3d at 540; Petroleum 

Sols., 454 S.W.3d at 489; Brookshire Bros., 438 S.W.3d at 21; TransAm. Nat. Gas Corp., 

811 S.W.2d at 917. First, a direct relationship must exist between the offensive conduct, 

the offender, and the sanction imposed. Petroleum Sols., 454 S.W.3d at 489; Brookshire 

conference is for the court’s benefit and the trial court may choose to enforce it or not at the court’s option.

Groves v. Gabriel, 874 S.W.2d 660, 661 n.3 (Tex. 1994) (orig. proceeding) (per curiam); Clark v. Clark, 546 

S.W.3d 268, 274 (Tex. App.—El Paso 2017, no pet.) (collecting cases).
26

Bros., 438 S.W.3d at 21; Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003) (per 

curiam); TransAm. Nat. Gas Corp., 811 S.W.2d at 917. To meet this requirement, a 

sanction must be directed against the wrongful conduct and toward remedying the 

prejudice suffered by the innocent party. Petroleum Sols., 454 S.W.3d at 489; TransAm. 

Nat. Gas Corp., 811 S.W.2d at 917. In other words, the punishment must fit the crime. 

Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570, 572 (Tex. 2018) (per curiam). 

The sanction must also be “visited upon the offender,” and the trial court must attempt to 

determine whether the offensive conduct is attributable to counsel, the party, or both. 

TransAm. Nat. Gas Corp., 811 S.W.2d at 917. 

Second, a sanction must not be excessive, which means it should be no more 

severe than necessary to satisfy its legitimate purpose. Petroleum Sols., 454 S.W.3d at 

489; TransAm. Nat. Gas Corp., 811 S.W.2d at 917. This prong requires the trial court to 

consider the availability of lesser sanctions and, “in all but the most exceptional cases, 

actually test the lesser sanctions.” Cire, 134 S.W.3d at 841; see Petroleum Sols., 454 

S.W.3d at 489.

2. Spoliation

While the trial court’s discretion to remedy an act of spoliation is broad, it is not 

limitless. Petroleum Sols., 454 S.W.3d at 489. As with other sanctions, we review a trial 

court’s imposition of spoliation sanctions under an abuse of discretion standard. Id.; see 

Cire, 134 S.W.3d at 838. We apply the standard two-part test in determining whether the 

sanctions for spoliation are just. Petroleum Sols., 454 S.W.3d at 489 (discussing the 

“direct relationship” and “excessive” analyses required by TransAmerican). In the context 

of remedying spoliation, a trial court’s discretion to issue remedies akin to death penalty 
27

sanctions, such as a spoliation instruction or striking a party’s claims or defenses, is 

limited to circumstances where the court finds (1) the spoliating party acted with intent to 

conceal discoverable evidence, or (2) the spoliating party acted negligently and caused 

the nonspoliating party to be irreparably deprived of any meaningful ability to present a 

claim or defense. Id. The purpose of the sanction must be “to impose an appropriate 

remedy so that the parties are restored to a rough approximation of what their positions 

would have been were the evidence available.” Brookshire Bros., 438 S.W.3d at 18; see 

In re Advanced Powder Sols., Inc., 496 S.W.3d 838, 857–58 (Tex. App.—Houston [1st 

Dist.] 2016, orig. proceeding). A spoliator can defend against an assertion of negligent or 

intentional destruction by providing explanations to justify its failure to preserve evidence.

Trevino v. Ortega, 969 S.W.2d 950, 957 (Tex. 1998) (Baker, J., concurring); Miner 

Dederick Const., LLP v. Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451, 466 (Tex. 

App.—Houston [1st Dist.] 2013, pet. denied); Adobe Land Corp. v. Griffin, L.L.C., 236 

S.W.3d 351, 359 (Tex. App.—Fort Worth 2007, pet. denied).

3. Death Penalty Sanctions

A death penalty sanction is any sanction that adjudicates a claim or defense and 

precludes the presentation of the merits of a case. See TransAm. Nat. Gas Corp., 811 

S.W.2d at 918; In re Noble Drilling (Jim Thompson), LLC, 449 S.W.3d at 630; In re RH 

White Oak, LLC, 442 S.W.3d 492, 500–01 (Tex. App.—Houston [14th Dist.] 2014, orig. 

proceeding); Lanfear v. Blackmon, 827 S.W.2d 87, 91 (Tex. App.—Corpus Christi–

Edinburg 1992, orig. proceeding). There are due process limitations on merits preclusive 

sanctions. Medina, 593 S.W.3d at 244; Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 

2005) (per curiam). In short, “there are constitutional limitations upon the power of courts, 
28

even in aid of their own valid processes, to dismiss an action without affording a party the 

opportunity for a hearing on the merits of his cause.” Medina, 539 S.W.3d at 245 (quoting 

Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 

357 U.S. 197, 209 (1958)); see TransAm. Nat. Gas Corp., 811 S.W.2d at 918. “Discovery 

sanctions cannot be used to adjudicate the merits of a party’s claims or defenses unless 

a party’s hindrance of the discovery process justifies a presumption that its claims or 

defenses lack merit.” TransAm. Nat. Gas Corp., 811 S.W.2d at 918; see Paradigm Oil, 

Inc., 372 S.W.3d at 184. “Discovery sanctions that are so severe as to inhibit presentation 

of the merits of a case should be reserved to address a party’s flagrant bad faith or 

counsel’s callous disregard for the responsibilities of discovery under the rules.” Spohn 

Hosp., 104 S.W.3d at 883; see Wheeler, 157 S.W.3d at 443; TransAm. Nat. Gas Corp., 

811 S.W.2d at 918. “In rare cases, extreme bad faith alone might justify extreme 

sanctions.” Altesse Healthcare Sols., 540 S.W.3d at 576. However, “[o]ur precedent 

dictates that courts should avoid a ‘trial by sanctions’ whenever possible.” Id.

C. Spoliation Analysis

Relators assert that the trial court failed to apply the proper standard of review for 

spoliation claims. In connection with this issue, they assert that (1) they had no duty to 

preserve the missing data and they did not cause its loss; (2) they did not intentionally or 

negligently destroy any data; and (3) the plaintiffs did not suffer any prejudice as a result 

of the alleged spoliation. 

The missing data consists of SCADA, including the sequence of events log, the 

Schweitzer relay, and information from remote terminal units. The Emergency Discovery 

Order defined SCADA as “the supervisory control and data acquisition control system 
29

used by SPS.” The sequence of events log captures data on certain points, for example, 

when a breaker opens and closes. The Schweitzer relay senses faults and trips breakers. 

It is a recording relay with internal memory which records fault information with the date 

and time of the fault, the type of fault (whether it is phase to ground or phase to phase), 

the fault location in miles, and the fault duration in cycles. A remote terminal unit stores 

sequence of events data and then transmits it to the relators’ system. The plaintiffs sought 

this information to determine, inter alia, whether there were any events or faults that 

occurred on the power line which could have caused it to sag prior to Munoz’s contact 

with the power line. Relators contend that all of this data was duly recorded but was 

overwritten in the ordinary course of business in the months following the accident. 

Here, the Emergency Discovery Order and the plaintiffs’ requests for production 

and interrogatories requested all documents from SCADA and any event recorders 

showing the phase voltage and phase current on the power line immediately before the 

event and after full restoration of power had occurred. Relators’ responses to these 

queries were flatly incorrect and appear to have been designed to obfuscate the existence 

of this data. Relators initially denied the existence of any SCADA data; however, Jensen 

conceded that this assertion was inaccurate and agreed that relators should know what 

SCADA means. Munsell also agreed that, though the relators’ responses to the order and 

discovery queries “seem[ed] to imply we didn’t have anything,” that was not true, and in 

fact, relators looked at SCADA data every day. Relators initially identified the Seagraves 

substation breakers as event recorders but did not disclose the existence of the 

Schweitzer relay or the remote terminal units. Relators suggest that they were not 

attempting to hide the Schweitzer data because they produced a single page of paper in 
30

July 2017, a relay setting sheet for Seagraves, which includes the word “Schweitzer.”

Relators ultimately, after much wrangling, admitted that the requested data was 

overwritten and was no longer available. Relators contended and provided affidavit 

testimony that the data from the Schweitzer and the recording relays was overwritten, in 

part, because of a weather event which occurred on December 17, 2016, which created 

numerous faults and events thereby filling the system with data related to the weather 

event. Relators contend that they were unable to locate and produce repair records 

related to the weather event.

Relators ultimately produced a small part of the sequence of events log. The 

sequence of events log that relators eventually produced was generated on November 1, 

2016, and the entire log covers only 4/10ths of one second of the day for October 26, 

2016. Munsell testified that he did not know who downloaded this data on November 1, 

2016. Jensen agreed that the sequence of events log “should have been produced, and 

it wasn’t.” Munsell agreed that what was produced constituted only a portion of the log 

and he could not explain why the remainder was not produced. 

1. Standard for Spoliation Claim

In Brookshire Brothers, the Texas Supreme Court adopted a framework governing 

the imposition of remedies for evidence spoliation. Brookshire Bros., 438 S.W.3d at 19; 

see Petroleum Sols., 454 S.W.3d at 488 (explaining and applying the Brookshire analysis 

for spoliation remedies). Whether a party spoliated evidence and whether a particular 

remedy is appropriate are questions of law for the trial court. Petroleum Sols., 454 S.W.3d 

at 488; Brookshire Bros., 438 S.W.3d at 20. To find that spoliation occurred, the trial court 

must make affirmative determinations regarding two elements. Petroleum Sols., 454 
31

S.W.3d at 488. First, the party who failed to produce evidence must have had a duty to 

reasonably preserve the evidence. Id.; Brookshire Bros., 438 S.W.3d at 20. Second, the 

nonproducing party must have negligently or intentionally breached its duty to reasonably 

preserve material and relevant evidence by failing to do so. Petroleum Sols., 454 S.W.3d 

at 488; Brookshire Bros., 438 S.W.3d at 20. A party cannot breach its duty without at least 

acting negligently. Petroleum Sols., 454 S.W.3d at 488; Brookshire Bros., 438 S.W.3d at 

20–21 & n.8.

Contrary to relators’ contention, we see no evidence or other indication in the 

record that “the trial court fail[ed] to recognize the missing data complaints as a spoliation 

issue.” The missing data complaints were briefed and argued by all parties as spoliation 

matters and were submitted to the trial court accordingly. We proceed to apply a spoliation 

analysis to the missing data. 

2. Duty to Preserve Evidence

Relators assert that they did not anticipate litigation, and even if they did, they did 

not know that the overwritten data would be material to the claims in this lawsuit. Relators 

contend that they would have “to be clairvoyant” to preserve the type of evidence that 

was overwritten. Relators assert that the fact that they investigated the accident the day 

after it happened does not indicate that they possessed a duty to preserve the missing

data. In connection with this argument, relators assert that they did not receive a 

“preservation of evidence” letter immediately after the accident and that they were not 

served with the lawsuit for months after it was filed. Relators claim that their engineers 

“preserved data relevant to determining if the equipment functioned properly, and the data 

preserved showed that it did.” In contrast, the plaintiffs assert that the relators were on 
32

notice to preserve evidence as early as the day after the accident because relators were 

aware of the severity of the incident on the date that it occurred, and relators sent a tenperson crew to investigate the incident the day after Munoz was injured. 

A duty to preserve the evidence “arises only when a party knows or reasonably 

should know that there is a substantial chance that a claim will be filed and that evidence 

in its possession or control will be material and relevant to that claim.” Brookshire Bros., 

438 S.W.3d at 20 (citation and internal quotation marks omitted); see Petroleum Sols., 

454 S.W.3d at 488. A “substantial chance of litigation” arises when “litigation is more than 

merely an abstract possibility or unwarranted fear.” Brookshire Bros., 438 S.W.3d at 20.

We apply an objective standard in making the determination whether a party should have 

reasonably anticipated litigation. See Brookshire Bros., 438 S.W.3d at 20 (applying a 

“reasonable person” standard to duty determination); IQ Holdings, Inc. v. Stewart Title 

Guar. Co., 451 S.W.3d 861, 868 (Tex. App.—Houston [1st Dist.] 2014, no pet.) 

(concluding insurer’s subjective belief that no substantial chance of a lawsuit existed 

because relatively few claim denials resulted in litigation each year did not relieve its duty 

to preserve evidence). 

We agree with relators that the fact that they investigated the accident is not 

determinative regarding whether they knew or reasonably should have known that there 

was a substantial chance of litigation. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 

722 (Tex. 2003) (“We agree that nothing about the investigation or the circumstances 

surrounding the accident would have put Wal–Mart on notice that there was a substantial 

chance that the Johnsons would pursue a claim.”). However, a party can anticipate 

litigation before it receives actual notice of potential litigation. See Clark v. Randalls Food, 
33

317 S.W.3d 351, 357 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). In this regard, 

we disagree with relators’ assertions that the “obligations and the procedures of the 

company will be different if there is a spoliation letter, especially in a case like this.”

“Common sense dictates that a party may reasonably anticipate suit being filed . . . [even] 

before the Plaintiff manifests an intent to sue.” Id.; see also In re J.H. Walker, Inc., No. 

05-14-01497-CV, 2016 WL 819592, at *5 (Tex. App.—Dallas Jan. 15, 2016, orig. 

proceeding) (mem. op.) (“We are also unpersuaded by Walker Trucking’s reliance on the 

absence of a litigation hold letter at the time the tractor was destroyed to assert it had no 

duty to preserve evidence. The relevant inquiry is whether a party should have anticipated 

litigation at the time it destroyed the evidence.”). Under the relevant law, a party knows 

or reasonably should know that there is a substantial chance a claim will be filed if a 

reasonable person would conclude from the severity of the incident, and other 

circumstances surrounding it, that there was a substantial chance for litigation at the time 

of the alleged spoliation. Miner Dederick Const., 403 S.W.3d at 465; see Tex. Elec. Coop. 

v. Dillard, 171 S.W.3d 201, 209 (Tex. App.—Tyler 2005, no pet.). 

Here, Munoz suffered severe burns and paralysis as a result of contact with 

relators’ power line. Munsell testified, regarding the paucity of information collected and 

preserved, that it was not typically “our policy” to collect it; however, he agreed that the 

accident was not typical and that it was “not common to have contact to the transmission.”

It is undisputed that the relators were immediately aware of the incident and the severity 

of the injuries sustained by Munoz. According to Vasquez, the relators sent ten different 

personnel members to the peanut farm the day after the accident to investigate. Based 

on the foregoing, we conclude that relators knew or reasonably should have known that 
34

there was a substantial chance that a claim would be filed. See Petroleum Sols., 454 

S.W.3d at 488; Brookshire Bros., 438 S.W.3d at 20. 

Relators further contend that a spoliation finding is inappropriate because they had 

no knowledge that the missing data would be material or relevant to any claim made in 

the lawsuit. A duty to preserve the evidence “arises only when a party knows or 

reasonably should know that there is a substantial chance that a claim will be filed and 

that evidence in its possession or control will be material and relevant to that claim.”

Brookshire Bros., 438 S.W.3d at 20 (citation and internal quotation marks omitted); see 

Petroleum Sols., 454 S.W.3d at 488. To show that the evidence is relevant and material, 

a party must demonstrate that the alleged spoliator knew or should have reasonably 

known that the evidence would be relevant to the action or would be reasonably 

calculated to lead to the discovery of admissible evidence. See Miner Dederick Const., 

403 S.W.3d at 466; see also Matlock Place Apartments, L.P. v. Druce, 369 S.W.3d 355, 

380 (Tex. App.—Fort Worth 2012, pet. denied) (“There must be a sufficient foundational 

showing that the party who destroyed the evidence had notice both of the potential claim 

and of the evidence’s potential relevance thereto.”).

Relators argue that plaintiffs’ theory of the accident changed throughout the course 

of the case and they had only recently adopted a theory that a previous event on the 

power line caused it to sag, thereby contacting the tarp rod. Relators thus contend that 

they had no knowledge that activity on the power line the day of the incident would be 

material. However, the plaintiffs alleged that relators breached a general negligence duty 

from the inception of the lawsuit. The relators were concerned with the height of the power 

line and measured the height of the power line during their investigation immediately 
35

following the accident. In fact, Vasquez testified that these measurements were taken so 

that “information could be provided to the appropriate persons to perform sag calculations 

and to make sure that those conductors were within compliance . . . .” Based on this 

record, there is no dispute regarding the premise that certain electrical incidents can 

cause the power line to sag, even though there may be disagreement regarding the scope 

or extent of the resultant sagging. Further, and significantly in this analysis, the relators 

looked at this data themselves after the accident as illustrated by the sequence of events 

data, which relators recorded on November 1, 2016, of 4/10ths of one second on October 

26, 2016. See In re Advanced Powder Sols., 496 S.W.3d at 857 (concluding that the trial 

court “could reasonably have concluded, within its sound discretion” that relator’s actions 

constituted “at least willful blindness to the destruction of evidence” where it viewed and 

utilized videotape and thereby “made use of it, then did not endeavor to keep it from being 

destroyed by an automated process”). Based on the foregoing, the trial court had before 

it sufficient evidence to conclude that the relators knew or reasonably should have known 

that the missing data would be relevant to the action or would be reasonably calculated 

to lead to the discovery of admissible evidence. See Miner Dederick Const., 403 S.W.3d 

at 466.10

3. Breach of Duty to Preserve

Relators contend that they did not commit intentional or negligent destruction of 

the missing data and there is no evidence to support such a claim other than speculation. 

They assert that the data was merely overwritten in the ordinary course of business and 

10 We note that relators’ claims that they were unaware that the evidence would be relevant or 

material are, to some extent, untimely. The trial court’s order specifically required production of the data at 

issue, the discovery requests sought that data, and relators never attacked the trial court’s order or the 

discovery requests on grounds that they required or requested the production of irrelevant data.
36

such an operation does not constitute spoliation. A party that has a duty to preserve 

evidence has a duty to exercise reasonable care in preserving it. Miner Dederick Const., 

403 S.W.3d at 467; Clark, 317 S.W.3d at 357. “Implicit in the duty to exercise reasonable 

care in preserving evidence is the duty to refrain from altering or changing the evidence’s 

condition or integrity.” Miner Dederick Const., 403 S.W.3d at 467. A claim that the 

evidence was destroyed in the ordinary course of business will not excuse the obligation 

to preserve when a party’s duty to preserve evidence arises before the destruction. See 

id.; Adobe Land Corp., 236 S.W.3d at 359. As discussed above, the evidence shows that 

relators’ duty to preserve the missing data arose before the data was destroyed.

Therefore, relators’ failure to preserve the missing data cannot be justified on the basis 

that the evidence was destroyed in the ordinary course of business. See Miner Dederick 

Const., 403 S.W.3d at 466; Adobe Land Corp., 236 S.W.3d at 359. Moreover, based on 

this record, relators used the data, affirmatively misrepresented that it did not exist, and 

only admitted its existence after accidentally producing a minuscule portion of it.

4. Prejudice

Finally, relators assert that the plaintiffs cannot show the prejudice required to 

sustain a spoliation finding. They assert that a spoliation finding requires that the failure 

to preserve evidence so prejudiced the plaintiffs that they are irreparably deprived of 

having any meaningful ability to present a claim or defense. They argue that the trial 

court’s sanction order fails to meet this standard insofar as it states only that the plaintiffs’ 

case was hampered or harmed. 

We disagree with relators’ contention that prejudice is a prerequisite for a spoliation 

finding. Rather, prejudice is relevant to the remedy chosen once spoliation has been 
37

found. Upon finding that spoliation occurred, the trial court must exercise its discretion in 

imposing a remedy. Petroleum Sols., 454 S.W.3d at 488. In determining what remedy, if 

any, is appropriate, the court should weigh the spoliating party’s culpability and the degree 

of prejudice to the nonspoliating party. Id. at 488–89; Brookshire Bros., 438 S.W.3d at 21. 

Prejudice is evaluated based on the spoliated evidence’s relevancy to key 

issues in the case, whether the evidence would have been harmful to the 

spoliating party’s case (or, conversely, helpful to the nonspoliating party’s 

case), and whether the spoliated evidence was cumulative of other 

competent evidence that may be used in its stead.

Petroleum Sols., 454 S.W.3d at 489; see In re Advanced Powder Sols., 496 S.W.3d at 

857. In short, prejudice requires that the unavailable evidence would have been probative 

of dispositive issues. See Ham v. Equity Residential Prop. Mgmt. Servs., Corp., 315 

S.W.3d 627, 635 (Tex. App.—Dallas 2010, pet. denied).

Spoliation is not the only sanctionable conduct at issue in this original proceeding. 

Accordingly, we will address the issue of prejudice and whether or not the trial court’s 

death penalty sanction was the appropriate remedy in connection with the relators’ 

remaining issues.

D. Analysis of Discovery Violations

Relators assert that the court’s findings concerning “other alleged discovery 

violations” failed to satisfy TransAmerican’s requirements for the imposition of a death 

penalty sanction. See TransAm. Nat. Gas Corp., 811 S.W.2d at 917–18. Relators contend 

the trial court failed to follow TransAmerican and apply the proper standard regarding 

death penalty sanctions because: (a) the sanction was disproportionate to any harm; (b) 

the sanction was not “visited upon the offender”; (c) relators did not show bad faith or 

callous disregard; (d) the plaintiffs bore some responsibility for the alleged infractions; (e) 
38

plaintiffs did not suffer prejudice; and (f) the trial court did not appropriately consider lesser 

sanctions. Relators contend that the “discovery abuse allegations fall into three 

categories: (1) late or inadequately disclosed evidence and witnesses; (2) improper 

corporate representative designations, interrogatory responses, and testimony; and (3) a 

false summary judgment affidavit.” Relators assert that these “curable” discovery abuse 

allegations could not support a death penalty sanction under TransAmerican.

While relators dispute that they committed these “other” discovery infractions, they 

provide no briefing or analysis to disprove these charges on their merits.11 Rather, relators 

contend that these “separate and distinct discovery abuse allegations, even if true, are 

relatively trivial and could never support death penalty sanctions,” and that the “purported 

infractions concerning untimely production, witness problems, and the allegedly false 

affidavit were remediable by far lesser means.” Accordingly, for purposes of this 

proceeding, we assume, unless otherwise stated, that these “other” allegations of 

discovery abuse are true. In this regard, our review of the record indicates that the trial 

court had before it evidence sufficient to support findings that relators, inter alia, failed to 

timely produce evidence within their possession, failed to properly identify key witnesses, 

provided various false and misleading answers to discovery requests, and otherwise 

committed numerous instances of sanctionable conduct. The following is a brief summary 

of some of the problems apparent in the record.

11 While the petition for writ of mandamus addresses the allegedly spoliated data in some detail, 

the other alleged discovery infractions are described as falling into the three categories set forth above: (1) 

late or inadequately disclosed evidence and witnesses; (2) improper corporate representative designations, 

interrogatory responses, and testimony; and (3) a false summary judgment affidavit. In discussing these 

infractions, relators provide some of the factual underpinnings and a brief explanation of the charges 

pertaining to the improper corporate representative designation, the false affidavit, and one late disclosed 

witness, however, relators do not provide details describing the remaining charges against them or any 

evidence adduced at the sanction hearing. For instance, relators do not identify the interrogatory responses

and testimony that were allegedly improper.
39

There are, for instance, numerous instances where relators’ witnesses provided 

testimony with false information or testimony that was flatly obfuscatory. On July 14, 2018, 

Kenneth R. Munsell, the relators’ Manager for Substation Engineering and Design, 

testified by affidavit that, inter alia, “there would be no data recorded or stored relating to 

the incident in question on the Y95 circuit beyond the Seagraves Interchange.” This was 

affirmatively incorrect. When asked if this statement was true at the sanction hearing, 

Munsell testified that it was not and acknowledged that “[t]here was other data outside of 

Seagraves,” but attempted to excuse the response on grounds “the intent was to indicate 

there was no SCADA data outside of Seagraves interchange” and stated that “it was 

worded poorly.”

In this same affidavit, Munsell also testified that a “conductor may sag due to 

heating from overcurrent,” and stated that the conductor would have to reach a 

temperature of 370.6 degrees before it would sag below the NESC-mandated ground 

clearance of 19 feet, 2 inches, and that the conductor would not reach this temperature 

at loads less than 523 amps. Munsell stated that he “examined the historical load data for 

the Y95 line for October 26, 2016,” that the “historical load data measures the load every 

second,” and the “peak load seen on October 26, 2016 is 97.8 amps.” He further stated 

that the data he examined was obtained “directly” from a database used by relators, that 

the data was provided to plaintiffs, and the “data set includes information from each 

second of the day of October 26, 2016 without any deletions or alterations.” This was 

affirmatively incorrect. Munsell subsequently testified that he was unaware that there was 

a gap in the data or that the data contained repeating lines. He admitted that he did not 
40

see the repeating data because he calculated the peak load on the line without reviewing 

each line of the data. 

In this same vein, relators provided inconsistent testimony about the historical load 

data for the power line—testifying first that it was complete and accurate, then admitting 

that the data contained repeating numbers but representing that this phenomenon merely 

meant that the load on the power line had not changed during this duration of time, then 

admitting that the data contained a “gap,” then testifying that the “gap” represented a 

failure of communications within the relators’ network. 

Similarly, the discovery pertaining to repair records for the power line is 

problematic, at best. Plaintiffs sought repair records to determine whether the power line 

had been properly maintained and situated at an appropriate height. On November 19, 

2018, Cory Wood, relators’ Regional Director for Transmission, whose duties include new 

construction and maintenance of transmission lines as well as substation construction, 

testified by affidavit that: 

In August 2017, I was asked to serve as the corporate representative for 

purposes of giving deposition testimony concerning, among other things, 

records of repairs to what is known as the Y95 power line where Eduardo 

Munoz was injured. At that time, I believed that the investigator, Maria 

Vasquez, had requested repair records relating to that segment. I asked her 

about her investigation, but also knew that she had asked for records 

regarding work done on that segment. At the time of my deposition in 2017, 

I was not aware of the existence of any repair records relating to the line 

segment.

In August 2018, in connection with further investigation concerning records, 

I was asked to again look for records relating to the Y95 circuit from 2010 

to current. I talked to Erin Feyereisen, Manager in Transmission Project 

Controls, to see if she could locate work order information on the Y95 Circuit 

for this time period. I also spoke with Rick Childs, Superintendent for 

Transmission Line Maintenance, to see if he could locate any repair records 

for the circuit for the time period. I also spoke with B.J. Hatfield, Manager of 

Transmission Line Department, to see if he knew where additional records 
41

might be located or who might know how to locate additional records. Ms. 

Feyereisen was able to locate and produced work order documentation. Mr. 

Childs was able to locate and produced the repair records. The repair 

records were not available in SPS’s software system. Mr. Childs located the 

repair records in file boxes in a storage area in the back of the shop.

Relators have not located or produced other repair records for the power line with regard 

to repairs and splices that were visibly apparent to the power line upon inspection or with 

regard to other documents produced by relators indicating instances where the power line 

had been repaired. Relators urge us to conclude that they cannot be sanctioned for failing 

to locate or produce repair records for a federally controlled high-voltage power line; 

however, it is within the trial court’s province to determine the credibility of this allegation. 

Further, the record indicates that relators failed to timely and properly identify 

certain witnesses, including Cory Beauchamp. Beauchamp was discussed during Wood’s 

deposition on August 7, 2017 and was identified at that time as a person who was part of 

the initial team who investigated the accident. Munsell subsequently testified that 

Beauchamp worked on the relay involved in the accident. Specifically, Beauchamp 

worked on the Seagraves breaker six days before the accident, the day of the accident, 

and was again at the Seagraves station immediately after the accident. Munsell testified 

that Beauchamp could not remember one specific thing he asked him about his work, and 

Beauchamp’s timesheets simply state “station reads” or “station inspections.” In short, 

relators failed to properly and timely identify Beauchamp, an employee who worked on 

the power line immediately before the accident, the day of the accident, and immediately 

after the accident, and participated in the accident investigation, and who allegedly now 

lacks any memory of the foregoing matters. 
42

Finally, the trial court had before it evidence from which it may have concluded that 

the documents produced by relators contained anomalies suggesting that they had been 

altered for purposes of the litigation. As an example, relators produced an undated email 

with the Schweitzer relay information to plaintiffs but produced a dated email with that 

same information to their own expert. Munsell could not explain how or why the email 

without a date was generated or why it had not been previously produced. As a separate 

example, Munsell admitted that at least one of the charts produced by relators included 

duplicate entries which he asserted constituted accidental replication of the data involved. 

Given the relators’ allegations in this original proceeding and the state of the 

record, we will further address these “separate and distinct discovery abuse allegations”

in the context of the sanction imposed by the trial court . 

E. Due Process

Relators contend that the imposition of death penalty sanctions violates their due 

process rights in several respects. They assert that the trial court “precluded any 

meaningful participation by [relators] at the sanctions hearing” because they were not 

allowed to present testimony to explain their procedures for the preservation of data or 

explain their theory that the plaintiffs were not prejudiced by any of the alleged discovery 

infractions. Relators had several witnesses ready and offered bills of proof regarding their 

testimony. Relators further contend that the trial court could not determine the credibility 

of the witnesses based on affidavit testimony alone. Relators assert that allowing the 

plaintiffs to present evidence and then terminating the hearing before the opposing parties 

present their defense is a clear abuse of discretion. Relators also allege that the trial court 

improperly allowed the plaintiffs to add evidence to the record after they “closed” on the 
43

presentation of their motion for sanctions and assert that the trial court erred in taking 

judicial notice of the entire file. They further contend that the sanction order exceeds the 

scope of the sanctions motion. 

The rules and due process require notice and hearing before the imposition of 

sanctions. See TEX. R. CIV. P. 215.2, 215.3; In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) 

(orig. proceeding) (per curiam) (noting that the right to due process limits a court’s power 

to sanction); In re Hereweareagain, Inc., 383 S.W.3d 703, 710–11 (Tex. App.—Houston 

[14th Dist.] 2012, orig. proceeding) (stating that proceedings for sanctions must comport 

with due process); In re Park Mem’l Condo. Ass’n, 322 S.W.3d 447, 450 (Tex. App.—

Houston [14th Dist.] 2010, orig. proceeding) (“Due process, on a fundamental level, 

requires notice and a fair opportunity to be heard.”); Kugle v. DaimlerChrysler Corp., 88 

S.W.3d 355, 361 (Tex. App.—San Antonio 2002, pet. denied) (“A trial court abuses its 

discretion if it violates due process by imposing sanctions without notice or a meaningful 

hearing.”); see also Tidrow v. Roth, 189 S.W.3d 408, 413 (Tex. App.—Dallas 2006, no 

pet.). However, the Texas Supreme Court has expressly held that a “hearing” in this 

context does not necessarily contemplate a personal appearance before the court or an 

oral presentation to the court. Cire, 134 S.W.3d at 843–44; see McCollum v. Bank of N.Y.

Mellon Tr. Co., 481 S.W.3d 352, 358 (Tex. App.—El Paso 2015, no pet.) (concluding that 

the sanctioned party “was not entitled to an oral or evidentiary hearing” before the trial 

court ruled on sanctions); Clark v. Bres, 217 S.W.3d 501, 514 (Tex. App.—Houston [14th 

Dist.] 2006, pet. denied) (“There is not even a requirement of an oral hearing.”); see also 

Tidrow, 189 S.W.3d at 413 (stating that an oral hearing is not required prior to the 

imposition of discovery sanctions). 
44

Whether to admit or exclude evidence is within the trial court’s sound discretion. 

Morale v. State, 557 S.W.3d 569, 573 (Tex. 2018) (per curiam). “The exclusion of 

evidence is reversible error if the complaining party shows that the trial court committed 

error that probably caused the rendition of an improper judgment.” Waffle House, Inc. v. 

Williams, 313 S.W.3d 796, 812 (Tex. 2010); see also TEX. R. APP. P. 44.1(a). The 

exclusion of evidence is likely harmless if the evidence was cumulative or if the rest of the 

evidence was so one-sided that the error likely made no difference in the judgment. Gunn 

v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018). 

1. Participation

Here, the motion to strike and relators’ reply were supported by numerous 

affidavits. At the sanctions hearing, the trial court heard testimony from relators’ counsel 

and several of relators’ witnesses. The relators made offers of proof regarding proposed 

testimony from witnesses Robert “Bobby” DeLong, Mike Harrison, Phillip Fetzer, David 

Wheeler, Corby White, Tim Dillon, and Jesus Rodriguez. The trial court noted that these 

witnesses had not been disclosed by relators until recently, concluded that they would 

lack knowledge of the alleged discovery abuse, and concluded that their late designations 

were part of the relators’ overall pattern of discovery abuse. Each of these individuals had 

provided affidavit testimony in support of relators’ response to plaintiffs’ motion to strike, 

and after hearing their proposed testimony in the offers of proof, the trial court concluded 

that their proposed oral testimony was repetitive or cumulative to their affidavit testimony 

and was irrelevant to the issues under consideration. The trial court also heard an offer 

of proof regarding Russell, who “would testify that he got [the information about the tarp 

rod] from counsel and—and through no other source.” And, finally, the trial court heard 
45

an offer of proof for Munsell, who testified at the sanction hearing but was not allowed to 

testify regarding relators’ allegations that they had a meritorious defense and that the 

plaintiffs were not prejudiced by any errors regarding the preservation of evidence or 

discovery. Again, the trial court concluded that Russell and Munsell’s testimony was not 

relevant to the issues at hand.

We conclude that the trial court did not abuse its discretion in circumscribing the 

live testimony sought to be adduced by relators. As a threshold matter, the trial court 

could have handled the motion to strike by submission and was not required to hold an 

evidentiary hearing. See Cire, 134 S.W.3d at 843–44; McCollum, 481 S.W.3d at 358;

Clark, 217 S.W.3d at 514; see also Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 

357, 359 (Tex. 1998) (per curiam) (observing that “not every hearing called for under 

every rule of civil procedure necessarily requires an oral hearing,” unless required by the 

express language of the rule). The trial court had granted relators a continuance of the 

hearing on the motion for sanctions and directed relators to file affidavits from any relevant 

witnesses that they wished to present. At the hearing, relators were given an opportunity 

to argue in opposition to the plaintiffs’ motion to strike and explain their conduct to the trial 

court. See Allied Chem. Co. v. DeHaven, 824 S.W.2d 257, 263 (Tex. App.—Houston 

[14th Dist.] 1992, no writ) (concluding that adequate opportunity to be heard prior to the 

imposition of sanctions where the party “was given an opportunity to argue in opposition 

of the sanction and explain its conduct to the trial court”). And, to the extent that relators 

were prevented from offering their witnesses, we have compared the offers of proof with 

the affidavit testimony from each and agree that, in sum, their proposed testimony was 

both repetitive and cumulative. 
46

2. Merits

In connection with this issue, relators have asserted that the trial court erred in 

refusing to consider the merits of the plaintiffs’ lawsuit because such a consideration is 

necessary for any consideration or evaluation regarding whether the plaintiffs were 

prejudiced. Relators contend, in short, that the plaintiffs were going to lose their case on 

the merits because, inter alia, relators’ experts had recently deemed impossible the 

plaintiffs’ theory that preceding events on the power line caused it to sag into contact with 

the tarp rod. 

Our sister court in Fort Worth recently considered and rejected a similar argument 

regarding the interplay between merits consideration and sanctions. See Estate of 

Radelat, No. 02-17-00264-CV, 2019 WL 5792652, at *1 (Tex. App.—Fort Worth Nov. 7, 

2019, pet. filed) (mem. op.). In that case, the appellants asserted that death penalty 

sanctions were precluded because the appellee’s causes of action against them for 

mishandling an estate were barred by the statute of limitations. Id. The Fort Worth Court 

of Appeals disagreed with this premise for two basic reasons:

First, as we see it, the merits of the case itself are not before us. True, there 

are some cases where Texas courts have applied the logic that appellants 

advocate, using the apparent merits of the case to reverse a death penalty 

sanction. For instance, in Remington Arms Company v. Caldwell, the jury 

rendered a verdict against a products liability plaintiff, but after trial, the trial 

court nonetheless granted a mistrial and rendered death penalty sanctions 

against the defendant. 850 S.W.2d 167, 169 (Tex. 1993) (orig. proceeding) 

(op. on reh’g). Writing for the court, Justice Cornyn reasoned that when the 

jury resolved the merits of the case in favor of the defendant, this defeated 

any presumption that the defendant’s claims lacked merit, making death 

penalty sanctions inappropriate. Id. at 171. Similarly, in Chrysler 

Corporation v. Blackmon, the court addressed a products liability suit 

alleging that a vehicle’s defects caused a collision, but the plaintiff admitted 

in a discovery response that another driver’s negligence was also to blame 

for causing the collision. 841 S.W.2d 844, 850 & n.12 (Tex. 1992). Again 

writing for the court, Justice Cornyn reasoned that this admission undercut 
47

a presumption that the claims lacked merit: the plaintiffs had effectively 

admitted that there was merit in the defendant’s comparative-fault defense, 

and because a death penalty sanction would essentially treat this defense 

as meritless, the sanction could not stand. Id. Other courts have applied this 

thinking as well. See, e.g., In re TAH Invs., LLC, No. 14-19-00161-CV, 2019 

WL 2062923, at *5 (Tex. App.—Houston [14th Dist.] May 9, 2019, orig. 

proceeding) (mem. op.) (per curiam). Thus, appellants’ thinking is not at all 

foreign to Texas law.

But unlike Remington and Chrysler, wherein the merits had already been 

resolved by trial and admission, respectively, here we have no concrete 

basis on which to judge the merits. This is not an appeal from summary 

judgment, a trial on the merits, or any other sort of exercise that truly 

assesses the worth of the sanctioned party’s claims and defenses. At this 

juncture, the sole window we have into the merits is the parties’ pleadings, 

which may or may not be true. Under Texas law, many questions must be 

satisfactorily answered before a death penalty sanction may be rendered, 

but we do not believe that either due process or the rules of civil procedure 

require us to forecast how likely the sanctioned defendant would be to 

prevail in the absence of a sanction—and to do so based solely on the 

party’s pleadings. Parties who severely offend the process of justice are not 

exempt from sanctions simply because they have the better pleadings.

Second, to the extent that appellants’ conduct does place the merits before 

us, their course of action militates toward the conclusion that the limitations 

defense lacks merit. To justify a presumption that the claim lacks merit, the 

misconduct must, at a minimum, reveal some detrimental truth about the 

sanctioned party’s claim or defense. See Khan v. Valliani, 439 S.W.3d 528, 

535 (Tex. App.—Houston [14th Dist.] 2014, no pet.). In Khan, for example, 

the court recognized that the failure to pay $400 in attorney’s fees for 

contempt of court revealed nothing about the merits. Id. It was simple 

dereliction, oriented toward financial concerns rather than the truth or falsity 

of the underlying claims.

Other forms of misconduct, though, may tell of the case’s merit. Refusal to 

produce evidence that goes to the “heart of” the case may warrant the belief 

that full and fair disclosure would be damning for the refusing party. Cire, 

134 S.W.3d at 841. Accordingly, “if a party refuses to produce material 

evidence, despite the imposition of lesser sanctions, the court may presume 

that an asserted claim or defense lacks merit and dispose of it.” TransAm., 

811 S.W.2d at 918; see Cire, 134 S.W.3d at 841 (holding that death penalty 

sanctions were justified by plaintiff’s repeated refusal to produce critical 

audiotapes needed to dispute plaintiff’s claim, by later destroying those 

tapes, and by misrepresenting the circumstances to the trial court).
48

The same might be said of pervasive and persistent obstruction of the 

discovery process in general. See 5 Star Diamond, LLC v. Singh, 369 

S.W.3d 572, 579 (Tex. App.—Dallas 2012, no pet.) (concluding that 

prolonged general resistance to discovery, despite multiple orders 

compelling responses, justified death penalty sanction); Palau v. Sanchez, 

No. 03-08-00136-CV, 2010 WL 4595705, at *12 n.10 (Tex. App.—Austin 

Nov. 10, 2010, pet. denied) (mem. op.) (holding that a pattern of 

noncompliance in the face of increasing sanctions was enough to justify 

presumption that merit was lacking); Finley Oilwell Serv., Inc. v. Retamco 

Operating, Inc., 248 S.W.3d 314, 322 (Tex. App.—San Antonio 2007, pet. 

denied) (holding that there was no abuse of discretion in striking the 

pleadings based on defendant’s disregard of several orders compelling 

response and monetary sanctions); In re Zenergy, Inc., 968 S.W.2d 1, 6, 11 

(Tex. App.—Corpus Christi–Edinburg 1997, orig. proceeding) (concluding 

that false testimony and pervasive concealment of information, despite 

orders compelling disclosure, justified death penalty sanctions).

Courts have also considered violations of a temporary injunction in 

determining whether a presumption that the claim lacks merit was justified. 

See Caron v. Smaby, No. 01-15-00528-CV, 2017 WL 2471101, at *10, *12 

(Tex. App.—Houston [1st Dist.] June 8, 2017, no pet.) (mem. op.); 

Hernandez v. Sovereign Cherokee Nation Tejas, 343 S.W.3d 162, 171 

(Tex. App.—Dallas 2011, pet. denied). And false statements to the court 

have been held to call for extreme measures as well. See Redmond Legal 

Grp., PLLC v. Chatman, No. 14-17-00835-CV, 2019 WL 4021930, at *3 

(Tex. App.—Houston [14th Dist.] Aug. 27, 2019, no pet. h.) (mem. op.) 

(collecting cases).

Id. at *4–5. 

We agree with this reasoning. Applying it here, we note that this is not an appeal 

from a summary judgment, a trial on the merits, or any other sort of exercise that truly 

assesses the worth of the relators’ claims and defenses. In this regard, to the extent that 

relators appear to be inviting us to review the trial court’s previously granted summary 

judgments, those matters are not within the scope of this mandamus review. Requiring 

merits-based analysis prior to the imposition of sanctions would effectively require fullblown litigation as to the merits prior to the imposition of sanctions and would impair 

judicial efficiency and the prompt disposition of cases. Further, such an analysis would 
49

defeat one of the purposes of sanctions—to ensure that a party will not be able to profit 

from its malfeasance—by allowing a sanctionable party to nevertheless prevail when its 

actions prevent the opposing party from success on its claims. Here, for instance, relators 

filed multiple Daubert motions against plaintiffs and their expert, Wilkerson, on grounds 

that “he cannot adequately explain causation.” But Wilkerson expressly testified that he 

required the missing data to complete his calculations. And finally, relators’ argument that 

merits analysis is necessary would inappropriately truncate the trial court’s duties and 

responsibilities to use sanctions to ensure proper compliance with the judicial process 

generally. See, e.g., In re Bennett, 960 S.W.2d at 40 (stating that trial courts have the 

inherent power to sanction parties for abusing the judicial process, to ensure an 

adversarial proceeding, to aid in the exercise of the court’s jurisdiction, in the 

administration of justice, or in the preservation of the court’s independence and integrity); 

Liles v. Contreras, 547 S.W.3d 280, 290–91 (Tex. App.—San Antonio 2018, pet. denied)

(discussing the trial court’s inherent authority to sanction “for interference with a court’s 

traditional core functions, which include: hearing evidence, deciding issues of fact raised 

by the pleadings, deciding questions of law, rendering final judgment, enforcing its 

judgment, managing its docket, and the issuance and enforcement of its orders” and “for 

conduct, that if tolerated, ‘breeds disrespect for and threatens the integrity of our judicial 

system’”); see also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398–99 (Tex. 1979); 

Westview Drive Invs., LLC v. Landmark Am. Ins. Co., 522 S.W.3d 583, 613 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied).
50

3. Judicial Notice

Relators further contend that the trial court erred in taking judicial notice of its file. 

At the conclusion of the sanctions hearing, the parties and trial court engaged in a 

discussion regarding the status of the record and various items of evidence and discussed 

taking judicial notice of the pleadings and exhibits pertaining to sanctions. Relators 

affirmatively asked the trial court to take judicial notice and they repeatedly sought 

assurance that the trial court would take judicial notice of “of what’s in our response” and

“the affidavits that were in the file.” The trial court stated that he would “take judicial notice 

of all documents on file, and any exhibits attached to your petition, your response, will be 

admitted into evidence.” At this point in the proceeding, relators objected because they 

had not had the opportunity to file objections to the plaintiffs’ exhibits to the motion to 

strike. Counsel for relators finally asserted that the trial court could not take judicial notice 

of any evidence or facts contained in the filed pleadings. The court overruled the relators’ 

objection. 

A trial court’s action in taking judicial notice is reviewed for an abuse of discretion. 

In re Estate of Downing, 461 S.W.3d 231, 239 (Tex. App.—El Paso 2015, no pet.); Keller 

v. Walker, 652 S.W.2d 542, 543 (Tex. App.—Dallas 1983, no writ). It is well-settled that 

a trial court can properly take judicial notice of its own records and prior pleadings in the 

case, with or without a request of a party. TEX. R. EVID. 201(c); see, e.g., In re Estate of 

Downing, 461 S.W.3d at 239–40; In re J.A.S.C., 430 S.W.3d 544, 545 n.2 (Tex. App.—

Dallas 2014, no pet.); Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 379 (Tex. 

App.—Houston [14th Dist.] 2012, pet denied); In re Estate of Clark, 198 S.W.3d 273, 275 

(Tex. App.—Dallas 2006, pet. denied). “It is appropriate for a court to take judicial notice 
51

of a file in order to show that the documents in the file are a part of the court’s files, that 

they were filed with the court on a certain date, and that they were before the court at the 

time of the hearing.” In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort Worth 2006, pet. 

denied). 

The trial court may not take judicial notice of the truth of factual statements and 

allegations contained in the pleadings, affidavits, or other documents in the file. See, e.g., 

Hogg v. Lynch, Chappell & Alsup, P.C., 480 S.W.3d 767, 783 (Tex. App.—El Paso 2015, 

no pet.); Guyton v. Monteau, 332 S.W.3d 687, 692–93 (Tex. App.—Houston [14th Dist.] 

2011, no pet.); In re C.L., 304 S.W.3d 512, 514–15 (Tex. App.—Waco 2009, no pet.). 

When evidence is the subject of improper judicial notice, it amounts to no evidence. 

Guyton, 332 S.W.3d at 692–93; Augillard v. Madura, 257 S.W.3d 494, 503 n.14 (Tex. 

App.—Austin 2008, no pet.).

As a pragmatic matter, insofar as the basis of relators’ objection was their inability 

to make objections during the hearing, we conclude that relators had more than sufficient 

time to file objections to the plaintiffs’ evidence that was attached to their motion to strike. 

The plaintiffs’ motion to strike was filed on November 9, 2018, the hearing on sanctions 

began on November 26, 2018, and the trial court stated it was taking judicial notice on 

November 30, 2018. Essentially, the relators’ objections were not timely. See TEX. R. APP.

P. 33.1(a). 

Further, we disagree with relators’ contention that the trial court erred in taking 

judicial notice. First, as a threshold matter, relators asked the court to take judicial notice 

of their own pleadings and affidavits. See In re Dep’t of Family & Protective Servs., 273 

S.W.3d 637, 646 (Tex. 2009) (orig. proceeding) (discussing the scope of the invited error 
52

doctrine). Second, relators’ contentions run afoul of the trial court’s scope of review 

regarding the imposition of sanctions. At a hearing on a motion for sanctions, “the trial 

court can consider the arguments of counsel and all orders and documents before it.”

Jefa Co, v. Mustang Tractor & Equip. Co., 868 S.W.2d 905, 910 (Tex. App.—Houston 

[14th Dist.] 1994, writ denied); see Hogg, 480 S.W.3d at 783 (noting that, while a court 

cannot take notice of the truth of factual statements and allegations contained in the 

pleadings, affidavits, or other documents in the file, a “court may take judicial notice of its 

own records for other purposes”); Cognata, 375 S.W.3d at 379–80 (“We presume that the 

trial court took notice of its contempt order and considered it as evidence when deciding 

whether Cognata had engaged in sanctionable conduct.”); Lacy v. First Nat’l Bank of 

Livingston, Tex., 809 S.W.2d 362, 367 (Tex. App.—Beaumont 1991, no writ) (“The trial 

judge may properly take into consideration the file which is before him in his court as well 

as the proceedings that are conducted in his presence. And the trial court under these 

circumstances is presumed to have taken judicial notice.” (citations omitted)). Third, and 

in any event, relators fail to explain how the trial court’s action harmed them. See TEX. R.

APP. P. 44.1(a). We overrule this sub-issue.

4. Addition of Evidence

Relators contend that the trial court erred in allowing the plaintiffs to “add evidence 

to the record” after they had rested. As with the judicial notice issue, relators argue that 

this alleged error deprived them of the opportunity to examine the veracity of the evidence, 

either through cross-examination or objections. Relators do not identify the additional 

evidence, they do not offer argument regarding the harmfulness of the alleged error, and 
53

they cite no authority in support of the proposition that the trial court lacked authority to 

allow additional evidence. Accordingly, we overrule this sub-issue.

5. Notice

Relators contend that the sanction order exceeds the scope of the plaintiffs’ 

sanction motion. They assert that the trial court violated their rights by sanctioning them 

for conduct that exceeds the scope of the motion for sanctions and that they were 

wrongfully deprived of adequate notice of the charges against them. 

“[A] trial court may not award sanctions on a basis not asserted in the motion.”

Polansky v. Berenji, 393 S.W.3d 362, 369 (Tex. App.—Austin 2012, no pet.); see Greene 

v. Young, 174 S.W.3d 291, 298–301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) 

(reversing sanctions awarded because parties did not have notice of legal basis or 

conduct under consideration for sanctions); Ball v. Rao, 48 S.W.3d 332, 338 (Tex. App.—

Fort Worth 2001, pet. denied) (holding that the trial court erred by imposing sanctions 

under Chapter 9 of the Texas Civil Practice and Remedies Code because the claim for 

sanctions was based on Chapter 10 of the code and Texas Rule of Civil Procedure 13).

However, there is no requirement for “detailed notice,” and “[a]ll due process requires is 

notice of the trial court’s intent to consider imposing sanctions and an opportunity to be 

heard.” Bres, 217 S.W.3d at 514. We may uphold the sanction ruling if any of the grounds 

raised in the motion is supported by the record. Mann v. Kendall Home Builders Constr. 

Partners I, Ltd., 464 S.W.3d 84, 93 (Tex. App.—Houston [14th Dist.] 2015, no pet.); see 

Chevron Phillips Chem. Co. v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 74 (Tex. 

App.—Houston [14th Dist.] 2011, pet. denied) (explaining that where the party seeking 

sanctions asserted that the opposing party violated a discovery order in ten ways, 
54

sanctions would be upheld if the record supported any of the alleged violations (citing Am. 

Flood Research, Inc., 192 S.W.3d at 583.

The plaintiffs’ motion to strike is more than seventy pages long, excluding exhibits, 

and specifies that the plaintiffs are seeking sanctions based on multiple instances of 

discovery abuse and the fabrication and destruction of evidence. The motion to strike 

details these allegations repetitively and exhaustively. After an independent review of the 

entire record, we conclude that relators were given adequate notice of the trial court’s 

intention to consider sanctions and were given an adequate opportunity to respond. See 

In re Bennett, 960 S.W.2d at 40; Bres, 217 S.W.3d at 514–15. Accordingly, we overrule 

this sub-issue. 

F. Appropriateness of Sanction

Relators allege that the sanction was disproportionate to any harm. This argument 

is based on the first of the two TransAmerican standards which requires that “a direct 

relationship must exist between the offensive conduct and the sanction imposed.”

TransAm. Nat. Gas Corp., 811 S.W.2d at 917. “This means that a just sanction must be 

directed against the abuse and toward remedying the prejudice caused the innocent 

party” and it “also means that the sanction should be visited upon the offender.” Id.; see 

also Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992) (orig. proceeding)

(“As we stated in TransAmerican, the sanction must be directed against the abuse and 

toward remedying the prejudice caused an innocent party.”). “A sanction does not satisfy 

the TransAmerican standard if the other party is not prejudiced by the conduct at issue.”

In re Montelongo, 586 S.W.3d 513, 521 (Tex. App.—Houston [14th Dist.] 2019, orig. 

proceeding). 
55

In terms of spoliation, prejudice is evaluated based on the spoliated evidence’s 

relevancy to key issues in the case, whether the evidence would have been harmful to 

the spoliating party’s case (or, conversely, helpful to the nonspoliating party’s case), and 

whether the spoliated evidence was cumulative of other competent evidence that may be 

used in its stead. Petroleum Sols., 454 S.W.3d at 489; Brookshire Bros., 438 S.W.3d at 

21–22. A party’s intentional destruction of evidence may, “[a]bsent evidence to the 

contrary,” be sufficient by itself to support a finding that the spoliated evidence is both 

relevant and harmful to the spoliating party and conversely, negligent spoliation could not 

be enough to support such a finding without “some proof about what the destroyed 

evidence would show.” Brookshire Bros., 438 S.W.3d at 22. The trial court should 

consider all evidence bearing on the factors associated with evaluating prejudice to the 

nonspoliating party. Id.

Here, the trial court’s February 19, 2019 order: (1) strikes relators’ pleadings, 

including all defenses, counter-claims, and cross-claims; (2) grants a default judgment in 

favor of plaintiffs and against relators on all issues of liability; (3) requires a jury trial 

regarding the amount of plaintiffs’ damages; and (4) states that “no issues with regard to 

liability, including proportionate responsibility, shall be submitted to the jury.”

As we have previously stated, the record contains sufficient evidence for the trial 

court to conclude that the relators engaged in multiple instances of sanctionable conduct. 

See Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 661–62 (Tex. App.—

Houston [1st Dist.] 2014, pet. denied) (“The trial court may consider everything that has 

occurred during the history of the litigation when determining how to sanction a party.”); 

Buck v. Estate of Buck, 291 S.W.3d 46, 55–56 (Tex. App.—Corpus Christi–Edinburg 
56

2009, no pet.) (“In determining whether to impose death penalty sanctions, the trial court 

is not limited to considering only the specific violation for which sanctions are finally 

imposed, but may consider everything that has occurred during the history of the 

litigation.”). The evidence showed that the testimony from some of relators’ witnesses (1) 

contained internal conflicts, (2) clashed with testimony offered by relators’ other 

witnesses, and (3) directly contradicted the documentary evidence produced by relators. 

Some of relators’ responses to discovery were affirmatively incorrect and some of these 

responses appear to have been designed to conceal the existence of SCADA and 

Schweitzer data. And relators possessed and used SCADA data in analyzing the events 

that occurred on October 26, 2016, yet they failed to preserve it for purposes of this 

litigation. 

As fact finder, the trial court was entitled to assess the credibility of the testimony 

and determine what weight to give to it, and we may not interfere with the factfinder’s 

resolution of conflicts in the evidence. Johnson v. Nat’l Oilwell Varco, LP, 574 S.W.3d 1, 

13 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Hogg v. Lynch, Chappell & Alsup, 

P.C., 553 S.W.3d 55, 68 (Tex. App.—El Paso 2018, no pet.); Alpert v. Crain, Caton, & 

James, P.C., 178 S.W.3d 398, 412 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). 

Considering the conflicting evidence and the evolving nature of the testimony, the trial 

court could reasonably have concluded that relators failed to comply with their obligations 

under the rules of civil procedure. See Response Time, Inc. v. Sterling Commerce (N. 

Am.), Inc., 95 S.W.3d 656, 661–62 (Tex. App.—Dallas 2002, no pet.) (upholding death 

penalty sanction in light of, inter alia, defendant’s fabrication of evidence, false testimony, 

and obstructionist tactics to conceal wrongdoing); Daniel v. Kelley Oil Corp., 981 S.W.2d 
57

230, 235 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (upholding death penalty 

sanction in light of party’s fabrication of evidence and noting that fabrication of evidence 

is a “third degree felony” and is an “act so destructive of the integrity of our judicial process 

[that it] deserves serious punishment”); see also Hill v. Spracklen, No. 05-17-00829-CV, 

2018 WL 3387452, at *7 (Tex. App.—Dallas July 12, 2018, pet. denied) (mem. op.) (“At 

trial, Hill introduced documents he should have produced during the course of the case, 

but failed to do so despite having been repeatedly ordered to do so, and presented what 

appeared to be inconsistent forms of the contract Janet Spracklen supposedly signed.”). 

As explained here, the trial court had sufficient evidence before it to conclude that 

relators committed sanctionable actions. However, our concern in our analysis of this subissue has to do with the severity or excessiveness of the sanction imposed based on the 

record presented. In this regard, we conclude that the sanction order constituted an abuse 

of discretion for the following reasons. 

First, as a threshold matter, the trial court’s ruling fails to comply with Texas 

Supreme Court precedent regarding the severity of the sanction imposed. See Paradigm 

Oil, 372 S.W.3d at 187. In Paradigm Oil, the trial court entered a post-answer default 

against a defendant as a death penalty discovery sanction and also excluded the 

defendant from participation in the trial regarding the plaintiff’s unliquidated damages. The 

Texas Supreme Court held that it was error to sanction a party after a default by refusing 

to allow them to participate in a damages trial. See id. In conducting its analysis, the court 

held:

Although punishment may be a legitimate consequence of a discovery 

sanction, it cannot be excessive. See Chrysler Corp. v. Blackmon, 841 

S.W.2d 844, 849 (Tex.1992) (listing securing compliance, deterrence, and 

punishment as legitimate purposes of discovery sanctions). Sanctions for 
58

discovery abuse should not be dispensed as arbitrary monetary penalties 

unrelated to any harm. Ford Motor Co. v. Tyson, 943 S.W.2d 527, 534–35 

(Tex. App.—Dallas 1997, orig. proceeding). When discussing 

excessiveness, we have said that “the punishment should fit the crime” and 

that the sanction “should be no more severe than necessary to satisfy its 

legitimate purposes.” TransAmerican, 811 S.W.2d at 917; see also PR Invs. 

and Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 480 (Tex. 2008); In 

re SCI Tex. Funeral Servs., Inc., 236 S.W.3d 759, 761 (Tex. 2007) (per 

curiam). Moreover, discovery sanctions are primarily intended to remedy 

discovery abuse and should be tailored to serve their remedial purpose. It 

is not apparent that barring Paradigm’s participation in the post-default 

damages phase of the case served any purpose other than punishment.

Compensatory damages awarded post-default should compensate the 

injured party for its loss, not penalize the wrongdoer or allow the plaintiff a 

windfall. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 848–49 (Tex. 

2000) (noting that the role of compensatory damages is to fairly compensate 

the plaintiff, not punish the defendant). And although punitive damages are 

intended to punish the wrongdoer, they nevertheless must bear some 

relationship to the liability-producing conduct. See TEX. CIV. PRAC. & REM.

CODE § 41.011(a) (requiring factfinder to consider nature of the wrong,

character of conduct involved, degree of culpability, and extent to which 

conduct offends public sense of justice in determining exemplary damages); 

see also In the Matter of Gober, 100 F.3d at 1205 (noting that conduct 

sufficient to warrant punitive damages is not regarded as admitted by 

default). Given this authority and the death penalty sanction that ended the 

liability litigation, the additional sanction of precluding Paradigm from the 

damages trial was excessive. Retamco might have been entitled to a lesser 

sanction, such as the additional costs and expenses caused by Paradigm’s 

discovery abuse, but barring its participation in the damages trial was “more 

severe than necessary to satisfy its legitimate purposes.” TransAmerican, 

811 S.W.2d at 917.

Paradigm Oil, 372 S.W.3d at 187. 

In this case, the plaintiffs seek up to $245,000,000 in damages based on their live 

pleading. Here, the trial court’s sanction order would act as a windfall to the plaintiffs 

insofar as it consists of a default judgment as to liability but also encompasses a default 

judgment as to gross negligence and precludes the application of rules pertaining to 

proportionate responsibility. See id. The sanction award thus fails to “bear some 

relationship to the liability-producing conduct” and is effectively an arbitrary monetary 
59

penalty unrelated to any harm. See id.; Ford Motor Co. v. Tyson, 943 S.W.2d 527, 534–

35 (Tex. App.—Dallas 1997, orig. proceeding).

Second, the trial court sanctioned relators for cumulative abuse of the judicial 

process; however, according to the record, a significant part of the alleged sanctionable 

conduct cannot be attributed solely to relators. See TransAm. Nat. Gas Corp., 811 S.W.2d 

at 917. The trial court’s sanction order states that the “false affidavit” filed by Russell was 

“[m]ost troubling,” and concluded that even if relators were not aware of the error 

regarding the length of the tarp rod at the time the affidavit was filed, they were well aware 

of the falsity prior to hearings on the summary judgments in which the affidavit was 

involved, yet relators failed to amend it, withdraw it, or otherwise notify the court and 

parties of its inaccuracy. The court specifically found that relators “have failed to offer any 

credible explanation for either their submission of the false affidavit or their failure to 

withdraw it, despite ample evidence and knowledge that the affidavit was false.”

However, Jensen testified that Russell obtained information about the length of the 

tarp rod from counsel for relators and “through no other source.” Jensen testified that he 

did not realize that there was an error in Russell’s affidavit until plaintiffs’ counsel showed 

Russell a photograph of the tarp rod and trailer during his deposition and discussed the 

correct length of the rod. Russell’s deposition was taken on September 28, 2018. Based 

on the timeline, counsel for relators was aware of the falsity in the affidavit prior to the 

hearings on the parties’ motions for summary judgments and did nothing to correct the 

affidavit, despite the fact that the measurements pertaining to the trailer, tarp rod, and 

power line are pivotal in this case. We note that Russell agreed that the measurements 

were “important” to his opinion. It thus appears that the error in Russell’s affidavit 
60

originated with counsel, rather than relators, and counsel failed to correct the affidavit or 

motions for summary judgment to which it was attached.12

Further, counsel for relators had, but failed to produce, some of the repair records 

for the power line. One of relator’s attorneys admitted that he believed that repair records 

were produced on September 22, 2017, but they were not actually produced until a 

paralegal from plaintiffs’ attorneys contacted his office and requested the documents. 

Counsel for relators also produced the same set of repair records with two different sets 

of Bates numbers. Further, relators had produced some documentation to counsel, but 

counsel failed to recognize that it was SCADA data and failed to properly identify and 

produce it. Counsel also failed to timely and properly supplement discovery responses 

with witness identities and appropriate designations. We do not dispute the trial court’s 

finding that relators “withheld material evidence and information from their counsel of 

record,” but based on this record, all of the offensive conduct detailed in the trial court’s 

sanction order cannot be attributable solely to the relators. 

Third, we are not persuaded that it is fully apparent that no lesser sanctions would 

have sufficed to promote relators’ compliance with the rules. See Cire, 134 S.W.3d at 

840–41. Here, the trial court had previously imposed lesser sanctions in the form of an 

12 In determining whether the sanction has been visited upon the offender, the supreme court has 

instructed us:

The trial court must at least attempt to determine whether the offensive conduct is 

attributable to counsel only, or to the party only, or to both. This we recognize will not be 

an easy matter in many instances. On the one hand, a lawyer cannot shield his client from 

sanctions; a party must bear some responsibility for its counsel's discovery abuses when 

it is or should be aware of counsel's conduct and the violation of discovery rules. On the 

other hand, a party should not be punished for counsel's conduct in which it is not 

implicated apart from having entrusted to counsel its legal representation. The point is, the 

sanctions the trial court imposes must relate directly to the abuse found.

TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex. 1991) (orig. proceeding).
61

approximately $11,000 monetary penalty regarding the relators’ depositions. The record 

reveals no other sanction order until the eve of trial. While the trial court repeatedly 

expressed its frustration with relators’ discovery efforts, the record does not indicate that 

relators were effectively advised, during the pendency of the litigation and before trial was 

imminent, of a potential death penalty sanction. We note, in this regard, that the trial court 

possesses numerous tools to remedy abuse, including, inter alia, an order disallowing 

further discovery, an order granting a continuance for the appropriate handling of latedisclosed evidence, an award of costs and expenses, an order regarding deemed facts, 

an order limiting or excluding evidence, or a jury instruction. See, e.g., TEX. R. CIV. P. 

215.2(b); Christus Health Gulf Coast, 505 S.W.3d at 528; Spohn Hosp., 104 S.W.3d at 

881 n.2; Chrysler Corp., 841 S.W.2d at 849. Here, the trial court’s sanction order 

summarily concludes that other lesser sanctions would be inadequate, however, based 

on this record, it is not “fully apparent” that no other sanctions were appropriate. See Cire, 

134 S.W.3d at 840–41. We note, in this regard, that the trial court faulted the relators for 

failing to offer alternative suggestions as to the appropriate penalty for their 

transgressions. We are unable to conclude that it was the relators’ burden to identify a 

sanction for their alleged transgressions, or that any such procedure should factor into a 

determination regarding the appropriate sanction. 

Fourth, and finally, although the trial court correctly refused to conduct the sanction 

hearing as a full-blown trial on the merits, it incorrectly refused to consider certain 

categories of evidence that are relevant to a determination regarding the imposition of 

sanctions. See TransAm. Nat. Gas Corp., 811 S.W.2d at 917; Chrysler Corp., 841 S.W.2d 

at 849. For example, the record does not indicate whether the missing evidence—
62

including data from SCADA, the Schweitzer relay, and the sequence of events log—was 

cumulative of other competent evidence that might be used in its stead. And, relators’ 

witnesses, including Corby White, Senior Engineer in the Transmission Design 

Department, and David Wheeler, Supervisor in System Protection Engineering, testified 

that there was no preceding event on the power line which caused it to sag and that it is 

scientifically impossible to sag out of clearance in the manner alleged by plaintiffs. While 

the trial court was not required to entertain a trial on the merits, it could not assess whether 

the sanctionable conduct prejudiced the plaintiffs without reviewing the totality of the 

evidence before it. Moreover, the trial court’s scope of review failed to fully encompass 

relators’ explanations for the events underlying the sanctions motion insofar as it excluded 

testimony regarding relators’ practices and procedures for the preservation of evidence. 

And, the trial court’s refusal to allow relators’ witnesses to testify at the hearing, while not 

a due process violation based on our analysis here, is troubling when examined under 

fundamental fairness doctrines or the fair trial standard. See In re Advanced Powder 

Sols., Inc., 496 S.W.3d 838, 851 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); 

In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863 (Tex. App.—Dallas 2014, orig. 

proceeding).

Based on the foregoing, we agree with relators that the trial court erred in 

assessing death penalty sanctions. We sustain relator’s issue pertaining to sanctions as 

stated here.

V. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus, 

the response, and the reply, is of the opinion that relators have shown themselves entitled 
63

to mandamus relief, in part, as stated here. Accordingly, we lift the stay previously 

imposed in this case. We conditionally grant the petition for writ of mandamus and we 

direct the trial court to withdraw its February 19, 2019 order granting death penalty 

sanctions and to conduct further proceedings in this case in accordance with this opinion. 

We express no opinion as to any sanction that might be imposed, if any, after further 

proceedings in this case. We deny all relief sought with regard to the issues pertaining to 

recusal. Our writ will issue only if the trial court fails to comply. 

GINA M. BENAVIDES,

Justice

Delivered and filed the

16th day of April, 2020.