                                                                         ACCEPTED
                                                                    03-14-00725-CV
                                                                           3737749
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                               1/12/2015 4:19:03 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK
                 No. 03-14-00725-CV

                                                    FILED IN
                                             3rd COURT OF APPEALS
                                                 AUSTIN, TEXAS
             In the Third Court of Appeals   1/12/2015 4:19:03 PM
                     Austin, Texas             JEFFREY D. KYLE
                                                     Clerk




         GEORGE GREEN AND GARLAN GREEN,
                   Appellants

                          v.

       PORT OF CALL HOMEOWNERS ASSOCIATION
                      Appellee


           APPEAL FROM CAUSE NO. 18314
  RD
33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS
          HON. ALLAN GARRETT, PRESIDING


               APPELLANTS’ BRIEF


                      David Junkin
                State Bar No. 11058020
              Law Office of David Junkin
                     P.O. Box 2910
               Wimberley, Texas 78676
                     512/847-8600
                  512/847-8604 (fax)
              david@junkinlawoffice.com
                Attorney for Appellants

 ORAL ARGUMENT (CONDITIONALLY) REQUESTED
           STATEMENT REGARDING ORAL ARGUMENT

      Appellants believe that the briefs and records will adequately present

the facts and legal arguments involved in this appeal and that oral argument

would not aid the decisional process significantly. See Tex. R. App. P. 39.1.

However, should the Court conclude that oral argument would be helpful,

Appellants stand ready and request the opportunity to participate.




                                      i
               IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the trial court’s order

at issue, as well as the names and addresses of all trial and appellate counsel.

Plaintiff/Appellants:                         Counsel for Appellants:

George Green                                  David Junkin
Garlan Green                                  P.O. Box 2910
                                              Wimberley, Texas 78676


Defendant/Appellees:                          Counsel for Appellees:

Port of Call Homeowners Association           Brantley Ross Pringle, Jr.
Randolph Harig                                Heidi Coughlin
Phillip Jacobs                                Wright & Greenhill, PC
John Ross Buckholtz                           221 West 6th Street, Suite 1800
Richard Pat McElroy                           Austin, TX 78701




                                       ii
                                    TABLE OF CONTENTS

Index of Authorities ..................................................................................... vi

Statement of the Case ....................................................................................1

Issues Presented

         A.       DID THE TRIAL COURT ABUSE ITS
                  DISCRETION IN HOLDING A HEARING ON
                  THE   MOTION     TO   ENFORCE         THE
                  PROTECTIVE ORDER WHICH SOUGHT
                  SANCTIONS AS RELIEF WITH LESS THAN 3
                  DAYS’ NOTICE TO APPELLANTS? .....................................3

         B.       DID THE TRIAL JUDGE ABUSE HIS
                  DISCRETION IN ENTERING AN ORDER
                  PROHIBITING APPELLANTS FROM MAKING
                  ANY COMMUNICATIONS TO APPELLEES,
                  EXCEPT    THROUGH                   ATTORNEYS                     OF
                  RECORD? ................................................................................. 3

         C.       THE ORDER THAT IS THE BASIS OF THIS
                  APPEAL EXTENDED THE TIME FOR
                  APPELLEE PORT OF CALL HOMEOWNERS’
                  ASSOCIATION TO PRODUCE RECORDS
                  FROM EVERY FORTY-FIVE (45) DAYS TO
                  EVERY SIXTY (60) DAYS BEGINNING
                  NOVEMBER 15, 2014.                       DID THE TRIAL
                  JUDGE ABUSE HIS DISCRETION IN
                  CHANGING THE TIME FOR PRODUCTION
                  OF RECORDS IN THIS CASE NUNC PRO
                  TUNC? .......................................................................................3

         D.       DID  THE   TRIAL JUDGE                                    ERR  IN
                  SANCTIONING APPELLANTS                                    WITHOUT
                  ANY EVIDENCE TO SUPPORT THE AWARD? ..................3
Background ....................................................................................................4



                                                      iii
Summary of the Argument ...........................................................................5

Standard of Review ........................................................................................5

Argument

        A.       THE TRIAL COURT ABUSED ITS
                 DISCRETION IN HOLDING A HEARING ON
                 THE MOTION TO ENFORCE THE
                 PROTECTIVE ORDER, WHICH SOUGHT
                 SANCTIONS AS RELIEF, WITH LESS THAN
                 THREE    (3)     DAYS’               NOTICE                  TO
                 APPELLANTS ..........................................................................5

        B.       THE TRIAL COURT ABUSED ITS
                 DISCRETION IN ENTERING AN ORDER
                 PROHIBITING   APPELLANTS                FROM
                 HAVING ANY COMMUNICATIONS WITH
                 APPELLEES     EXCEPT           THROUGH
                 ATTORNEYS OF RECORD .................................................. 7

                 i. THE ORDER IS AN UNCONSTITUTIONAL
                 PRIOR RESTRAINT ON FREE SPEECH ............................7

                 ii. THE REQUIREMENTS FOR INJUNCTIVE
                 RELIEF WERE NOT ESTABLISHED............................... 10

        C.       THE   TRIAL    COURT          IMPROPERLY
                 EXTENDED THE TIME FOR THE
                 APPELLEE PORT OF CALL HOME
                 OWNERS         ASSOCIATION                         TO
                 AUTOMATICALLY PRODUCE RECORDS
                 FROM EVERY FORTY-FIVE (45) DAYS TO
                 EVERY SIXTY (60) DAYS ................................................... 10

        D.       THE   TRIAL              COURT                 ERRED                IN
                 SANCTIONING APPELLEES WITHOUT
                 ANY EVIDENCE TO SUPPORT THE
                 AWARD .................................................................................. 13



                                                    iv
Conclusion and Prayer ............................................................................... 15

Certificate of Service .................................................................................. 17

Appendix

        Order Granting Motion for Enforcement (the “Order”) ................ Tab 1

        Order Granting Defendants’ Motion to Compel
        and Protective Order (the “Initial Order”) ..................................... Tab 2

        Cases .............................................................................................. Tab 3

        Statutes........................................................................................... Tab 4

        Rules .............................................................................................. Tab 5




                                                       v
                              INDEX OF AUTHORITIES

Case Law                                                                                  Page(s)

Alexander v. United States,
      509 U.S. 544, 113 S. Ct. 2766, 125 L.Ed.2d 441 (1993) ........................ 8

Bantam Books, Inc. v. Sullivan,
     372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ................................... 8

Burton v. Cravey,
      759 S.W.2d 160 (Tex. App.—Houston [1st Dist.] 1988, no writ). .. 11, 12

Davenport v. Garcia,
     834 S.W.2d 4 (Tex. 1992) ....................................................................... 8

Ex parte Chambers,
      898 S.W.2d 257 (Tex. 1995) ................................................................. 15

Ex parte Price,
      741 S.W.2d 366 (Tex. 1987) ................................................................. 15

Ex parte Tucker,
      110 Tex. 335, 220 S.W. 75 (Tex. 1920). ............................................. 8, 9

Hajek v. Bill Mowbray Motors, Inc.,
      647 S.W.2d 253 (Tex. 1983) ................................................................... 8

Huie v. DeShazo,
      922 S.W.2d 920 (Tex. 1996) ................................................................... 7

Kinney v. Barnes,
      443 S.W.3d 87 (Tex. 2014) .............................................................. 8, 9, 10

Kutch v. Del Mar College,
      831 S.W.2d 506 (Tex. App. —Corpus Christi 1992, no writ) .............. 13

McWhorter v. Sheller,
    993 S.W.2d 781 (Tex. App. —Houston [14th Dist.] 1999, pet. denied).13



                                                 vi
Nath v. Texas Children’s Hospital,
      Cause No. 12-0620 (Tex. August 29, 2014) ........................................... 7

Neb. Press Ass'n v. Stuart,
      427 U.S. 539, 96 S. Ct. 2791, 49 L.Ed.2d 683 (1976) ............................ 8

San Antonio Models, Inc. v. Peeples,
     686 S.W.2d 666 (Tex. App.—San Antonio 1985, orig. proceeding).... 11

Sobel v. Taylor,
      640 S.W.2d 704 (Tex. App—Houston [14th Dist.] 1982, no writ) .......... 10

Sprague v. Sprague,
     363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, pet denied)..13

Town of Palm Valley v. Johnson,
     87 S.W.3d 110, 111 (Tex. 2001) ............................................................. 9

TransAmerican Natural Gas Corp. v. Powell,
     811 S.W.2d 913 (Tex. 1991) .......................................................................7


Statutes

Tex. Const. art. I, § 8 ......................................................................................... 8

Tex. Const. art. I, § 8 interp. Commentary (West 2007) ................................... 8

Tex. Prop. Code § 81.209 ................................................................................ 11

Tex. Prop. Code § 82.114 ................................................................................ 11

Tex. Bus. Org. Code § 22.351 ......................................................................... 11

Tex. Bus. Org. Code § 252.010 ....................................................................... 11


Rules

Tex. R. Civ. P. 4............................................................................................. 5, 6

                                                      vii
Tex. R. Civ. P. 21........................................................................................... 5, 6

Tex. R. Civ. P. 682........................................................................................... 10

Tex. R. Civ. P. 683........................................................................................... 10

Tex. R. Civ. P. 684........................................................................................... 10


Other

A. Bickel, the Morality of Consent 61 (1975) ................................................... 8




                                                     viii
TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellants, George Green and Garlan Green file this brief asking the

Court to reverse or dissolve the trial court’s order granting injunctive and

related relief based on the following:


                           STATEMENT OF THE CASE

Order Signed by:             The Honorable Allan Garrett

Trial Court:                 33rd Judicial District Court

Appellants:                  Appellant Garlan Green is a property owner in the
                             Port of Call townhome development in Horseshoe
                             Bay, Texas. Appellant George Green is Garlan
                             Green’s son, lives with Garlan Green as a
                             caretaker, and has power of attorney for Garlan
                             Green.     The Appellants are referred to as
                             “Apellants” or “Green.”

Appellees:                   Appellee Port of Call Homeowners Association
                             (“POC”) is the homeowners association of the Port
                             of Call development and was an unincorporated
                             association of persons until November, 2013 when
                             it incorporated as a non-profit corporation. The
                             individual Appellees, Randolph Harig, Phillip
                             Jacobs, John Ros Buchholtz, and Richard Pat
                             McElroy are current or former members of the Port
                             of Call Homeowners Association board of
                             directors.

Nature of the Case:          This controversy essentially began as a request for
                             review of POC records due to what Appellants
                             believed to be misuses of POC funds.        When
                             Appellants believed they were deprived of full
                             access to the records, Appellants brought a claim
                             in Justice Court in Llano County under the
                             Property Code for access to the records. The

                               Appellants’ Brief – Page 1
                            Justice Court ordered the documents produced and
                            entered judgment against POC for attorney’s fees
                            and court costs. See CR 100; RR, Vol. 2, Page 7,
                            lines 4 – 23 and Page 15, line 25 – page 16, line
                            18. The review of those records led to the instant
                            suit for misuse of funds by POC and individual
                            members of its board of directors.

Course of Proceedings:      This case was filed on February 5, 2013. CR 8.
                            The case was, by agreement, abated for several
                            months to try to resolve the matter. Discovery
                            progressed and new parties were joined and new
                            claims added. CR 67 (Plaintiff’s First Amended
                            Original Petition, Request for Equitable Relief &
                            Request for Disclosure) and CR136 (Plaintiff’s
                            Second1 Amended Original Petition, Request for
                            Equitable Relief & Request for Disclosure).

                            In connection with discovery issues, both parties
                            filed Motions to Compel. CR 89 and CR 100. A
                            hearing was held on those motions on August 14,
                            2014. The Trial Court summarized its findings
                            (RR, Vol. 2, page 52, line 9 - page 62, line 11) and
                            an Order was entered (the “Initial Order”). CR
                            131. The Initial Order was an attempt by the Court
                            to fashion a compromise between the broad rights
                            of access to POC’s records under the Texas
                            Property Code and the POC governing documents
                            and the discovery obligations imposed on litigants
                            by ordering the automatic production of POC
                            records every forty-five (45) days. No objection
                            was made to the Initial Order by any party.

                            On October 10, 2014, POC served Defendants’
                            Motion to Enforce Protective Order and set the
                            matter for hearing on October 14, 2014. CR153
                            and 167. The motion was generally based on letter
                            requests for records made after the Initial Order.
                            Appellants objected to the setting because it failed
1
  Incorrectly styled as Plaintiff’s First Amended Original Petition, Request for
Equitable Relief & Request for Disclosure (emphasis added).

                              Appellants’ Brief – Page 2
                             to give the required three (3) days’ notice under
                             the Texas Rules of Civil Procedure. CR 145.
                             Objection was made at the hearing as well and that
                             objection was overruled. RR, Vol. 3, page 4, line
                             12 – page 15. The hearing was conducted as a
                             non-evidentiary hearing. After the hearing, POC
                             filed Defendants’ Supplemental Motion to Enforce
                             Protective Order. CR 169.

Trial Court’s Disposition:    On October 21, 2014, the Court entered an Order
                             Granting Motion for Enforcement which modified
                             the Initial Order “nunc pro tunc,” imposed
                             injunctive relief against Appellants, extended the
                             automatic record supplementation to every sixty
                             (60) days, and awarded sanctions against
                             Appellants. CR 175. It is this order that forms the
                             basis of this appeal (the “Order”).


                             ISSUES PRESENTED

A.    The Court held a hearing on the Order with less than three (3) days’
      notice under Rules 4 and 21 of the Texas Rules of Civil Procedure. Did
      the trial judge correctly overrule Appellants’ objection to the defective
      notice?

B.    The Order requires, among other things, that “all communications
      between the parties be had through attorneys of record” and Appellants
      are ordered not to communicate with any Appellee for any reason at all.
      Did the trial judge abuse his discretion in entering an order prohibiting
      any communication except through attorneys?

C.    The Order extended the time for POC to produce records to “every sixty
      (60) days beginning November 15, 2014.” Did the trial judge abuse his
      discretion in changing the time for production of records in this case, as a
      nunc pro tunc order?

D.    Did the trial judge err in entering sanctions without any evidence of costs
      incurred, fees expended, etc.?




                              Appellants’ Brief – Page 3
                               BACKGROUND

        As a property owner in the Port of Call development and his agent,

Appellants, exercising their rights by way of the POC governing documents and

under Texas statutes, began requesting inspection of POC records. Ultimately,

Appellants believed they were intentionally being deprived of full access to the

records, so Appellants brought a claim under the Property Code in Justice Court

in Llano County for access to the records. The Justice Court ordered the

documents produced and entered judgment against POC for over $3,000 in

attorney’s fees and court costs. See CR 100; RR, Vol. 2, Page 7, lines 4 – 23

and Page 15, line 25 – page 16, line 18. The review of those records led to this

suit for misuse of funds by POC and individual members of its board of

directors. In response to a motion for protection and motions to compel filed by

both Appellants and Appellees, in August, 2014 the Court entered the Initial

Order. In October, 2014 the Appellees filed, and with essentially one day

notice under the rules, set for hearing a motion to enforce the Initial Order. No

evidence was introduced at the hearing by Appellees. The Court then entered

the Order “nunc pro tunc”2 prohibiting any communication of any kind by

Appellants (their agents, heirs, etc.) with the Appellees (their agents, heirs,

etc.), modifying the Initial Order, and awarding sanctions against Appellants.

2
    CR 175.

                              Appellants’ Brief – Page 4
                     SUMMARY OF THE ARGUMENT

       The Order was entered after a hearing held on less than the three (3) days’

notice required by Rules 4 and 21 of the Texas Rules of Civil Procedure despite

sanctions being the only relief requested by Appellees, the unavailability of

Appellants, and no evidence being presented by Appellees. By prohibiting any

communication of any kind between Appellants and Appellees, except through

attorneys, the Order is overly broad and unconstitutionally prohibits the exercise

of free speech by Appellants. The Order also improperly, and without a pleading

or evidence from the Appellees to support it, modified the terms of the Initial

Order and extended the time for Appellees to produce records from forty-five (45)

days to sixty (60) days. There was no evidence to support an award, or the

amount, of sanctions against Appellants.

                          STANDARD OF REVIEW

      The issues raised by Appellants are governed by an abuse of discretion

standard.

                                 ARGUMENT

 A. THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING A
    HEARING ON THE MOTION TO ENFORCE THE PROTECTIVE
    ORDER WHICH SOUGHT SANCTIONS AS RELIEF, WITH LESS
    THAN THREE (3) DAYS’ NOTICE TO APPELLANTS.

      1.     Rule 21 of the Texas Rules of Civil Procedure provides: “[a]n

 application to the court for an order and notice of any hearing thereon, not


                               Appellants’ Brief – Page 5
presented during a hearing or trial, must be served upon all other parties not

less than three days before the time specified for the hearing, unless

otherwise provided by these rules or shortened by the court.” In computing

the three day period in Rule 21, the day of the notice is not to be included

and “the last day of the period so computed is to be included, unless it is a

Saturday, Sunday, or legal holiday, in which event the period runs until the

end of the next day which is not a Saturday, Sunday, or legal holiday.” Tex.

R. Civ. P. 4.

     2.    On October 10, 2014, Appellees served Defendants’ Motion to

Enforce Protective Order and at the same time set the matter for hearing on

October 14, 2014. CR153 and 167. Green objected to the setting because it

failed to give the required three (3) days’ notice under Texas Rules of Civil

Procedure 4 and 21. CR 145. October 10, 2014 was a Friday and Monday,

October 13, 2014 was a federal holiday (Columbus Day). With the hearing

held on October 14, 2014 the Appellants got one (1) day notice under the

Texas Rules of Civil Procedure. Appellee claimed no further notice should

be given due to the impending birth of a child in 25 days and because

receiving letters from Appellants asking for a response in three (3) days

constituted an emergency. RR, Vol. 3, page 5, line 6 – page 8. Appellants

were not able to attend the hearing. However, Appellants’ objections to the

short notice were overruled. RR, Vol. 3, page 4, line 12 – page 15.

                             Appellants’ Brief – Page 6
         3.    There was no evidence introduced showing the necessity for

    shortening the notice requirements. The Appellees did not show how the

    impending birth of a child prohibited Appellee from giving proper notice.

    The Appellees did not show how the receipt of a letter seeking a response in

    three days constituted an “emergency,” particularly when Appellee did not

    establish it intended to respond to such communication within the time

    period and the time period had already passed as of the time of the hearing.

         4.    The relief sought in Appellees’ Motion to Enforce Protective

    Order was sanctions for alleged violations of the Initial Order. CR 154.

    While the Court has discretion with respect to shortening the time for a

    hearing, the relief sought by Defendants further implicated due process

    protections requiring Appellees to provide Appellants with, at a minimum,

    three (3) days’ notice of the hearing.3

B.       THE TRIAL JUDGE ABUSED HIS DISCRETION IN ENTERING AN
         ORDER PROHIBITING APPELLANTS FROM MAKING ANY
         COMMUNICATIONS TO APPELLEES, EXCEPT THROUGH
         ATTORNEYS OF RECORD.

               i. The Order is an unconstitutional prior restraint on free speech.

         5.    The prior restraint of free speech is presumptively overly broad

and unconstitutional. As the Texas Supreme Court recently reiterated:

3
 A sanctions award that fails to comply with due process constitutes an abuse of
discretion because a trial court has no discretion in determining what the law is or
applying the law to the facts. See Nath v. Texas Children’s Hospital, Case No. 12-
0620 (Tex. 2014), citing, TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d
913, 917 (Tex. 1991); Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996).

                                  Appellants’ Brief – Page 7
      "Every person shall be at liberty to speak, write or publish his opinions
      on any subject, being responsible for the abuse of that privilege; and no
      law shall ever be passed curtailing the liberty of speech or of the press."
      Tex. Const. art. I, § 8. Enshrined in Texas law since 1836, this
      fundamental right recognizes the "transcendent importance of such
      freedom to the search for truth, the maintenance of democratic
      institutions, and the happiness of individual men." Tex. Const. art. I, § 8
      interp. commentary (West 2007). Commensurate with the respect Texas
      affords this right is its skepticism toward restraining speech. While abuse
      of the right to speak subjects a speaker to proper penalties, we have long
      held that "pre-speech sanctions" are presumptively unconstitutional.
      Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); see also Ex parte
      Tucker, 110 Tex. 335, 220 S.W. 75, 76 (Tex. 1920).

      The First Amendment of the U.S. Constitution is similarly suspicious of
      prior restraints, which include judicial orders "forbidding certain
      communications" that are "issued in advance of the time that such
      communications are to occur." Alexander v. United States, 509 U.S. 544,
      550, 113 S. Ct. 2766, 125 L.Ed.2d 441 (1993) (citation and internal
      quotation marks omitted). The U.S. Supreme Court has long recognized
      that "prior restraints on speech and publication are the most serious and
      the least tolerable infringement on First Amendment rights." Neb. Press
      Ass'n v. Stuart, 427 U.S. 539, 559, 96 S. Ct. 2791, 49 L.Ed.2d 683
      (1976); see also id. ("If it can be said that a threat of criminal or civil
      sanctions after publication 'chills' speech, prior restraint 'freezes' it at least
      for the time." (quoting A. Bickel, the Morality of Consent 61 (1975)). As
      such, they "bear a heavy presumption against [their] constitutional
      validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9
      L.Ed.2d 584 (1963). This cornerstone of First Amendment protections
      has been reaffirmed time and again by the Supreme Court, this Court,
      Texas courts of appeals, legal treatises, and even popular culture.

Kinney v. Barnes, 443 S.W.3d 87, 90-91 (Tex. 2014) (footnotes omitted).

While free speech is not an absolute right and the court’s remedies to punish an

abuse of that right remains, a prior restraint on free speech by injunction is not

an appropriate remedy. Id. at 94, citing, Hajek v. Bill Mowbray Motors, Inc.,




                                Appellants’ Brief – Page 8
647 S.W.2d 253 (Tex. 1983) (per curiam); Ex parte Tucker, 110 Tex. 335, 220

S.W. 75 (Tex. 1920). The Texas Supreme Court went on to note that,

      “[o]f course, the requirements for injunctive relief still must be met. A
      plaintiff must show that damages are inadequate or cannot otherwise be
      measured by any pecuniary standard.

Id. at 93, fn 8, citing, Town of Palm Valley v. Johnson, 87 S.W.3d 110, 111

(Tex. 2001) (per curiam).

      6.      The Order at issue in this appeal provides, in part, “all

communications between the parties be had through attorneys of record, and

George Green and Garlan Green, and any of their agents, assigns, officers,

executors or any person acting or working on their behalf in any way, [sic]

other than their attorney(s) of record, shall make no communication to

Defendants during this litigation.” CR 175. While the injunctive language is

not clear, it purports to be an overly broad and unconstitutional restraint on

Appellants exercise of free speech rights. The Order does not seek to limit the

scope, timing, or substance of the communications, it simply prohibits all

communications of any kind for any reason. By way of examples only and

carried to the extreme, the Order effectively prohibits:

      (i)     Appellants from speaking or asking questions at any meeting of the
              Port of Call Homeowners Association,
      (ii)    Appellants from voting (at least from communicating in any
              manner what their vote is) in any POC election,
      (iii)   Appellees from complying with the provisions of the Texas
              Property Code in providing notice to Appellants of its meetings
              except through counsel,

                               Appellants’ Brief – Page 9
         (iv)   Appellants from notifying Appellees of any problems or
                emergencies on the common property, and
         (v)    contesting any demand for payment or even making a payment if it
                includes any “communication.”

The scope of the relief in the injunctive provisions of the Order constitutes an

unconstitutional, overly broad limitation on the Appellants’ free speech rights.

                ii. The requirements for injunctive relief were not established.

         7.     Further, as noted above, in order for the Court to issue injunctive

relief, the requirements for injunctive relief must still be met. Kinney, 443

S.W.3d 93fn 8.         In this case, the Appellees did not pled for this relief,

introduced no evidence of irreparable injury or that no adequate remedy at law

is available, posted no bond, and the order does not include a trial date as

required by the Texas Rules of Civil Procedure. See Sobel v. Taylor, 640

S.W.2d 704, 708 (Tex. App—Houston [14th Dist.] 1982, no writ) (finding that

an order for injunctive relief was issued without compliance with the Texas

Rules of Civil Procedure and that portion of the order “must be dissolved.”).4

The Order should be dissolved with respect to the injunctive relief.

C.       THE TRIAL COURT IMPROPERLY EXTENDED THE TIME FOR
         APPELLEE PORT OF CALL HOMEOWNERS’ ASSOCIATION TO
         PRODUCE RECORDS FROM EVERY FORTY-FIVE (45) DAYS TO
         EVERY SIXTY (60) DAYS.

         8.     At the hearing on August 14, 2014 resulting in the issuance of the

Initial Order, the Court was provided with and referred to copies of relevant

4
    See also., TEX. R. CIV. P. 682, 683, and 684.

                                   Appellants’ Brief – Page 10
Texas statutes relating to access to property owner associations and non-profit

corporation records.5 See RR, Vol. 2, page 40, line 14 – page 45, line 5.6 These

authorities create independent requirements for POC to make its records

available to Appellants.      These requirements are independent of the duties

related to discovery in litigation. As the Court in Burton v. Cravey pointed out:

       Appellees sought the production of records that they were statutorily
       entitled to inspect. Appellants’ complaints about the order appear to be
       an attempt to engraft discovery notions upon the appellees’ statutory right
       of inspection, which is independent of any right of discovery in litigation.
       See San Antonio Models, Inc. v. Peeples, 686 S.W.2d 666 (Tex. App.—
       San Antonio 1985, orig. proceeding). The right to inspect under article
       1396-2.23 encompasses “all books and records.” . . .

       Again, we note that appellants are attempting to engraft notions borrowed
       from Texas discovery practice onto a statutory right to inspect. Article
       1396-2.23 contains no limitations on the member’s right to inspect as


5
  The provisions referred to include: (i) TEX. PROP. CODE §81.209 (“. . . (b) The
accounts and supporting vouchers of a condominium regime shall be made available
to the apartment owners for examination on working days at convenient, established,
and publicly announced hours.”); (ii) TEX. PROP. CODE §82.114 arguably applicable
after November 2013 (“. . . (b) All financial and other records of the association shall
be reasonably available at its registered office or its principal office in this state for
examination by a unit owner and the owner's agents.”), (iii) TEX, BUS. ORG. CODE §
22.351 (providing that a member of a non-profit organization, “on written demand
stating the purpose of the demand, is entitled to examine and copy at the member's
expense, in person or by agent, accountant, or attorney, at any reasonable time and for
a proper purpose, the books and records of the corporation relevant to that purpose.”),
(iv) TEX. BUS. ORG. CODE §252.010. (“. . . (a) A nonprofit association shall keep
correct and complete books and records of account for at least three years after the
end of each fiscal year and shall make the books and records available on request to
members of the association for inspection and copying.”).
6
 The Trial Court was also provided with copies of governing documents for POC that
require the production of records to members of the association. However, the
Articles, Bylaws and recorded POC Records Production Policy were not introduced
into evidence.

                                 Appellants’ Brief – Page 11
        long as the books and records are those of the non-profit corporation and
        the inspection is for “any proper purpose.”

Burton v. Cravey, 759 S.W.2d 160, 162 (Tex. App.—Houston [1st Dist.] 1988,

no writ). The obligations with respect to the inspection and production of

documents imposed by governing documents and Texas statutes are not the

same as those governing discovery.

        9.      In the Initial Order, the Court reasonably sought to strike a balance

between the requirements of production placed on Appellee Port of Call

Homeowners’ Association’s by statute and its own governing documents and its

discovery obligations in this litigation by ordering an automatic forty-five (45)

day supplementation of all of its records to Appellants. No party objected to

this order or sought to modify it. However, at the hearing on October 14, 2014,

without any supporting pleading or evidence being introduced, the trial Court

modified the automatic “supplementation” period and extended it to sixty (60)

days.        There was no evidence that the forty-five (45) day period was

unreasonably burdensome or unworkable. The Trial Court should not have

modified the Initial Order as a “nunc pro tunc” order because there was no

evidence introduced to support the change, it was not requested by the




                                 Appellants’ Brief – Page 12
Appellees in the Motion to Enforce or any other pleading, and the change in the

term of days is not correcting a clerical error.7

D.      THE TRIAL COURT ERRED IN SANCTIONING APPELLANTS
        WITHOUT ANY EVIDENCE TO SUPPORT THE AWARD.

        10.    Trial courts have inherent power to sanction "to the extent

    necessary to deter, alleviate, and counteract bad faith abuse of the judicial

    process, such as any significant interference with the traditional core

    functions of Texas courts." Sprague v. Sprague, 363 S.W.3d 788, 803 (Tex.

    App.—Houston [14th Dist.] 2012, pet denied), citing McWhorter v. Sheller,

    993 S.W.2d 781, 789 (Tex. App. —Houston [14th Dist.] 1999, pet. denied),

    citing Kutch v. Del Mar College, 831 S.W.2d 506, 509-10 (Tex. App.—

    Corpus Christi 1992, no writ). These core functions include "hearing

    evidence, deciding issues of fact raised by the pleadings, deciding questions

    of law, entering final judgment and enforcing that judgment." Kutch, 831

    S.W.2d at 510. For the trial court to exercise its inherent power to sanction,

    there must be some evidence of significant interference with the core

    functions of the court. McWhorter, 993 S.W.2d at 789 (citing Kutch, 831

    S.W.2d at 510).

        11.    In this case, and to the extent that this Court has jurisdiction over

    this part of the Order, the Appellees did not present any evidence to support
7
  The Court initially thought supplementation every month (30 days) would be
appropriate then revised it to every forty-five (45) days. See RR, Vol. 2, page 53, line
25 – page 54, line 7.

                                 Appellants’ Brief – Page 13
an award of sanctions. For example, Appellees introduced no admissible

evidence that one or more letters were sent by Appellants or that one was

sent with any particular content. Appellees offered no evidence of any costs,

delays, expenses, attorney fees, etc. that were incurred by Appellees.

Appellees offered no evidence of a significant interference with the core

functions of the Court or even of significant interference with its own

operations. For example, the Appellees offered no evidence that any letter

from Appellants caused them to behave or act differently than they would

have acted under the existing order. In other words, Appellees did not offer

evidence that any letter from Appellants caused them or would have caused

them to produce documents more often than the forty-five (45) automatic

supplementation provision in the Initial Order. There is no evidence to

support an award, or amount, of sanctions against Appellants.

     12.   Lastly, the Initial Order contains no language prohibiting the

Appellants from communicating with the Appellees or sending letters. At

best, the Court made an oral ruling that the Appellants should not,

individually, make requests for documents.                  While there was an oral

pronouncement from the bench at the time the Initial Order was signed to the

effect that “the client needs to step aside when it comes to document

requests” and “the plaintiff, individually, will not make specific requests

under the statute during the pendency of this litigation, but rather that will be

                              Appellants’ Brief – Page 14
    dealt with by updating responses to discovery,”8 that language was not

    included in the Initial Order. CR 131. Even though styled as a nunc pro

    tunc order, the Order, by entering sanctions, effectively finds the Appellants

    in contempt for violation of the Initial Order. Ordinarily, a party “cannot be

    held in constructive contempt of a Court order that has not been reduced to

    writing at the time the actions allegedly violated that order. See Ex parte

    Chambers, 898 S.W.2d 257, 262 (Tex. 1995) (“A contemnor cannot be held

    in constructive contempt of court for actions taken prior to the time that the

    court’s order is reduced to writing.”); see also, Ex parte Price, 741 S.W.2d

    366 (Tex. 1987) (noting that in the contempt context oral orders are poor

    substitutes for a written order). The Trial Court should not have awarded

    sanctions against the Appellants based solely on an oral instruction to “step

    aside” when it comes to document requests or to “not make specific requests

    under the statute” without identifying the statute or showing that the requests

    were made under a statute as opposed to, for example, the POC governing

    documents.

                            CONCLUSION AND PRAYER

         Appellants respectfully move that the Order entered by the trial court on

October 21, 2014 be vacated in all respects, dissolved as to any injunctive




8
    RR, Vol. 2, page 53, lines 9 – 21.

                                    Appellants’ Brief – Page 15
relief, and further requests all such other and further relief, including general

relief, to which they might be entitled.

                                                   Respectfully submitted,

                                                   Law Office of David Junkin


                                                   _______________________
                                                   David Junkin
                                                   State Bar No. 11058020
                                                   P.O. Box 2910
                                                   Wimberley, Texas 78676
                                                   512/847-8600
                                                   512/847-8604 (fax)
                                                   david@junkinlawoffice.com

                                                   Attorney for Appellants
                                                   George and Garlan Green


          CERTIFICATION REGARDING LENGTH OF BRIEF

       Counsel for Appellants herby certifies that the length of Appellants’ Brief
as indicated by the word processing system used to generate the brief, excluding
appendices, is 4,707 words. While not required, this word count includes the
caption, identity of the parties and counsel, statement of oral argument, table of
contents, index of authorities, statement of the case and issues presented,
signature block, and certificate of service.



                                                   _______________________
                                                   David Junkin




                               Appellants’ Brief – Page 16
                        CERTIFICATE OF SERVICE

      I hereby certify that a copy of this brief was served on the following
counsel of record and in the manner indicated on January 12, 2015.

      CERTIFIED MAIL, RETURN RECEIPT REQUESTED
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             Waco, TX 76703-1470



                                                  ___________________________
                                                  David Junkin




                              Appellants’ Brief – Page 17
175
176
131
132
Rahul K. Nath, M.D., Petitioner,                               employed by Baylor College of Medicine and affiliated
                                                               with Texas Children's Hospital (the Hospital). Nath
v.                                                             reported to Dr. Saleh Shenaq, the Chief of Baylor College
                                                               of Medicine's Division of Plastic Surgery, who also was
Texas Children's Hospital and Baylor College of                Nath's partner at the Hospital's Obstetrical Brachial
Medicine, Respondents                                          Plexus Clinic. Baylor received fifteen percent of the
                                                               clinic's patient fees, and Nath and Shenaq evenly split the
No. 12-0620
                                                               remainder of the fees.
Supreme Court of Texas
                                                                     Nath's relationship with his colleagues turned
                                                               acrimonious in 2003, when several doctors complained
August 29, 2014
                                                               that Nath billed excessively, performed unnecessary
      Argued February 5, 2014                                  procedures, and treated fellow colleagues in an
                                                               unprofessional manner. A letter from his faculty
      On Petition for Review from the Court of Appeals         supervisors states that, "there have been several
for the Fourteenth District of Texas                           complaints pertaining to your billing practices, ethics,
                                                               and professional conduct, " and described his academic
      Justice Guzman delivered the opinion of the Court        contributions as "minimal." For these reasons, the letter
in which Chief Justice Hecht, Justice Johnson, Justice         announced that Nath's faculty appointment would not be
Willett, and Justice Devine joined.                            renewed, and his employment with Baylor was
                                                               terminated effective June 30, 2004. Nath's former office
      Eva M. Guzman Justice                                    manager also claimed Nath had a history of making
                                                               racially-provocative statements and seemed to harbor
      In a civil suit, few areas of trial court discretion
                                                               delusions of grandeur.
implicate a party's due process rights more directly than
sanctions. This proceeding involves one of the highest               Shortly after receiving the letter, Nath retained an
reported monetary sanctions awards in Texas history            attorney and notified Baylor that its employees were
stemming from baseless pleadings and one of the largest        making statements "potentially damaging to Dr. Nath's
such awards in the United States.[1] Further, the award        reputation, " allegedly in an effort to get Nath's patients to
was levied against a party rather than an attorney. The        remain at the clinic. In 2006, Nath sued Shenaq, Baylor,
Civil Practice and Remedies Code and our Rules of Civil        and the Hospital. Nath and Shenaq settled two years later.
Procedure allow for pleadings sanctions against parties        Shenaq and another clinic doctor subsequently died and
and attorneys when, among other things, a pleading was         the clinic never reopened.
filed with an improper purpose or was unlikely to receive
evidentiary support. We have held that due process                    In his original pleading in 2006, Nath asserted
concerns impose additional layers of protection on             claims for defamation and tortious interference with
sanctions awards by requiring, among other things, that        business relations against Baylor and the Hospital.[2]
the awards be just and not excessive.                          Nath's third amended petition added claims for negligent
                                                               supervision and training predicated on the previously
      In this suit between a physician and other medical       alleged facts. Nath's fourth amended petition added
providers, the trial court imposed sanctions against the       allegations that Shenaq had been operating on patients
physician well in excess of one million dollars for filing     despite impaired vision. Similarly, Nath's fifth amended
groundless pleadings in bad faith and with an improper         petition added that Shenaq had been operating on patients
purpose. We conclude the physician plaintiff's pleadings       while afflicted with hepatitis. The fifth amended petition
asserted time-barred claims and addressed matters wholly       also included a declaratory judgment claim (that Nath
irrelevant to the lawsuit in an attempt to leverage a more     could or should disclose to his patients that Shenaq was
favorable settlement, and therefore are sanctionable. But      in poor health). The Hospital counterclaimed for
in assessing the amount of sanctions, the trial court failed   attorney's fees pursuant to the declaratory judgment act,
to consider whether, by litigating for over four years         and in December 2009, moved for summary judgment on
before seeking sanctions, the defendants bore some             all of the claims in Nath's fifth amended petition. Baylor
responsibility for the attorney's fees they incurred.          moved for summary judgment in January 2010. In
Accordingly, we reverse the court of appeals' judgment         response, Nath moved to compel additional depositions,
and remand to the trial court to reassess the amount of the    extend the deadline to respond to the motions, and
sanctions award.                                               continue the summary judgment hearing&mdash;all of
                                                               which the trial court granted. In March 2010, Nath again
     I. Background
                                                               moved to continue the summary judgment hearing, which
                                                               the trial court denied. Nath retained new counsel, Daniel
     Dr. Rahul K. Nath is a plastic surgeon who was
                                                               Shea, who appeared at the hearing and filed a motion to
recuse the judge. Nath also moved to recuse the judge          sanctions.
assigned to hear the motion to recuse. Ultimately, the
motions to recuse were denied.                                       Before the hearing on the Hospital's motion for
                                                               sanctions, Nath moved to sever the claims as to Baylor,
      Nath also filed a sixth amended petition in April        and after severance, Baylor also moved to modify the
2010, in which he abandoned his defamation, tortious           judgment to assess fees as sanctions. After a hearing on
interference, negligence, and declaratory judgment claims      Baylor's sanctions motion in November 2010, the trial
and brought a claim for intentional infliction of emotional    court made similar findings and awarded Baylor's $644,
distress. The Hospital and Baylor moved for summary            500.16 in attorney's fees as sanctions against Nath. The
judgment on the new claim. Nath failed to respond to the       court of appeals affirmed the awards, and we granted
motions and instead objected to the notice of hearing          Nath's petition for review. 375 S.W.3d 403, 415.
based on a technical defect. All parties appeared at a
summary judgment hearing in June 2010, more than four                II. Discussion
years after the suit began, where the trial court dismissed
Nath's claims.[3]                                                    Nath primarily argues in this Court that the
                                                               sanctions imposed against him as the client were not
      Two months later, the Hospital nonsuited its             visited on the true offender and were excessive. The
declaratory judgment counterclaim. The Hospital then           Hospital and Baylor counter that Nath had personal,
moved to modify the judgment to assess attorney's fees as      active involvement in the litigation and that the fee award
sanctions against Nath. Nath retained new counsel and          was appropriate given the circumstances. We agree with
filed special exceptions to the motion for sanctions in        the Hospital and Baylor that the trial court properly
September. After a hearing on the special exceptions and       sanctioned Nath because he pursued time-barred claims
the Hospital's sanctions motions, the trial court denied the   and irrelevant issues in order to leverage a more
special exceptions and granted the sanctions motion. The       favorable settlement. But concerning the excessiveness of
court issued findings of fact and conclusions of law           the award, the Hospital and Baylor waited almost four
indicating the sanctions were based on: (1) "Nath's            years into the litigation before moving for summary
improper purposes in filing the pleadings in this case;"       judgment on Nath's claims and only moved for sanctions
(2) "the bad faith that his actions manifest;" and (3) "the    after obtaining a final judgment. We previously advised
lack of any factual predicate for his claims, as previously    courts to consider a variety of factors when imposing
established by the Court's orders granting the motions for     sanctions, including the degree to which the
summary judgment." The court explained that its finding        non-sanctioned parties' behavior caused their own
of bad faith stemmed from Nath's conduct in seeking            expenses. The trial court failed to discuss this relevant
information regarding Shenaq's health, conduct for which       factor, and we reverse and remand for it to do so.
the court had previously admonished Nath.[4] Finally, the
court concluded that Nath's leveraging of this information          A. Standard of Review
in an attempt to obtain a settlement constituted an
                                                                     We review the imposition of sanctions under an
improper purpose.
                                                               abuse of discretion standard. Low v. Henry , 221 S.W.3d
        The trial court further found that Nath took "a        609, 614 (Tex. 2007). Both Chapter 10 of the Texas Civil
personal, participatory role in this litigation." The court    Practice and Remedies Code and Texas Rule of Civil
posited that Nath "is knowledgeable about the law and          Procedure 13 are applicable to this case, and sanctions
legal issues, having previously studied the law, " for         imposed pursuant to both are reviewed under this abuse
several semesters in the early 1980s in Canada.                of discretion standard. Id. A sanctions award will not
According to the trial court, Nath insisted on delaying the    withstand appellate scrutiny if the trial court acted
summary judgment hearing so he could be present at two         without reference to guiding rules and principles to such
depositions. Nath also filed an affidavit in response to the   an extent that its ruling was arbitrary or unreasonable.
motion for summary judgment indicating he authorized           Cire v. Cummings, 134 S.W.3d 835, 838&ndash;39 (Tex.
the facts and theories set forth in the petitions. The court   2004). A sanctions award that fails to comply with due
further found that Nath met with one deponent shortly          process constitutes an abuse of discretion because a trial
before his deposition to discuss his testimony. And the        court has no discretion in determining what the law is or
trial court observed that "Nath has used the court system      applying the law to the facts. See TransAmerican Natural
to intimidate adversaries and to stifle dissent with           Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991);
baseless legal allegations" by suing an alleged defamer,       Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996). But
suing his former partner in a MRI business, suing two          we will not hold that a trial court abused its discretion in
individuals associated with the Texas Medical Board            levying sanctions if some evidence supports its decision.
(which later dismissed its proceedings against Nath), and      Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
asserting claims in federal court related to the sale of his   2009). Generally, courts presume pleadings and other
home (on which he prevailed).[5]Ultimately, the trial          papers are filed in good faith. GTE Commc'ns Sys. Corp.
court found that the Hospital's fees of $776, 607 in           v. Tanner , 856 S.W.2d 725, 730 (Tex. 1993). The party
defending the suit were reasonable and awarded them as         seeking sanctions bears the burden of overcoming this
presumption of good faith. Id. at 731.                          sanctions on the issue of groundlessness alone. Rather,
                                                                the filing in question must be groundless and also either
     B. Substantive Law Governing Sanctions                     brought in bad faith, brought for the purpose of
                                                                harassment, or false when made. Id.
      The sanction at issue here concerns pleadings, and
its propriety is thus primarily governed by Chapter 10 of             We have held that in order to safeguard
the Texas Civil Practice and Remedies Code and Texas            constitutional due process rights, a sanction must be
Rule of Civil Procedure 13.[6] Chapter 10 allows                neither unjust nor excessive. We promulgated this
sanctions for pleadings filed with an improper purpose or       standard most clearly in TransAmerican, 811 S.W.2d at
that lack legal or factual support. It provides that upon       913. The underlying case in TransAmerican was complex
signing a pleading or motion, a signatory attests that:         and multi-partied. Id. at 914. In brief, TransAmerican's
                                                                president was sanctioned for discovery abuse pursuant to
(1) the pleading or motion is not being presented for any       Rule of Civil Procedure 215 for failing to appear at a
improper purpose, including to harass or to cause               deposition. Id. at 915&ndash;16. In considering whether
unnecessary delay or needless increase in the cost of           those sanctions complied with due process, we
litigation;                                                     established a two-part test.

(2) each claim, defense, or other legal contention in the             The first prong of the TransAmerican test concerns
pleading or motion is warranted by existing law or by a         the relationship between the conduct evinced and the
nonfrivolous argument for the extension, modification, or       sanction imposed and requires a direct nexus between the
reversal of existing law or the establishment of new law;       offensive conduct, the offender, and the sanction award.
[and]                                                           See id. at 917. A just sanction must be directed against
                                                                the abusive conduct with an eye toward remedying the
(3) each allegation or other factual contention in the
                                                                prejudice caused to the innocent party, and the sanction
pleading or motion has evidentiary support or, for a
                                                                must be visited upon the true offender. Id. A court must
specifically identified allegation or factual contention, is
                                                                attempt to determine whether the offensive conduct is
likely to have evidentiary support after a reasonable
                                                                attributable to counsel only, to the party only, or to both.
opportunity for further investigation or discovery . . . .
                                                                Id. Yet we warily noted in TransAmerican that
Tex. Civ. Prac. & Rem. Code § 10.001.[7] Pleadings that         apportioning blame between an attorney and a
violate these Chapter 10 requirements are sanctionable.         represented party "will not be an easy matter in many
                                                                instances." Id. Such caution is warranted. The closeness
Id. § 10.004(a). But a court may not sanction a
represented party under section 10.001 for unfounded            that typically defines interaction between a litigant and
legal contentions. Id. § 10.004(d).                             his attorney not only binds their interests but may lend an
                                                                overall opacity to the relationship that renders it difficult
      Rule 13 provides that pleadings that are groundless       to determine where a party's input ends and where an
and in bad faith, intended to harass, or false when made        attorney's counsel begins.
are also sanctionable:
                                                                      The second prong of the due process analysis under
The signatures of attorneys or parties constitute a             TransAmerican considers the proportionality of the
certificate by them that they have read the pleading,           punishment relative to the misconduct and warns "just
motion, or other paper; that to the best of their               sanctions must not be excessive." Id. Not only should a
knowledge, information, and belief formed after                 punishment (i.e., sanctions) fit the crime (i.e., the
reasonable inquiry the instrument is not groundless and         triggering offense), the sanction imposed should be no
brought in bad faith or groundless and brought for the          more severe than necessary to satisfy its legitimate
purpose of harassment. Attorneys or parties who . . .           purposes. Id. Legitimate purposes may include securing
make statements in pleading which they know to be               compliance with the relevant rules of civil procedure,
groundless and false, for the purpose of securing a delay       punishing violators, and deterring other litigants from
of the trial of the cause, shall be held guilty of a contempt   similar misconduct. Spohn Hosp. v. Mayer , 104 S.W.3d
....                                                            878, 882 (Tex. 2003).

Courts shall presume that pleadings, motions, and other                We require courts to consider less stringent
papers are filed in good faith. No sanctions under this         sanctions and weigh whether such lesser sanctions would
rule may be imposed except for good cause, the                  serve to promote compliance. TransAmerican, 811
particulars of which must be stated in the sanction order.      S.W.2d at 917.[8] Evidencing our reticence to wield the
"Groundless" for purposes of this rule means no basis in        heavy hammer of sanctions, we have cautioned: "[c]ase
law or fact and not warranted by good faith argument for        determinative sanctions may be imposed in the first
the extension, modification, or reversal of existing law . .    instance only in exceptional cases when they are clearly
..                                                              justified and it is fully apparent that no lesser sanctions
                                                                would promote compliance with the rules." Tanner, 856
Tex. R. Civ. P. 13. Importantly, Rule 13 does not permit
S.W.2d at 729.                                                 America&mdash;Eighth Amendment&mdash;and the
                                                               Excessive      Fines      clause       of     the    Texas
       Historically, awards for groundless pleadings in        Constitution&mdash;Article I, section 13." Additionally,
Texas have been moderate, at least in monetary terms.          Nath cited United States Supreme Court precedent to
See id. at 730 (reversing a sanctions award of $150, 000       bolster his contention that the trial court should consider
in attorney's fees for groundlessness and discovery            "whether the penalties in question were excessive."[11]
non-compliance); Dike v. Peltier Chevrolet, Inc., 343          We are generally loath to turn away a meritorious claim
S.W.3d 179, 183 (Tex. App.&mdash;Texarkana 2011, no            due to waiver; where the party has clearly and timely
pet.) (reversing a groundless pleadings sanction of $15,       registered its objection, we find a waiver argument
353); Parker v. Walton, 233 S.W.3d 535, 538 (Tex.              particularly unavailing. See Verburgt v. Dorner, 959
App.&mdash;Houston [14th Dist.] 2007, no pet.)                 S.W.2d 615, 616&ndash;17 (Tex. 1997). We conclude
(reversing a groundless pleading sanction of $3, 500 in        Nath did not waive his objection to the excessiveness of
attorney's fees); Emmons v. Purser, 973 S.W.2d 696, 699        the sanctions award.
(Tex. App.&mdash;Austin 1998, no pet.) (reversing a
groundless pleadings sanctions award of $3, 200); see                2. Nath's Fourth, Fifth, and Sixth Amended
also Robson v. Gilbreath , 267 S.W.3d 401, 405 (Tex.           Petitions
App.&mdash;Austin 2008, pet. denied) (affirming a
groundless pleadings sanction of $10, 000 for failure to             Central to its ultimate imposition of sanctions, the
conduct a reasonable inquiry). While this tour d'horizon       trial court found that Nath's pursuit of information
is not intended to be comprehensive, it is nonetheless         relating to Shenaq's health was in bad faith, and that
representative of what our reported cases suggest have         Nath's ostensible intent to use that information to
been typical groundless pleadings awards in this state.[9]     leverage a favorable settlement for a baseless claim
                                                               constituted an improper purpose. Nath originally included
      Though we specifically addressed sanctions               allegations relating to Shenaq's health in his fourth
stemming from a charge of discovery abuse in                   amended petition, filed in November 2008.[12] Nath
TransAmerican, we have previously held the due process         moved to compel discovery relating to Shenaq's health
requirements we established there apply to pleadings           and in July 2009 filed a fifth amended petition that
sanctions as well. Low, 221 S.W.3d at 619&ndash;20.            included a request for declaratory judgment relating to
                                                               Shenaq's health. The trial court admonished Nath's
     C. Analysis                                               counsel that the information was irrelevant to his lawsuit.
                                                               See supra note 4. Nath later filed a sixth amended
      In the trial court, Nath brought claims for a            petition that abandoned his prior claims and added a
declaratory judgment (regarding Shenaq's health),              claim for intentional infliction of emotional distress. But
intentional infliction of emotional distress, defamation,      that petition retained allegations regarding Shenaq's
tortious interference, and negligence. The trial court         health.[13] For the reasons explained below, we agree
sanctioned Nath for (1) bad faith in his pursuit of            with the court of appeals that the trial court properly
discovery on the irrelevant issue of Shenaq's health; (2)      found Nath's pleadings sanctionable.
an improper purpose of leveraging information
concerning Shenaq's health to favorably settle a baseless            The hallmarks of due process for sanctions awards
claim; and (3) bringing claims that lacked a factual           are that they be just and not excessive. TransAmerican,
predicate. Chapter 10 requires that we analyze an              811 S.W.2d at 917. Sanctioning Nath for pleadings
improper purpose pleading-by-pleading, but we assess           relating to Shenaq's health was demonstrably just. First,
claim-by-claim whether a claim lacked a legal or factual       there was a direct nexus between this portion of the trial
basis.[10]                                                     court's sanctions and the offensive conduct. The trial
                                                               court found such pleadings to be in bad faith (due to their
      1. Waiver                                                irrelevance) and filed for an improper purpose
                                                               (leveraging a settlement). The trial court's finding is
      As an initial matter, we address the claim of the
                                                               supported by some evidence and is therefore not an abuse
Hospital and Baylor that Nath waived his objection to the
                                                               of discretion. See Unifund, 299 S.W.3d at 97. Nath
size of the sanctions award by failing to raise the issue of
                                                               admittedly was seeking information relating to Shenaq's
excessiveness at the trial court level. The court of appeals
                                                               health so he could disclose it to Shenaq's patients. But
agreed, finding that the issue had not been properly
                                                               such disclosures would not be relevant to triable issues
preserved for review. 375 S.W.3d at 412. We disagree.
                                                               related to Nath's then-contemporaneous claims for
The record plainly reveals Nath's objections to the award,
                                                               defamation, tortious interference, and negligence.
including objections specifically predicated on the ground
of excessiveness. On December 20, 2010, Nath filed a                 Moreover, there was some evidence supporting the
motion for new trial and a motion to modify the trial          trial court's determination that Nath was improperly
court's November judgment and sanctions order, arguing         seeking irrelevant information to leverage a favorable
the sanctions award "violates the Excessive Fines clause       settlement. On the eve of a mediation in June 2009,
of the Constitution of the United States of                    Nath's counsel sent a letter to the Hospital indicating
Nath was anxious to conduct discovery regarding                  amended petition contains facts regarding Shenaq's health
Shenaq's health conditions, the results of which"would           from the prior petitions, and we have already determined
most certainly require prompt actions to notify patients so      that information likely came from Nath himself. In
that they can undergo immediate testing and obtain legal         addition, Nath almost certainly knew of the inclusion of
counsel to advise them of their rights." During Nath's           those allegations in the sixth amended petition because
deposition, attorneys for Baylor and the Hospital likened        his     attorney      "kept      Dr.     Nath      reasonably
Nath's use of legal process in this manner to extortion.         informed"&mdash;as was his professional obligation.[15]
The trial court agreed with this assessment, characterizing      Accordingly, we reject Nath's argument and conclude the
Nath's conduct in seeking information related to Shenaq's        trial court did not abuse its discretion in labeling Nath the
health as "an abuse of process" and "a form of extortion."       true offender, insofar as the sixth amended petition
Accordingly, the improper purpose of Nath's pleadings            continued to make issue of Shenaq's health.
regarding Shenaq's health indicates the trial court
appropriately levied sanctions regarding this conduct.[14]             We note, however, that while Nath may be properly
                                                                 deemed the true offender, his attorneys possess ethical
       In addition to considerations described, the              obligations and may share in the blame for sanctionable
just-award prong of the due process analysis also                conduct. An attorney has ethical obligations to both his
examines whether the sanction was visited on the true            client and to the judicial system as an officer of the
offender. The trial court made various findings of fact          court.[16] Though zealous advocacy is expected of an
regarding Nath's direct involvement in the case,                 attorney&mdash;indeed,       it    is    a    professional
particularly noting his effort to seek information relating      obligation&mdash;the attorney must not permit client
to Shenaq's health, and the record supports these findings.      desires to supersede the attorney's obligation to maintain
Relations between Nath and Shenaq deteriorated to the            confidence in our judicial system.[17] As our rules of
point of acrimony in the time leading up to Nath's               professional conduct unambiguously require: "A lawyer
departure from Baylor, and they only worsened as                 should use the law's procedures only for legitimate
litigation ensued. The affidavit Nath filed in response to       purposes and not to harass or intimidate
the motions for summary judgment claimed the                     others."[18]Further, these rules of conduct require an
relationship between Nath and Shenaq grew tense when             attorney to "maintain the highest standards of ethical
Nath confronted Shenaq for performing surgery with               conduct" throughout representation.[19] Regardless,
allegedly impaired vision. And Nath, by his own                  Baylor     and    the    Hospital     only    moved     to
admission, specifically sought information related to            sanctionNath&mdash;not his lawyers&mdash;and the
Shenaq's health so that he could inform former patients of       trial court declined to sanction the lawyers sua
Shenaq's health problems. Nath's affidavit also lists            sponte.[20] Thus, under the true-offender inquiry, we
forty-five patient surgeries Shenaq performed with               must uphold the trial court's decision to sanction Nath
allegedly impaired vision. Further, Nath personally              personally because some evidence supports the sanction.
attended two depositions of Shenaq's colleagues where            See Unifund, 299 S.W.3d at 97.
his counsel asked questions concerning Shenaq's health.
Ultimately, Nath's conduct surrounding Shenaq's health                 We are mindful of course that due process analysis
appears to be less about pursuing a legal redress for an         for sanctions must encompass analyzing whether the
injury (the province of the attorney) and more about             award was excessive. But we will refrain from engaging
seeking irrelevant personal information (an extrajudicial        in this analysis until we have examined all pleadings and
desire of the client). While litigation is contentious by        claims for which Nath may appropriately be sanctioned.
definition and often utilized to compel a desired end, we
agree with the trial court that, on these facts, using a legal        3. Defamation
mechanism to force damaging, irrelevant information into
                                                                        Nath's initial petitions included claims for
the public domain and thereby compel a more favorable
                                                                 defamation, tortious interference, and negligence. We
settlement constitutes an improper purpose. Against this
                                                                 address them in turn. The trial court made discrete
backdrop and the logical inferences that flow from it, we
                                                                 findings as to Nath's defamation claim. Specifically, the
cannot say the trial court abused its discretion by
                                                                 trial court found the defamation claim was time-barred by
imposing the sanction against Nath personally.
                                                                 a one-year statute of limitations[21] and that some of the
      Nath claims that even if some of the sanctions             statements Nath claimed were defamatory were not
against him were proper, sanctions against him for the           actually defamatory.[22] But Chapter 10 expressly
sixth amended petition were improper because the lawyer          disallows sanctions against a party for improper legal
who drafted that petition swore in an affidavit that Nath        contentions when the party is represented by counsel.
had no involvement with the claim in that petition.              Tex. Civ. Prac. & Rem. Code § 10.004(d). The trial court
Specifically, the attorney indicated he "exercised [his]         did not find that the statements did not occur. Rather, it
own legal judgment" when deciding what claims to file in         sanctioned Nath because of legal impediments to
the sixth amended petition and asserted that Nath "had no        recovering for the alleged statements.[23] Thus, Chapter
involvement in the selection of what pleadings and               10 precluded the trial court from sanctioning Nath for
motions were filed in this case." Nonetheless, the sixth         groundlessness based upon improper legal contentions
when he was represented by counsel.                            defamatory statements. As explained below, the trial
                                                               court's first rationale violates the Legislature's directive in
       However, the trial court also held that the             Chapter 10, but some evidence supports its second
time-barred status and nondefamatory nature of some of         rationale.
the statements in his defamation claim indicated Nath
filed the claim in bad faith and for an improper purpose.            Generally, groundless pleadings are sanctionable
Defamation claims are subject to a one-year limitations        under either Rule 13 or Chapter 10. Under Rule 13,
period, and Nath filed suit in February 2006. The trial        groundlessness in and of itself is an insufficient basis for
court found that most of the allegedly defamatory              sanctions. A pleading must also be in bad faith, intended
statements occurred in June or July of 2004, and none          to harass, or knowingly false to justify sanctions.
occurred after the end of 2004, when the Hospital closed       Tex.R.Civ.P. 13.[25] The trial court made no findings of
the clinic. Nath's affidavit opposing summary judgment         bad faith, improper purpose, or falsity regarding the
detailed the allegedly defamatory statements and claimed       tortious interference claim. Accordingly, Rule 13 cannot
they damaged his medical practice and caused him               support the sanctions as to this claim.
financial harm. Further, Nath's affidavit admits he learned
of eight of these allegedly defamatory statements in                 However, Chapter 10 provides that a claim that
2004&mdash;over one year before he filed suit.[24] As          lacks a legal or factual basis&mdash;without
previously addressed, this matter involves legal               more&mdash;is sanctionable. Tex. Civ. Prac. & Rem.
contentions&mdash;which Chapter 10 does not allow              Code § 10.001; see also Low, 221 S.W.3d at 617.
Nath to be sanctioned for on the basis of legally              Legally, the claim must be warranted by existing law or a
groundless pleadings because he was represented by             nonfrivolous argument to change existing law. Tex. Civ.
counsel. Id. But Chapter 10 offers no similar stricture for    Prac. & Rem. Code § 10.001(2). But Chapter 10
sanctions based on improper purpose. And in any event,         expressly prohibits monetary sanctions against a
Nath was represented by counsel no later than June 8,          represented party based on the legal contentions in a
2004, when he claimed the statements were "potentially         pleading. Id. § 10.004(d) ("The court may not award
damaging to [his] reputation." Because there is some           monetary sanctions against a represented party for a
evidence supporting the finding that Nath brought his          violation of Section 10.001(2)."). Accordingly, the trial
defamation claim with an improper purpose, the trial           court could not have properly awarded sanctions against
court did not abuse its discretion in sanctioning Nath for     Nath for groundless legal contentions in his tortious
this claim.                                                    interference claim.

       Nath nonetheless argues such sanctions violate the            Chapter 10 requires that each factual contention
constitutional requirement that the sanction be visited on     must have evidentiary support or be likely to receive it
the true offender. We disagree. The fact that Chapter 10       after a reasonable opportunity for discovery. Id. §
does not shelter parties from sanctions for flawed legal       10.001(3); Low, 221 S.W.3d at 616&ndash;17. We held
contentions that demonstrate an improper purpose is            in Low that a pleading was sanctionable because it
simply a reflection of our warning in TransAmerican that       alleged two doctors prescribed a drug that medical
the attorney-client relationship is opaque by default. Nath    records in the attorney's possession demonstrated they did
only diminished that opacity for his sixth amended             not prescribe. 221 S.W.3d at 616. Thus, in holding the
petition, which contained a claim for intentional infliction   pleading was sanctionable, we held that the allegations
of emotional distress. The attorney who filed that claim       did not have, and were not likely to subsequently receive,
indicated Nath had no involvement in drafting the claim.       evidentiary support in light of the evidence the attorney
But Nath presented no similar evidence with respect to         possessed when filing the claim. Id.
the pleadings containing Nath's defamation claim.
Accordingly, because some evidence supports the trial                 Unlike in Low, the trial court's findings here only
court's finding, and no evidence clarifies the respective      indicate it viewed the pleadings as groundless as of the
roles of Nath and his attorneys in regards to his              time it granted summary judgment. But the court's
defamation claim, we conclude the trial court did not          findings miss the mark, as the vantage point for assessing
abuse its discretion in sanctioning Nath for that claim.       evidentiary support is at the time the pleading is
                                                               filed.[26] Establishing a vantage point at the time of a
     4. Tortious Interference                                  merits adjudication four years or more into a proceeding
                                                               would unnecessarily chill litigation in cases where
      Nath's remaining claims are for tortious interference    claimants in good faith believe they possess a claim, but
and negligence. The trial court did not find that Nath filed   have not yet discovered sufficient evidence on every
his tortious interference claim in bad faith or for an         essential element of their claim. We cannot endorse a
improper purpose. Rather, the trial court generally found      view that runs so contrary to the Legislature's chosen
Nath's claims to be sanctionable because they lacked           words in Chapter 10 and our construction of them.
merit, as evidenced by the court's summary judgment
dismissal. The trial court also found Nath's claim to be            Nonetheless, a distinction between sanctions for
groundless to the extent it relied on time-barred              groundless pleadings and sanctions for discovery abuse is
worth noting. A claim may be likely to receive                  with Nath's tortious interference claim, the trial court (1)
evidentiary support when filed and thus not be groundless       generally found Nath's claims to be sanctionable because
under Chapter 10. But if a party later learns through           they lacked merit due to their dismissal at summary
discovery that no factual support for the contention exists     judgment, and (2) specifically found the negligence claim
and still pursues litigation, such conduct might be             to be groundless to the extent it relied on time-barred
sanctionable. But the sanctionable conduct would likely         defamatory statements. As explained above, assessing
be the abuse of the discovery process, not the filing of        groundlessness only at the time of a merits dismissal over
pleadings, as our rules of civil procedure specify that a       four years into the litigation contravenes the requirement
court may sanction a party or counsel if the court "finds       in Chapter 10 that groundlessness is assessed as of the
that any interrogatory or request for inspection or             time of filing. Thus, the trial court's first rationale cannot
production is unreasonably frivolous, oppressive, or            support sanctions as to the negligence claim.
harassing." Tex.R.Civ.P. 215.3. While the ultimate
penalty may be similar in its effect on the sanctioned                But the trial court's second rationale&mdash;that
party, its application is predicated on a different             the    negligence      claim   relied   on time-barred
ground.[27]                                                     statements&mdash;is a sufficient basis for sanctions.
                                                                Nath filed his negligence claim in his third amended
      But in addition to concluding that Nath's claims          petition in September 2008, over four years after learning
ultimately lacked merit, the trial court also specifically      of the first allegedly defamatory statements in June 2004.
noted in a footnote in its findings of fact and conclusions     Regardless of whether the two-year limitations window
of law that "Nath's claims of negligence and tortious           for negligence claims was truncated to one year because
interference are also groundless to the extent that those       Nath's claim was predicated solely on defamatory
claims rely on time-barred, allegedly defamatory                statements (as with the tortious interference claim),
statements." Defamation is subject to a one-year statute        limitations barred the negligence claim. For the same
of limitations, Tex. Civ. Prac. & Rem. Code § 16.002(a),        reason sanctions are appropriate for Nath's defamation
while tortious interference is subject to at least a two-year   and tortious interference claims, they are appropriate for
statute of limitations, First Nat'l Bank of Eagle Pass v.       his negligence claim.
Levine, 721 S.W.2d 287, 289 (Tex. 1986). However, the
Fifth Circuit and several Texas courts of appeals have                D. Remand
held that, when the sole basis for a tortious interference
claim is defamatory statements, the one-year statute of                In short, all of Nath's petitions are sanctionable. But
limitations for defamation applies.[28] Likewise, we have       we must still assess whether the amount of the award was
applied a one-year statute of limitations to business           excessive. A trial court abuses its discretion by failing to
disparagement claims when the gravamen of the                   adhere to guiding rules and principles. Cire, 134 S.W.3d
complaint is defamatory injury to reputation and there is       at 838&ndash;39. We set forth these guiding rules and
no evidence of special damages. See Hurlbut v. Gulf Atl.        principles for assessing the amount of pleadings sanctions
Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). We now          in Low.[29] 221 S.W.3d at 620 n.5. This nonexclusive list
similarly conclude that if a tortious interference claim is     of factors is helpful in guiding the often intangible
based solely on defamatory statements, the one-year             process of determining a penalty for sanctionable
limitations period for defamation claims applies.               behavior, and it provides context for our review of the
                                                                trial court's award. We advised in Low that "[a]lthough
      Nath's tortious interference claim was predicated         we do not require a trial court to address all of the factors
solely on the allegedly defamatory statement because it         . . . to explain the basis of a monetary sanction . . . it
alleges the Hospital and Baylor tortiously interfered "by       should consider relevant factors in assessing the amount
continuing to make false statements regarding" Dr. Nath         of the sanction." Id. at 620&ndash;21 (emphasis added).
to third parties. Accordingly, Nath's tortious interference     In practice, this means that when a factor is relevant to a
claim was subject to the one-year statute of limitations.       party being sanctioned, that factor must inform the
The trial court correctly found the earliest of the allegedly   issuance of the award. To take just one example, one
defamatory statements occurred in June 2004. Nath filed         factor we referenced in Low is "any prior history of
his tortious interference claim in February 2006, after the     sanctionable conduct on the part of the offender." Id. at
one-year limitations period had run. Thus, some evidence        620 n.5. A court obviously need not consider prior
supports the trial court's finding that Nath's tortious         sanctionable conduct in calibrating a sanction award for a
interference claim (as with his defamation claim) was           first-time litigant for the self-evident reason that no such
time-barred and demonstrated an improper purpose.               conduct exists. Yet, were the example reversed and a
                                                                sanctioned litigant possessed a lengthy history of prior
     5. Negligence                                              sanctions, the court "should consider" that party's
                                                                checkered history in levying a sanction. Id. at
      Nath's final claim was for negligence, in which           620&ndash;21 & 620 n.5.
Nath claimed that Baylor and the Hospital's negligent
training and supervision of its employees led them to                 Here, the trial court cited and then considered
defame him and tortiously interfere with his practice. As       nearly all of the relevant Low factors. In the context of
this matter, however, one factor made relevant by the            relevant issue but fails to discuss it, we cannot
protracted nature of this litigation is "the degree to which     automatically conclude that such cursory mention is
the offended person's own behavior caused the expenses           tantamount to compliance. This was true in the case of
for which recovery is sought." Id. at 620 n.5 (quotation         the $50, 000 sanction we reversed in Low, and it is
marks omitted). The trial court failed to address this           equally as true of the $1.4 million sanction presented
factor, though it is unquestionably relevant. The                here.
statements Nath addressed in his original petition were
made in 2004, and Nath filed suit well after the one-year              Additionally, the dissent contends that our
limitations period had run. Yet, the record indicates that       admonishment that trial courts "should" consider the
all three parties litigated a host of merits issues for nearly   relevant Low factors is permissive. Notably, the dissent
a half-decade before the Hospital and Baylor moved for           does not contend the extent to which the Hospital and
summary judgment on such grounds as limitations. Thus,           Baylor caused their attorney's fees is irrelevant. And
while Nath was the initiator of this litigation, the degree      regardless of whether consideration of the relevant Low
to which the Hospital and Baylor caused their attorney's         factors is permissive, the trial court went to great lengths
fees is a relevant inquiry.                                      to examine all the relevant Low factors except for the
                                                                 extent to which the non-sanctioned parties caused their
       A party is entitled to thoroughly and vigorously          own injuries. We do not believe the standard of review
litigate a matter. But if issues asserted in pleadings are       allows a trial court that dutifully considers almost all of
revealed to be frivolous, and the defending party delays         the relevant Low factors to essentially ignore a relevant
moving for summary judgment and sanctions, the                   factor. As noted, failure to adhere to guiding rules and
defending party adopts some responsibility for the overall       principles constitutes an abuse of discretion. Cire, 134
increase in litigation costs. Of course, placing the entire      S.W.3d at 838&ndash;39. Low offered these guiding
cost of litigation on a plaintiff may be proper and              rules and principles, the trial court failed to adhere to
deserved if the plaintiff was the party responsible for          them, and this amounted to an abuse of discretion.
sustaining frivolous litigation over a prolonged period.
Here, the trial court found the defamation claims were                III. Conclusion
friviolous ab initio because the statements were alleged to
have been made at least one year before suit was filed.                Due process requires that sanctions be just, meaning
Moreover, the time-barred statements permeated                   that there be a direct nexus between the sanction and the
subsequent pleadings. The defendants, however, did not           sanctionable conduct, and be visited on the true offender.
file a summary judgment for years after the allegations          Here, the trial court's sanctions award complied with
were first made. A defending party cannot arbitrarily shift      these requirements because Nath's petitions were filed for
the entirety of its costs on its adversary simply because it     the improper purpose of pursuing an unrelated issue and
ultimately prevails on a motion for sanctions. Because the       advancing time-barred claims. However, when assessing
trial court did not discernibly examine this relevant Low        the amount of sanctions, the trial court failed to examine
factor, we remand for it to do so.[30]                           the extent to which the Hospital and Baylor caused the
                                                                 expenses they accrued in litigating a variety of issues
      E. Response to the Dissent                                 over several years. Accordingly, we remand for the trial
                                                                 court to reassess the amount of the sanctions award while
       The dissent tacitly agrees with our analysis, but         considering the omitted factor. See Low, 221 S.W.3d at
would affirm the sanctions award rather than remand for          622.
the trial court to assess the relevant Low factor.
Specifically, the dissent argues that we should outright              Justice Green, joined by Justice Lehrmann, Justice
affirm the award of sanctions because, among other               Boyd and Justice Brown, dissenting.
things: (1) the findings of fact and conclusions of law
contained a typographical error, and (2) our direction that             The Court holds that the trial court abused its
trial courts "should" consider the relevant Low factors is       discretion when it assessed sanctions against Dr. Rahul
permissive.                                                      K. Nath without examining the extent to which Texas
                                                                 Children's Hospital and Baylor College of Medicine
      The dissent first contends the trial court made a          caused the accrual of their own attorney's fees. __ S.W.3d
typographical error in stating that it considered the extent     __, __. Because I read the trial court's orders as having
to which Nath caused the Hospital and Baylor's fees. But         addressed that specific factor, and because I believe the
viewing the findings and conclusions as a whole belies           trial court's discretion is broader in this context than the
the dissent's position. The trial court was careful to detail    Court does, I respectfully dissent.
its rationale for the Low factors it found to be
relevant&mdash;except the extent to which the Hospital                  The abuse of discretion standard is critical to our
and Baylor caused their own injuries. For example, the           analysis in this case. Under this standard, we may reverse
findings and conclusions spent considerable time                 the trial court only if it acted "without reference to any
discussing Nath's bad faith, his degree of willfulness, and      guiding rules and principles, such that its ruling was
his knowledge and expertise. When a trial court recites a        arbitrary or unreasonable." Low v. Henry, 221 S.W.3d
609, 614 (Tex. 2007) (citing Cire v. Cummings , 134              (Emphasis added).
S.W.3d 835, 838&ndash;39 (Tex. 2004)).
                                                                        The trial court reached a similarly-worded
       The amount of a sanction is limited only by the           conclusion in its findings of fact and conclusions of law
trial court's duty to act within its sound discretion in         in support of its judgment granting Baylor's request for
accordance with the Due Process clause of the Texas              sanctions. In both orders, the trial court expressly stated
Constitution. Low, 221 S.W.3d at 619; TransAmerican              that it was familiar with the Low factors and had
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.           considered them in assessing sanctions. The Court
1991). In exercising its discretion, the trial court must        claims, however, that in both orders, the trial court failed
ensure that the sanction: (1) relates directly to the abuse      to "discernibly examine" an "unquestionably relevant"
found; and (2) is not excessive. Low, 221 S.W.3d at 620;         Low factor. __ S.W.3d at __, __. However, reading the
Powell, 811 S.W.2d at 917. In Low, we provided a list of         findings and conclusions as a whole, I can conclude only
non-exhaustive factors to assist a trial court in                that the trial court did consider the factor that the majority
determining whether a sanction is appropriate. Low, 221          claims was omitted. In its findings and conclusions, the
S.W.3d at 620&ndash;21 n.5. We explained that a trial            trial court expressly stated that it considered "the degree
court need not consider every factor listed, but rather          to which Nath's own behavior caused the expenses for
"should consider relevant factors in assessing the amount        which Texas Children's Hospital [and Baylor] seeks
of the sanction" in each case. Id. at 621.                       reimbursement." The trial court's list of considerations
                                                                 mirrors the Low factors except in this one instance. While
      The Court's holding that the trial court abused its        the trial court appears to have transposed Nath's name
discretion in assessing the amount of sanctions rests on         where Texas Children's Hospital or Baylor's name should
two erroneous propositions: (1) the trial court omitted          have been, we should view this transposition as merely a
from its analysis a single Low factor regarding the extent       typographical error which may be forgiven, rather than an
to which Texas Children's Hospital and Baylor caused the         omission. Cf. Bd. of Adjustment of City of San Antonio v.
accrual of their own attorney's fees, see Low, 221 S.W.3d        Wende, 92 S.W.3d 424, 428 n.2 (Tex. 2002) (reading the
at 620&ndash;21 n.5; and (2) the trial court was required        printed word "riot" to mean "not" in a statute containing a
to consider that factor when assessing monetary                  typographical error); City of Amarillov Martin, 971
sanctions. S.W.3d at .                                           S.W.2d 426, 428 n.1 (Tex. 1998) (inserting the word
                                                                 "not" into a statute to indicate the obvious legislative
      First, the trial court's exhaustive findings of fact and   intent); Beall v. Chatham, 99 S.W. 1116, 1117&ndash;18
conclusions of law in support of its sanctions award             (Tex. 1907) (affirming a judgment containing a
indicate that it considered all of the Low factors.              typographical error which obscured the trial court's
Paragraph 91 of the Texas Children's Hospital order              reasoning). After all, Nath's conduct was covered fully by
concluded:                                                       other Low factors that the trial court considered.

In determining the amount of sanctions, this Court has                 The trial court's extensive findings of fact and
considered the factors listed in Low v. Henry, 221 S.W.3d        conclusions of law regarding Baylor's request for
at 620 & n.5. In light of Nath's bad faith and improper          sanctions totaled forty-one pages and contained
purposes, as set forth herein; Nath's knowledge of the law       ninety-five discrete findings and conclusions. The trial
as a former legal student; Nath's prior conduct as a             court's findings and conclusions regarding Texas
litigant in numerous cases; the expenses incurred by             Children's Hospital's request for sanctions totaled
Texas Children's Hospital as a result of the litigation and      forty-two pages and contained ninety-four discrete
their reasonable proportion to the amount Nath sought in         findings and conclusions. Given the trial court's
damages; the relative culpability of Nath, as set forth          exhaustive effort to explain its decision and address the
above; the minimal risk of chilling legitimate litigation        Low factors, it seems a waste of judicial resources to
activity posed by sanctions here; Nath's ability to pay for      remand this case so that the trial court may correct a
the damages he has caused Texas Children's Hospital; the         typographical error.
need for compensation to Texas Children's Hospital as a
result of the damages inflicted upon it in defending                   Second, contrary to the Court's holding, a trial court
against this lawsuit; the necessity of imposing a                has as much discretion in determining which Low factors
substantial sanction to curtail Nath's abuse of the judicial     to consider as it does in determining the amount of the
process and punish his bad faith and improper conduct;           sanctions assessment. The Court cites Low for the
the burdens on the court system attributable to Nath's           proposition that when a factor is relevant, a trial court
misconduct, including his consumption of extensive               must consider it or risk reversal on appeal. __ S.W.3d at
judicial time and resources in prosecuting this case; and        __ (citing Low, 221 S.W.3d at 620&ndash;21). This
the degree to which Nath's own behavior caused the               reading of Low, which unnecessarily constrains a trial
expenses for which Texas Children's Hospital seeks               court's discretion, begs the question&mdash;who is to
reimbursement, the Court concludes that Texas Children's         determine whether a factor is relevant, and, under what
Hospital should be awarded a substantial portion of its          standard is that decision reviewed? In my view, we must
attorney's fees to sanction Nath for his conduct.                respect the trial court's discretion to determine which
factors are relevant and its discretion to ensure that the      summary judgment stage. The trial court witnessed all of
amount of its sanctions assessment is appropriate and           Nath's actions firsthand, found support in the record, and
supported by evidence. After all, the trial court witnessed     relied upon the factors this Court set out in Low to arrive
the parties' behavior firsthand.                                at its assessment. Therefore, I would hold that the trial
                                                                court did not abuse its discretion in assessing sanctions
      Furthermore, the Court's interpretation of Low's use      against Nath.
of "should" as creating a mandatory requirement is
unconvincing. Just as this Court has held that a statute or            The Court's remand of this case is especially
rule containing "shall" does not always mandate action,         troubling because the trial court judge who presided over
surely our own use of "should" must likewise be                 the case for four years lost reelection in 2012. His
interpreted to be merely directory. Cf. Lewis v.                replacement will face the same disadvantage in reviewing
Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307,                the sanctions assessment that the Court does
310&ndash;11 (Tex. 1976) (interpreting administrative           today&mdash;she did not witness Nath's behavior
rule containing "shall" to be merely directory, not             firsthand. The current trial court's unfamiliarity with the
mandatory); Chisholm v. Bewley Mills, 287 S.W.2d 943,           parties and the litigation will require her to either conduct
945 (Tex. 1956) (interpreting statute containing "shall" to     additional hearings or base her decision upon the same
be merely directory, not mandatory); Thomas v. Groebl ,         cold record this Court cautions against. E.g., In re United
212 S.W.2d 625, 630&ndash;32 (Tex. 1948) (same).                Scaffolding, Inc., 377 S.W.3d 685, 688 (Tex. 2012).
                                                                Neither of these options are adequate substitutes for a
       Again, I would caution against excessive scrutiny of     trial court's firsthand observations, and the Court should
the trial court's application of the Low factors when the       not remand the case for an unfamiliar trial court to
trial court's assessment of sanctions, as a whole, does not     reconsider sanctions.
amount to an abuse of discretion. As we noted in Low,
the amount of a penalty under Chapter 10 of the Civil                 Low provides boundaries for trial courts assessing
Practice and Remedies Code should "begin with an                sanctions. We must ensure that trial courts act within
acknowledgment of the costs and fees incurred because           these boundaries; however, we cannot have appellate
of the sanctionable conduct." 221 S.W.3d at 621. The            courts unnecessarily circumventing a trial court's
trial court found that a large sanction was "required to        discretion. Detailed findings of fact and conclusions of
sufficiently punish Nath's conduct and deter similar            law and an extensive record provide support for both the
conduct in the future." The record details Texas                decision to sanction and the amount of the sanctions. On
Children's Hospital and Baylor's incurred attorneys' fees,      the record here, I conclude that the trial court acted
and the trial court's sanctions assessment excludes fees        within its discretion. Because the Court holds otherwise, I
related to the recusal proceedings.[1] The trial court, after   respectfully dissent.
finding ten of the thirteen Low factors to be applicable,
had an ample basis for assessing sanctions at the amount        ---------
of Texas Children's Hospital and Baylor's incurred
attorneys' fees.                                                Notes:

       We might critique the final amount of the sanctions      [1] See Peter Vieth, 2013: The Year in Review , Virginia
imposed. We might reach a different result under de novo        Lawyers Weekly, Dec. 9, 2013 ($881, 000 sanction
review. But that is simply not our task. We normally            award in a divorce proceeding was "the largest sanction
afford the trial court considerable latitude under the abuse    ever imposed" in Virginia); Cheryl Millet, Divorcee
of discretion standard. We should not modify our test           Slapped with Record-Setting $552K Sanction in Custody
even when it yields unpalatable results. Provided that the      Case, Daily Bus. Rev., Feb. 7, 2012 (discussing record
trial court relies upon the guiding principles this Court       setting sanctions award of $552, 000 in a California
established in Low and supports its findings with               divorce proceeding); Lisa Provence, Unusual outcome:
evidence in the record, we should affirm even debatable         $722K in sanctions, juror judges judge, The Hook, Nov.
sanctions. Why? Because, as the trial judge wrote: "The         4,             2011,              available                at
Court has witnessed much of this behavior firsthand."           www.readthehook.com/101759/final-order            -plaintiffs
The trial court dealt with the parties throughout four          sanctioned-722k-juror-judges-judge ($542, 000 sanction
years of litigation. The court watched Nath cycle through       against counsel and $180, 000 sanction against litigant
claim after claim in multiple petitions. The court dealt        was "one of the largest sanctions in Virginia legal
with numerous attorneys. The court dealt with Nath's            history"); Hunton & Williams and Wachovia Obtain
last-minute       effort     to     recuse      the     trial   Largest Sanctions Award byTennesseeCourt , B US. W
judge&mdash;followed by Nath's attempt to recuse the            IRE N EW S R E LE AS E S, Nov. 13, 2006,
judge overseeing the recusal process. The court                 availableathttp://www.businesswire.com/news/home/200
admonished Nath's attorneys to cease certain irrelevant         61113006140/en/Hunton-Williams-Wachovia-Obtain-Lar
pursuits, and then saw Nath ignore this admonishment in         gest-Sanctions-Award#.U6Q_WPldX0s ($1.2 million
an affidavit reemphasizing irrelevant matters. Finally, the     sanction against litigant was the "largest sanctions award
trial court dismissed all of Nath's remaining claims at the
ever granted by a Tennessee court").                             Remedies Code only applies in proceedings in which
                                                                 neither Rule 13 nor Chapter 10 applies"). Chapter 9 has
[2] Nath subsequently sued Dr. Allan Belzberg and his            largely been subsumed by subsequent revisions to the
employer, Johns Hopkins University, over an allegedly            code. See Cynthia Nguyen, An Ounce of Prevention is
defamatory statement Belzberg made regarding Nath in             Worth a Pound of Cure?: Frivolous Litigation Diagnosis
Belzberg's capacity as a Johns Hopkins employee. After a         Under Texas Government Code Chapters 9 and 10, and
battle over whether the trial court possessed personal           Texas Rule of Civil Procedure 13, 41 S. Tex. L. Rev.
jurisdiction over Belzberg and Johns Hopkins, Nath               1061, 1083&ndash;84 (2000) (theorizing "it would be
nonsuited them.                                                  difficult to conceive of a scenario in which Chapter 9
                                                                 would be applicable, " and noting that "there are only a
[3] The trial court dismissed all the claims in Nath's fifth     handful of cases that even cite Chapter 9, and these date
and sixth amended petitions, even though the sixth               from before the 1999 amendment to Section 9.012").
amended petition was Nath's only live pleading at the
time of the hearing.                                             [7] Section 10.001 of the Civil Practice and Remedies
                                                                 Code is worded similarly to Federal Rule of Civil
[4] At a hearing on a motion to compel in July 2009              Procedure 11(b). See Low, 221 S.W.3d at 615.
where Nath sought production of information regarding
the patients Shenaq had seen, the court responded:               [8] See also Chrysler Corp. v. Blackmon , 841 S.W.2d
                                                                 844, 849 (Tex. 1992) (citing TransAmerican to note that
I can't do that. You can't do that. The State Medical            "[a] permissible sanction should, therefore, be no more
Board could do that. Hospital Board, someone else.               severe than required to satisfy legitimate purposes. This
Somebody that's not here can do that. . . .                      means that a court must consider relatively less stringent
                                                                 sanctions first to determine whether lesser sanctions will
You should be before some other board that has a
                                                                 fully promote compliance, deterrence, and discourage
different authority than me. It shouldn't be used as a tool
                                                                 further abuse").
in your litigation. . . .
                                                                 [9] Although imposed pursuant to the federal groundless
I'm wondering why you're asking me to uncover
                                                                 pleadings rule, see supra note 7, federal pleadings
[Shenaq's alleged health issues and patients allegedly at
                                                                 sanctions may also provide a useful barometer to gauge
risk] instead of the State Medical Board. That's my big
                                                                 the size of typical awards. See generally Maryann Jones,
issue with your approach. . . .
                                                                 "Stop, Think, & Investigate": Should California Adopt
You're coming to me asking me to blow open this cover.           Federal Rule 11?, 22 Sw. U. L. Rev. 337, 354 (1993)
When there is an agency out there that is well situated to       (noting that "[w]hile there are reported cases of awards
deal with all of the [privilege] issues that you are raising.    exceeding $100, 000, a recent comprehensive survey of
...                                                              Rule 11 sanctions in the Fifth, Seventh, and Ninth
                                                                 Circuits shows that the median sanction imposed
At another hearing on a motion to compel in January              pursuant to Rule 11 [at that time was] $2, 500").
2010, the court stated:
                                                                 [10] See Tex. Civ. Prac. & Rem. Code § 10.001
I think&mdash;I answered that by saying Dr. Shenaq's             (providing that signing a pleading or motion certifies that
condition is not in this suit. . . .                             "the pleading or motion is not being presented for any
                                                                 improper purpose, . . . each claim, defense, or other legal
I think I was very clear about it last time. If I wasn't, I      contention in the pleading or motion is warranted by
want to be clear now. . . .                                      existing law . . . [and] each allegation or other factual
                                                                 contention in the pleading or motion has evidentiary
I said it's not relevant to this lawsuit. . . .                  support or, for a specifically identified allegation or
                                                                 factual contention, is likely to have evidentiary support
It's irrelevant to your lawsuit so it's not your job to do it.   after a reasonable opportunity for further investigation or
Your doctor has an obligation to report it to his medical        discovery"); see also Low, 221 S.W.3d at 615
board and they have a job to do. We don't.                       (recognizing that Chapter 10 requires analysis of each
                                                                 claim against each defendant).
[5] Nath was defending a suit the Fifth Circuit ultimately
determined to be groundless. See Petrello v. Prucka, 484         [11] Austin v. United States, 509 U.S. 602, 622 (1993).
Fed.Appx. 939, 942&ndash;43 (5th Cir. 2012).
                                                                 [12] For example, the fourth amended petition claimed:
[6] Chapter 9 of the Texas Civil Practice and Remedies
Code also addresses frivolous pleadings and claims, but          Defendants were further motivated to discredit Dr. Nath,
its application is limited to proceedings in which neither       damage his reputation, and remove him from their
Rule 13 nor Chapter 10 applies. See Tex. Civ. Prac. &            facilities because Dr. Nath had discovered that Dr.
Rem. Code § 9.012(h); see also Low, 221 S.W.3d at 614            Shenaq had become partially or completely blind in one
(noting "Chapter 9 of the Texas Civil Practice and               eye after suffering a detached retina in 2003. . . . On
information and belief, Defendants sought to protect their    772 (Tex. 1995).
own interests when they failed to inform Dr. Shenaq's
patients about Dr. Shenaq's compromised medical               [26] For example, Chapter 10 specifies that anyone
condition. . . . Drs. Grossman and Brunicardi, along with     signing a pleading certifies that each allegation "has
Baylor and [the Hospital], knew that Dr. Nath was             evidentiary support or . . . is likely to have evidentiary
concerned about, and was knowledgeable of, Dr.                support after a reasonable opportunity for further
Shenaq's condition and were fearful that Dr. Nath would       investigation or discovery." Tex. Civ. Prac. & Rem. Code
make Dr. Shenaq's condition public.                           § 10.001(3). Likewise, the trial court's sanctions order in
                                                              Low indicated that the factual contentions "did not, on
[13] For example, the sixth amended petition alleged          January 31, 2002 [when the petition was filed], and do
"that many patients were operated on or treated by Dr.        not now, have evidentiary support; nor were they on
Shenaq at Baylor and [the Hospital] after Dr. Shenaq had      January 31, 2002, likely to have evidentiary support after
become partially or completely blind in one eye after         a reasonable opportunity for further investigation." 221
suffering a detached retina in November 2003 . . . ."         S.W.3d at 617.

[14] While bad faith must be coupled with groundless          [27] This analysis need not detain us here. Nath engaged
pleadings to support sanctions under Rule 13,                 in questionable discovery conduct surrounding the
Tex.R.Civ.P. 13, an improper purpose alone is a               original setting for the summary judgment motions. But
sufficient predicate for sanctions under Chapter 10, Tex.     even if this conduct was sanctionable as discovery abuse,
Civ. Prac. & Rem. Code § 10.001; see Low, 221 S.W.3d          it occurred during a time when Nath's fourth, fifth, and
at 617 (discussing the disjunctive nature of Chapter 10's     sixth amended petitions were on file&mdash;which we
bases for sanctions).                                         have found to be sanctionable pleadings. Thus, we need
                                                              not assess whether such conduct was sanctionable for a
[15] An attorney owes a client a duty to inform the client    second reason. And in any event, the Hospital and Baylor
of matters material to the representation, provided such      did not move for discovery sanctions.
matters are within the scope of representation. See, e.g. ,
Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150,        [28] See Nationwide Bi-Weekly Admin., Inc. v. Belo
160 (Tex. 2004).                                              Corp., 512 F.3d 137, 146&ndash;47 (5th Cir. 2007);
                                                              Williamson v. New Times, Inc., 980 S.W.2d 706,
[16] Tex. Disciplinary R. of Prof'l Conduct pmbl. ¶ 1.        710&ndash;11 (Tex. App.&mdash;Fort Worth 1998, no
                                                              pet.); Martinez v. Hardy, 864 S.W.2d 767, 776 (Tex.
[17] Id. at ¶ 2.                                              App.&mdash;Houston [14th Dist.] 1993, no writ); Gulf
                                                              Atl. Life Ins. Co. v. Hurlbut, 696 S.W.2d 83,
[18] Id. at ¶ 4.
                                                              97&ndash;98 (Tex. App.&mdash;Dallas 1985), rev'd on
[19] Id. at ¶ 1.                                              other grounds, 749 S.W.2d 762 (Tex. 1987).

[20] See Tex. Civ. Prac. & Rem. Code § 10.002                 [29] The list of nonexclusive factors we enumerated was:
(providing that court may sanction a party or attorney
                                                              a. the good faith or bad faith of the offender;
under Chapter 10 "on its own initiative"); Tex.R.Civ.P.
13 (providing that court may sanction a party or attorney     b. the degree of willfulness, vindictiveness, negligence,
under Rule 13 "upon its own initiative").                     or frivolousness involved in the offense;

[21] Tex. Civ. Prac. & Rem. Code § 16.002(a).                 c. the knowledge, experience, and expertise of the
                                                              offender;
[22] "[A] defamatory statement is one that tends to injure
a person's reputation." Hancock v. Variyam, 400 S.W.3d        d. any prior history of sanctionable conduct on the part of
59, 62 (Tex. 2013).                                           the offender;

[23] Cf. Dolenz v. Boundy, 197 S.W.3d 416,                    e. the reasonableness and necessity of the out-of-pocket
421&ndash;22 (Tex. App.&mdash;Dallas 2006, pet.               expenses incurred by the offended person as a result of
denied) (affirming pleadings sanctions of $250 against a      the misconduct;
party when the party was a lawyer proceeding pro se and
presumably aware that the claims were time-barred).           f. the nature and extent of prejudice, apart from
                                                              out-of-pocket expenses, suffered by the offended person
[24] For example, on or about June 2, 2004, Nath learned      as a result of the misconduct;
his appointment at Baylor was not renewed because of
his billing practices and minimal academic contributions.     g. the relative culpability of client and counsel, and the
Nath's affidavit also indicates he learned of seven other     impact on their privileged relationship of an inquiry into
allegedly defamatory statements in 2004.                      that area;

[25] See also Able Supply Co. v. Moye, 898 S.W.2d 766,
h. the risk of chilling the specific type of litigation
involved;

i. the impact of the sanction on the offender, including the
offender's ability to pay a monetary sanction;

j. the impact of the sanction on the offended party,
including the offended person's need for compensation;

k. the relative magnitude of sanction necessary to achieve
the goal or goals of the sanction;

l. burdens on the court system attributable to the
misconduct, including consumption of judicial time and
incurrence of juror fees and other court costs;

n. the degree to which the offended person's own
behavior caused the expenses for which recovery is
sought.

Low, 221 S.W.3d at 620 n.5 (quoting American Bar
Association, Standards and Guidelines for Practice Under
Rule 11 of the Federal Rules of Civil Procedure,
reprinted in 121 F.R.D. 101, 104 (1988) (omission in
original)).

[30] We are confident in the trial court's ability to resolve
this discrete issue on remand either on the existing record
or, at most, after a hearing examining briefing
accompanied by affidavits regarding the degree to which
the Hospital and Baylor caused their attorney's fees.

[1] Only the judge hearing the recusal motion may assess
these sanctions. Tex.R.Civ.P. 18a(h).

---------
Page 913                                                         On July 3, 1988, the district court issued a docket
                                                             control order pursuant to Rule 166
811 S.W.2d 913 (Tex. 1991)
                                                             Page 915
TRANSAMERICAN                  NATURAL              GAS
CORPORATION, Relator,                                        of the Texas Rules of Civil Procedure, which set a
                                                             discovery cutoff date of April 3, 1989. The order allowed
v.                                                           discovery to be conducted beyond that date only upon
                                                             agreement of the parties.
Hon. William R. POWELL, Judge of the 80th District
Court of                                                         On March 7, 1989, Toma noticed the deposition of
                                                             TransAmerican's president, K. Craig Shephard, to take
Harris County, Texas, Respondent.                            place March 16. Two days later TransAmerican's
                                                             counsel, who at that time was one of the attorneys in its
No. C-9294.
                                                             legal department, telephoned Toma's counsel to inform
                                                             him that Shephard could not be available on March 16
Supreme Court of Texas.
                                                             because of a previously scheduled deposition in another
June 19, 1991                                                case. When counsel could not agree on another date for
                                                             Shephard's deposition, TransAmerican filed a motion for
Page 914                                                     protection to quash the deposition notice and postpone
                                                             the deposition. The motion stated that it would be
     James Kronzer, Don Henderson, Robert V. Holland,        submitted to the trial court for ruling on March 17. [1]
Jr., John C. Nabors, Karen Zuckerman, Bill Jones,            However, the trial court did not rule on the motion on that
Kenneth E. McKay and Joe H. Reynolds, Houston, for           date.
relator.
                                                                  Beginning April 3, the deadline set by the district
    Michael C. Feehan, Beverly Arleen Sandifer, G.           court for completion of discovery, the parties' smoldering
Byron Sims, Daniel J. Kasprzak, Jonathan C.S. Cox, Ann       discovery problem started to flare. On that date, counsel
Ryan Robertson and Donald F. Hawbaker, Houston, for          for TransAmerican and Toma agreed that Shephard
respondent.                                                  would be deposed after April 10 on a date to be agreed
                                                             upon. Despite this understanding, counsel again failed to
     OPINION                                                 agree upon a date, and on April 19 Toma noticed
                                                             Shephard's      deposition   for     May     2     without
     HECHT, Justice.
                                                             TransAmerican's consent. On April 20, upon receipt of
                                                             this second deposition notice, TransAmerican's counsel
     In    this    original    mandamus        proceeding,
                                                             wrote a letter to Toma's counsel informing him that
TransAmerican Natural Gas Corporation seeks to compel
                                                             Shephard would not be available May 2 because, as
the Hon. William R. Powell, Judge of the 80th District
                                                             before, he already had a deposition in another matter
Court, to set aside his orders imposing sanctions for
                                                             scheduled for that day. Toma's counsel replied by letter
discovery     abuse.     The    district   court    struck
                                                             that he would not agree to reschedule the deposition. On
TransAmerican's pleadings, dismissed its action against
                                                             April 27, TransAmerican reset the date for submission of
Toma Steel Supply, Inc., and granted Toma an
                                                             its motion for protection to the trial court for ruling to
interlocutory default judgment on its counterclaim against
                                                             May 12. By this time, of course, the motion was moot,
TransAmerican, reserving for trial only the amount of
                                                             and it is not apparent why TransAmerican continued to
damages due Toma. We conditionally grant the writ of
                                                             seek a ruling. TransAmerican did not move the trial court
mandamus.
                                                             to postpone the May 2 deposition.
     I
                                                                 Also on April 27, Shephard's other deposition
     The underlying case is a complex, multi-party action    scheduled for May 2 was cancelled, leaving him available
arising out of Toma's sale of allegedly defective pipe       to be deposed by Toma. However, TransAmerican's
casing to TransAmerican. TransAmerican withheld              counsel did not advise Toma's counsel that Shephard's
payment for the casing, apparently some $2.3 million,        schedule had changed so that he could be deposed on
and sued Toma in April 1987 for damages allegedly            May 2 after all, nor did Shephard appear on May 2 as
caused by its use. Toma counterclaimed for $52 million       noticed. TransAmerican ascribes its failure to produce
damages resulting from TransAmerican's refusal to pay        Shephard for deposition to miscommunication concerning
for the casing. Numerous other parties also joined in the    his schedule changes between attorneys in its legal
litigation.                                                  department. Toma alleges that Shephard's failure to
                                                             appear was purposeful and part of TransAmerican's
intentional obstruction of the discovery process.                  .....

     On May 8, Toma filed a response to TransAmerican's                 (5) An order striking out pleadings or parts thereof,
March 14 motion for protective order, even though it               ... or dismissing with or without prejudice the action or
acknowledged that that motion was moot. Toma included              proceedings or any part thereof, or rendering a judgment
in its response, however, a motion for sanctions against           by default against the disobedient party....
TransAmerican based on Shephard's failure to appear at
the May 2 deposition. In return, TransAmerican filed its               At the time of the district court's rulings, paragraph 3
own sanctions motion on May 11, urging that Toma's                 of Rule 215 stated in part:
motion for sanctions was itself an abuse of the discovery
process. Toma's and TransAmerican's motions for                         If the court finds a party is abusing the discovery
sanctions both stated that they would be submitted to the          process in seeking, making or resisting discovery ..., then
court for ruling on May 12, the date set for submission of         the court in which the action is pending may impose any
TransAmerican's original motion for protection.                    sanction authorized by paragraphs (1), (2), (3), (4), (5),
                                                                   and (8) of paragraph 2b of this rule. Such order of
     On May 12, without hearing oral argument, [2] the             sanction shall be subject to review on appeal from the
district court signed an order                                     final judgment. [4]

Page 916                                                           Page 917

granting Toma's motion for sanctions and striking                      Both paragraphs leave the choice of sanctions to the
TransAmerican's       pleadings    in   their   entirety.          sound discretion of the trial court. Bodnow Corp. v. City
TransAmerican moved for reconsideration, which the                 of Hondo, 721 S.W.2d 839, 840 (Tex.1986). However,
district court denied after hearing argument of counsel            paragraph 2(b) explicitly requires that any sanctions
but refusing to hear any evidence. Based upon his May              imposed be "just". By referring to paragraph 2(b),
12 order striking TransAmerican's pleadings, the district          paragraph 3 incorporates the same requirement. Thus,
court issued an order on October 6 dismissing                      whether the district court imposed sanctions under
TransAmerican's action with prejudice, rendering an                paragraph 2(b) or paragraph 3, we consider whether those
interlocutory default judgment against TransAmerican               sanctions were just. [5] See Bodnow, 721 S.W.2d at 840.
and in favor of Toma on its counterclaim, and setting the
case for trial solely on the issue of the damages to be                 In our view, whether an imposition of sanctions is
awarded Toma.                                                      just is measured by two standards. First, a direct
                                                                   relationship must exist between the offensive conduct and
     TransAmerican sought mandamus relief from the                 the sanction imposed. This means that a just sanction
court of appeals to compel the district court to set aside         must be directed against the abuse and toward remedying
his May 12 and October 6 orders. A divided court of                the prejudice caused the innocent party. It also means that
appeals denied TransAmerican leave to file its petition            the sanction should be visited upon the offender. The trial
for writ of mandamus in an unpublished per curiam                  court must at least attempt to determine whether the
opinion. [3] TransAmerican then moved for leave to file            offensive conduct is attributable to counsel only, or to the
its petition in this Court. We granted the motion in order         party only, or to both. This we recognize will not be an
to review the propriety of the discovery sanctions                 easy matter in many instances. On the one hand, a lawyer
imposed by the district court.                                     cannot shield his client from sanctions; a party must bear
                                                                   some responsibility for its counsel's discovery abuses
    II                                                             when it is or should be aware of counsel's conduct and
                                                                   the violation of discovery rules. On the other hand, a
     The sanctions imposed by the district court are               party should not be punished for counsel's conduct in
among those authorized for various discovery abuses                which it is not implicated apart from having entrusted to
under Rule 215 of the Texas Rules of Civil Procedure.              counsel its legal representation. The point is, the
The district court did not specify what provision of Rule          sanctions the trial court imposes must relate directly to
215 it relied upon. The portions of the rule applicable to         the abuse found.
the circumstances here are paragraphs 2(b)(5) and 3.
Paragraph 2(b)(5) provides in part:                                    Second, just sanctions must not be excessive. The
                                                                   punishment should fit the crime. A sanction imposed for
     If a party or an officer ... of a party ... fails to comply   discovery abuse should be no more severe than necessary
with proper discovery requests or to obey an order to              to satisfy its legitimate purposes. It follows that courts
provide or permit discovery, ... the court in which the            must consider the availability of less stringent sanctions
action is pending may, after notice and hearing, make              and whether such lesser sanctions would fully promote
such orders in regard to the failure as are just, and among        compliance.
others the following:
                                                                       These standards set the bounds of permissible
                                                                   sanctions under Rule 215 within which the trial court is to
exercise sound discretion. [6] The imposition of very          Shephard's deposition for a specific date and punished
severe sanctions is limited, not only by these standards,      any failure to comply with that order by contempt or
but by constitutional due process. The sanctions the           another sanction. He also could have taxed the costs of
district court imposed against TransAmerican are the           the deposition against TransAmerican and awarded Toma
most devastating                                               attorney fees. The range of sanctions available to the
                                                               district court under Rule 215 is quite broad. The district
Page 918                                                       court dismissed TransAmerican's claims against Toma
                                                               and rendered default judgment for Toma on its
a trial court can assess against a party. When a trial court   counterclaim solely because, as the record before us
strikes a party's pleadings and dismisses its action or        establishes, TransAmerican's president failed to present
renders a default judgment against it for abuse of the         himself for his deposition. [8] Nothing in the
discovery process, the court adjudicates the party's claims
without regard to their merits but based instead upon the      Page 919
parties' conduct of discovery. "[T]here are constitutional
limitations upon the power of courts, even in aid of their     record before us even approaches justification for so
own valid processes, to dismiss an action without              severe a sanction. [9]
affording a party the opportunity for a hearing on the
merits of his cause." Societe Internationale v. Rogers,             We recognize that we affirmed a similar sanction in
357 U.S. 197, 209-10, 78 S.Ct. 1087, 1094, 2 L.Ed.2d           Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
1255 (1958), citing Hammond Packing Co. v. Arkansas,           241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106
212 U.S. 322, 350-51, 29 S.Ct. 370, 379-80, 53 L.Ed. 530       S.Ct. 2279, 90 L.Ed.2d 721 (1986). In that case the trial
(1909), and Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841,      court struck defendant's answer and rendered a default
42 L.Ed. 215 (1897); accord Insurance Corp. of Ireland,        judgment against it based upon the failure of defendant
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,        and his employees to appear for their depositions on three
705-06, 102 S.Ct. 2099, 2105-06, 72 L.Ed.2d 492 (1982).        separate occasions without explanation. Even assuming
Discovery sanctions cannot be used to adjudicate the           that Downer was correctly decided, the instant case does
merits of a party's claims or defenses unless a party's        not show the same pattern of abuse present in Downer.
hindrance of the discovery process justifies a                 Furthermore, Downer 's approval of the sanction of
presumption that its claims or defenses lack merit.            default judgment was specifically based upon the facts of
Insurance Corp. of Ireland, 456 U.S. 694, 705-06, 102          that case, and the holding in that case is limited to those
S.Ct. 2099, 2105-06; Rogers, 357 U.S. at 209-10, 78            facts. Rendition of default judgment as a discovery
S.Ct. at 1094; Hammond Packing, 212 U.S. at 350-51, 29         sanction ought to be the exception rather than the rule.
S.Ct. at 379-80. However, if a party refuses to produce
material evidence, despite the imposition of lesser                There are cases, of course, when striking pleadings,
sanctions, the court may presume that an asserted claim        dismissal, rendition of default and other such extreme
or defense lacks merit and dispose of it. Insurance Corp.      sanctions are not only just but necessary. See National
of Ireland, 456 U.S. at 705-06, 102 S.Ct. at 2105-06.          Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780. In this
Although punishment and deterrence are legitimate              case, however, the record before us establishes that the
purposes for sanctions, National Hockey League v.              severe sanctions the district court imposed against
Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct.         TransAmerican were manifestly unjust in violation of
2778, 49 L.Ed.2d 747 (1976) (per curiam); Bodnow Corp.         Rule 215.
v. City of Hondo, 721 S.W.2d at 840 they do not justify
                                                                   III
trial by sanctions, Hammond Packing, 212 U.S. at
350-51, 29 S.Ct. at 379-80; Hovey, 167 U.S. at 413-14,              We next consider whether TransAmerican has an
17 S.Ct. at 843. Sanctions which are so severe as to           adequate remedy by appeal. If it does, then the writ of
preclude presentation of the merits of the case should not     mandamus must be denied. State v. Walker, 679 S.W.2d
be assessed absent a party's flagrant bad faith or counsel's   484, 485 (Tex.1984). Rule 215, paragraph 3 states that
callous disregard for the responsibilities of discovery        orders imposing discovery sanctions "shall be subject to
under the rules. See National Hockey League, 427 U.S. at       review on appeal from the final judgment." Today we
642-643, 96 S.Ct. at 2780-81. [7]                              have held in Braden v. Downey, 811 S.W.2d 922 (1991),
                                                               that sanctions should not be imposed in such a way that
     In the present case, it is not clear whether
                                                               effective appellate review is thwarted. Whenever a trial
TransAmerican or its counsel or both should be faulted
                                                               court imposes sanctions which have the effect of
for Shephard's failure to attend his deposition. Moreover,
                                                               adjudicating a dispute, whether by striking pleadings,
there is nothing in the record to indicate that the district
                                                               dismissing an action or rendering a default judgment, but
court considered imposition of lesser sanctions or that
                                                               which do not result in rendition of an appealable
such sanctions would not have been effective. If
                                                               judgment, then the eventual remedy by appeal is
anything, the record strongly suggests that lesser
                                                               inadequate. Specifically, in this case TransAmerican does
sanctions should have been utilized and perhaps would
                                                               not have an adequate remedy by appeal because it must
have been effective. The district court could have ordered
suffer a trial limited to the damages claimed by Toma.        gamesmanship. Thus I write separately to offer additional
The entire conduct of the litigation is skewed by the         guidance to the bench and bar.
removal of the merits of TransAmerican's position from
consideration and the risk that the trial court's sanctions        In assessing sanctions under Rule 215 of the Texas
will not be set aside on appeal. Resolution of matters in     Rules of Civil Procedure, the punishment must fit the
dispute between the parties will be influenced, if not        crime. Furthermore, a sanction should be a function of
dictated, by the trial court's determination of the conduct   both the facts presented and the purpose of the rule the
of the parties during discovery. Some award of damages        court is enforcing. G. JOSEPH, SANCTIONS: THE
on Toma's counterclaim is likely, leaving TransAmerican       FEDERAL LAW OF LITIGATION ABUSE § 16 (1989).
with an appeal, not on whether it should have been liable     If this is not clear from the record, the trial court is more
for those damages, but on whether it should have been         apt to be second guessed by the appellate courts.
sanctioned for discovery abuse. This is not an effective
appeal.                                                           The Litigation Section of the American Bar
                                                              Association promulgated the following standards and
Page 920                                                      guidelines to be considered when determining whether to
                                                              assess sanctions under Federal Rule 11:
     We therefore hold that when a trial court imposes
discovery sanctions which have the effect of precluding a         a. the good faith or bad faith of the offender;
decision on the merits of a party's claims--such as by
striking pleadings, dismissing an action, or rendering            b. the degree of willfulness, vindictiveness,
default judgment--a party's remedy by eventual appeal is      negligence, or frivolousness involved in the offense;
inadequate, unless the sanctions are imposed
                                                                  c. the knowledge, experience, and expertise of the
simultaneously with the rendition of a final, appealable
                                                              offender;
judgment. If such an order of sanctions is not
immediately appealable, the party may seek review of the           d. any prior history of sanctionable conduct on the
order by petition for writ of mandamus. Although not          part of the offender;
every such case will warrant issuance of the
extraordinary writ, this case does. TransAmerican's                e. the reasonableness and necessity of the
remedy by appeal from a final judgment eventually to be       out-of-pocket expenses incurred by the offended person
rendered in Toma's favor is inadequate.                       as a result of the misconduct;

***                                                                f. the nature and extent of prejudice, apart from
                                                              out-of-pocket expenses, suffered by the offended person
     Accordingly, we hold that TransAmerican is entitled      as a result of the misconduct;
to the mandamus relief it seeks. We are confident that
Judge Powell will vacate his orders of May 12 and                  g. the relative culpability of client and counsel, and
October 6, after which he may conduct further                 the impact on their privileged relationship of an inquiry
proceedings consistent with this opinion. Our writ of         into that area;
mandamus will issue only in the event he fails promptly
to comply.                                                        h. the risk of chilling the specific type of litigation
                                                              involved;
      Concurring opinions by GONZALEZ and MAUZY,
JJ.                                                                i. the impact of the sanction on the offender,
                                                              including the offender's ability to pay a monetary
      GONZALEZ, Justice concurring.                           sanction;

     I concur with the court's opinion and judgment. The           j. the impact of the sanction on the offended party,
sanction in this case was clearly out of proportion to the    including the offended person's need for compensation;
offense committed by relator and the opinion
appropriately disposes of the present controversy.            Page 921
However, neither our rules nor the court have set
guidelines for imposing sanctions. They envision a large          k. the relative magnitude of sanction necessary to
degree of discretion vested in the trial court and            achieve the goal or goals of the sanction;
innovation should not be discouraged in attempting to
fashion an appropriate sanction. However, trial judges            l. burdens on the court system attributable to the
should not be trigger happy. They should first issue          misconduct, including consumption of judicial time and
orders compelling discovery. In all but the most              incurrence of juror fees and other court costs;
egregious circumstances, other lesser sanctions should be
                                                                  m. the degree to which the offended person
tried first before imposing the ultimate sanction of the
                                                              attempted to mitigate any prejudice suffered by him or
"death penalty" (dismissal of pleadings). Cases should be
won or lost on their merits, not on discovery or sanctions
her;                                                           client when selecting the appropriate sanction. See, e.g.,
                                                               Westmoreland v. CBS, Inc., 770 F.2d 1168, 1178-79
    n. the degree to which the offended person's own           (D.C.Cir.1985).
behavior caused the expenses for which recovery is
sought.... [1]                                                       The foregoing guidelines are simply suggestions to
                                                               guide a trial court in its struggle to make the punishment
     American Bar Association, Standards and Guidelines        fit the crime.
for Practice Under Rule 11 of the Federal Rules of Civil
Procedure, reprinted in 121 F.R.D. 101 (1988).                      MAUZY, Justice, concurring.

     I recognize that Federal Rule 11 is not comparable to          I concur in the Court's judgment, but write separately
Rule 215 of Texas Rules of Civil Procedure and that            to outline the guidelines which I feel are necessary to
Federal Rule 11 does not specify the types of sanctions        explain the parameters of our decision today. Whether or
that may be imposed. However, we do not have to                not a sanction is appropriate must be determined by the
re-invent the wheel. In my opinion, the ABA guidelines         particular facts of the individual case. In order to
developed for determining when to assess sanctions             determine the appropriate sanctions in each case, the trial
under Federal Rule 11 are instructive whenever sanctions       court should engage in a three-part inquiry. First, the trial
are imposed or denied under Texas Rule 215.                    court must resolve the question of whether the offending
                                                               conduct actually constitutes an abuse of the discovery
     As the court notes, the range of sanctions available to   process. Second, the court must determine who is actually
a trial court under Rule 215 is quite broad. Some of these     responsible for the offensive conduct and the extent of
sanctions include:                                             their culpability. Third, the court must determine what
                                                               sanctions would be appropriate under the circumstances.
       (1) A reprimand of the offender; [2]                    The trial court should impose sanctions only upon those
                                                               who actually abuse the discovery process and only in a
       (2) Mandatory continuing legal education;
                                                               manner consistent with the goals of deterring such
       (3) A fine; [3]                                         conduct and correcting the resulting injustice. Courts
                                                               must strike a careful balance in imposing sanctions. On
    (4) An award of reasonable expenses, including             one hand, the trial court should make clear that abuse of
reasonable attorney's fees, incurred as a result of the        the discovery process is reprehensible and completely
misconduct;                                                    contrary to the orderly administration of justice. On the
                                                               other hand, the trial court must avoid rulings that would
     (5) Reference of the matter to the appropriate            serve to chill vigorous advocacy. In making its
attorney disciplinary or grievance authority; [4]              determination as to what sanctions would be appropriate
                                                               in a particular case, the court should also consider the
    (6) An order precluding the introduction of certain        offending behavior in terms of the duty owed the court
evidence;                                                      system. Attorneys, as officers of the court, should be held
                                                               to a higher standard than others. Parties, however, should
    (7) An order precluding the litigation of certain          only be sanctioned for conduct in which they are actually
issues;                                                        implicated. For example, a party which, by virtue of
                                                               contract, incapacity or incompetency, or the very nature
    (8) An order precluding the litigation of certain
                                                               of the lawsuit, has only limited control of his attorney and
claims or defenses;
                                                               the course of litigation, should not be sanctioned for
                                                               actions over which it had no control. Courts should strive
       (9) Dismissal of the action or entry of a
                                                               to curb abuses of the judicial process by litigants and
Page 922                                                       their attorneys, and should impose sanctions upon those
                                                               who abuse the process in order to deter such misconduct.
default judgment. [5]                                          However, trial judges have an obligation, when imposing
                                                               sanctions, to ensure that the punishment must fit the
       ABA Standards and Guidelines, 121 F.R.D. at 124.        crime and is imposed only upon the actual offender or
                                                               offenders.
     Sanctions are tools to be used by a court to right a
wrong committed by a litigant. Any given sanction              ---------
should be designed to accomplish that end. Sanctions can
be compensatory, punitive or deterrent in nature. See G.       Notes:
JOSEPH, SANCTIONS: THE FEDERAL LAW OF
LITIGATION ABUSE § 16 (1989). The court should                 [1] The local rules governing civil cases in Harris County
assess the type of sanction most likely to prevent a           provide: "Motions shall state a date of submission which
recurrence of the offending conduct. The court should          shall be at least 10 days from filing, except on leave of
also consider the relative culpability of the counsel and      court. The motion will be submitted to the court for
ruling on that date or later." Rule 3.3.2, Local Rules of     "appropriate" and "just" are equivalent standards.
the Civil Trial Division of the Harris County District
Courts (1987). The March 17 submission date stated in         [5] TransAmerican contends that Toma's notice to take
TransAmerican's motion was only three days from the           Shephard's deposition on May 2 was not a "proper"
date of filing of the motion and the day after the            discovery request under Rule 215, paragraph 2(b)
deposition was scheduled.                                     because it issued after the discovery cutoff date set by
                                                              Judge Powell. Toma responds that its request was proper
[2] Rule 3.3.4 of the Local Rules of the Civil Trial          because TransAmerican agreed that Shephard could be
Division of the Harris County District Courts (1987)          deposed after the cutoff, as permitted by the district
allows any party to request oral argument on a motion if      court's scheduling order. TransAmerican answers even if
the party "views it as necessary." Neither TransAmerican      there were a binding agreement to depose Shephard after
nor Toma appears to have requested oral argument on           the cutoff, no date was ever agreed to.
any of their motions before May 12.
                                                              TransAmerican also contends that the hearing required by
[3] Because of its brevity, we reproduce the court of         Rule 215, paragraph 2(b) is an oral hearing, not merely a
appeals' opinion below rather than order it published as      submission of the issue on written motion and response,
we would ordinarily do when granting relief:                  and that it was denied such a hearing before the
                                                              imposition of sanctions. Further, TransAmerican argues
     OPINION                                                  that the notice required by Rule 215, paragraph 2(b) is at
                                                              least ten days' notice, and that Toma's motion for
Relator asks us to order respondent to withdraw his order     sanctions was filed only four days before the district
imposing sanctions. This is a breach of contract case         court ruled on it. Toma responds that TransAmerican did
involving the failure of defective casing on gas wells.       not request an oral hearing, that an oral hearing was not
Relator filed suit against Toma Steel Supply, Inc. Toma       necessary and is not required by the rule, and that in any
filed a counterclaim against relator. Toma filed numerous     event, TransAmerican received an oral hearing on its
third party claims against suppliers. Those suppliers have    motion to reconsider, thus satisfying any requirement of
filed cross actions against Toma.                             the rule. Toma also argues that Rule 215, paragraph 2(b),
                                                              requires only reasonable notice, and that four days' notice
On May 12, 1989, respondent granted Toma's motion for
                                                              to TransAmerican in this case was reasonable because
sanctions against relator, striking relator's pleadings for
                                                              TransAmerican was able to respond fully to the motion
the failure of its president, K. Craig Shephard, to appear
                                                              before the district court ruled.
for a May 2, 1989, deposition. Relator argues
respondent's action constitutes an abuse of discretion.       Our resolution of the matter before us does not require
                                                              that we address these arguments, and we express no view
A writ of mandamus is not properly granted in an
                                                              on any of them.
ordinary case as relief from sanctions. Street v. Second
Court of Appeals, 715 S.W.2d 638, 639-640 (Tex.1986).         [6] JUSTICE GONZALEZ' concurring opinion sets out
                                                              guidelines for assessing sanctions which have been
The motion for leave is overruled.
                                                              identified in the context of applying Rule 11,
     PER CURIAM                                               FED.R.CIV.P. Post, at 920-922. Our analysis of this case
                                                              does not require us to consider whether those factors or
Motion for leave to file petition for writ of mandamus        others are appropriate considerations in imposing
overruled June 16, 1989, and Opinion filed June 29,           sanctions. However, we do subscribe to the principle,
1989.                                                         inherent in the effort to state guidelines, that the trial
                                                              court's discretion in assessing sanctions must be guided
Panel consists of Chief Justice J. Curtiss Brown and          by a reasoned analysis of the purposes sanctions serve
Justices Junell and Draughn.                                  and the means of accomplishing those purposes.

Do Not Publish. TEX.R.APP.P. 90.                              [7] National Hockey League cites Rogers but not
                                                              Hammond Packing, and does not refer to the rule of the
Justice Draughn would grant.                                  latter that discovery sanctions cannot be used to dispose
                                                              of the merits of a claim or defense unless the offending
[4] Rule 215, paragraph 3 was amended, effective              party's withholding of evidence warrants a presumption
September 1, 1990, to require that sanctions be imposed       that its claim or defense is without merit. Nevertheless,
only after notice and hearing and only as "appropriate".      the conduct sanctioned in National Hockey League was
(Similar amendments were made at the same time in Rule        so egregious that it clearly would have justified the same
13, TEX.R.CIV.P.) However, the requirement that               ultimate sanctions under Hammond Packing. The
sanctions be appropriate was implicit in the rule before      Hammond Packing rule is not in doubt. That it has not
the amendment. Koslow's v. Mackie, 796 S.W.2d 700,            been abandoned is further demonstrated in Insurance
703 n. 1 (Tex.1990). In the context of Rule 215,              Corp. of Ireland, which came after National Hockey
League and reasserted the rule of Hammond Packing.            (2) The novelty and difficulty of the questions involved;

[8] Toma's motion for sanctions was based solely upon         (3) The skill requisite to perform the legal service
Shephard's failure to attend his deposition. As Toma itself   properly;
stated in its response to TransAmerican's motion to refile
its pleadings after they were struck: "[O]n May 12, 1989,     (4) The customary fee;
the Court granted [Toma's] Motion for Sanctions against
[TransAmerican] for TransAmerican's refusal to agree to       (5) Whether the fee is fixed or contingent;
a date certain for Mr. Craig Shephard's deposition and for
                                                              (6) Time limitations imposed by the client or the
the failure of its President, Mr. Craig Shephard, to appear
                                                              circumstances;
for a properly noticed deposition on May 2, 1989, and
struck TransAmerican's pleadings in their entirety."          (7) The amount involved and the results obtained;
Notwithstanding this rather clear statement in the trial
court, during this mandamus proceeding Toma has               (8) The experience, reputation and ability of the
suggested that the district court properly sanctioned         attorneys; and
TransAmerican because it had abused the discovery
process on other occasions. TransAmerican disputes            (9) Awards in similar cases;
Toma's assertions. While the district court would have
been entitled to consider a pattern of discovery abuse in     ABA Standards and Guidelines, 121 F.R.D. at 125-26.
imposing sanctions, the record does not reveal the
existence of any such pattern, Toma did not complain of       The authority of a trial judge to assess a monetary fine as
one, and the district court does not appear to have found     a sanction for abuse of the discovery process was
one.                                                          disputed in Owens-Corning Fiberglas Corp. v. Caldwell,
                                                              807 S.W.2d 413, 415 (Tex.App.--Houston [1st Dist.]
[9] The district court made no findings to support the        1991, orig. proceeding). The court of appeals held that
sanctions imposed. Rule 215 does not require a trial court    the trial court had no such authority under rule 215(3).
to make findings before imposing discovery sanctions,         However, in Braden v. Downey, 811 S.W.2d 922
and we do not add such a requirement here. We note only       (Tex.1991, orig. proceeding), we held that the trial judge
that we do not have the benefit of any explanation by the     did have such authority. A few days ago, the United
district court for the severity of its ruling. It would       States Supreme Court held that federal courts had
obviously be helpful for appellate review of sanctions,       inherent power to impose monetary sanctions on a litigant
especially when severe, to have the benefit of the trial      for bad-faith conduct. Chambers v. Nasco, Inc., 501 U.S.
court's findings concerning the conduct which it              32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).
considered to merit sanctions, and we commend this
practice to our trial courts. See Thomas v. Capital           [4] Sanctionable conduct may not necessarily be an
Security Services, Inc., 836 F.2d 866, 882-883 (5th           ethical violation, however. See Golden Eagle Distrib.
Cir.1988). Precisely to what extent findings should be        Corp. v. Burroughs Corp., 801 F.2d 1531, 1538-39 (9th
required before sanctions can be imposed, however, we         Cir.1986).
leave for further deliberation in the process of amending
                                                              [5] These remedies are essentially equivalent in degree
the rules of procedure.
                                                              depending on whether the plaintiff or the defendant is the
[1] The omitted guidelines are specifically tailored to       offending party.
address the concerns of Federal Rule of Civil Procedure
                                                              ---------
11 and therefore are not appropriate for inclusion in this
general discussion of sanctions.

[2] Although this is typically the least serious sanction
available, some courts have attempted to use the
reprimand as a method of embarrassing the lawyer who
has committed the offense. For example the court could
require the reprimanded lawyer to provide a certified
copy of the reprimand order to the members of his law
firm. See Huettig & Schromm, Inc. v. Landscape
Contractors Council, 582 F.Supp. 1519, 1522-23
(N.D.Cal.1984), aff'd, 790 F.2d 1421 (9th Cir.1986).

[3] If a monetary fee is imposed, other factors should be
considered by the trial court, including:

(1) The time and labor involved;
Page 920                                                    estate of his deceased wife, who died in 1980. Huie is
                                                            also the trustee of
922 S.W.2d 920 (Tex. 1996)
                                                            Page 922
Harvey K. HUIE, Jr., Individually, as Independent
Executor                                                    three separate testamentary trusts created under his wife's
                                                            will for the primary benefit of the Huies' three daughters.
of the Estate of Adeline M. Huie, Deceased, and as          One of the daughters, Melissa Huie Chenault, filed the
                                                            underlying suit against Huie in February 1993 for breach
Trustee of the Melissa Huie Chenault Trust, Relator         of fiduciary duties relating to her trust. [1] Chenault
                                                            claims that Huie mismanaged the trust, engaged in
v.
                                                            self-dealing, diverted business opportunities from the
                                                            trust, and commingled and converted trust property.
The Honorable Nikki DeSHAZO, Judge, Respondent.
                                                            Huie's other two daughters have not joined in the lawsuit.
No. 95-0873.
                                                                Chenault noticed the deposition of Huie's lawyer,
Supreme Court of Texas.                                     David Ringer, who has represented Huie in his capacity
                                                            as executor and trustee since Mrs. Huie's death. Ringer
February 9, 1996                                            has also represented Huie in many other matters unrelated
                                                            to the trusts and estate during that period. Before
Page 921                                                    Chenault filed suit, Ringer was compensated from trust
                                                            and estate funds for his fiduciary representation. Since
     Argued Nov. 30, 1995.                                  the suit, however, Huie has personally compensated
                                                            Ringer for all work.
     Rehearing Overruled June 28, 1996.
                                                                 Although Ringer appeared for deposition, he refused
   G. David Ringer, Timothy D. Zeiger, Michael D.
                                                            to answer questions about the management and business
McKinley, Dallas, Douglas W. Alexander, Austin,
                                                            dealings of the trust, claiming the attorney-client and
Dwight M. Francis, Dallas, for Relator.
                                                            attorney-work-product privileges. Chenault subsequently
                                                            moved to compel responses, and Huie moved for a
    Donovan Campbell, Jr., T. Wesley Holmes, James J.
                                                            protective order. After an evidentiary hearing, the trial
Hartnett, Jr., James J. Hartnett, Sr., Jack M. Kinnebrew,
                                                            court held that the attorney-client privilege did not
Gary E. Clayton, and Kim Kelly Lewis, Dallas, for
                                                            prevent beneficiaries of the trust from discovering
Respondent.
                                                            pre-lawsuit communications between Huie and Ringer
   Jay J. Madrid, R. Gregory Brooks, Madrid, Corallo        relating to the trust. The court's order, signed July 19,
& Brooks, P.C., Dallas, for J. Peter Kline, Robert L.       1995, does not cite to any of the exceptions under Texas
Miars, John A. Beckert, Richard N. Beckert, Edward J.       Rule of Civil Evidence 503 or otherwise disclose the
Rohling, Jack Craycroft and Harvey Hotel Corp.              court's rationale. [2] The court held that the
                                                            attorney-client privilege protected only communications
   Chief Justice PHILLIPS delivered the opinion of the      made under the following circumstances: 1) a litigious
Court, in which all Justices join.                          dispute existed between Chenault and Huie; 2) Huie
                                                            obtained legal advice to protect himself against charges
     The issue presented in this original mandamus          of misconduct; and 3) Huie paid for the legal counsel
proceeding is whether the attorney-client privilege         without reimbursement from the estate or trust. The court
protects communications between a trustee and his or her    accordingly ordered Ringer to answer questions relating
attorney relating to trust administration from discovery    to events before February 1993, when suit was filed and
by a trust beneficiary. We hold that, notwithstanding the   Huie began personally compensating Ringer. The court
trustee's fiduciary duty to the beneficiary, only the       also held that the attorney-work-product privilege did not
trustee, not the trust beneficiary, is the client of the    apply to communications made before Chenault filed suit,
trustee's attorney. The beneficiary therefore may not       again without stating its reasoning.
discover communications between the trustee and
attorney otherwise protected under Texas Rule of Civil           The court of appeals, after granting Huie's motion for
Evidence 503. Because the trial court ruled otherwise, we   leave to file petition for writ of mandamus, subsequently
conditionally grant writ of mandamus.                       vacated that order as improvidently granted, denying
                                                            relief. After Huie sought mandamus relief from this
     I                                                      Court, we stayed Ringer's deposition pending our
                                                            consideration of the merits.
     Harvey K. Huie, the relator, is the executor of the
    II                                                           Texas, the attorney-client privilege protects confidential
                                                                 communications between a client and attorney made for
     The attorney-client privilege protects from disclosure      the purpose of facilitating the rendition of professional
confidential communications between a client and his or          legal services to the client. See TEX.R.CIV.EVID.
her attorney "made for the purpose of facilitating the           503(b). While the privilege extends to the entire
rendition of professional legal services to the client...."      communication, including facts contained therein, see
TEX.R.CIV.EVID. 503(b). This privilege allows                    GAF Corp. v. Caldwell, 839 S.W.2d 149, 151
"unrestrained communication and contact between an               (Tex.App.--Houston [14th Dist.] 1992, orig. proceeding);
attorney and client in all matters in which the attorney's       1 STEVEN GOODE ET. AL, TEXAS PRACTICE:
professional advice or services are sought, without fear         GUIDE TO THE TEXAS RULES OF EVIDENCE:
that these confidential communications will be disclosed         CIVIL AND CRIMINAL, § 503.5 n. 15 (1993), a person
by the attorney, voluntarily or involuntarily, in any legal      cannot cloak a material fact with the privilege merely by
proceeding." West v. Solito, 563 S.W.2d 240, 245                 communicating it to an attorney. See, e.g., National Tank
(Tex.1978). The privilege thus "promote[s] effective             Co. v. Brotherton, 851 S.W.2d 193, 199 (Tex.1993).
legal services," which "in turn promotes the broader
societal interest of the effective administration of justice."        This distinction may be illustrated by the following
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 160                  hypothetical example: Assume that a trustee who has
(Tex.1993).                                                      misappropriated money from a trust confidentially
                                                                 reveals this fact to his or her attorney for the purpose of
    The Texas Trust Code provides that "[a] trustee may          obtaining legal advice. The trustee, when asked at trial
employ attorneys ... reasonably necessary in the                 whether he or she misappropriated money, cannot claim
administration of the trust estate." TEX.PROP.CODE §             the attorney-client privilege. The act of misappropriation
113.018. Chenault                                                is a material fact of which the trustee has knowledge
                                                                 independently of the communication. The trustee must
Page 923                                                         therefore disclose the fact (assuming no other privilege
                                                                 applies), even though the trustee confidentially conveyed
does not dispute that Huie employed Ringer to assist
                                                                 the fact to the attorney. However, because the attorney's
Huie in the administration of the Chenault trust. Indeed,
                                                                 only knowledge of the misappropriation is through the
Chenault does not seriously dispute that an
                                                                 confidential communication, the attorney cannot be
attorney-client relationship existed between Huie and
                                                                 called on to reveal this information.
Ringer about trust matters. [3] Further, Rule 503 contains
no exception to the privilege for fiduciaries and their               Our holding, therefore, in no way affects Huie's duty
counsel.     Chenault      nonetheless    contends    that       to disclose all material facts and to provide a full trust
communications between Huie and Ringer regarding trust           accounting to Chenault, even as to information conveyed
matters cannot be privileged as to Chenault, a trust             to Ringer. In the underlying litigation, Chenault may
beneficiary, even if the elements of Rule 503 are                depose Huie and question him fully regarding his
otherwise met. Chenault's primary argument is that Huie's        handling of trust property and other factual matters
fiduciary duty of disclosure overrides any attorney-client       involving the trust. Moreover, the attorney-client
privilege that might otherwise apply.                            privilege does not bar Ringer from testifying about
                                                                 factual matters involving the trust, as long as he is not
     Trustees and executors owe beneficiaries "a fiduciary
                                                                 called on to reveal confidential attorney-client
duty of full disclosure of all material facts known to them
                                                                 communications.
that might affect [the beneficiaries'] rights." Montgomery
v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984). See also                 The communications between Ringer and Huie made
TEX.PROP.CODE § 113.151(a) (requiring trustee to                 confidentially and for the purpose
account to beneficiaries for all trust transactions). This
duty exists independently of the rules of discovery,             Page 924
applying even if no litigious dispute exists between the
trustee and beneficiaries.                                       of facilitating legal services are protected. The
                                                                 attorney-client privilege serves the same important
    Chenault argues that the trustee's duty of disclosure        purpose in the trustee-attorney relationship as it does in
extends to any communications between the trustee and            other attorney-client relationships. A trustee must be able
the trustee's attorney. The fiduciary's affairs are the          to consult freely with his or her attorney to obtain the best
beneficiaries' affairs, according to Chenault, and thus the      possible legal guidance. Without the privilege, trustees
beneficiaries are entitled to know every aspect of Huie's        might be inclined to forsake legal advice, thus adversely
conduct as trustee, including his communications with            affecting the trust, as disappointed beneficiaries could
Ringer. We disagree.                                             later pore over the attorney-client communications in
                                                                 second-guessing the trustee's actions. Alternatively,
     The trustee's duty of full disclosure extends to all        trustees might feel compelled to blindly follow counsel's
material facts affecting the beneficiaries' rights. Applying     advice, ignoring their own judgment and experience. See
the attorney-client privilege does not limit this duty. In
In re Prudence-Bonds Corp., 76 F.Supp. 643, 647                  compromised by a barrier of confidentiality.
(E.D.N.Y.1948) (concluding that, without the privilege,
"the experience in management and best judgment by                    Id. Several English common-law cases, and treatises
[the trustee] is put aside ... which, in the end may result in   citing those cases, also support this view. See, e.g., In re
harm to the [beneficiaries]").                                   Mason, 22 Ch.D. 609 (1883); Talbot v. Marshfield, 2 Dr.
                                                                 & Sm. 549 (1865); Wynne v. Humbertson, 27 Beav. 421
     Chenault relies on Burton v. Cravey, 759 S.W.2d 160         (1858). See also BOGART, THE LAW OF TRUSTS
(Tex.App.--Houston [1st Dist.] 1988, no writ), for the           AND TRUSTEES, § 961 (2nd. ed. 1983); SCOTT, THE
proposition that the attorney-client privilege does not          LAW OF TRUSTS, § 173 (3rd ed. 1967).
apply where a party has a right to information
independently of the rules of discovery. In Burton,                  We decline to adopt this approach. We find the
condominium owners filed a trial court mandamus action           countervailing arguments supporting application of the
against the condominium association to enforce their             privilege, discussed previously, more persuasive.
statutory right to inspect the association's books and           Moreover, Rule 503 contains no exception applicable to
records.     See      TEX.PROP.CODE            §     81.209;     fiduciaries
TEX.REV.CIV.STAT.ANN. art. 1396-2.23. The trial
court allowed inspection of the records, including those         Page 925
in the possession of the association's attorney, finding as
                                                                 and their attorneys. If the special role of a fiduciary does
a factual matter that the attorney's records constituted part
                                                                 justify such an exception, it should be instituted as an
of the association's records. The court of appeals
                                                                 amendment to Rule 503 through the rulemaking process.
affirmed, holding that the attorney-client privilege did not
                                                                 Ringer testified that he had the "fullest expectation" that
apply in light of the owners' unqualified right of
                                                                 his communications with Huie would be privileged. This
inspection. 759 S.W.2d at 162.
                                                                 expectation was justified considering the express
     It is unclear whether the records at issue in Burton        language of Rule 503 protecting confidential
were merely records of the association in the possession         attorney-client communications. We should not thwart
of the attorney, or whether they contained separate              such legitimate expectations by retroactively amending
confidential attorney-client communications. To the              the rule through judicial decision.
extent that they consisted of the former, we agree that
                                                                      We thus hold that, while a trustee must fully disclose
they were not protected. See Brotherton, 851 S.W.2d at
                                                                 material facts regarding the administration of the trust,
199. However, to the extent that the court held that the
                                                                 the attorney-client privilege protects confidential
owners' statutory right of inspection somehow trumped
                                                                 communications between the trustee and his or her
the     privilege    for     confidential   attorney-client
                                                                 attorney under Rule 503. [4]
communications, we disapprove of its holding, for the
reasons previously discussed. We also disapprove of the              III
court's dicta that the trial court could, in its discretion,
decline to apply the attorney-client privilege even if all           A
the elements of Rule 503 were met. See 759 S.W.2d at
162.                                                                  We also reject the notion that the attorney-client
                                                                 privilege does not apply because there was no true
     Chenault also relies on a study by the Section of Real      attorney-client relationship between Huie and Ringer.
Property, Probate and Trust Law of the American Bar              This argument finds support in some other jurisdictions,
Association, entitled Report of the Special Study                where courts have held that an attorney advising a trustee
Committee on Professional Responsibility--Counselling            in connection with the trustee's fiduciary duties in fact
the Fiduciary. See 28 REAL PROP., PROB. & TR.J. 823              represents the trust beneficiaries. Accordingly, the trustee
(1994). This study concludes that, while counsel retained        has no privilege to withhold confidential communications
by a fiduciary ordinarily represents only the fiduciary, the     from the beneficiaries. See, e.g., Wildbur v. ARCO
counsel should be allowed to disclose confidential               Chemical Co., 974 F.2d 631 (5th Cir.1992); United States
communications relating to trust administration to the           v. Evans, 796 F.2d 264 (9th Cir.1986); In the Matter of
beneficiaries. Id. at 849-850. The study reasoned as             Torian, 263 Ark. 304, 564 S.W.2d 521 (1978); Riggs
follows:                                                         Nat'l Bank of Washington v. Zimmer, 355 A.2d 709
                                                                 (Del.Ch.1976); In re Hoehl's Estate, 181 Wis. 190, 193
The fiduciary's duty is to administer the estate or trust for    N.W. 514 (1923). The court in Riggs reasoned as follows:
the benefit of the beneficiaries. A lawyer whose
assignment is to provide assistance to the fiduciary during      As a representative for the beneficiaries of the trust which
administration is also working, in tandem with the               he is administering, the trustee is not the real client in the
fiduciary, for the benefit of the beneficiaries, and the         sense that he is personally being served. And, the
lawyer has the discretion to reveal such information to          beneficiaries are not simply incidental beneficiaries who
the beneficiaries, if necessary to protect the trust estate.     chance to gain from the professional services rendered.
The interests of the beneficiaries should not be                 The very intention of the communication is to aid the
beneficiaries.... In effect, the beneficiaries were the              Chenault also argues that communications between
clients of [the trustees' attorney] as much as the trustees     Ringer and Huie should be disclosed under the
were, and perhaps more so.                                      crime-fraud exception to the attorney-client privilege. See
                                                                TEX.R.CIV.EVID. 503(d)(1). Chenault does not argue
    355 A.2d at 713-14.                                         that the alleged breaches of trust for which she is suing
                                                                are crimes or fraud within this exception; rather, she
     We conclude that, under Texas law at least, the            contends that the failure to disclose communications in
trustee who retains an attorney to advise him or her in         and of itself is fraud. Because we have held that the
administering the trust is the real client, not the trust       trustee's invocation of the attorney-client privilege does
beneficiaries. See Thompson v. Vinson & Elkins, 859             not violate his or her duty of full disclosure, we find
S.W.2d 617 (Tex.App.--Houston [1st Dist.] 1993, writ            Chenault's crime-fraud argument to be without merit.
denied) (beneficiary lacked standing to sue trustee's
attorney for malpractice, as no attorney-client                     V
relationship existed between them). "Client" is defined
under Rule 503 as                                                   A

a person, public officer, or corporation, association, or            The party resisting discovery bears the burden of
other organization or entity, either public or private, who     proving any applicable privilege. See State v. Lowry, 802
is rendered professional legal services by a lawyer, or         S.W.2d 669, 671 (Tex.1991). Chenault argues that even if
who consults a lawyer with a view to obtaining                  the attorney-client privilege is otherwise available, Huie
professional legal services from him.                           failed to carry his evidentiary burden to establish its
                                                                applicability in this case.
     TEX.R.CIV.EVID. 503(a)(1). It is the trustee who is
empowered to hire and consult with the attorney and to              Ringer, who was allowed to give testimony in
act on the attorney's advice. While Huie owes fiduciary         narrative form, testified in part as follows:
duties to Chenault as her trustee, he did not retain Ringer
to represent Chenault, but to represent himself in carrying     The questions that were propounded to me during my
out his fiduciary duties. Ringer testified, for example, that   deposition by [Chenault's counsel] I believe were
he has "never given any legal advice to Mrs. Chenault,"         argumentative, and they sought to go at the very core of
and in fact had only seen her on a few isolated occasions.      things I understood, things that I knew, or even questions
It would strain reality to hold that a trust beneficiary, who   that related to whether something occurred or not, would
has no direct professional relationship with the trustee's      go to the essence of the advice and communication. I
attorney, is the real client. See In re Prudence-Bonds          have always handled my work with Mr. Huie with the
Corp., 76 F.Supp. 643 (E.D.N.Y.1948); Shannon v.                fullest expectation that my correspondence with him and
Superior Court,                                                 my communications with him and his correspondence
                                                                with me and his communication with me would be
Page 926                                                        privileged.... I also have Mr. Huie's instruction and
                                                                expectation that his communications be confidential....
217 Cal.App.3d 986, 266 Cal.Rptr. 242, 246 (1990). We
thus hold that Huie, rather than Chenault, was Ringer's              Ringer did not specifically address any of the
client for purposes of the attorney-client privilege.           numerous certified questions before the court, and thus
                                                                there is no testimony about whether or why each
    B                                                           particular question calls for the disclosure of confidential
                                                                communications. Chenault thus contends that Huie did
     Chenault also advances an argument on                      not prove "what particular deposition testimony would
post-submission brief to this Court that the trust itself was   entrench upon the alleged attorney-client privilege...."
Ringer's real client. This approach, however, is                Huie responds that many of the questions on their face
inconsistent with the law of trusts. Mrs. Huie created the      call for privileged communications, but at the same time
testamentary trusts by devising property to Huie as             concedes that other questions "arguably present a close
trustee. See TEX.PROP.CODE § 112.001(3). It is Huie             question as to whether confidential attorney-client
that holds the trust property for the benefit of Chenault,      communications ... would be compromised."
and it is Huie that is authorized to hire counsel. See
TEX.PROP.CODE § 113.018. The term "trust" refers not                 The trial court's ruling is based on its conclusion that
to a separate legal entity but rather to the fiduciary          the attorney-client privilege does not apply to any
relationship governing the trustee with respect to the trust    pre-litigation communications between a trustee and the
property. See TEX.PROP.CODE § 111.004. Ringer thus              trustee's attorney, a contention we have rejected. In light
represented Huie in his capacity as trustee, not the "trust"    of this holding, we believe the trial court should have an
as an entity.                                                   opportunity to consider, in the first instance, whether
                                                                Huie has carried his evidentiary burden as to each of the
    IV                                                          certified questions for which Ringer claimed, on Huie's
                                                                behalf, the attorney-client privilege. The court may, in its
discretion, receive further evidence from the parties.          Further, we do not believe it is determinative that Ringer
                                                                was compensated from trust funds, rather than by Huie
    B                                                           personally, before Chenault filed suit. The determinative
                                                                factor for the work-product privilege is instead whether
    Chenault further argues that many of the certified          litigation was anticipated. While we express no opinion
questions relate to federal tax returns                         on whether it was proper for Ringer to be compensated
                                                                from trust funds for any work that may have been done in
Page 927
                                                                anticipation of litigation, we hold that any such
filed by the estate. Relying on cases interpreting the          impropriety would not abrogate the work-product
federal attorney-client privilege, she contends that the        privilege. See Lasky, Haas, Cohler & Munter v. Superior
privilege does not apply when an attorney is employed to        Court, 172 Cal.App.3d 264, 218 Cal.Rptr. 205 (1985)
prepare tax returns, as the attorney is primarily               (public policy underlying full disclosure by trustee does
performing accounting, rather than legal, services. See,        not overcome work-product privilege, even where
e.g., In re Grand Jury Investigation, 842 F.2d 1223, 1225       attorney is compensated from trust corpus).
(11th Cir.1987); United States v. Davis, 636 F.2d 1028,
                                                                    Because the trial court concluded that the
1043 (5th Cir.1981); Canaday v. United States, 354 F.2d
                                                                work-product privilege did not apply to materials or
849, 857 (8th Cir.1966). But see Colton v. United States,
                                                                communications generated prior to the time suit was filed
306 F.2d 633, 637 (2d Cir.1962), cert. denied, 371 U.S.
                                                                and Huie began personally compensating Ringer, it
951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963).
                                                                appears that the court never reached the issue of when
     The attorney-client privilege embodied in Rule 503         Huie anticipated litigation. The court should therefore
requires that the communication be "made for the purpose        reconsider Huie's work-product objections in accordance
of facilitating the rendition of professional legal services    with this opinion.
to the client...." The trial court, in considering whether
                                                                     VII
Huie has met his evidentiary burden, should in the first
instance determine whether this element is satisfied as to           Chenault argues that because the legal question
each of the certified questions.                                confronting the trial court was an issue of first impression
                                                                in Texas, the court could not have "abused its discretion"
    VI
                                                                in resolving the issue, and thus mandamus relief is
     The     trial    court  also    overruled   Huie's         inappropriate. We disagree. "A trial court has no
attorney-work-product objections as to communications           'discretion' in determining what the law is or applying the
made before the date Chenault filed suit. Huie contends         law to the facts." Walker v. Packer, 827 S.W.2d 833, 840
that the work-product privilege protects communications         (Tex.1992). Consequently, the trial court's erroneous
made after 1988, the time when he contends that he              legal conclusion, even in an
anticipated litigation.
                                                                Page 928
     An attorney's "work product" refers to "specific
                                                                unsettled area of law, is an abuse of discretion. See
documents, reports, communications, memoranda, mental
                                                                Lunsford v. Morris, 746 S.W.2d 471 (Tex.1988).
impressions, conclusions, opinions, or legal theories,
                                                                Moreover, because the trial court's order compels the
prepared and assembled in actual anticipation of litigation
                                                                disclosure of potentially privileged information, Huie
or for trial." National Tank Co. v. Brotherton, 851
                                                                lacks an adequate remedy by appeal. See Walker, 827
S.W.2d 193, 200 (Tex.1993). The trial court did not rule
                                                                S.W.2d at 843.
on Huie's claims of work-product privilege independently
of his claims of attorney-client privilege; rather, the court        We therefore conditionally grant the writ of
summarily overruled both of these claims as to all              mandamus and direct the trial court to vacate its July 19,
pre-litigation communications. It thus appears that the         1995, discovery order. The trial court shall reconsider
trial court concluded, as it did for the attorney-client        Huie's      claims       of       attorney-client       and
privilege, that the work-product privilege simply does not      attorney-work-product privilege in accordance with this
apply in the fiduciary-attorney relationship prior to the       opinion. The court may in its discretion receive additional
time suit is actually filed.                                    evidence from the parties.

     We disagree with this conclusion. The policy reasons       ---------
supporting the attorney-client privilege in the context of
the fiduciary-attorney relationship support even more           Notes:
strongly the work-product privilege, as the latter protects
the confidentiality of work prepared in anticipation of         [1] Chenault sued individually, as next friend of her
litigation. There can be little dispute that a fiduciary must   minor daughter, and as next friend of her minor niece,
be allowed some measure of confidentiality in defending         who is under Chenault's conservatorship. Chenault also
against an anticipated suit for breach of fiduciary duty.       named several business associates of Huie as additional
defendants.

[2] The trial court initially relied on Texas Rule of Civil
Evidence 503(d)(5), which creates an exception to the
attorney-client privilege as between joint clients of an
attorney regarding matters of common interest to the
clients. The court, however, later amended its order to
delete this reference.

[3] Chenault argues for the first time in a post-submission
brief that Ringer represented the trust itself as an entity,
rather than Huie as trustee. This argument is addressed in
section III-B below.

[4] Chenault also argues that Huie, by accepting the
appointment as trustee with knowledge of his duty of
disclosure, impliedly waived the protection of the
attorney-client privilege. Because we conclude that a
trustee does not violate the duty of full disclosure by
invoking the attorney-client privilege, we reject this
waiver argument.

---------
Page 4                                                         order," instructing the ad litem, parties and counsel to
                                                               "cease and desist any discussion of this case outside the
834 S.W.2d 4 (Tex. 1992)                                       court hearing" and prohibiting any "communications with
                                                               any other lawyer or discussion at all about the matters
Valorie W. DAVENPORT                                           that have transpired in this case."

v.                                                                  On September 10 the trial court dismissed
                                                               Davenport, concluding that because the parents were no
The Honorable Carolyn GARCIA.
                                                               longer seeking either individual recovery or expense
                                                               reimbursement, no conflict of interest existed to justify
No. D-1558.
                                                               continuation of the ad litem. The court also found
Supreme Court of Texas.                                        unnecessary ad litem oversight of a medical monitoring
                                                               program proposed by defendants as part of a settlement.
June 17, 1992                                                  While noting that the parents' counsel had "competently
                                                               handled [this] litigation" in "secur[ing] a generous
     Rehearing Overruled Sept. 9, 1992.                        settlement proposal for the minor children," Judge Garcia
                                                               did not specify any change in circumstances following
Page 5                                                         Judge Trevathan's appointment of Davenport. The next
                                                               day, again on its own motion, the court entered a
     Valorie W. Davenport, Houston, for appellant.
                                                               protective order requiring that:
   Marty R. Akins, B. Lee Ware, Russell B. Serafin,
                                                               1. Counsel in this case, present and former, are expressly
Tom L. Pettiette, Houston, for appellee.
                                                               ORDERED to refrain from discussing or publishing in
                                                               writing or otherwise, any matters of this case with any
     OPINION
                                                               persons other than their clients, agents, or employees in
     DOGGETT, Justice.                                         the necessary course of business in this case.

     In this mandamus proceeding, we address three             2. Counsel is ORDERED to refrain from any public
issues: (1) the ability of a judge to suppress speech with a   comment, casual or otherwise concerning the facts of this
"gag order;" (2) whether Relator was impermissibly             case or the conduct of counsel in this case other than in a
denied access to court records; and (3) the appropriate        court hearing.
standard for removal of a guardian ad litem. Applying our
                                                               3. Counsel is ORDERED to inform their clients,
state constitutional
                                                               witnesses, agents and representatives that this ORDER
Page 6                                                         extends to each of them and is subject to a finding of
                                                               contempt by this court from disobedience, direct or
guarantee of free expression to invalidate the trial court's   indirect comment intended to violate this ORDER.
unconstitutional prior restraint on speech, we grant this      Counsel was and is directed to communicate with their
part of the petition for writ of mandamus. Because the         clients only, and advise each that they are directed to
trial court did not otherwise abuse its discretion, the        refrain from discussing the case except with counsel.
remainder of the petition is denied.
                                                               I. The Gag Order
     A guardian ad litem was appointed to represent two
hundred and thirteen children among numerous persons                The trial court correctly characterized as a "gag
who brought suit concerning toxic chemical exposure at         order" its oral injunction of August 23, which prohibited
the Brio Dump site in Harris County. In a 1987                 all discussion of the Brio case outside the courtroom.
settlement the adults released all claims to future medical    Personally informed by the judge that she was "relieved
benefits for their children, and in 1989 the ad litem          of responsibility," and that she had "been ordered by the
withdrew. In February 1990 Judge Alice Trevathan, then         Court not to discuss the case with anyone," Relator risked
the presiding judge, appointed Valorie Davenport,              contempt should she speak either in public or even in
Relator herein, as guardian ad litem.                          private to any of the children whose interests she had
                                                               represented. Nor did the order permit any party to discuss
     After eighteen months of work, Davenport submitted        the case or the pending settlement with a family
a bill for her services on August 21, 1991. At a hearing       physician, medical expert, or another attorney.
two days later, Judge Carolyn Garcia, who had become
the presiding trial judge, on her own motion, questioned           These limitations were reiterated in the written
the continued need for a guardian ad litem. Additionally,      protective order of September 12, which prohibited any
the court entered an oral injunction, described as a "gag      public comment or discussion of the litigation with
anyone not involved in the "necessary course of business      protect speech:
of this case." Counsel were also directed to inform their
clients of the order's applicability to each of them. The     Every citizen shall be at liberty to speak, write, or publish
sole reason given for this sweeping injunction was the        his opinions on any subject, being responsible for the
finding that "conflicts between counsel and the parents of    abuse of that privilege. No law shall ever be passed to
the minor children were resulting in miscommunications        curtail the liberty of speech or of the press; and in all
                                                              prosecutions for libels, the truth may be given in
Page 7                                                        evidence, and the jury shall have the right to determine
                                                              the law and fact, under the direction of the court.
with the parents of the children and with the media and
general public."                                                  Constitution of the Republic of Texas, Declaration of
                                                              Rights § 4 (1836). [5] Rather than
     We consider whether the court's gag orders violate
the guarantee of free expression contained in article I,      Page 8
section 8 of the Texas Constitution, which provides in
pertinent part:                                               a restriction on governmental interference with speech
                                                              such as that provided by the First Amendment of the
Every person shall be at liberty to speak, write or publish   United State Constitution, Texans chose from the
his opinions on any subject, being responsible for the        beginning to assure the liberties for which they were
abuse of that privilege....                                   struggling with a specific guarantee of an affirmative
                                                              right to speak. This language of the Texas Independence
    The history of this provision is a rich one, and its      Constitution became the model for all of our subsequent
language demonstrates Texas' strong and longstanding          state constitutions.
commitment to free speech. By the plain language of our
constitution, this fundamental liberty "shall forever              At the 1845 constitutional convention, after renewed
remain inviolate." Tex. Const. art. I, § 29.                  deliberation concerning the terms of the free speech
                                                              provision, [6] the 1836 language was kept largely intact.
     From the outset of this state's history, freedom of      [7] What had been the Declaration of Rights was, as
expression was a priority. As rural communities               otherwise revised, renamed the Bill of Rights and moved
developed from the wilderness in the young region,            to a place of overriding prominence, at the outset of the
Mexico passed the Constitutive Act of 1824, uniting           Constitution. The next three constitutions in 1861, 1866,
Coahuila and Texas into one Mexican state. Already            and 1869 retained this language amidst intense public
integrated into the government and with nine times the        debate over secession [8] and reconstruction.
population of Texas, Coahuila predominated. After
unsuccessful efforts to have the new state government              The drafters of the 1876 Constitution began their
forward their written complaints or remonstrances to the      convention with a heightened sensitivity of the need for a
central government, [1] dissatisfied Texans sought in         strong state constitution. [9] While major changes in the
1833 a Mexican state constitution separate from               Bill of Rights were not initially anticipated, [10] vigorous
Coahuila. This first proposed constitution incorporated       debate ensued. [11] Delegate McLean's efforts to tie
the strong desire of Texans to speak without fear of          freedom of speech to "good motives" in the libel section
governmental repression:                                      was disapproved. [12] Additionally, a proposal to replace
                                                              the existing free expression provision with alternative
The free communication of thoughts and opinions, is one       language more similar to that of the First Amendment of
of the inviolable rights of man; and every person may         the United States Constitution was explicitly rejected.
freely speak, write, print, and publish, on any subject,      [13] By substituting the word "person" for the prior
being responsible for the abuse of that liberty.              "citizen" in the current language of article one, section
                                                              eight, "[e]very person shall be at liberty to speak, write,
     Proposed Constitution for the State of Texas (1833)      or publish his opinions on any subject," the delegates
art. 16, reprinted in Documents of Texas History, at 80       removed any citizenship requirement. Compare Tex.
(Ernest Wallace ed. 1963). As an early advocate of a          Const. of 1845, art. I, §§ 5-6. In their careful attention to
strong state constitution, [2] Stephen F. Austin was jailed   its language, Texans once again chose protection in
for his outspokenness in personally carrying this             article one, section eight that is highly distinct from the
proposed charter and other remonstrances to Mexico            First Amendment. Continued inclusion of an expansive
City. [3] The authoritarianism and unresponsiveness of        freedom of expression clause and rejection of more
Mexico to these attempts to exercise and establish            narrow protections indicates a desire in Texas to ensure
protection of free speech were a contributing factor to       broad liberty of speech.
Texas' revolution and independence. [4]
                                                                   Consistent with this history, we have recognized that
    Although the 1836 Texas Independence Constitution         in some aspects our free speech provision is broader than
in general closely tracked the wording of the United          the First Amendment. O'Quinn v. State Bar of Texas, 763
States Constitution, different language was chosen to         S.W.2d 397, 402 (Tex.1988) (noting that "Texas' free
speech right [has been characterized] as being broader           88 S.W.2d 104 (App.1935) (orig. proceeding); Ex Parte
than its federal equivalent," the court concluded that "it is    Foster, 44 Tex.Cr.R. 423, 71 S.W. 593 (App.1903).
quite obvious that the Texas
                                                                      This court previously indicated that a prior restraint
Page 9                                                           would be permissible only when essential to the
                                                                 avoidance of an impending danger. Hajek v. Bill
Constitution's affirmative grant of free speech is more          Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983)
broadly worded than the first amendment"); Channel 4,            (striking down an injunction because the language at
KGBT v. Briggs, 759 S.W.2d 939, 944 (Tex.1988)                   issue "evoked no threat of danger to anyone and,
(Gonzalez, J., concurring) (the state provision is "more         therefore, may not be subject to the prior restraint of a
expansive than the United States Bill of Rights"). See           temporary injunction."). See also Dallas General Drivers,
also Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989)              Warehousemen and Helpers v. Wamix, Inc. of Dallas,
("our state free speech guarantee may be broader than the        156 Tex. 408, 295 S.W.2d 873, 879 (1956); Ex Parte
corresponding federal guarantee").                               Tucker, 220 S.W. at 76 (speech is properly restrained
                                                                 only when involving an actionable and immediate threat);
     Under our broader guarantee, it has been and remains        Pirmantgen v. Feminelli, 745 S.W.2d 576, 579
the preference of this court to sanction a speaker after,        (Tex.App.--Corpus Christi 1988, no writ) (restriction
rather than before, the speech occurs. This comports with
article one, section eight of the Texas Constitution, which      Page 10
both grants an affirmative right to "speak ... on any
subject," but also holds the speaker "responsible for the        against disseminating an allegedly libelous letter was an
abuse of that privilege." The presumption in all cases           unconstitutional prior restraint).
under section eight is that pre-speech sanctions or "prior
restraints" are unconstitutional. Ex Parte Price, 741                 Since the dimensions of our constitutionally
S.W.2d 366, 369 (Tex.1987) (Gonzalez, J., concurring)            guaranteed liberties are continually evolving, today we
("Prior restraints ... are subject to judicial scrutiny with a   build on our prior decisions by affirming that a prior
heavy presumption against their constitutional validity.");      restraint on expression is presumptively unconstitutional.
Amalgamated Meat Cutters v. Carl's Meat and Provision            With this concept in mind, we adopt the following test: a
Co., 475 S.W.2d 300 (Tex.Civ.App.--Beaumont 1971,                gag order in civil judicial proceedings will withstand
writ dism'd). [14]                                               constitutional scrutiny only where there are specific
                                                                 findings supported by evidence that (1) an imminent and
    In Ex Parte Tucker, 110 Tex. 335, 220 S.W. 75                irreparable harm to the judicial process will deprive
(1920), this court applied section eight to safeguard            litigants of a just resolution of their dispute, and (2) the
speech which may not otherwise have been guaranteed              judicial action represents the least restrictive means to
under the First Amendment as interpreted in that era.            prevent that harm. Assisting our analysis are federal cases
That case involved an injunction prohibiting union               that have addressed prior restraints. The standard
members from "vilifying, abusing, or using ... epithets"         enunciated in Nebraska Press Ass'n v. Stuart, 427 U.S.
against the employees of a particular company. While             539, 563-64, 96 S.Ct. 2791, 2804-05, 49 L.Ed.2d 683
such "fighting words" may not have been federally                (1976), does not, however, sufficiently protect the rights
protected, [15] the court relied upon our own                    of free expression that we believe that the fundamental
constitution:                                                    law of our state secures. Today we adopt a test
                                                                 recognizing that article one, section eight of the Texas
The purpose of [article one, section eight] is to preserve       Constitution provides greater rights of free expression
what we call "liberty of speech" and "the freedom of the         than its federal equivalent. [16]
press," and at the same time hold all persons accountable
to the law for the misuse of that liberty or freedom.                 We are fully aware that a prior restraint will
Responsibility for the abuse of the privilege is as fully        withstand scrutiny under this test only under the most
emphasized by its language as that the privilege itself          extraordinary circumstances. That result is consistent
shall be free from all species of restraint. But the abuse of    with the mandate of our constitution recognizing our
the privilege ... shall be dealt with in no other way. It is     broad right to freedom of expression in Texas. An
not to be remedied by denial of the right to speak, but          individual's rights under the state constitution do not end
only by appropriate penalties for what is wrongfully             at the courthouse door; rather, the courthouse is properly
spoken. Punishment for the abuse of the right, not               the fortress of those rights.
prevention of its exercise, is what the provision
contemplates.                                                         The first requirement of our standard advances from
                                                                 the prior holdings of Texas courts that only an imminent,
      220 S.W. at 76. In two early prior restraint cases, the    severe harm can justify prior restraint, and in the context
Court of Criminal Appeals also relied on the state               of gag orders, that harm must be to the judicial process.
constitution to void injunctions prohibiting publication of      Ex Parte McCormick, 88 S.W.2d 104; Ex Parte Foster,
trial testimony. Ex Parte McCormick, 129 Tex.Cr.R. 457,          71 S.W. at 595. The mandate that findings of irreparable
harm be made is based on our state constitutional              II. The Role of the State Constitution
preference for post-speech remedies. Only when no such
meaningful remedies exist will prior restraints be                  Having found that the trial court's gag orders violate
tolerated in this context.                                     article I, section 8 of the Texas Constitution, this court
                                                               need not consider whether the United States Constitution
    The second part of the test is intended to ensure that     has also been violated. Today we reaffirm our prior
no alternative exists to treat the specific threat to the      pronouncement that "[o]ur constitution has independent
judicial process which would be less restrictive of state      vitality, and this court has the power and duty to protect
speech rights. While this element is shared in common          the additional state guaranteed rights of all Texans."
with the ruling in Nebraska Press, 427 U.S. at 563-64, 96      LeCroy v. Hanlon, 713 S.W.2d 335, 339 (Tex.1986). We
S.Ct. at 2804-05, [17] we view the federal test announced      decline to

Page 11                                                        Page 12

therein [18] as too permissive toward prior restraints and     limit the liberties of Texans to those found in the Federal
decline to adopt it. [19] The federal approach offers only     Constitution when this court is responsible for the
limited guidance concerning gag orders such as that            preservation of Texas' own fundamental charter. When a
involved here, which restrict access to information by         state court interprets the constitution of its state merely as
prohibiting individuals from discussing a case. [20] Such      a restatement of the Federal Constitution, it both insults
orders should be treated like any other prior restraint.       the dignity of the state charter and denies citizens the
                                                               fullest protection of their rights.
     Applying this test to the facts of this case, there can
be no doubt but that the gag orders violated article one,      A.
section eight of the Texas Constitution. The orders fail to
identify any miscommunication that the trial court may              Over the past twenty years, state courts have
have perceived, does not indicate any specific, imminent       increasingly looked to their own constitutions, rather than
harm to the litigation, and offers no explanation of why       the Federal Constitution, in examining the extent of their
such harm could not be sufficiently cured by remedial          citizens' liberties. [21] This trend toward what has
action. For instance, had any miscommunication                 variously been called "state constitutionalism" and "new
stemmed from improper statements by Relator, as                federalism" has met with broad approval. [22] Numerous
implied by the court, the proper response may have been        commentators and courts, both state and federal, have
to sanction her conduct. By stopping not only the              advocated and applied a method of constitutional analysis
purported miscommunications but any communications,            wherein the state court may examine its own constitution
the broadly worded injunction certainly fails the second       first to determine whether the right in question is
part of our test.                                              protected. [23] Within the context of such an analysis, a
                                                               state court can benefit
     While a gag order may be expeditious in producing a
settlement, decisions to terminate litigation based on lack    Page 13
of information can facilitate injustice. Additionally, "the
argument of convenience can have no weight as against          from the insights of well-reasoned and developed federal
those safeguards of the constitution which were intended       jurisprudence, but is not compelled to reach identical
by our fathers for the preservation of the rights and          results.
liberties of the citizen." Ex Parte McCormick, 88 S.W.2d
                                                                    Our courts recognized the importance of our state
at 107. These liberties are central to the Texas
                                                               constitution long before "new federalism" even had a
Constitution. We have before announced:
                                                               name. A century-long line of Texas cases support
Let it at once be admitted that courts may arrogate the        applying our state's constitution, [24] particularly in the
authority of deciding what the individual may say and          area of free speech. Our decision in 1920 to rely on the
may not say, what he may write and may not write, and          plain language of article I, section 8 in striking down a
by an injunction writ require him to adapt the expression      prior restraint in Ex Parte Tucker, 220 S.W. at 76,
of his sentiments to only what some judge may deem             predated the application of the First Amendment to the
fitting and proper, and there may be readily brought           states. See Ex Parte Price, 741 S.W.2d 366, 369
about the very condition against which the constitutional      (Tex.1987) (Gonzalez, J., concurring). [25]
guaranty was intended as a permanent protection. Liberty
                                                                    In Traveler's Insurance Co. v. Marshall, 124 Tex. 45,
of speech will end where such control begins.
                                                               76 S.W.2d 1007, 1010 (1934), this court struck down a
    Ex Parte Tucker, 220 S.W. at 76 (emphasis added).          state statute solely under the Texas Constitution,
We conclude today, as we did over seventy years ago,           dismissing relevant caselaw interpreting a similar federal
that the judicially imposed gag orders in question are         constitutional provision regarding the state's police power
void.                                                          because "it can have no application to the Constitution of
                                                               Texas." The court explained that "[i]t is quite obvious the
same rule of interpretation cannot be applied to the           in our constitution, the court concluded that "[c]learly our
contract clause in our State Constitution...." Id., 76         own state constitution was not intended by our own
S.W.2d at 1011.                                                founding fathers to mirror that of the federal
                                                               government." Id. at 690.
     In Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), we
invalidated a statute of limitations under the Texas                This commitment of Texas to its own constitution is
Constitution's open courts provision. While expressly          consistent with the principle of federalism embodied in
recognizing that the appeal was brought under both             the United States Constitution. Its authors intended that
federal and state law, id. at 663, the court concluded that    "[i]n the compound republic of America, the power
because article I, section 13 "does accord Texas citizens      surrendered by the people is divided between two distinct
additional rights, we choose not to decide this case on the    governments.... Hence a double security arises to the
basis of the United States Constitution." Id. at 664. [26]     rights of the people." The Federalist No. 51, at 323
Holding      legislation    increasing    a    filing   fee    (James Madison) (Clinton Rossiter ed., 1961) (emphasis
unconstitutional under the state open courts provision, we     added). The United States Supreme Court has long
noted in LeCroy, 713 S.W.2d at 338, that "state                recognized that "[i]t is fundamental that state courts be
constitutions can and often do provide additional rights       left free and unfettered by us in interpreting their state
for their citizens." [27] We relied on the Texas               constitutions." Minnesota v. National Tea Co., 309 U.S.
Constitution because "[b]y enforcing our constitution, we      551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940). It has
provide Texans with their full individual rights and           reiterated its unwillingness to "limit the authority of the
strengthen federalism." Id. at 339 (emphasis added). In        State ... to adopt in its own Constitution individual
doing so we observed that Texas is "in the mainstream of       liberties more expansive than those conferred by the
                                                               Federal Constitution." Pruneyard Shopping Center v.
Page 14                                                        Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64
                                                               L.Ed.2d 741 (1980). Noting that the language of the
this [state constitutionalism] movement." Id. at 338. The      Texas Constitution's due process and equal protection
next year, the court voided a gender-based distinction in      clauses is broader than the federal, it has concluded that:
the Family Code based solely on the Texas Constitution.
In re Baby McLean, 725 S.W.2d 696, 698 (Tex.1987)              [A] state is entirely free to read its own State's
("[b]ecause we hold that [a provision] of the Texas            constitution more broadly than this Court reads the
Family Code violates the Texas Constitution, we need not       Federal Constitution, or to reject the mode of analysis
reach the federal law issues"). Hence, in the past decade      used by this Court in favor of a different analysis of its
this court has strongly reaffirmed its continued               corresponding constitutional guarantee.
commitment to our state constitution. [28]
                                                               Page 15
     This approach has also been embraced by our sister
court, the Texas Court of Criminal Appeals. We give                City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
thoughtful consideration to that court's analysis in part to   283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982).
avoid conflicting methods of constitutional interpretation     [30] Indeed, the failure of a state judiciary to rely on its
in our unusual system of bifurcated highest courts of          own constitution has appropriately been criticized for
appeal. See Commissioners' Court of Nolan County v.            "thereby increas[ing] its own burdens as well as ours."
Beall, 98 Tex. 104, 81 S.W. 526, 528 (1904). As noted          Massachusetts v. Upton, 466 U.S. 727, 735, 104 S.Ct.
above, in two early prior restraint cases, the Court of        2085, 2089, 80 L.Ed.2d 721 (1984) (per curiam)
Criminal Appeals applied the state constitution to strike      (Stevens, J., concurring). [31]
down orders that the press not publish testimony until
after a trial was completed. In Ex Parte Foster, 71 S.W.            The only limit on the states is that, in relying on their
593, the court looked both to Texas' free speech clause        constitutions, they may not deny individuals the
and also our guarantee of public trials. Id. at 595. A year    minimum level of protection mandated by the Federal
after this court decided Traveler's Insurance Co. v.           Constitution. See Sax, 648 S.W.2d at 664 ("While it is
Marshall, the Court of Criminal Appeals again relied on        true that state constitutional protections cannot subtract
the state constitution in deciding Ex Parte McCormick,         from those rights guaranteed by the United States
88 S.W.2d 104, an equally notable case. [29] Most              Constitution, there certainly is no prohibition against a
recently in Heitman v. State, 815 S.W.2d 681                   state providing additional rights for its citizens."); LeCroy
(Tex.Crim.App.1991) (en banc), the argument that the           v. Hanlon, 713 S.W.2d at 338. This approach has been
Texas Constitution intended harmony with the federal           referred to as a "federal safety net," ensuring that
Fourth Amendment was disavowed. Id. at 682. The court          individuals receive all available guarantees of their rights.
explained that it "may review and 'rethink' federal            Shirley S. Abrahamson, Reincarnation of State Courts, 36
constitutional decisions and thereby ensure that ...           Sw.L.J. 951, 959 (1982).
[Texas] citizens will have the 'double security' the federal
constitution was intended to provide." Id. at 687. After           The involvement of state courts is particularly
analysis of the history and placement of the Bill of Rights    appropriate in the protection of free speech rights. Both
state and federal courts have recognized such rights "as           Just as our history is distinctive in its insistence that
involving community standards and local trends." Judith       our constitution is of independent force, so is the very
S. Kaye, A Midpoint Perspective on Directions in State        letter of that fundamental document. The Texas
Constitutional Law, 1 Emerging Issues in St.Const.L. 17,      Constitution begins with the declaration that: "Texas is a
23 (1988). Particularly in the context of judicial            free and independent State, subject only to the
proceedings, state courts have long been involved with        Constitution of the United States, and the maintenance of
the protection of speech rights. [32] In the current case,    our free institutions and perpetuity of the Union depend
the state interest is all the greater since at issue is the   upon the preservation of the right of local
order of a Texas judge instructing members of the Texas       self-government, unimpaired to all the States."
bar and their Texan clients not to discuss a case ongoing     Tex.Const. art. I, § 1. Citing this article as a reason for
in a Texas court with anyone.                                 ratifying the 1876 Constitution, Governor Coke explained
                                                              that:
B.
                                                              [T]he new constitution declares, not as does the old one,
     Our Texas charter bears the distinction of being one     that ... the perpetuity of our free institutions depends upon
of the few state constitutions that were derived from its     the preservation unimpaired of the right of local
own independent, national constitution. See M.P. Duncan       self-government to all the States. The reassertion of these
III, Terminating the Guardianship: A New Role for State       great principles of government, and the expulsion from
Courts, 19 St. Mary's L.J. 809, 839 (1988) (hereinafter       our organic law of that insult to the intelligence of the
Duncan, State Courts ). [33] As we emphasized in              people of Texas, which denies them the right of
LeCroy,                                                       self-government, their heritage and birthright ... and
                                                              declares them [mere] vassals and serfs of [the federal
Page 16                                                       government], is worth a thousand fold the cost and effort
                                                              expended in making the new constitution, even if no
"[t]he powers restricted and the individual rights
                                                              other changes had been made.
guaranteed in the present constitution reflect Texas'
values, customs, and traditions." 713 S.W.2d at 339. The           Address of Governor Coke, in Ratify, Galveston
diverse drafters of our Constitution represented a            Daily News, Dec. 19, 1875 at 2, col. 4 (emphasis added)
"heterogenous miscellany of opinions." [34] The               (hereinafter Coke Address). [40] The prominent language
experiences and philosophies of this group were far           of section one and the words of its framers clarify that
different than those who sat in a Philadelphia meeting        our current Constitution intends to maintain the vitality
hall a century earlier. [35] As expressed by one              and independence of our state law to the extent
commentator, "[o]ur Texas Forbears surely never               permissible under the Federal Constitution.
contemplated that the fundamental state charter, crafted
after years of rugged experience on the frontier and               Basing decisions on the state constitution whenever
molded after reflection on the constitutions of other         possible avoids unnecessary federal review. This not only
states, would itself veer in meaning each time the United     lessens federal interference into state issues, but also
States Supreme Court issued a new decision." James C.         results in "efficient judicial management." [41] This
Harrington, The Texas Bill of Rights 41 (1987). [36]          approach relieves the overburdened docket of the United
                                                              States Supreme Court, and spares state courts from
     Our state had a unique opportunity to address issues     having to deal anew with cases on remand. See Upton,
of state constitutionalism and federalism in the 1875         466 U.S. at 735, 104 S.Ct. at 2089 (Stevens, J.,
constitutional convention. Though some Texans feared          concurring). This efficiency is evidenced by several
that convening such a gathering so soon after                 recent cases in which state courts decided that protection
Reconstruction would indicate too much independence           was available to an individual under the federal
from the federal government, [37] the convention was          constitution, only to have the decision reversed by the
held. In the election of 1873, Democrats swept most state     Supreme Court. [42] Justice Hans Linde, formerly of the
offices, including Richard Coke as Governor.                  Oregon Supreme Court, explains that in each of those
Confronting the propriety of this election in Ex Parte        cases:
Rodriguez, 39 Tex. 705 (1874), the Texas Supreme Court
relied primarily on federal caselaw and the placement of      [T]he state's appellate court was convinced of an
a semicolon to declare the election illegal under the         important constitutional right. In each case, that right was
Texas Constitution. [38] The newly elected officials          guaranteed by the state's own constitution.... [T]hese
nonetheless came to Austin [39] and enacted a                 cases did not need to go to the United States Supreme
constitutional amendment reorganizing the                     Court. The Court's nationwide pronouncement on those
                                                              issues were not necessary. The cases could have ended
Page 17                                                       with the state court's decisions if the state courts had not
                                                              chosen otherwise. [43]
Supreme Court, which enabled Governor Coke to remove
all three justices.                                               Subsequently, several state courts on remand relied
on state law to reach the same result originally reached        Texas Constitution, and why have a Texas Supreme
under their reading                                             Court? We agree that "it is fundamentally illogical for a
                                                                state court to skip past guarantees provided in the state's
Page 18                                                         own law, for which the court itself is responsible, and
                                                                then to conclude that its state falls short of the national
of the federal law. [44] Such a cumbersome and                  standards...." Linde, New Federalism, at 256.
time-consuming process obviously contributes little to an
efficient judiciary. The soundest way to avoid such             C.
unnecessary review and delay for litigants is to rely on
the state constitution in the first instance.                        Having concluded that there are numerous reasons
                                                                why the state constitution should be applied, we are left
     Once the state court turns to its own constitution, it     to consider how to apply it. Today's opinion has centered
both enables a local voice in the judicial process and          on a historical review to understand the origins of our
ensures its role as a national leader. "State constitutions     liberties as Texans and the intentions of our forebears.
allow the people of each state to choose their own theory       This focus should not, however, be misconstrued to
of government and of law, within what the nation                suggest any deviation from our traditional method of
requires, to take responsibility for their own liberties, not   constitutional interpretation. In Edgewood Indep. Sch.
only in courts but in the daily practice of government."        Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989), we outlined
[45] A state's constitution "is a fit place for the people of   an appropriate approach:
a state to record their moral values, their definition of
justice, their hopes for the common good. A state               In construing [a provision of the Texas Constitution], we
constitution defines a way of life." [46] The revival of        consider "the intent of the people who adopted it." In
"new federalism" has thus "returned popular                     determining that intent, "the history of the times out of
constitutionalism to the American stage." [47] State            which it grew and to which it may be rationally supposed
constitutions "lead all of us to face closer to home some       to have direct relationship, the evils intended to be
fundamental values that the public has become                   remedied and the good to be accomplished, are proper
accustomed to have decided for them by the faraway              subjects of the inquiry." However, because of the
oracles in the marble temple." Hans A. Linde, First             difficulties inherent in determining the intent of voters
Things First: Rediscovering the States' Bills of Rights, 9      over a century ago, we rely heavily on the literal text. We
U.Balt.L.Rev. 379, 395 (1980) (hereinafter Linde, First         seek its meaning with the understanding that the
Things First ).                                                 Constitution was ratified to function as an organic
                                                                document to govern society and institutions as they
     While reflecting local concerns and assuring local         evolve through time.
accountability, reliance by this court on our own
constitution allows Texas to have a meaningful voice in             Id. at 394 (citations omitted). See also Damon v.
developing this nation's jurisprudence. What Justice            Cornett, 781 S.W.2d 597 (Tex.1989); Vinson v. Burgess,
Brandeis wrote sixty years ago regarding state                  773 S.W.2d 263 (Tex.1989). [51]
legislatures is now particularly applicable to state judicial
action: "It is one of the happy incidents of the federal             Our rich history demonstrates a longstanding
system that a single courageous State may, if its citizens      commitment in Texas to freedom of expression as well as
choose, serve as a laboratory; and try novel social and         a determination that state constitutional guarantees be
economic experiments without risk to the rest of the            given full meaning to protect our citizens. But historical
country." New State Ice Co. v. Liebmann, 285 U.S. 262,          analysis is only a starting point. The constitution of our
311, 52 S.Ct. 371, 386-87, 76 L.Ed. 747 (1932)                  state is an organic document. Edgewood, 777 S.W.2d at
(Brandeis, J., dissenting). [48] Just as other states may       394. In no way must our understanding of its guarantees
rely on unique Texas law developed independently by the         be frozen in the past; rather, our concept of freedom of
legislature and judiciary of this state, this court has a       expression continues to evolve over time. See id. Forms
growing responsibility as one of fifty laboratories of          of expression not widely approved in 1875 may well
democracy to assist the federal courts in shaping the           demand state constitutional protection today, just as new
fundamental constitutional fabric of our country. [49]          methods of infringing on speech may require new
The poet                                                        methods of protection tomorrow. [52]

Page 19                                                         Page 20

who only quotes the works of others is destined to be                In interpreting our constitution, this state's courts
both ignored and forgotten. [50]                                should be neither unduly active nor deferential; rather,
                                                                they should be independent and thoughtful in considering
    As a state court, sitting in Texas, our expertise is in     the unique values, customs, and traditions of our citizens.
Texas law, our judges are Texas citizens and members of         With a strongly independent state judiciary, Texas should
the Texas Bar, and our concerns are Texas concerns. If          borrow from well-reasoned and persuasive federal
we simply apply federal law in all cases, why have a            procedural and substantive precedent when this is
deemed helpful, [53] but should never feel compelled to            well traveled." Id. at 40. A traveller relying upon the
parrot the federal judiciary. [54] With the approach we            concurrence's map will, however, find considerable detail
adopt, the appropriate role of relevant federal case law           missing--the road is marred with chugholes; unmarked
should be clearly noted, in accord with Michigan v. Long,          detours appear; new roadblocks arise. The most crucial
463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77                part of the route is just a dotted line where road
L.Ed.2d 1201 (1983) (presuming that a state court                  construction has not yet even gotten underway. Viewed
opinion not explicitly announcing reliance on state law is         from this jurisprudential federal interstate charted by the
assumed to rest on reviewable federal law). A state court          concurrence, the history of the Texas Constitution is a
must definitely provide a "plain statement" that it is             mere farm to market road; the past decisions of this court,
relying on independent and adequate state law, [55] and            only undistinguished country lanes.
that federal cases are cited only for guidance and do not
compel the result reached. Id. at 1040-41, 103 S.Ct. at                 The fallacy in the concurrence's roadwork is shown
3476-77. See also William J. Brennan, The Bill of Rights           by both the federal law upon which it relies [59] and the
and the States: The Revival of State Constitutions as              state law upon which it does not. Because a prior restraint
Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535,               of the type involved here has not previously been the
552 (1986). Long offers further reason for developing              subject of an adequate pronouncement from Washington,
state constitutional law, since now courts, rather than            the concurrence must search elsewhere for the federal
merely adjudicating state constitutional claims, must be           mandate by which all Texans are to be bound. Its dim
prepared to defend their integrity by both quantitatively          new travel beacon is Bernard v. Gulf Oil Co., 619 F.2d
and qualitatively supporting their opinion with state              459, 467 (5th Cir.1980) (en banc), aff'd on other grounds,
authority." Duncan, State Courts, at 838. Consistent with          452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).
this method, we may also look to helpful precedent from            Described by the concurrence as "[t]he principal
sister states in what New Jersey Justice Stewart Pollock           authority appl[icable]," 834 S.W.2d at 26, Bernard today
has described as "horizontal federalism." Stewart G.               achieves a renown which it has not previously enjoyed.
Pollock, Adequate and Independent State Grounds as a               Nevertheless, we learn much from carefully reviewing it.
Means of Balancing the Relationship Between State and              The complexity and unpredictability of federal law
Federal Courts, 63 Tex.L.Rev. 977, 992 (1985). [56]                reflected in Bernard is evidenced by the fact that the
                                                                   relevant issue there was initially decided the opposite
    Our consideration of state constitutional issues is            way, [60] was reconsidered in part because no other
encumbered when they are not                                       federal appellate court had ever ruled on it, [61] was
                                                                   decided on a very splintered vote, and thereafter
Page 21                                                            disregarded by the United States Supreme Court. [62] On
                                                                   only three occasions have even the federal courts
fully developed by counsel. Many of our sister states,             extracted a test from Bernard. [63] Solely by
when confronted with similar difficulties, have
nevertheless decided cases solely on state grounds or              Page 22
ordered additional briefing of the state issue. [57] We will
follow this procedure as necessary and appropriate, when           the most particularized selection of some of the many
asserted state grounds have not been adequately briefed.           considerations in that procedurally unique case can the
[58]                                                               concurrence begin to construct the elements of a test
                                                                   having remote similarity with that we adopt today.
D.
                                                                        The concurring justices recite a method for
     Rejecting our careful and detailed analysis of the            interpretation of our state constitutional guarantees that
development and interpretation of article one, section             closely parallels our traditional approach in Edgewood
eight, the concurrence advances an alternative--Texas              and other cases [64] with one notable twist. They add an
judges should follow, but never lead, federal                      entirely new element [65] and then proceed to reject each
jurisprudence. Whenever both federal and state                     factor with the exception of this one new arrival--federal
constitutional provisions "overlap or correspond," 834             precedent. [66] Although differences in the language of
S.W.2d at 40, the Texas judge should never diverge from            the state and federal constitutional free speech provisions
the path taken by the federal judiciary. No aspect of              are declared to be as "plain as day," 834 S.W.2d at 32,
Texas history, no series of Texas decisions such as that           those differences are repudiated as meaningless.
present here should obscure the obligation of adherence
to federal authority.                                                   Despite the purported need to look to the historical
                                                                   context in which the provision was written, the
     Texans, we are told, must journey along the                   concurrence trivializes the rather extensive historical
"well-traveled    road      of     [federal     constitutional]    discussion which we offer. [67] From our treasured state
jurisprudence." Id. at 29. "[I]t is inefficient to blaze a trail   heritage, law and institutions, the concurrence claims, we
through the wilderness when there is a perfectly good              can derive nothing. Only federal law, based on different
highway there already, built at considerable expense, and          language, different history and different cases, can
resolve the issue we face today.                                and independent search for a sound understanding of our
                                                                most fundamental state law.
      Our attempt to give effect to what is indelibly written
into our state constitution is dismissed in a series of         III. The Court Records
buzzwords: "chauvinism," "arrogan[ce]" "autonomy," and
"liberal agenda." Id. at 41, 43, 39 & 43. Instead, the               Relator contends that she and several parents were
concurrence urges that we exclude any considerations            denied access to the records in this case after the gag
specific to Texas in favor of conformity to a federal           order went into effect. She argues that this constitutes an
standard. Claiming that Texas was never "unique nor             unwritten sealing order, in violation of Rules 76 and 76a
first," id. at 33, the concurrence accuses the court of         of the Texas Rules of Civil Procedure. One such parent
disrupting the harmony among the states regarding free          whose child was not represented by the principal
speech nationwide. Id. at 25. We do not say that the            plaintiffs' attorneys, Akins and Pettiette, was repeatedly
Texas guarantee of free expression inevitably varies in all     told by a court clerk the file was "sealed" and that "the
particulars from the federal, or that of New York or            Judge had put a gag order on the file." Affidavit of
California. Rather, consistent with the very diversity that     Cheryl Finley. Another parent swore that he was told by
supplies strength to our union, we build from experience        Judge Garcia personally that the record was "closed until
in Texas and elsewhere to enhance individual liberty. The       after the settlement hearing." Affidavit of Larry Carter.
national jurisprudence benefits as states across our            The co-owner of a community newspaper indicates that
country offer similar contributions. As individual voices       she and the paper's editor were told by a court clerk that
develop strength and tone, so does the grand chorus             the record was "sealed." Affidavit of Marie Flickinger.
improve.                                                        The former Official Court Reporter for the 151st District
                                                                Court in Harris County explained that a local reporter had
     After ignoring all that is unique to Texas, the            requested access to the transcript of a hearing which
concurring justices repeatedly accuse the court of              considered whether the firm which would potentially
disregarding relevant federal law when we quite                 administer a settlement had acted improperly. Affidavit
obviously do not. Id. at 25, 35 & 38-39. Federal decisions      of Jacquelyn Miles. When the Court Reporter told the
are potentially helpful but do not inextricably bind Texas      court about this request, "Judge Garcia informed [her]
in analyzing our constitution. Failing to differentiate         that the file was sealed to members of the general public
between thoughtful review and unquestioning acceptance          until after the settlement had been finalized." Id. [69]
of federal rulings, the concurrence also mistakenly
assumes that independent interpretation must necessarily             The Real Parties in Interest, Joseph Edward Powell
yield a different result than that achieved by the federal      and Farm & Home Savings Association respond that
judiciary. This, of course, is not true. Our investigation      Judge Garcia never ordered the file sealed. They present
may reveal federal authority so complete, so well               an affidavit from the Clerk of the 151st District Court
reasoned, and so consistent with the provisions of the          which maintains that "there is no order sealing this file by
Texas Constitution in protecting individual liberties that      Judge Garcia," and also that "Judge Garcia has not told
we reach the same conclusion. Certainly there may be            me that access to this file is restricted, nor, to my
some "congruence" between state and federal                     knowledge, has she told anyone else that access to this
constitutions. Id. at 34. First Amendment jurisprudence is      file is restricted." Affidavit of Chris Sarrat. A parent of
not irrelevant, but rather                                      one of the children represented by Akins and Pettiette
                                                                also states that Judge Garcia never represented to her that
Page 23                                                         the files were sealed, and that she was never prohibited
                                                                from looking at the court's file. Affidavit of Janice
an important body of law to be referenced when                  Villanueva.
well-reasoned.
                                                                    Court records "are presumed to be open to the
     The concurrence next suggests that the record in this      general public." Tex.R.Civ.P.
case does not support extensive writing on our state
constitutional free speech guarantee. [68] All of this          Page 24
masks a very simple truth--if the parties here had dealt
exclusively and extensively with the development and            76a(1), and access to them is separately guaranteed to
scope of our Texas Constitution, if they had "fully             "[e]ach attorney at law practicing in any court ... at all
presented" it, the court would still be chastised for relying   reasonable times to inspect." Tex.R.Civ.P. 76. The
upon a state provision that has not "grown and developed        sealing of a record must meet the procedural prerequisites
over time," id. at 30, and that represents "largely             set forth in Rule 76a of the Texas Rules of Civil
uncharted terrain." Id. at 29. Even with the most               Procedure. See Chandler v. Hyundai Motor Co., 829
completely briefed and argued cause, the concurrence            S.W.2d 774 (1992) (per curiam). A court may not escape
would still seek marching orders from the federal               the strict obligations of those rules by tacitly closing the
judiciary. We prefer self-reliance. What we accept today        record through an unwritten order.
is the responsibility to conduct a thoughtful, complete,
                                                                    In this instance, however, we are presented with
conflicting affidavits as to whether the court records were        agree that mandamus should issue directing the
made available to the public. These affidavits create a            respondent district court to vacate the gag orders of
fact issue which this court may not address on                     which relator complains, but not to reinstate relator as
mandamus. See Brady v. Fourteenth Court of Appeals,                guardian ad litem. I also agree that we should not direct
795 S.W.2d 712, 714 (Tex.1990, orig. proceeding).                  the district court to allow relator access to court records
Additionally, it is the understanding of this court that           when relator has failed to establish that her access to
with the gag order lifted, there should be no impediment           those records has been restricted. I differ
to viewing the court records. If, after this opinion issues,
Relator should find her access to the records in any way           Page 25
obstructed, she remains free to pursue appropriate
remedies.                                                          with the Court's reasons for these decisions, however, and
                                                                   write to explain why.
IV. Removal of the Guardian ad Litem
                                                                       I
     Relator also urges that she was improperly dismissed
as ad litem. While much has been written about the                      Deciding whether the two gag orders which the
standards for such appointments, there is little guidance          district court issued in the pending litigation are invalid is
on the standard for removal. Relator contends that the             not the principal occupation of the Court's opinion. Those
appropriate standard is one based on best interest of the          orders have already been ordered vacated in response to
child, and the record reveals that Relator may well have           relator's request for emergency relief. 837 S.W.2d 73.
acted in that interest, sometimes bringing issues to the           Our reasons for granting this relief do not require
court's attention which might not have otherwise been              elaborate explanation. The Court is unanimous in the
considered. Under the Probate Code a "best interest of the         view that the gag orders are invalid because they are too
ward" standard is applied in determining the                       broad, they are not necessary to protect against an
circumstances under which a guardianship can be moved              imminent threat to the administration of justice, and they
to another county and a guardian replaced.                         were issued without following procedures to safeguard
Tex.Prob.Code § 123. Other states have applied a similar           against suppression of relator's constitutionally protected
standard to removal of ad litems in general. [70]                  speech. Issuance of the orders was a clear abuse of
                                                                   discretion from which relator has no adequate remedy by
     Under our current procedural rules, however, the sole         appeal. Thus, relator is entitled to mandamus relief to
circumstance in which a guardian ad litem can be                   have the orders set aside.
appointed is when a minor "is represented by a next
friend or guardian who appears to the courts to have an                 That is the Court's decision. Most of the Court's
interest adverse to such minor." Tex.R.Civ.P. 173                  opinion is spent defending its efforts to decide relator's
(emphasis added). This rule as written seems to                    free speech claims using only article I, section 8 of the
contemplate only a conflict of interest standard.                  Texas Constitution without recourse to the First
                                                                   Amendment to the United States Constitution. Borrowing
     Since the trial court's September 1991 dismissal              from the literature of the "new federalism movement" of
order specifically determined that there was "no conflict          the past fifteen years, the Court adopts a method of
of interest," and since the record reflects no such conflict,      constitutional analysis by which it examines the Texas
we find no abuse of discretion.                                    Constitution first, and if a right is found to be protected,
                                                                   never reaches the federal constitution question. In theory,
Summary                                                            the Court's methodology contemplates that federal law
                                                                   construing a federal constitutional provision will be
      We grant Relator's petition in part and hold that the        instructive but not controlling in construing a
trial court's gag order is in violation of article I, section 8,   corresponding provision of the state constitution; in
of the Texas Constitution. Because the existence of an             actuality, the Court attempts to ignore federal law
unwritten sealing order raises a fact issue, we do not             altogether. Accordingly, it ventures an independent
address that question. Finally, we determine that the trial        examination and application of article I, section 8, with
court did not abuse its discretion in dismissing Relator as        no argument and little briefing by the parties, and without
ad litem, and deny the remainder of Relator's petition.            regard to more fully developed First Amendment law.
                                                                   Then after determining that the language of article I,
    Concurring Opinion by HECHT, J., joined by COOK                section 8 is different and highly distinctive, the Court
and CORNYN, JJ.                                                    shortly concludes that the test for reviewing gag orders
                                                                   under that provision is one which happens to be identical
    PHILLIPS, C.J., not sitting.
                                                                   to the test under the First Amendment. The Court follows
     HECHT, Justice, joined by COOK and CORNYN,                    this analysis with a lengthy apologia and accolade for its
Justices, concurring in the judgment.                              new method.

    I join in the Court's judgment, but not in its opinion. I          The Court's approach to this case, it seems to me, is
contrived and unnecessarily extreme. The Court goes to         case with any persons other than their clients, agents, or
great lengths to decide this case on our state constitution    employees in the necessary course of business in this
alone, even though the result would be the same under          case.
the First Amendment, for the same reasons. Although a
state constitutional provision should not be ignored               Counsel is ORDERED to refrain from any public
simply because it has a federal analogue, I think the          comment, casual or otherwise concerning the facts of this
converse is equally true: federal constitutional law should    case or the conduct of counsel in this case other than in a
not be ignored simply because there exists a related state     court hearing.
constitutional provision. Where, as here, the issue raised
can be resolved on First Amendment grounds entirely                 Counsel is ORDERED to inform their clients,
consistent with the Texas Constitution, there is every         witnesses, agents and representatives that this ORDER
reason to do so. What reasons the Court may have for           extends to each of them and is subject to a finding of
avoiding this straightforward course is a question to          contempt by this court from disobedience, direct or
which I shall return.                                          indirect comment intended to violate this ORDER.
                                                               Counsel was and is directed to communicate with their
    A                                                          clients only, and advise each that they are directed to
                                                               refrain from discussing the case except with counsel.
     The pending litigation involves claims by over 200
children and their parents for injuries due to exposure to          At that hearing, the Court abated the appointment of
toxic chemicals. The parents settled their claims five         the Guardian ad Litem until further Order of this Court,
years ago, and defendants have proposed to settle the          but specifically applied this protective order to the
children's claims, subject to the district court's approval.   Guardian and that during the abatement, the Guardian
Relator, the guardian ad litem for the children, opposes       was to have no contact with Plaintiffs. On September 11,
the settlement. [1] At a hearing on the proposed               1991, the Court dismissed the Guardian Ad Litem from
settlement on August 23, 1991, the district court              this Cause, but not from this Order.
apparently became concerned that differences and
misunderstandings among the participants in the litigation        This Order was rendered in open court on the 23 of
threatened the proposed settlement and the best interests      August, 1991 and is effective as of that date.
of the minor plaintiffs. Without a request from any party,
                                                                    The Court ORDERS the Clerk of this Court to
the district court
                                                               prepare certified copies of this order for counsel and to
Page 26                                                        convey immediately by telecopier the contents of this
                                                               written order.
issued the first of two gag orders, orally instructing
plaintiffs and defendants, their counsel, and relator not to         This order prohibits relator from discussing the
discuss the case outside the courtroom. The court also         pending litigation with anyone, ever, except in a hearing
"abated" relator's appointment as guardian ad litem and        before the court, even though she has been dismissed as
directed her to have no contact with plaintiffs pending        guardian ad litem in the case. The order even prohibits
further order of the court. Several days later, on             the parties from communicating with each other, although
September 11, the district court committed its order to        they do not complain of this prohibition here. The order
writing, explaining the reasons for its issuance. This         is, in its own words, "an extraordinary remedy".
second, written, order stated in substance:
                                                                    Relator complains that the gag orders infringe
    BE IT REMEMBERED THAT ON THE 23RD                          unlawfully upon her right to freedom of speech under the
DAY OF AUGUST, 1991, at a hearing in these                     First Amendment to the United States Constitution. The
consolidated cases, counsel for Plaintiffs, counsel for        United States Supreme Court has had several occasions to
Defendant, and the then Guardian ad Litem were present.        consider the validity of gag orders in criminal cases.
                                                               Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct.
     Upon hearing evidence that conflicts between              2720, 115 L.Ed.2d 888 (1991); Nebraska Press Ass'n v.
counsel and the parents of the minor children were             Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683
resulting in miscommunications with the parents of the         (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct.
children and with the media and general public, this           1507, 16 L.Ed.2d 600 (1966); In re Sawyer, 360 U.S.
Court, on its own motion, issued a protective order in the     622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959). The principal
best interest of the minor children of this suit. In so        authority applying the First Amendment to gag orders on
doing, the Court found there was a need for such an            the participants in a civil case, however, is Bernard v.
extraordinary remedy and ORDERED counsel as                    Gulf Oil Co., 619 F.2d 459, 467 (5th Cir.1980) (en banc),
follows:                                                       aff'd on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68
                                                               L.Ed.2d 693 (1981), in which the court held that an order
    Counsel in this case, present and former, are              restricting the named plaintiffs in a class action and their
expressly ORDERED to refrain from discussing or                attorneys from communicating freely with prospective
publishing in writing or otherwise, any matters of this        class members violated the First Amendment. The court
determined that                                               Consciousness v. Eaves, 601 F.2d 809, 833 (5th
                                                              Cir.1979) (quoting New York Times Co. v. United States,
Page 27                                                       403 U.S. 713, 730, 91 S.Ct. 2140, 2149, 29 L.Ed.2d 822
                                                              (1971) (Stewart, J., joined by White, J., concurring))).
such gag orders are prior restraints upon free speech. Id.    Even " 'the interest of the judiciary in the proper
at 467. [2] See also Rodgers v. U.S. Steel Corp., 508 F.2d    administration of justice does not authorize any blanket
152, 162-63 (3d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct.   exception to the first amendment.' " Bernard, 619 F.2d at
54, 46 L.Ed.2d 50 (1975).                                     467 n. 8 (quoting Rodgers, 508 F.2d at 163); see Wood v.
                                                              Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 1375, 8
Prior restraints on freedom of speech have long been
                                                              L.Ed.2d 569 (1962); Craig, 331 U.S. at 378, 67 S.Ct. at
disfavored in American law. Near v. Minnesota, [283
                                                              1256; Pennekamp v. Florida, 328 U.S. 331, 347, 349-50,
U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) ]. While a
                                                              66 S.Ct. 1029, 1037, 1038-39, 90 L.Ed. 1295 (1946);
prior restraint is not unconstitutional per se, there is a
                                                              Bridges v. California, 314 U.S. 252, 272-73, 62 S.Ct.
heavy presumption against its constitutionality.
                                                              190, 198-99, 86 L.Ed. 192 (1941). Second, a valid prior
Southeastern Promotions, Ltd. v. Conrad, [420 U.S. 546,
                                                              restraint "must not sweep too broadly. Rather it 'must be
558-59, 95 S.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (1975) ];
                                                              narrowly drawn and
Organization for a Better Austin v. Keefe, [402 U.S. 415,
419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971) ].              Page 28
     Bernard, 619 F.2d at 467. Generally, "prior restraints   cannot be upheld if reasonable alternatives are available
on speech and publication are the most serious and the        having a lesser impact on First Amendment freedoms.' "
least tolerable infringement on First Amendment rights."      Bernard, 619 F.2d at 476 (quoting CBS, Inc. v. Young,
Nebraska Press, 427 U.S. at 559, 96 S.Ct. at 2803 (1976).     522 F.2d 234, 238 (6th Cir.1975)); see also Nebraska
                                                              Press, 427 U.S. at 562-69, 96 S.Ct. at 2804-08; Carroll v.
     For a prior restraint to violate the First Amendment,
                                                              Commissioners of Princess Anne, 393 U.S. 175, 183-84,
it must prohibit protected activity. "The First Amendment
                                                              89 S.Ct. 347, 352-53, 21 L.Ed.2d 325 (1968). Third, "the
is not absolute, and 'the protection even as to previous
                                                              restraint 'must have been accomplished with procedural
restraint is not absolutely unlimited.' " Bernard, 619 F.2d
                                                              safeguards that reduce the danger of suppressing
at 471 (quoting Near, 283 U.S. at 716, 51 S.Ct. at 631);
                                                              constitutionally protected speech.' " Bernard, 619 F.2d at
accord Nebraska Press, 427 U.S. at 570, 96 S.Ct. at 2808;
                                                              477 (quoting Southeastern Promotions, 420 U.S. at 559,
Times Film Corp. v. Chicago, 365 U.S. 43, 47, 81 S.Ct.
                                                              95 S.Ct. at 1246). These safeguards include evidence and
391, 393, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v.
                                                              findings. See Nebraska Press, 427 U.S. at 564, 96 S.Ct. at
Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1327-28, 1
                                                              2805.
L.Ed.2d 1469 (1957). Exceptions include speech that is
obscene, seditious or extremely provocative. Nebraska              The district court's gag orders do not meet First
Press, 427 U.S. at 590, 96 S.Ct. at 2817 (Brennan, J.,        Amendment standards. The orders were not necessitated
concurring). It is unnecessary to decide whether there is     by any imminent threat imperiling the administration of
some activity prohibited by the gag orders in this case       justice. The meager record before us shows that the
which is not protected by the First Amendment, such as,       district court was concerned that conflicts among the
perhaps, intimidation of the minor plaintiffs. These orders   various participants in this litigation were resulting in
sweep far more broadly, prohibiting relator from              misstatements and misunderstandings, jeopardizing a
speaking at all on any matter concerning the litigation.      proposed settlement and what the court considered to be
Beyond question, her First Amendment rights are               the best interests of the minor plaintiffs. The existence of
affected.                                                     those conflicts was apparent from oral argument before
                                                              this Court. Relator stated quite clearly that as former
     According to Bernard, a gag order is permitted by the
                                                              guardian ad litem she had and still has very strong views
First Amendment only if it meets three conditions. First, "
                                                              about the children's interests. The district court clearly
'before a prior restraint may be imposed by a judge, even
                                                              believed that the plaintiffs needed to be protected from
in the interest of assuring a fair trial, there must be "an
                                                              relator's insistence on expressing her views, and the other
imminent, not merely a likely, threat to the administration
                                                              parties appear to share the court's view, joining in defense
of justice. The danger must not be remote or even
                                                              of the gag orders which they are themselves subject to.
probable; it must immediately imperil." ' " Bernard, 619
                                                              As far removed from the conduct of the litigation as we
F.2d at 474 (quoting United States v. Columbia
                                                              are, it is difficult to evaluate the district court's concerns.
Broadcasting System, Inc., 497 F.2d 102, 104 (5th
                                                              Assuming, however, that relator was every bit the threat
Cir.1974) (quoting Craig v. Harney, 331 U.S. 367, 376,
                                                              to her previous wards that the district court considered
67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947))). "In general,
                                                              her to be, that threat did not impinge so imminently upon
a prior restraint may be justified only if the expression
                                                              the administration of justice as to satisfy the first
sought to be restrained 'surely [will] result in direct,
                                                              condition of Bernard.
immediate, and irreparable damage.' " Bernard, 619 F.2d
at 473 (quoting International Soc'y for Krishna                   Moreover, the orders were overly broad and were not
the only reasonable alternative for addressing the               of article I, section 8 of the Texas Constitution.
problems the district court confronted. The district court
prohibited relator from talking with anyone about the            1
case under any circumstances except in the course of
proceedings. This order is far more expansive than the                I say "insists" because the idea that this case should
order struck down in Bernard; it does not merely limit           be decided on state constitutional grounds alone did not
relator's communications about the case, it prohibits them       originate with the parties but with one Member of this
altogether outside the courtroom. Although the district          Court. Article I, section 8 was not even mentioned in this
court in this case met with the parties in an effort to          case until relator's counsel alluded to it in passing in oral
dispel confusion, and although it cautioned relator against      argument, after which the following colloquy occurred:
causing further conflicts and misunderstandings, it did
                                                                      JUSTICE DOGGETT: Are you asserting--you made
not reasonably exhaust these efforts or explore the use of
                                                                 reference to the Texas Constitution earlier--are you
disciplinary measures [3] or sanctions against relator
                                                                 asserting free speech rights under the Texas Constitution
before drastically restricting her fundamental rights.
                                                                 as well as the U.S. Constitution?
Removing relator as guardian ad litem might alone have
alleviated the conflicts. The district court neither                 RELATOR'S COUNSEL: That is correct, Your
exhausted reasonable alternative measures nor limited its        Honor. I read article I, section 8 of the Texas Constitution
prohibition to what was necessary to accomplish its              as going beyond the First Amendment.
purposes. Thus the gag orders cannot meet Bernard 's
second condition.                                                     JUSTICE DOGGETT: Have you briefed that and
                                                                 cited us any authority on the broader protections afforded
     Finally, the district court did not follow procedures       by the Texas Constitution?
that would safeguard against an unwarranted
infringement of relator's First Amendment rights. The                RELATOR'S COUNSEL: No, we haven't, Your
district court acted on its own, without motion or               Honor. I entered this case after the briefing was
argument from the parties. Although the district court           terminated.
conducted an evidentiary hearing at some point prior to
issuing its first order, the record does not reflect whether         JUSTICE DOGGETT: Are you interested in filing
any of that evidence pertained to the necessity and scope        any supplemental briefing on that issue?
of a gag order.
                                                                     RELATOR'S COUNSEL: We would welcome the
Page 29                                                          opportunity to file supplemental briefing with this Court
                                                                 on the First Amendment issues.
The orders come to this Court supported by a single,
general finding recited in the written order. These                   There was no further discussion of article I, section 8
procedures do not comport with those required by                 during oral argument. Relator subsequently filed a
Bernard 's third condition.                                      supplemental brief arguing that the gag orders were not
                                                                 permitted by the First Amendment, and secondarily, that
     Bernard does not hold that participants in civil court      article I, section 8 provides an independent basis for
proceedings have a boundless constitutional right to             overturning them. Respondent never replied to this brief.
speak extrajudicially about the litigation, or that a court is   [4]
powerless to limit such speech in all circumstances. It
does, however, set a high standard for any such limitation       Page 30
in recognition of the importance of free speech rights of
attorneys and litigants. The issuance of gag orders in                Thus, in considering the applicability of article I,
these circumstances did not meet this standard and               section 8 to this case, the Court has the benefit of no
therefore was an unlawful infringement upon relator's            argument and approximately four pages of briefing which
constitutionally protected freedom of speech and a clear         relator filed at the invitation of one Justice. [5] The Court
abuse of discretion. Relator has no right to appeal these        may choose to rest a significant decision on grounds
interlocutory orders until final judgment is rendered and        which the parties have not fully presented, but there are
meanwhile must suffer their irreversible and                     always risks in doing so, and the more important the
irrecompensable effects. She is therefore entitled to            issue, the greater the risks. The validity of prior restraints
mandamus relief, which we have already granted,                  under article I, section 8, independent of First
directing the district court to vacate the gag orders.           Amendment law and any law in other states, is a very
                                                                 important issue. Had it been fully presented by the
    B                                                            parties, and had our understanding of this provision of
                                                                 our constitution grown and developed over time, the issue
     The Court reaches this result but not by the                might be addressed with more assurance. Today,
well-traveled road of First Amendment jurisprudence. It          however, Texas prior restraint law is born a teenager, a
insists instead on traversing the largely uncharted terrain
process as remarkable as it is frightful.                       973, 97 S.Ct. 478, 50 L.Ed.2d 581 (1976); Ex parte
                                                                Werblud, 536 S.W.2d 542, 544-48 (Tex.1976); Harris v.
2                                                               City of Fort Worth, 142 Tex. 600, 180 S.W.2d 131, 133
                                                                (1944); Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022,
     Article I, section 8 of the Texas Constitution states in   1024 (1943); Collingsworth County v. Allred, 120 Tex.
pertinent part:                                                 473, 40 S.W.2d 13, 15 (1931); see also Dir. of the Dep't
                                                                of Agric. and Env't v. Printing Indus. Ass'n, 600 S.W.2d
    Every person shall be at liberty to speak, write or
                                                                264, 267 (Tex.1980); Travelers' Ins. Co. v. Marshall, 124
publish his opinions on any subject, being responsible for
                                                                Tex. 45, 76 S.W.2d 1007, 1012-25 (1934); Mellinger v.
the abuse of that privilege; and no law shall ever be
                                                                City of Houston, 68 Tex. 37, 3 S.W. 249, 252-54 (1887).
passed curtailing the liberty of speech or of the press.
                                                                [6]
      This provision in our state Bill of Rights, like the
                                                                     In applying article I, section 8 to the gag orders here,
First Amendment to the United States Constitution and
                                                                the Court attempts to follow this process as it ordinarily
similar provisions in the constitutions of other states,
                                                                would, except that, consistent with its new approach, it
enshrines and protects a fundamental right long treasured
                                                                expressly refuses to consider whether the orders violate
by the people of this nation, the right of free speech. That
                                                                the First Amendment. The Court tries to prove that article
right, however, is not absolute, as we long ago learned in
                                                                I, section 8 can be construed and applied completely
our thinking about the First Amendment. Justice Holmes'
                                                                independently of the First Amendment. To do this, the
classic example, familiar to lawyers and non-lawyers
                                                                Court examines the history of article I, section 8, its text,
alike, is that one does not have the right of "falsely
                                                                and caselaw construing it. Its analysis of each of these
shouting fire in a theatre and causing a panic." Schenck v.
                                                                three areas is seriously deficient, as I shall show before
United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63
                                                                reviewing the Court's conclusions.
L.Ed. 470 (1919). Free speech can be abused, as article I,
section 8 expressly recognizes, and responsibility for that     3
abuse is not only consistent with protecting the freedom,
it is part of the freedom itself.                                    The Court recites a little history: that Stephen F.
                                                                Austin was jailed and Lorenzo de Zavala hunted down
     Freedom and responsibility have a symbiotic                for being outspoken; that provisions guaranteeing free
relationship: they are part of one another, yet in tension.     speech were included in the first proposed Texas
So here, relator contends that she should be free to            Constitution in 1833 and the constitutions of 1836, 1861,
communicate with the parties to this litigation, and the        1866, 1869 and 1876; that framers of these constitutions
district court counters that relator's freedom should be        represented a "heterogenous miscellany of opinions"
restricted because of her responsibility not to cause           different from the framers of the U.S. Constitution; and
misunderstandings which threaten the best interests of the      that after debate at times vigorous on topics including
minor plaintiffs. Article I, section 8 provides principles      secession, these framers rejected the free speech
for resolving this dispute, but it does not prescribe the       provision of the Tennessee Constitution, as well as a
resolution. It falls to the Court to determine how these        provision regarding speech injurious of female reputation
governing principles apply in specific situations. To make      libelous without regard to its truth and a provision
this determination we ordinarily look to such things as         conditioning free speech on good motives. The provision
the language of the constitutional provision itself, its        proposed for the Texas Constitution in 1833 stated:
purpose, the historical context in which it was written, the
intentions of the framers, the application in prior judicial    The free communication of thoughts and opinion, is one
decisions, the relation of the provision to the law as a        of the inviolable rights of man; and every person may
whole, the understanding of other branches of                   freely speak, write, print, and publish, on any subject,
government, the law in other jurisdictions, state and           being responsible for the abuse of that liberty....
federal, constitutional and legal theory, and fundamental
values including justice and social policy. See, e.g.,               Proposed Constitution for the State of Texas (1833)
Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990);                   art. 16, reprinted in Documents of Texas History 80
Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391,            (Ernest Wallace ed. 1963). This earlier proposal was
394 (Tex.1989); State v. Project Principle, Inc., 724           virtually identical to the Tennessee provision rejected in
S.W.2d 387, 390-91 (Tex.1987); Spring Branch Indep.             1876 by the Texas framers, except only that the latter was
Sch. Dist. v. Stamos, 695 S.W.2d 556, 559-62                    limited to citizens. Tennessee's Constitution, first adopted
(Tex.1985); City of El Paso v. El Paso Community                in 1796, provides:
College Dist., 729 S.W.2d 296, 298 (Tex.1986); Tarrant
County v. Ashmore, 635 S.W.2d 417, 420-                         The free communication of thoughts and opinions is one
                                                                of the invaluable rights of man; and every citizen may
Page 31                                                         freely speak, write, and print on any subject, being
                                                                responsible for the abuse of that liberty.
23 (Tex.1982); Gragg v. Cayuga Indep. Sch. Dist., 539
S.W.2d 861, 865-66 (Tex.), appeal dismissed, 429 U.S.               TENN. CONST. art. XI, § 19 (1796) (reprinted in
BENJAMIN PERLEY POORE, THE FEDERAL AND                          what sentiments he pleases before the public; to forbid
STATE CONSTITUTIONS, COLONIAL CHARTERS                          this, is to destroy the freedom of the press: but if he
AND OTHER ORGANIC LAWS OF THE UNITED                            publishes what is improper, mischievous, or illegal, he
STATES, Vol. 1 & 2 (2d ed. 1878)). The other two                must take the consequences of his own temerity." 4
provisions which the Texas framers rejected would have          WILLIAM BLACKSTONE, COMMENTARIES 152. By
imposed significant limitations on the right of free            1833, when a constitution was first proposed for Texas,
speech.                                                         15 of the 24 states then in the United States had
                                                                constitutional provisions protecting free speech in words
     These interesting but casual historical notes, which       similar to Blackstone's. [8] The language proposed
the Court optimistically calls a "rather extensive
historical discussion", ante, at 22, indicate that free         Page 33
speech has always been very important in Texas,
something I have never supposed was in dispute, but say         for Texas' constitution in 1833, and the language
nothing about how article I, section 8 applies to gag           incorporated in the 1876 constitution, are obviously
orders, or why. There is a reason for the Court's shallow       related to Blackstone's formulation of the common law,
approach: it does not intend to be bound to any historical      and are strikingly similar to the provisions of what were
interpretation. Historical analysis is "only a starting         then almost two-thirds of the state constitutions except in
point", the Court says; "[i]n no way must our                   one respect: the language of our 1876 constitution, unlike
understanding of its guarantees be frozen in the                the language proposed in 1833, extended freedom of
                                                                speech to persons instead of citizens. Even in this respect,
Page 32                                                         however, Texas was neither unique nor first: Missouri
                                                                had already adopted such a provision. Supra note 8.
past." Ante, at 19. In other words, the Court does not
accept the premise that the intent of the framers of the             The close relationship between the free speech
constitution governs its future construction. "[W]e use         guarantees in the constitutions of Texas and many other
history," the Court explains, "to assist in an                  states should not be surprising. The idea that freedom of
understanding of the generalities and ambiguities               speech is a fundamental right is not unique to Texas or
sometimes present in a constitution." Ante, at 19. If this is   any other state, but one inherent in our political structure
true, what "generalities and ambiguities" in article I,         and shared generally by the people of this nation. While
section 8 has the Court clarified by its observations about     the right has been described in somewhat different words
Stephen F. Austin and Lorenzo de Zavala, or any other           at different times and places, the basic ideas certainly
aspect of its "rather extensive" historical discussion? I       transcend state lines. Free speech is a national idea, not
cannot find one.                                                only a Texas idea. The Court's attempt to distinguish
                                                                Texas free speech as significantly different from First
4                                                               Amendment free speech--and presumably also from New
                                                                York free speech or California free speech--is not
     The Court also examines the text of article I, section     supported by the texts of the various guarantees.
8, pointing out the inescapable facts that the language is
not identical to that of the First Amendment, that it is        5
stated partly in the affirmative ("Every person shall be at
liberty to speak") rather than entirely in the negative              The only serious effort the Court makes to determine
("Congress shall make no law"), and that it appears             how article I, section 8 should apply to gag orders is by
toward the front of the constitution rather than at the end.    examining our own precedents, and this effort, though
These facts prove conclusively that the language of             flawed, is exhaustive. For it should be noted that in more
article I, section 8 is different from the First Amendment,     than 150 years article I, section 8 has been mentioned in
something that is plain as day. The issue, however, is not      this Court's opinions in only 19 cases, and twice the
whether there are differences, but what, if anything, those     reference was in a separate opinion. [9] In only five of
differences mean, and the Court's observations shed no          these 19 cases has this Court written more than a few
light on this issue. The Court cannot substantiate its claim    words about article I, section 8, and only three of those
that the framers of the Texas Constitution "explicitly          five involved prior restraints. Two of the three prior
rejected" verbatim adoption of the First Amendment of           restraint cases relied entirely on the third, Ex parte
the U.S. Constitution, but even if it could, we would not       Tucker, 110 Tex. 335, 220 S.W. 75 (1920). This is the
know what the framers intended in so doing. [7]                 totality of our prior restraint jurisprudence under the
                                                                Texas Constitution.
     The Court's contention that the language of article I,
section 8 is "different" and "highly distinct" is               Page 34
misleading. Texas, like most states, appears to have
derived its constitutional provision protecting the right to        Tucker, decided before the First Amendment was
free speech from Blackstone, who articulated that right as      applied to the states through the Fourteenth Amendment
follows: "Every freeman has an undoubted right to lay           in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69
                                                                L.Ed. 1138 (1925), held that an injunction prohibiting
union employees from " 'vilifying, abusing, or using           defamation claimant's right to redress. Unlike the United
opprobrious epithets to' " other employees violated article    States Constitution, which contains no explicit guarantee
I, section 8. Tucker, 220 S.W. at 75. The Court cites          of the right to sue for defamation, the Texas Constitution
Tucker and quotes from it extensively as an example of         expressly protects the bringing of reputational torts....
the independence of article I, section 8 from the First
Amendment. But the Court does not quote the following:              These provisions must be given effect. While we
                                                               may on occasion grant protections to defamation
The experience of the English nation and some of the           defendants beyond those required in the United States
American colonies under the tyranny of such systems is         Constitution, as we have today in requiring public official
the reason this provision in the Bill of Rights [article I,    and public figure plaintiffs to prove their actions against
section 8] is one common to the Constitutions of the           private defendants under the New York Times [Co. v.
American States, and for its incorporation, in like words,     Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
in the First Amendment to the Federal Constitution.            (1964) ] standard, we have based those decisions on
                                                               common law, not constitutional grounds.
     Id. at 76 (emphasis added). Tucker did not ignore the
First Amendment in its analysis of article I, section 8, as        Casso, 776 S.W.2d at 556 (emphasis added). The
the Court has, nor did it differentiate the two provisions,    Court's quote is somewhat misleading. While Casso
as the Court attempts to do today. Rather, it linked them      admits the "possibility" that article I, section 8 may
in two respects: they were founded on common                   contain a broader guarantee of free speech than the First
experience, that of the English nation and the American        Amendment, it also recognizes that the state provision
colonies, and they were framed in "like words".                expressly imposes responsibility for abusive speech,
                                                               something which the First Amendment does not do. On
      The other two cases which utilize article I, section 8   the
to invalidate prior restraints rely entirely upon Tucker. In
Dallas General Drivers v. Wamix, Inc., 156 Tex. 408,           Page 35
295 S.W.2d 873, 879 (Tex.1956), the Court dissolved an
injunction prohibiting striking employees from "us[ing]        whole, Casso not only fails to lend the Court's position
... insulting, threatening and indecent language" toward       support, it undercuts it. The Court also quotes O'Quinn as
non-striking employees "without prejudice to the right of      stating, " 'Texas' free speech right [has been
the trial court to reinstate it if future conduct of the       characterized] as broader than its federal equivalent' ".
[striking employees] should authorize it." Thus, the Court     Ante, at 8. What the Court actually said was: "One
invalidated an injunction as a prior restraint but did not     commentator has characterized Texas' free speech right
preclude the trial court from reissuing it if the              as being broader than its federal equivalent...." O'Quinn,
circumstances warranted. This is certainly not a very          763 S.W.2d at 402 (emphasis added). O'Quinn does not
broad reading of article I, section 8, and may well be         claim that a broader view of article I, section 8 is as
narrower than the First Amendment. In Hajek v. Bill            widely held as the Court would suggest. Nor did the
Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983)           Court in O'Quinn embrace the view, adding: "We need
(per curiam), the Court dissolved an injunction                not decide at this time whether Texas' guarantee of free
prohibiting an owner from driving his car on which he          speech affords greater protection than its corresponding
had prominently labeled as a "lemon". Although the             federal rights...." Id.
Court did not refer to the First Amendment, it also did not
state that article I, section 8 afforded broader protection         These five decisions, Tucker, Dallas General, Hajek,
of speech.                                                     Casso and O'Quinn, constitute the entirety of our article I,
                                                               section 8 caselaw. As if they were hardly sufficient
     Thus, all three of this Court's prior restraint cases     foundation for a rule governing gag orders, the Court also
have at least assumed a congruence between article I,          cites two court of appeals decisions, Amalgamated Meat
section 8 and the First Amendment. The other two               Cut. v. Carl's Meat & Provision Co., 475 S.W.2d 300,
decisions of this Court in which article I, section 8 is       304 (Tex.Civ.App.--Beaumont 1971, writ dism'd w.o.j.),
discussed at all are Casso v. Brand, 776 S.W.2d 551, 556       and Pirmantgen v. Feminelli, 745 S.W.2d 576, 578
(Tex.1989), and O'Quinn v. State Bar of Texas, 763             (Tex.App.--Corpus Christi 1988, no writ), cases based
S.W.2d 397, 402 (Tex.1988). The Court quotes Casso as          upon both the federal and state provisions. Contrary to
stating that "our state free speech guarantee may be           the Court's new approach in this case, both these cases
broader than the corresponding federal guarantee". Ante,       rely in part upon the First Amendment. The last time this
at 9. What Casso actually said was:                            Court addressed a prior restraint was in Iranian Muslim
                                                               Org. v. City of San Antonio, 615 S.W.2d 202 (Tex.1981),
While we have recently recognized the possibility that         where we invalidated the restraint based solely upon the
our state free speech guarantee may be broader than the        First Amendment without alluding to article I, section 8.
corresponding federal guarantee, see O'Quinn v. State          The Court does not cite Iranian. Two court of appeals
Bar, 763 S.W.2d 397, 402 (Tex.1988), that broader              decisions which the Court also does not cite expressly
protection, if any, cannot come at the expense of a            hold that "Texas constitutional provisions guaranteeing
freedom of expression and assembly are coextensive with          irreparable harm to the judicial process will deprive
the corresponding federal guarantees". Puckett v. State,         litigants of a just resolution of their dispute, and (2) the
801 S.W.2d 188, 192 (Tex.App.--Houston [14th Dist.]              judicial action represents the least restrictive means to
1990), cert. denied, 502 U.S. 990, 112 S.Ct. 606, 116            prevent that harm.
L.Ed.2d 629 (1991); Reed v. State, 762 S.W.2d 640, 644
(Tex.App.--Texarkana 1988, pet. ref'd), cert. denied, 493            Ante, at 10.
U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47 (1989). Reed
adds, "and we will apply the same analysis and principles             In deciding upon this test, the Court states that its
of construction in interpreting them." Id.                       analysis has been assisted by federal cases, and it cites
                                                                 two: Nebraska Press and Bernard. The Court criticizes
     Finally, the Court refers to two opinions of our Court      both, although they both struck down the gag orders
of Criminal Appeals, both of which held that newspaper           involved. Nebraska Press, it says, is a "fact specific" and
publishers could not be held in contempt for publishing          "splintered" decision, ante, at 10, which is "too
criminal trial testimony in violation of a court order. Both     permissive", ante, at 11, and "does not ... sufficiently
decisions were based upon article I, section 8. However,         protect the rights of free expression that we believe that
Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593                   the fundamental law of our state secures", ante, at 10. The
(App.1903), disapproved on other grounds in Ex parte             Court does not explain how Nebraska Press is any more
Winfree, 153 Tex. 12, 263 S.W.2d 154, 158 (1953), like           fact specific than this case, or how it leaves fundamental
Tucker, was decided before the First Amendment was               rights unguarded. Bernard, the Court says, was decided
applied to the states. And Ex parte McCormick, 129               "in the context of Rule 23(d) of the Federal Rules of Civil
Tex.Cr.R. 457, 88 S.W.2d 104, 106 (App.1935), relied             Procedure", ante, at 10 n. 16, "on a very splintered vote,
upon both federal and state caselaw, and observed that           and thereafter disregarded by the United States Supreme
the guaranty of article I, section 8 is also embodied in         Court", ante, at 21, showing "[i]f anything, the admittedly
state constitutions and in the First Amendment. Neither          unsettled nature of the federal law", ante, at 10 n. 16. The
case follows the Court's approach in this case of ignoring       truth is, that while Bernard involved federal rule 23, it
First Amendment law, and neither distinguishes article I,        was decided on First Amendment grounds; that the "very
section 8 from the First Amendment.                              splintered vote" was thirteen judges for the court's
                                                                 opinion, eight concurring, and one dissenting--not too
     The truth of the matter is that all our prior caselaw       different from our vote in this case; and that the U.S.
either assumes a close identity between the First                Supreme Court affirmed the judgment of the Fifth Circuit
Amendment and article I, section 8, or is silent on the          without reaching the First Amendment issues. As for
subject. Not before today has this Court insisted that the       whether federal law is "admittedly unsettled", Bernard
two provisions are different in substance, and so much so        simply assembles and restates the holdings of a number
that we should not even consider the former in construing        of U.S. Supreme Court decisions in fashioning a test for
the latter.                                                      gag orders.

6                                                                     As flawed as the Court considers Nebraska Press and
                                                                 Bernard to be, it is difficult to conceive how the Court
     It is important to note that the Court does not tie its     can state a test for gag orders under article I, section 8
analysis of the gag orders in this case to the history of        that is identical to Bernard 's First Amendment standards.
article I, section 8, or to its text, or to any prior caselaw.   The presumption against the constitutionality of gag
Rather, it states: "Since the dimensions of our                  orders is the same. The first element of the Court's
constitutionally guaranteed liberties are continually            test--"an imminent and irreparable harm to the judicial
evolving, today we build on our prior decisions by               process [that] will deprive litigants of a just resolution of
affirming that a prior restraint on expression is                their dispute"--is the same as Bernard 's--"an imminent,
presumptively unconstitutional." Ante, at 10. By                 not merely a likely, threat to the administration of
"continually evolving", the Court means that it is free to       justice", 619 F.2d at 474 (quoting U.S. v. Columbia
construe our constitution unconstrained by its history or        Broadcasting System, Inc., 497 F.2d 102, 104 (5th
any prior construction. "With this concept in mind," the         Cir.1974)), that "surely [will] result in direct, immediate,
Court adopts a test                                              and irreparable damage", 619 F.2d at 473 (quoting
                                                                 International Soc'y for Krishna Consciousness, 601 F.2d
Page 36                                                          at 833 (quoting New York Times, 403 U.S. at 730, 91
                                                                 S.Ct. at 2149)). The second element of the Court's
for determining whether gag orders are valid under article
                                                                 test--"the judicial action represents the least restrictive
I, section 8, the basis for which cannot be found in any
                                                                 means to prevent that harm"--is also the same as Bernard
kind of precedent that the Court recognizes. That test is
                                                                 's--the gag order " 'must be narrowly drawn and cannot be
as follows:
                                                                 upheld if reasonable alternatives are available having a
a gag order in civil judicial proceedings will withstand         lesser impact on First Amendment freedoms' ", 619 F.2d
constitutional scrutiny only where there are specific            at 476 (quoting CBS, 522 F.2d at 238). The Court's
findings supported by evidence that (1) an imminent and          requirement that there be specific findings supported by
evidence is the same as Bernard 's third condition that         about the constitutional language, exaggerated claims
there be "procedural safeguards" including evidence and         about its distinctiveness, and phrases taken out of context
findings, 619 F.2d at 477 (quoting Southeastern                 from a few of our cases, the Court produces a test that is
Promotions, 420 U.S. at 559, 95 S.Ct. at 1246).                 identical to more fully developed First Amendment
                                                                standards. The Court achieves the very end it sought to
     The identity between First Amendment standards for         avoid--adoption of First Amendment standards--without
reviewing gag orders and the Court's new standards under        admitting it.
article I, section 8 is a very remarkable result considering
that the Court's opinion calls for "an independent                  Why? If state and federal constitutional law
standard under the Texas Constitution." Ante, at 11. After      conflicted, or if federal law were undeveloped or
all, the two constitutional provisions have different           nonexistent, an effort to expound state law might be
authors, different words, and different histories, and          productive. But these circumstances are not present here.
according to the Court, they have been and should be            The Court's effort in this case is like creating a new
treated separately. Although the Court professes not even       language in order to write a novel: it is possible to do it,
to have considered the validity of the gag orders under         but unnecessary when author and readers already share a
the First Amendment, the                                        common language. And one cannot help being skeptical
                                                                of an author who claims to have written a book in a new
Page 37                                                         language when the new language sounds a lot like
                                                                English and the book reads a lot like MOBY DICK.
test it announces for applying the unique and distinctive
language of article I, section 8 turns out to be identical to       C
the First Amendment test. This can happen, the Court
says: "independent interpretation [does not] necessarily            Most of the Court's opinion today is devoted to a
yield a different result". Ante, at 22. The Court explains:     defense of its new method of constitutional analysis
"Our investigation may reveal federal authority so              which examines the state constitution first, and if a right
complete, so well reasoned, and so consistent with the          is found to be protected, never reaches the federal
provisions of the Texas Constitution in protecting the          constitutional question. The Court derives this approach
individual liberties that we reach the same conclusion."        from developments in other jurisdictions and our own
Id. It might, of course, but here it does not; that is, the     caselaw. Neither supports the Court's new methodology.
Court rejects the only two federal cases it cites relating to
a test for gag orders as being incomplete, poorly               1
reasoned, and not fully protective of state constitutional
free speech rights. The Court has explained how it could             The Court claims that its new method of
reach the same conclusion as federal cases which it             constitutional analysis is part of a "trend" that "has met
considered well-reasoned and authoritative; it has not          with broad approval" and has been endorsed
explained how it could reach the same conclusion as             overwhelmingly by state and federal courts as well as
federal cases which it rejects.                                 commentators throughout the nation. Ante, at 12. These
                                                                claims are greatly exaggerated. Certainly, there are a
     If the two constitutional provisions are really as         number of courts and commentators who have advocated
different as the Court insists they are, it is a remarkable     an approach to state courts' decisions of constitutional
coincidence that the standards for applying them to gag         issues like the one the Court uses today. But the thinking
orders happen to be identical. But if the standards really      on the subject is not all one way, a fact which the Court
are the same, then there is no practical difference in the      attempts to minimize. The truth is that a substantial body
two provisions, contrary to the Court's insistence. Thus,       of legal commentators disagrees
the Court's analysis strains credulity and finally disproves
its own thesis.                                                 Page 38

7                                                               that an approach like the Court uses is proper or even
                                                                workable. [10] Most of the cases the Court cites from
    Without reference to the First Amendment, or to the         other jurisdictions are not really as favorable as it
hundreds of cases construing it, this Court attempts to         suggests. [11] And the Court's assertion that "federal
formulate independent standards for applying the                courts have encouraged state courts to embark upon
guarantee of free speech in article I, section 8 of the         independent analysis of their own constitutions", ante, at
Texas Constitution to one form of prior restraints, gag         15, is not only unsupported by authority but highly
orders like the ones in this case. The task is daunting,        improbable. (Why would federal courts take it upon
even though the law the Court attempts to create on its         themselves either to encourage or discourage state courts
own is but a small part of what Americans have come to          in applying state constitutions?)
understand as freedom of speech. And in the end the
Court fails in its efforts. Barely managing to cobble                As the Court notes, many of the authorities I have
together a few fragments of history, obvious truisms            cited support judicial reliance upon state constitutions. So
                                                                do I. Contrary to the Court's assertions, I do not argue
that state constitutions should be ignored, or that federal    The Court's approach insists upon looking for differences
law always controls their construction. I contend only         between the state and federal constitutions when none can
                                                               be found.
Page 39
                                                                   One extensive article surveying the thinking
that federal constitutional law should be considered when      concerning "new federalism" explains some of the
a state constitutional provision is applied. The Court's       deficiencies in the Court's approach:
new analytical method treats the resource of federal law
with marked ambivalence. On the one hand, the Court                 Several observers of recent state constitutional
includes federal law among the considerations its new          activism have argued that state constitutions should be
method is to use: "Within the context of such an analysis,     regarded as the primary sources of individual rights and
a state court can benefit from the insights of                 liberties and that state courts should interpret state
well-reasoned and developed federal jurisprudence, but is      constitutions without reference to "all the old, familiar
not compelled to reach identical results." Ante, at 13. On     shorthand" of federal constitutional law. According to
the other hand, the Court avoids any useful reference to       this "primacy" model, the state court should consider
federal law in this case. The Court claims that it "quite      assertions of federal constitutional rights only after all
obviously" does not disregard federal law, yet it ignores      claims resting on state law have failed to provide the
Bernard and the United States Supreme Court decisions          requested protections. The assumption underlying this
on which it relies. The Court says First Amendment             model is that the states are the primary sovereigns and
jurisprudence is "not irrelevant", but it also says that it    that state constitutions are the basic charters of individual
"need not consider whether the United States Constitution      liberties and of the limits of governmental authority. In
has also been violated." Ante, at 11. In sum, the Court        this model, federal law, including the fourteenth
says federal law can be useful in applying the state           amendment, provides only limited constraints on state
constitution, but the Court does not use it in this case.      autonomy.

     To portray its new methodology in a more favorable             The failing of the primacy model is that this
light, the Court contrasts it with a misstatement of this      assumption no longer resembles reality. Nor does it
opinion:                                                       reflect the fact that litigants typically present state
                                                               constitutional issues only when they expect an
     Rejecting our careful and detailed analysis of the        unfavorable federal constitutional result. Federal
development and interpretation of article one, section         assumption of the dominant role in the federal
eight, the concurrence advances an alternative--Texas          system--and particularly
judges should follow, but never lead, federal
jurisprudence.... [T]he Texas judge should never diverge       Page 40
from the path taken by the federal judiciary.... [Nothing]
should obscure the obligation of adherence to federal          in the protection of individual rights--has rendered the
authority.                                                     primacy model obsolete. When federal protections are
                                                               extensive and well articulated, state court decisionmaking
     Ante, at 21. This, of course, does not even remotely      that eschews consideration of, or reliance on, federal
resemble any argument I make here. Federal authority           doctrine not only will often be an inefficient route to an
cannot determine state constitutional construction, and I      inevitable result, but also will lack the cogency that a
do not argue that it can or should. There may be               reasoned reaction to the federal view could provide,
circumstances in which article I, section 8 applies            particularly when parallel federal issues have been
differently from the First Amendment, but none are             exhaustively discussed by the Supreme Court and
present in this case. The Court adopts the same test for       commentators. In a community that perceives the
gag orders that has already developed in the federal           Supreme Court to be the primary interpreter of
courts, only it refuses to say so. I would simply              constitutional rights, reliance on Supreme Court
acknowledge this source of authority and the fact that in      reasoning can help to legitimate state constitutional
this case at least there is no difference in the application   decisions that build on the federal base. When a state
of the First Amendment and article I, section 8.               court diverges from the federal view, a reasoned
                                                               explanation of the divergence may be necessary if the
     The Court's attempt to focus constitutional analysis      decision is to command respect.
on state law to the exclusion of federal law is at odds with
itself. If the Court acknowledges that the test for gag             For state constitutional law to assume a realistic role,
orders under federal law is identical to the test it adopts    state courts must acknowledge the dominance of federal
under article I, section 8, it can hardly claim that it has    law and focus directly on the gap-filling potential of state
arrived at this test independently. If the Court refuses to    constitutions. This interstitial role recognizes federal
acknowledge federal law, then it assumes the difficult         doctrine as a settled floor of rights and asks whether and
task of constructing a state test from almost no precedent,    how to criticize, amplify, or supplement this doctrine to
only to arrive at the very conclusion federal law dictates.    yield more extensive constitutional protections. The state
court's role is not to construct a complete system of           equal rights
fundamental rights from the ground up. [Footnotes
omitted.]                                                       Page 41

    Developments in the Law--The Interpretation of              amendment); LeCroy v. Hanlon, 713 S.W.2d 335, 341-42
State Constitutional Rights, 95 HARV.L.REV. at                  (Tex.1986) (article I, section 13, open courts); [12]
1356-1358; see also Stewart G. Pollack, State                   Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984) (open
Constitutions as Separate Sources of Fundamental Rights,        courts); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983)
35 RUTGERS L.REV. 707, 718.                                     (open courts); Bell v. Indian Live-Stock Co., 11 S.W. 344,
                                                                345 (Tex.1889) (article 16, section 28, protecting current
     It cannot be denied that there are rights protected by     wages for personal service from garnishment). Travelers'
state constitutions that extend beyond those guaranteed         Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007
by the United States Constitution. Many state                   (1934), analyzed both state and federal constitutional law,
constitutional provisions simply have no federal                as many other cases from this Court have. Supra note 6.
analogue. Three of the most important decisions this            In Tucker, as we have noted, the Court referred to article
Court has ever issued were based upon such provisions.          I, section 8 and the First Amendment as "like" provisions,
Carrollton-Farmers Branch Indep. Sch. Dist. v.                  and Hajek relies entirely on Tucker. In Whitworth v.
Edgewood Indep. Sch. Dist., 826 S.W.2d 489 (Tex.1992);          Bynum, 699 S.W.2d 194, 197 (Tex.1985), the Court
Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491             applied state equal protection guarantees to declare our
(Tex.1991); Edgewood Indep. Sch. Dist. v. Kirby, 777            Guest Statute unconstitutional, but drew upon federal
S.W.2d 391 (Tex.1989). In construing state constitutional       principles of analysis. Foster was decided by the Court of
provisions which have no federal counterpart, reference         Criminal Appeals at a time when the First Amendment
to federal law is usually of little utility.                    had not clearly been applied to the states. Kemper v.
                                                                State, 63 Tex.Cr.R. 138 S.W. 1025, 1044-1045
     When state and federal provisions overlap or               (App.1911), cited by the Court for the proposition that
correspond, state law, as well as federal law and the law       even an opinion of the United States Supreme Court
of other states, may be helpful in analyzing their proper       should be questioned by Texas courts if it improperly
application. To ignore all federal constitutional law in        disregards the rights of Texans, was explicitly overruled
construing state constitutional provisions guaranteeing         on this very point one year later in Robertson v. State, 63
rights common to both is as wrong as ignoring state             Tex.Cr.R. 216, 142 S.W. 533, 546 (App.1912) (holding
constitutional provisions altogether. If nothing else, it is    that the right to confrontation under article I, section 10
inefficient to blaze a trail through the wilderness when        of the state constitution shares a common heritage and
there is a perfectly good highway there already, built at       interpretation with the Sixth Amendment, and deferring
considerable expense, and well traveled. But the                to the Supreme Court's interpretation that of right). And
problems of the Court's method run even deeper. The             McCormick and Heitman v. State, 815 S.W.2d 681
Court does not merely ignore federal law; it rejects it.        (Tex.Crim.App.1991), consider both federal and state law
And the rejection has a disturbing tone to it. "[O]ur           in construing constitutional rights. None of the Texas
concerns are Texas concerns," the Court asserts, a              cases the Court cites uses the method it endorses.
viewpoint that cannot be very comforting to out-of-state
parties litigating in Texas courts.                                  The Court's method is especially problematic in a
                                                                case involving freedom of speech. As one commentator
2                                                               states:

     The Court's claim that Texas courts have "recognized            There are good reasons for the state courts to look to
the importance of our state constitution" for more than a       federal law for guidance in the first amendment area, an
century, ante, at 13, cannot be disputed. Certainly, if state   area in which the issues now being addressed are intricate
courts have not recognized the importance of our state          and difficult. The state courts are wrestling with
constitution, they should have. This does not mean, of          essentially the same questions as the federal courts, and
course, that any Texas court has ever employed the              all approach those issues without a clear constitutional
constitutional analysis used by the Court today. If the         mandate. The states would therefore be foolish to ignore
Court's new analytical method had really been followed          the convenient resource presented by the federal
in Texas for 100 years, as the Court means to suggest, it       experience; an argument is no less persuasive because it
would hardly need the major defense the Court attempts          relies upon or quotes an argument made elsewhere.
to provide in this case. Today's opinion is significant only    Commentators who condemn state judiciaries for
because the Court's methodology has not previously been         referring to federal doctrine when interpreting their own
the accepted model in Texas. In five of the cases the           charters would force an irrational chauvinism on the state
Court cites, we applied provisions of our constitution          courts.
which have no federal counterpart: In re Baby McLean,
725 S.W.2d 696, 698 (Tex.1987) (article I, section 3a,              Developments in the Law--The Interpretation of
                                                                State Constitutional Rights, 95 HARV.L.REV. at 1419
(emphasis added).                                               706 (1873), as an unpopular decision resulting in the
                                                                removal of the Justices of this Court by the Governor.
3                                                               This is the real sense in which federal review is
                                                                "unnecessary".
     One argument the Court makes for its new
method--avoidance of "unnecessary" federal review--is                There are several difficulties with the Court's
more subtle and requires more attention. The Court              position. First, it weakens the validity of
contends that its approach is more efficient because if a       constitutionalism and the rule of law. The essence of
case is decided on state constitutional grounds, the United     constitutionalism is that certain principles, endorsed by
States Supreme Court cannot review it, and thus that            the people, become fundamental rules of law. How these
Court's workload is reduced and the parties' dispute more       rules apply in changing circumstances is often disputed,
quickly resolved. As evidence of the savings to be              and the judiciary in this country has taken upon itself the
achieved using its approach, the Court cites a total of four    ultimate responsibility of resolving those disputes,
decisions by state courts in the past seventeen years in        beginning with Marbury v. Madison, 5 U.S. (1 Cranch)
which review by the United States Supreme Court could           137, 2 L.Ed. 60 (1803). The people and the other
have been avoided. Even if it is assumed that all four          branches of government have acquiesced in this
cases could have been decided on state constitutional           delegation of responsibility in part, I think, because of
grounds unreviewable by the Supreme Court, reducing             their perception that the judiciary is bound in its
that Court's workload by four cases in 17 years would not       construction and application of constitutional provisions
measurably improve its efficiency. Nor do delays in so          by definite rules of law which preclude judges from
few cases over so long a period indicate a problem of any       substituting their personal policies for constitutional
magnitude. Efficiency is not a very compelling basis for        principles in the guise of construing those principles.
the Court's argument.                                           Adherence to these rules is essential to the validity and
                                                                the credibility of constitutionalism. For this reason,
Page 42                                                         constitutional construction must be founded upon a
                                                                careful construction of each provision's language,
     But the Court has more serious reasons for wanting
                                                                purpose, history and intent, as well as upon precedent,
to avoid "unnecessary" federal review. The Court argues
                                                                theory and fundamental values. If the analytical process
that enforcing state constitutional rights both protects
                                                                is inadequate or flawed, the result may appear to be based
values fundamental to the people of that state and
                                                                primarily on the judge's policy preferences and not the
commends them to the rest of the nation. The people of a
                                                                constitutional principle itself. Chief Justice Hughes'
state speak through their state constitution, the argument
                                                                observation cannot be avoided altogether: to some extent,
runs, and that voice should rule in the state and be heard
                                                                at least, the constitution is what the judges say it is.
in the nation. This argument, though true in some
                                                                CHARLES EVANS HUGHES, THE SUPREME
respects, is mostly a rhetorical appeal to state pride. More
                                                                COURT OF THE UNITED STATES 120 (1928). The
importantly, it understates the Court's goal. If a state
                                                                statement continues to be true, not because of the fact that
constitutional provision has no federal counterpart, it
                                                                judges construe constitutions, but because of the way in
must be given effect so long as that can be done without
                                                                which they do.
infringing upon the federal constitution. If state and
federal constitutional provisions overlap, both must be              The Court decries the prospect that our constitution
considered; if they conflict, the state provision must give     should "veer in meaning each time the United States
way. The undeniable fact that the people of a state are         Supreme Court issue[s] a new decision", but cites with
entitled to a voice in their government does not mean that      approval the change in constitutional construction
the voice of the nation of which the state is a part can be     occasioned by the Governor's removal of the justices of
ignored. The goal of the Court's methodology is not             this Court following Rodriguez. The problem is the same.
merely to augment a state's voice in national affairs, but      If a court's constitutional determinations are not in a very
to still the national voice in state affairs. The approach      real sense mandated by factors distinct from the personal
adopted by the Court is not limited to producing state          policy views of the justices, constitutionalism is reduced
participation in the national debate over fundamental           to judicial tyranny. It is no answer to say that
issues; it seeks state autonomy.                                "unsatisfactory" constructions of the constitution can be
                                                                corrected
     That autonomy, the Court recognizes, is
accomplished not by the state constitution itself, but by       Page 43
the interpretation of the constitution by the state's highest
court. And this brings us to what lies at the very heart of     simply by removing the judges. This is not the way to
the Court's position: the Justices of this Court, and not the   amend the constitution. And while it might correct the
United States Supreme Court, should determine the               result in particular cases for a time, it leaves the process
people's fundamental rights, and if our determinations are      of constitutionalism itself fatally flawed. Substituting one
unsatisfactory, we can be replaced. By way of                   judge for another in order to change the meaning of the
illustration, the Court cites Ex parte Rodriguez, 39 Tex.       constitution concedes that the constitution has no
meaning apart from judges' views. The importance of             different. So far as this case is concerned, they are
individual judicial views cannot be denied, but they do         identical. The Court's motives are ulterior. One
not substitute for rules of law. Thus, constitutional           commentator has observed that "some critics have argued
construction must not be reduced to the issue of who is         that virtually all New Federalism proponents are
doing the construction, "we" or "they". Yet this is the         motivated by the bare desire to achieve a liberal political
result of the Court's approach, carried to its logical          agenda". Gardner, supra note 10, at 772. Whether the
extreme.                                                        agenda is "liberal" or "conservative" or something else
                                                                altogether makes no difference. The vice is that a
     The second difficulty with the Court's view that we        non-legal influence has been brought to bear on judicial
should define fundamental constitutional rights without         decision making. This is not "new federalism"; it is "new
interference from outside the state is that it is premised on   judicialism". The Court by its opinion today is vulnerable
a one-dimensional view of those rights which is rarely          to this charge.
accurate. If relator were constitutionally entitled to say
whatever she pleased, this would be an easy case. But her           II
right to speak freely is not absolute, under either the First
Amendment or article I, section 8. In this case, relator's           Relator complains that she and others have been
right conflicts with the district court's interest in           denied access to court files concerning the pending
protecting minor litigants, and the issue is whether the        litigation. She requests that the district court be ordered
district court's interest warrants the restriction imposed on   not to deny her access to these records. There are several
relator's right. This tension among competing rights and        affidavits before us, some tending to substantiate relator's
interests     gives      constitutional     construction    a   position
multi-dimensional aspect. Thus, the Court's view that
federal constitutional rights, which states cannot              Page 44
diminish, are a "federal safety net" is overly simplistic.
                                                                and others contradicting it. Our record contains no
Federal constitutional construction does not merely set
                                                                written order restricting access to court files, and relator
minimum standards for protected rights which the states
                                                                does not claim that any such written order exists.
are free to increase; it strikes a balance among competing
rights and interests that is itself of constitutional                The Court rightly concludes that we cannot resolve
significance. While states may have more latitude in            factual disputes in a mandamus proceeding and therefore
adjusting this balance than they do in reducing                 cannot grant relator's request for relief. The Court is not
guaranteed protections, that latitude is not unlimited.         content to leave the matter at that, however, lest any
State courts are not free from federal constitutional           doubt linger as to the result it intends. Thus, it adds that if
considerations in determining fundamental rights. The           the district court did restrict access to its files, it abused
delicate balance among those rights and other interests         its discretion and violated TEX.R.CIV.P. 76a; that "there
must also be maintained.                                        should be no impediment to viewing the court records";
                                                                that the district court should make all its records open and
     Finally, the we-better-than-they argument evinces an
                                                                available to the public; and that if "[r]elator should find
inappropriate chauvinism toward the federal courts and
                                                                her access to the records in any way obstructed," she may
other state courts. The concept of freedom of speech in
                                                                seek additional relief. Ante, at 24. This last statement
this country did not originate in any one state, nor does
                                                                assumes that relator's access to court files has been
any one court have a monopoly on its application. As it
                                                                restricted, contrary to the Court's conclusion that it cannot
happens, the federal courts have been at construing the
                                                                and has not made that determination. This rather obvious
First Amendment much longer and far more often than
                                                                flaw aside, the Court's writing strike me as fairly
Texas courts have had occasion to consider article I,
                                                                heavyhanded nudging.
section 8. The federal courts' experience in defining the
contours of freedom of speech ought to be invaluable. To             Rule 121(a)(2)(C), TEX.R.APP.P., requires that a
ignore it simply because we can is both imprudent and           certified or sworn copy of the order complained of be
arrogant.                                                       attached to a petition for mandamus. No such order is
                                                                attached to relator's petition in this case, nor, as noted
4
                                                                above, is one alleged to exist. If relator believed that her
     Having reviewed the Court's decision, the basis            access to court records had been informally restricted by
offered for it, and the defense of its new analytical           the district court, she should have moved for access,
method, I return to the question posed at the beginning:        requested a hearing, and either obtained a ruling from the
why should the Court go so far out of its way to                court or a record reflecting the court's refusal to rule.
invalidate the gag orders in this case on state                 Without a written order or a court's refusal to issue one,
constitutional grounds? The answer has nothing to do            this Court should neither issue mandamus nor comment
with the result in this case. We are unanimous in our           on the merits of relator's complaint.
judgment as to the outcome. The answer is not that
                                                                    III
relator's state and federal constitutional rights are
     I agree with the Court that the district court did not       cannot be set aside in this manner. Furthermore, the
abuse its discretion in removing relator as guardian ad           service of a guardian ad litem is a burden on the parties to
litem of the minor plaintiffs. A guardian ad litem may be         a case. That burden is necessary when the ward's rights
appointed for a ward only if the ward's next friend or            cannot legally be served by a parent, next friend or
guardian has an interest adverse to the ward's.                   guardian with conflicting interests. The burden is
TEX.R.CIV.P. 173. [13] A court has no discretion to               unjustified, however, when those conflicting interests do
appoint a guardian ad litem for a person whose next               not exist.
friend or guardian has no such adverse interest, even if
the court finds that appointment of a guardian ad litem                In the present case, the district court determined that
would be in the person's best interest. Indeed, the next          no further conflicts of interest exist among the minor
friend or guardian has a right to represent the person            plaintiffs and their parents, next friends or guardians who
without the imposition of a guardian ad litem unless a            would otherwise represent them in the litigation. The
conflict of interests exists. If the conflict of interest which   court explicitly stated in its order removing the guardian
occasioned the appointment of a guardian ad litem                 that because there was "no apparent conflicting or
disappears, then it seems to me the guardian ad litem             adverse interests between the Next Friends and minors ...
must be removed. It makes little sense that a guardian ad         the appointment and retention of a Guardian Ad Litem
litem cannot be appointed without a conflict of interests         [was] not necessary." All the parties in this latter category
between the ward and his next friend or guardian, but             have settled their claims in the litigation; only the minors'
may continue to serve after the conflict disappears. See In       claims remain. Not only are the parents and others now
re Judicial Settlement of the First Intermediate Account          qualified to represent the minor children, they are entitled
of Proceedings of Manufacturers Hanover Trust Co., 83             to do so without interference from a guardian ad litem.
A.D.2d 808, 442 N.Y.S.2d 7 (1981) (removal of guardian            [14] Therefore, I agree with the Court that the trial court
ad litem permissible to save expenses when court                  correctly dismissed the guardian ad litem in this case.
determines that the father has no conflict with the minor);
United States v. Noble, 269 F.Supp. 814, 816                      ******
(E.D.N.Y.1967).
                                                                      For these reasons, I concur only in the Court's
      The best interest of a ward is sufficient cause for the     judgment.
trial court to replace one guardian ad litem with another.
                                                                  ---------
A particular guardian ad litem must be removed or
replaced if the ward's best interest requires. See Barrow         Notes:
v. Durham, 574 S.W.2d 857, 861 (Tex.Civ.App.--Corpus
Christi 1978), aff'd, 600 S.W.2d 756 (Tex.1980) (if               [1] The constitution now explicitly protects Texans'
guardian's interests are adverse to those of child, then it is    "right, in a peaceable manner, to assemble together for
abuse of discretion for trial judge not to appoint a new          their common good; and apply to those invested with the
guardian ad litem); Peters v. Allen, 296 S.W. 929, 932            powers of government for redress of grievances or other
(Tex.Civ.App.--San Antonio 1927, no writ) ("if the trial          purposes, by petition, address or remonstrance." Tex.
court sees that the ward's interest is not properly               Const. art. I, § 27.
protected, it
                                                                  [2] Joseph W. McKnight, Stephen Austin's Legalistic
Page 45                                                           Concerns, 89 Sw.Hist.Q. 239, 246-47, 263-64 (1986).

is the court's duty to promptly interpose in the ward's           [3] Eugene C. Barker, Stephen F. Austin, in The
behalf to remedy the error, and, if necessary, remove the         Handbook of Texas 84 (Walter Prescott Webb ed. 1952);
guardian ad litem and appoint another"); see also In re           Robert E. Hall, Remonstrance--Citizen's Weapon Against
Estate of Lacy, 54 Cal.App.3d 172, 126 Cal.Rptr. 432,             Government's Indifference, 68 Tex.L.Rev. 1409, 1417,
441 (1975) (guardian ad litem who became                          1421 (1990) (hereinafter Hall, Remonstrance ).
co-beneficiary of will with minor had adverse interest and
should be replaced); In re Guardianship of Lauderdale,            [4] See Hall, Remonstrance, at 1412-21; Robert A.
15 Wash.App. 321, 549 P.2d 42, 46 (1976) (guardian ad             Calvert and Arnoldo De Leon, The History of Texas
litem cannot represent two minors with conflicting                56-58 (1990); John Sayles,Introduction to Texas
interests). However, the best interests of the ward are not       Constitutions 129-35 (4th ed. 1893); T.R. Fehrenbach,
a necessary cause for removal of a guardian ad litem              Fire and Blood: A History of Mexico 378-379 (1973);
altogether.                                                       Arvel Ponton III, Sources of Liberty in the Texas Bill of
                                                                  Rights, 20 St. Mary's L.J. 93, 100 (1988) (hereinafter
     The law presumes that it is not in the ward's best           Ponton, Sources of Liberty ).
interests for a guardian ad litem to supplant an otherwise
qualified parent, next friend or guardian. Even if the            [5] Lorenzo de Zavala had ample reason to be concerned
guardian ad litem were a more effective representative for        with freedom of expression at the time of his drafting
the ward, the rights of parents, next friends and guardians       substantial portions of the 1836 Constitution. He was in
hiding from a wide-scale manhunt ordered by Santa Anna         punishing speech criminally knows that he will go before
because of his letters and speeches criticizing the            a jury, and may be willing to take his chance, counting on
Mexican government. Raymond Estep, Lorenzo de                  a possible acquittal. A prior restraint, therefore, stops
Zavala and the Texas Revolution, 57 Sw.Hist.Q. 322             more speech more effectively. A criminal statute chills,
(1954). See also Calvert & De Leon at 65.                      prior restraint freezes.

[6] The decision of the delegates to replace the 1836          Alexander M. Bickel, The Morality of Consent 61 (1975).
language with the free speech provision of the Tennessee
Constitution was later reversed. Journals of the               [15] See, e.g.,Chaplinsky v. New Hampshire, 315 U.S.
Convention 74-75 (1845), reprinted in Journals of the          568, 569, 62 S.Ct. 766, 768, 86 L.Ed. 1031 (1942)
Convention (Shoal Creek Publishers 1974).                      (upholding conviction of a Jehovah's Witness for calling
                                                               a city marshal a "damned fascist" and a "racketeer").
[7] Not even conventional limits on free speech curbed
the sweeping scope of the free speech guarantee; the           [16] Concerned that public prejudice could prevent
delegates defeated a provision to deem libelous speech         impanelling of a jury, a trial judge issued an order
injurious to female reputation, without inquiry into its       restraining the news media from publishing any
truth. Ponton, Sources of Liberty, at 106 n. 102, quoting      information about a murder suspect in Nebraska Press
Debates of the 1845 Constitutional Convention 94               Ass'n v. Stuart, 427 U.S. at 542-43, 96 S.Ct. at 2794-95.
(1846).                                                        The United States Supreme Court invalidated the order as
                                                               an unconstitutional prior restraint, noting that: (1) the
[8] As the break with the Union loomed, Governor Sam           underlying basis was too speculative; (2) less restrictive
Houston and others argued for independence rather than         alternatives were not investigated; (3) no evidence was
alliance with the Confederacy. Mark E. Nackman, A              presented that the prior restraint would have in fact
Nation Within A Nation: The Rise of Texas Nationalism          achieved its purpose; and (4) the order was overbroad. Id.
127-31 (1975).                                                 at 562-69, 96 S.Ct. at 2804-08. These conclusions are
                                                               quite fact specific, id. at 569, 96 S.Ct. at 2807, and thus
[9] Seeinfra, text accompanying notes 38-41.                   only serve to reinforce a presumption that prior restraints,
                                                               including those directed at media publication, are
[10] The Convention and its Work, Galveston Daily              unconstitutional.
News, Aug. 24, 1875 at 1, col. 2. ("to agree upon ... the
Bill of Rights, ought not to be difficult. There is nothing    In Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980),
new in the fundamental province of reason and                  the federal authority upon which the concurrence rests
conscience and justice."). This newspaper's reports of the     almost its entire analysis, the trial judge prohibited the
1875 convention are significant not only as the report of      plaintiffs and their attorneys in a class action from
the leading paper in one of the state's first major cities,    communicating with any potential class members without
but also because it printed bulk copies of the constitution    court approval. The Fifth Circuit held that, in the context
and the official journal of the convention.                    of Rule 23(d) of the Federal Rules of Civil Procedure, the
                                                               order was violative of the First Amendment. Id. at
[11] The first report of the Bill of Rights committee          475-78.
"[found] the members discordant." Second Dispatch,
Galveston Daily News, Sept. 15, 1875 at 1, col. 4.             The majority recognized that as to the first prong of its
                                                               test, "[a]t least three [Supreme Court] justices may have
[12] Constitutional Convention, Forty-Third            Day,    rejected even that standard as overly lenient." Id. at 473.
Galveston Daily News, Oct. 23, 1875 at 1, col. 3.              A concurrence characterized the "majority's first
                                                               amendment analysis [as a] needless excursion into a
[13] See Journal of the Constitutional Convention 62
                                                               difficult and little-explored area of constitutional law." Id.
(1875) (proposal of Delegate Brady). Like the First
                                                               at 481 (Tjoflat, J., concurring). If anything, the
Amendment, this proposal was framed purely as a
                                                               admittedly unsettled nature of the federal law reflected in
negative restriction on enactment of laws restraining
                                                               these writings supports development of an independent
speech. Along with other proposals, it was rejected in
                                                               standard under the Texas Constitution. See alsoinfra, text
favor of including an affirmative grant of the liberty to
                                                               accompanying notes 59-63.
speak and publish. See Galveston Daily News, Oct. 13,
1875 at 1, col. 3 (recording the rejection of an alternative   [17] The only other factors to be considered under
free speech provision in favor of the language of the 1845     Nebraska Press are the extent of pretrial news coverage
Constitution).                                                 and the effectiveness of the restraining order. We note
                                                               that to the extent that this opinion cites any federal law,
[14] This condemnation          of   prior   restraints   is
                                                               such precedent is used only for guidance, and in no way
understandable:
                                                               necessitates the result reached by this court today.
Prior restraints fall on speech with a brutality and a
                                                               [18] That standard has been largely developed in the
finality all their own.... [T]he violator of a statute
                                                               context of criminal rather than civil proceedings,
weighing the press' First Amendment rights against an           (1985) (hereinafter Utter, State Court Comment ) (while
accused's Sixth Amendment right to a fair trial. See            noting the usefulness of "comment" on federal law,
Sheryl A. Bjork, Comment, Indirect Gag Orders and the           concluding that "a state supreme court should ... embark
Doctrine of Prior Restraint, 44 U. Miami L.Rev. 165,            upon the interpretation of its own constitution, relying on
166 (1989). For instance, the first element in this test, the   it to protect the rights of its citizens"); Donald E. Wilkes,
extent of pretrial news coverage, usually has little bearing    Jr., First Things Last: Amendomania and State Bills of
on a civil proceeding.                                          Rights, 54 Miss.L.Rev. 233, 257 (1984) (describing as
                                                                "alarming" the attempt "to curtail state court protection of
[19] Nebraska Press, a splintered decision with five            individual rights"); Robert F. Williams, State
separate opinions, has been appropriately criticized for        Constitutional Law Process, 24 Wm. & Mary L.Rev.
failing to provide a comprehensive guarantee of free            169, 190 (1983) (urging state courts "to develop truly
expression. See Stephen R. Barnett, The Puzzle of Prior         independent       state    constitutional     jurisprudence");
Restraint, 29 Stan.L.Rev. 539, 541 (1977); Benno C.             Developments in the Law--The Interpretation of State
Schmidt, Jr., Nebraska Press Association: An Expansion          Constitutional Rights, 95 Harv.L.Rev. 1324, 1498 (1982)
of Freedom and Contraction of Theory, 29 Stan.L.Rev.            ("It is vital that the [United States] Supreme Court's
431, 461 (1977). Nor are we the first state to recognize        interpretation of the federal Constitution control federal
the inadequacy of the federal approach. See State v. Coe,       constitutional law; it is not only unnecessary but also
101 Wash.2d 364, 679 P.2d 353, 358-59 (1984). See also          irrational that it control state law as well."); Ronald K.L.
infra, note 32.                                                 Collins,       Commentary,          Reliance      on     State
                                                                Constitutions--Away from a Reactionary Approach, 9
[20] Neither Nebraska Press nor any other ruling of the         Hastings Const. L.Q. 1, 2 (1981) (the "rediscovery of
United States Supreme Court has specifically considered         state constitutions is certainly a good omen for a nation
such an order. Indeed, there is a confusing split of federal    conceived in federalism"); Martha Craig Daughtrey, State
authority on this matter. SeeIn re Dow Jones, 842 F.2d          Court Activism and Other Symptoms of the New
603, 608-10 (2d.Cir.), cert. denied, sub nom.Dow Jones          Federalism, 45 Tenn.L.Rev. 731, 736 (1978) (praising
& Co., Inc. v. Simon, 488 U.S. 946, 109 S.Ct. 377, 102          the "growing number of high state courts" that have
L.Ed.2d 365 (1988) (gag orders on trial participants are        accorded broader protections than are available under the
subject to a lesser degree of scrutiny than are prior           federal Constitution). See also infra, notes 33 & 36.
restraints); In re Russell, 726 F.2d 1007, 1010 (4th
Cir.1984) (relying on Nebraska Press to uphold a gag            [23] See, e.g.,City of Mesquite v. Aladdin's Castle, Inc.,
order on trial participants); but seeJournal Publishing Co.     455 U.S. 283, 293, 102 S.Ct. 1070, 1076, 71 L.Ed.2d 152
v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1986) (gag             (1982) (acknowledging that the Texas Constitution could
orders on trial participants constitute prior restraint). The   provide broader protections than federal Constitution);
end result has been an increase in the number of gag            Carreras v. City of Anaheim, 768 F.2d 1039, 1042-43
orders on parties to ongoing litigation. Bjork, Indirect        (9th Cir.1985) (finding a restraining order overbroad
Gag Orders, at 174 & n. 71.                                     under the California Constitution). Farmers New World
                                                                Life Ins. Co. v. Bountiful City, 803 P.2d 1241 (Utah 1990)
[21] From 1970 to 1989, approximately six hundred               (looking to federal law only after finding no inverse
published opinions relied on state constitutional grounds       condemnation under the state constitution); Mountain
to provide protections broader than federally interpreted       States Tel. & Tel. Co. v. Arizona Corp. Comm'n, 160
guarantees under the United States Constitution. Linda B.       Ariz. 350, 773 P.2d 455, 461 (1989); In re T.W., 551
Matarese, Other Voices: The Role of Justices Durham,            So.2d 1186, 1190 (Fla.1989); O'Neill v. Oakgrove
Kaye and Abrahamson in Shaping the "New Judicial                Constr., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 6, 523 N.E.2d
Federalism", 2 Emerging Issues in St. Const.L. 239, 246         277, 282 (1988) (Kaye, J., concurring); State v. Jewett,
(1989).                                                         146 Vt. 221, 500 A.2d 233, 238 (1985) (federal law
                                                                considered but required briefing of the state constitutional
[22] See Peter J. Galie, State Supreme Courts, Judicial
                                                                issue before the case could be decided); State v. Koppel,
Federalism and the Other Constitutions, 71 Judicature
                                                                127 N.H. 286, 499 A.2d 977, 979 (1985); State v. Beno,
100, 100 n. 10 (1987) (of approximately three hundred
                                                                116 Wis.2d 122, 341 N.W.2d 668 (1984) (following the
articles, "all but a handful are favorable."); Judith S.
                                                                state constitution even though recognizing the existence
Kaye, A Midpoint Perspective on Directions in State
                                                                of a closely corresponding federal speech and debate
Constitutional Law, 1 Emerging Issues in St. Const.L. 17,
                                                                clause found in U.S. Const. Art. 1, § 6, cl. 1); People v.
17 (1988).
                                                                Rolfingsmeyer, 101 Ill.2d 137, 77 Ill.Dec. 787, 790-92,
Many of the articles listed by the concurrence as opposed       461 N.E.2d 410, 413-15 (1984) (Simon, J., concurring);
to this method in fact support judicial reliance on state       State v. Hunt, 91 N.J. 338, 450 A.2d 952, 959 (1982)
constitutions. See, e.g., Robert F. Utter, Swimming in the      (Pashman, J., concurring); Ravin v. State, 537 P.2d 494,
                                                                513-15 (Alaska 1975) (Boochever, J., concurring);
Jaws of the Crocodile: State Court Comment on Federal
Constitutional Issues when Disposing of Cases on State          Burrows v. Superior Court of San Bernardino County, 13
                                                                Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 (1975);
Constitutional Grounds, 63 Tex.L.Rev. 1025, 1050
                                                                Freedman v. New Jersey State Police, 135 N.J.Super.
297, 343 A.2d 148, 150 (1975); William J. Brennan, Jr.,        What the concurrence really urges today is that we
The Bill of Rights and the States: The Revival of State        overrule the enlightened thinking of LeCroy regarding the
Constitutions as Guardians of Individual Rights, 61            "independent vitality" of our constitution and discard an
N.Y.U.L.Rev. 535 (1986) (hereinafter Brennan, Revival          entire series of rulings by this court.
of State Constitutions ); Stewart G. Pollock, Adequate
and Independent State Grounds as a Means of Balancing          [28] See alsoWhitworth v. Bynum, 699 S.W.2d 194, 197
the Relationship Between State and Federal Courts, 63          (Tex.1985) ( "[h]aving decided the statute to be
Tex.L.Rev. 977 (1985) (hereinafter Pollock, Independent        unconstitutional under the Texas Constitution," the court
State     Grounds       );    Hans     A.     Linde,    E      found addressing the federal constitutional question
Pluribus--Constitutional Theory and State Courts, 18           unnecessary); Hajek v. Bill Mowbray Motors, Inc., 647
Ga.L.Rev. 165 (1983) (hereinafter Linde, E Pluribus );         S.W.2d 253 (Tex.1983) (per curiam) (relying solely on
Hans A. Linde, First Things First: Rediscovering the           the Texas Constitution to invalidate a temporary
State's Bills of Rights, 9 U.Balt.L.Rev. 379, 383 (1980).      injunction against driving a car with a lemon painted on it
See alsoCommonwealth v. Edmunds, 526 Pa. 374, 586              and a message disparaging the dealership which sold the
A.2d 887, 894, 903 (1991) (looking to federal law first        car, and reversing a court of appeals opinion which relied
but then relying on the state constitution); State v.          solely on federal law).
Larocco, 794 P.2d 460 (Utah 1990) (federal law
examined but rejected as inadequate); City of Hillsboro v.     [29] See also,Olson v. State, 484 S.W.2d 756, 762
Purcell, 306 Or. 547, 761 P.2d 510 (1988) (discussing          (Tex.Crim.App.1972) (opinion on motion for rehearing)
federal law but then deciding the case under the state         ("as to the true scope of the Texas Constitution, we must
constitution); Colorado Civil Rights Comm'n v. Traveler's      ultimately follow our own lights").
Ins. Co., 759 P.2d 1358, 1362-63 (Colo.1988) (reversing
                                                               [30] See alsoGertz v. Robert Welch, Inc., 418 U.S. 323,
the lower court for relying on federal law when the state
                                                               347-48, 94 S.Ct. 2997, 3010-11, 41 L.Ed.2d 789 (1974)
constitution contained unique provisions).
                                                               (explicitly leaving the states free to develop their own
[24] In 1889, for instance, this court applied the state       standard of liability for a publisher of defamatory
constitution to protect non-residents from wage                falsehoods about private individuals); Branzburg v.
garnishment, concluding that "[w]e do not consider it          Hayes, 408 U.S. 665, 706, 92 S.Ct. 2646, 2669, 33
necessary to discuss the effect which the adoption of the      L.Ed.2d 626 (1972) ("It goes without saying, of course,
Fourteenth amendment to the constitution of the United         that we are powerless to bar state courts from responding
States had with reference to state statutes discriminating     in their own way and construing their own constitutions
in favor of its own citizens." Bell v. Indian Live-Stock       so as to recognize a newsman's privilege."). The
Co., 11 S.W. 344, 345 (Tex.1889).                              concurrence, though urging adherence to federal
                                                               precedent, fails to acknowledge that the federal courts
[25] The experience of finding state constitutionally          have encouraged state courts to embark upon independent
guaranteed free speech prior to the application of the First   analysis of their own constitutions.
Amendment to the states was shared by many sister
states. See Utter, State Court Comment, at 1033 (free          [31] See also People v. Scott, 79 N.Y.2d 474, 505, 583
speech rights "received attention in state courts before       N.Y.S.2d 920, 939, 593 N.E.2d 1328, 1347 (1992) (Kaye,
their interpretation by the federal courts."). The First       J., concurring) ("Time and time again in recent years, the
Amendment was not applied to the states until Gitlow v.        Supreme Court as well as its individual Justices have
New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138            reminded state courts not merely of their right but also of
(1925), and prior restraints were not considered in the        their    responsibility    to   interpret    their     own
context of gag orders until Near v. Minnesota, 283 U.S.        constitutions...."); Stanley H. Friedelbaum, Supreme
697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Twenty-eight          Courts in Conflict: The Drama of Disagreement, 17
years earlier, a Texas court had addressed the issue of gag    Intergovernmental Perspective 27, 27 (1991) (the
orders in Ex Parte Foster, 71 S.W. 593.                        renewed emphasis on state constitutional law met with
                                                               broad approval from all members of the U.S. Supreme
[26] This approach was again applied to invalidate a           Court).
similar statute in Nelson v. Krusen, 678 S.W.2d 918, 921
(Tex.1984) ("Our disposition of the Nelson's open courts       [32] See, e.g.,Barron v. Florida Freedom Newspapers,
argument makes consideration of the other constitutional       Inc., 531 So.2d 113 (Fla.1988) (dissolving a protective
claims unnecessary.").                                         order in a marital dissolution proceeding primarily on
                                                               state constitutional grounds); State v. Coe, 101 Wash.2d
[27] The recent increase in cases by this court which rely     364, 679 P.2d 353 (1984) (trial court order restraining the
solely on the Texas Constitution has received national         press violates the state constitution); State ex rel. Herald
attention. See Ken Gormley, Significant Developments in        Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544
State Constitutional Law, 2 Emerging Issues in St.             (1980) (relying on the state constitution to disallow a trial
Const.L. 1, 29 (1989).                                         court order closing the court during portions of the
                                                               pretrial of a murder case.); Phoenix Newspapers, Inc. v.
Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966)               Id. at 819-20 (emphasis added). He continues that "[t]he
(striking down prior restraint against press reporting);         stories to which [state constitutions] lend themselves are
Dailey v. Superior Court, 112 Cal. 94, 44 P. 458 (1896)          not stories of principle and integrity, but stories of
(voiding injunction against performance of play depicting        expediency and compromise at best, foolishness and
story of case then on trial).                                    inconstancy at worst." Id. at 822. Rather than lending
                                                                 credence to this position with a lengthy response, we let
[33] "No set of legal institutions or prescriptions exists       our opinion today stand as an example of the effective
apart from the narratives that locate it and give it             role that a carefully crafted and well-grounded state
meaning. For every constitution there is an epic...."            constitution can play. To accept the proposition that our
Robert M. Cover, Foreword: Nomos and Narrative, 97               constitution is simply a thing of frivolity is to erase well
Harv.L.Rev. 4, 4 (1983).                                         over a century of history and of law as well as to
                                                                 undermine the very foundation of this court.
The opposite view taken by the concurrence receives
support from Professor Gardner, who argues that                  [37] Having a constitutional convention "without
"Americans are now a people who are so alike from state          consulting the national authority" might give the United
to state; and whose identity is so much associated with          States Congress "a pretext to charge us with bad faith,
national values and institutions, that the notion of             with a violation of the conditions upon which the
significant local variations in character and identity is just   Reconstruction laws were declared inoperative," wrote
too implausible to take seriously." James A. Gardner, The        one Waco citizen. Galveston Daily News, Jan. 8, 1874 at
Failed Discourse of State Constitutionalism, 90                  2, col. 6.
Mich.L.Rev. 761, 818 (1992) (hereinafter Gardner,
Failed Discourse ). He adds his "belief" that "few               [38] Earning the nickname of the "Semicolon Court,"
Americans identify themselves with a community                   Calvert & De Leon at 146, the court was harshly
purporting to embrace an entire state." Id. at 835. When         attacked:
contrasted with the just pride that our citizens feel in
being Texans, perhaps this very writing by an Associate          [T]he rule is ... imperative that constitutions and statutes
Professor at the Western New England College School of           are to be liberally and scrupulously construed with
Law demonstrates how truly diverse this nation remains.          reference to that supreme consideration--the free and
Texans value our institutions and heritage, and our              effective expression of the will of the body of electors.
citizens would certainly dispute that their concerns are
identical to those of the people of Rhode Island or North        A Principle That Should Govern, Galveston Daily News,
Dakota. Unlike the concurrence, we share the view of             Jan. 3, 1874 at 1, col. 1 (emphasis added).
Woodrow Wilson, who observed that ours is "a singularly
                                                                 [39] Galveston Daily News, Jan. 14, 1874, at 1, col. 2.
various country." Woodrow Wilson, The Political
Thought of Woodrow Wilson 130-31 (E. David Cronon,               [40] Delegate Flournoy echoed these sentiments. In
ed. 1965) (hereinafter Woodrow Wilson, Political                 describing the former section one, which allowed the
Thought ).                                                       state to change its laws only "subject to the national
                                                                 authority," he stated:
[34] The Constitutional Convention,        Galveston Daily
News, May 14, 1875 at 1, col. 1.                                 [It] embrace[d] in the constitution a mere useless insult to
                                                                 the great mass of the people of Texas, but also ...
[35] For discussions of some of those differences, see
                                                                 assert[ed] a fundamental principle of government utterly
Ponton, Sources of Liberty; James C. Harrington,
                                                                 at war with the whole theory of American
Reemergence of Texas Constitutional Protection, 2
                                                                 republicanism....
Emerging Issues in St. Const.L. 101, 106 & n. 22 (1989).
                                                                 [I]t is an abandonment of the elementary law of State
[36] The few existing critics of state constitutionalism,
                                                                 government in this Union to place the right of local self
see supra, note 22, have challenged the legitimacy of
                                                                 government subject to the national authority.... [T]o
those constitutions on the basis that they actually lack
                                                                 declare that the national authority (which means, if
meaningful, independent identities. See generally,
                                                                 anything, the party temporarily in power) shall authorize
Gardner, Failed Discourse. Gardner suggests that:
                                                                 or inhibit the people of Texas from managing their local
If we are to take seriously the notion that the state            affairs is a step toward centralism ... further than the
constitution reveals the character of the people, we may         people of any State have ever dreamed of going.
be forced to the unappetizing conclusion that the people
                                                                 Address of Delegate Flournoy, in Ratify, Galveston Daily
of New York, or California, or Texas are simply a
                                                                 News, Dec. 19, 1875, at 2, col. 5.
frivolous people who are unable to distinguish between
things that are truly important and things that are not.... A    [41] Pollock, Independent State Grounds, at 984 (1985).
people who are frivolous, or fickle, or unreflective, are a
people not worthy of respect.                                    [42] See Hans A. Linde, Does the "New Federalism"
Have a Future?, 4 Emerging Issues in St. Const.L. 251,          noting that at least two federal courts of appeal had
252-53 (1991) (hereinafter Linde, New Federalism ).             already "follow[ed] the lead of a number of state courts
                                                                construing their State's Constitution." Id. at 82 n. 1, 106
[43] Id. at 253.                                                S.Ct. at 1715 n. 1. See alsoMapp v. Ohio, 367 U.S. 643,
                                                                651, 81 S.Ct. 1684, 1689, 6 L.Ed.2d 1081 (1961)
[44] See, e.g.,White v. State, 521 S.W.2d 255                   (holding evidence seized in violation of the federal
(Tex.Crim.App.1974), rev'd, 423 U.S. 67, 96 S.Ct. 304,          constitution inadmissible, and noting that over half the
46 L.Ed.2d 209 (1975), on remand, 543 S.W.2d 366                states had already adopted this approach).
(Tex.Crim.App.1976) (noting that search was invalid
under state constitution, but that the argument was             [50] One of the few possible criticisms of reliance on
waived); State v. Hershberger, 444 N.W.2d 282                   state constitutions is the notion that a crisis in national
(Minn.1989), vacated, 495 U.S. 901, 110 S.Ct. 1918, 109         stability will result. See Gardner, Failed Discourse, at
L.Ed.2d 282 (1990), on remand, 462 N.W.2d 393                   818, 827 (raising the specter of the Civil War and of the
(Minn.1990) (finding slow-moving vehicle sign                   breakup of the former Soviet Union). The approach we
requirement on Amish carriages in violation of state free       utilize today has not before and will not contribute to the
exercise rights); Upton, 466 U.S. 727, 104 S.Ct. 2085, on       demise of this nation, for Texas and other states have
remand,Commonwealth v. Upton, 394 Mass. 363, 476                long applied different laws, yet the Union survives.
N.E.2d 548 (1985); State v. Kennedy, 295 Or. 260, 666           Diversity is precisely what our federalism intends, even
P.2d 1316 (1983) (affirming criminal conviction despite         though the result is sometimes "untidy." Pollock,
prosecutorial misconduct under state constitution on            Independent State Grounds, at 979. Even our system of
remand from the Supreme Court); State v. Opperman, 89           lawyer licensing recognizes the need for attorneys to be
S.D. 25, 228 N.W.2d 152 (1975), rev'd, 428 U.S. 364, 96         expert in the law of their own state. If our sole, supreme
S.Ct. 3092, 49 L.Ed.2d 1000 (1976), on remand, 247              value were uniformity, this court could close its doors,
N.W.2d      673     (S.D.1976)     (finding   a    search       and Texas attorneys could simply take a federal bar
unconstitutional under state law).                              examination.

[45] Linde, E Pluribus, at 199.                                 [51] See alsoLeCroy, 713 S.W.2d at 339; Sax v. Votteler,
                                                                648 S.W.2d 661; In re Baby McLean, 725 S.W.2d at 698
[46] A.E. Dick Howard, The Renaissance of State                 (concluding that because the Texas Equal Rights
Constitutional Law, 1 Emerging Issues in St. Const.L. 1,        Amendment of 1972 was worded differently than the
14 (1988).                                                      earlier enacted federal provision, it may have intended
                                                                different results).
[47] Ronald K.L. Collins, Forward, Reliance on State
Constitutions--Beyond the "New Federalism", 8 U. Puget          [52] Our analysis of the history of Texas and its
Sound L.Rev. vi, xi (1985). One example of this popular         constitution thus in no way detracts either from the
constitutionalism is Hewitt v. Saif, 294 Or. 33, 653 P.2d       dignity of the text itself or from the realities of the
970, 975 (1982), which declined to follow federal equal         present. Rather, we use history to assist in an
protection analysis because it involved "outmoded"              understanding of the generalities and ambiguities
national stereotypes of the roles of men and women              sometimes present in a constitution.
which were no longer applicable in Oregon.
                                                                [53] See, e.g.,Commonwealth v. Edmunds, 526 Pa. 374,
[48] As one former president observed:                          586 A.2d 887, 895 (1991) (federal precedent may be
                                                                cited, but it is not binding on the state court). As Justice
We know that ... it would be folly to apply uniform rules
                                                                Brennan summarized this approach:
of development to all parts of the country, that our
strength has been in the elasticity of our institutions, in     [S]tate court judges ... do well to scrutinize constitutional
the almost infinite adaptability of our laws, that our          decisions by federal courts, for only if they are found to
vitality has consisted largely in the dispersion of political   be logically persuasive and well-reasoned, paying due
authority, in the necessity that communities should take        regard to precedent and the policies underlying specific
care of themselves and work out their own order and             constitutional guarantees, may they properly claim
progress."                                                      persuasive weight as guideposts when interpreting
                                                                counterpart state guarantees.
Woodrow Wilson, Political Thought, at 130-31.
                                                                William J. Brennan, State Constitutions and the
[49] Federalism is not a one-way street. Just as we have
                                                                Protection of Individual Rights, 90 Harv.L.Rev. 489, 502
sometimes looked to federal law for guidance, the United
                                                                (1977).
States Supreme Court has in the past looked to state
constitutional jurisprudence in developing its own law. In      [54] "We do not think that an opinion, even though it be
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90             by the Supreme Court of the United States," which
L.Ed.2d 69 (1986), the court applied the approach of            improperly disregards the rights of Texans, should "be
several state courts to race-based peremptory challenges,       'seriously regarded' by the courts of Texas." Kemper v.
State, 63 Tex.Cr.R. 1, 138 S.W. 1025, 1044-45                 [59] See supra, notes 16, 19 & 20.
(App.1911) (rejecting the federal rule allowing
introduction at trial of evidence obtained at a preliminary   [60] Bernard v. Gulf Oil Co., 596 F.2d 1249 (1979),
investigation from an unavailable witness). In                reversed in part, 619 F.2d 459.
reconsidering and overruling the substantive rule of
Kemper in Robertson v. State, 63 Tex.Cr.R. 216, 142           [61] 619 F.2d at 466.
S.W. 533 (App.1912), the Court of Criminal Appeals did
                                                              [62] The Supreme Court declined to "decide what
not simply "defer[ ] to the Supreme Court's
                                                              standards are mandated by the First Amendment in this
interpretation," 834 S.W.2d at 41, but rather relied on the
                                                              kind of case." 452 U.S. at 104, 101 S.Ct. at 2201-02.
particular state constitutional language involved and
considered rulings in other state and federal courts.         [63] SeeKleiner v. First Nat. Bank of Atlanta, 751 F.2d
Louisiana, also following this approach, rejected federal     1193 (11th Cir.1985) (upholding the validity of a gag
equal protection analysis because "[t]he federal three        order under Bernard because it regulated only
level system is in disarray and has failed to provide a       commercial speech); Domingo v. New England Fish Co.,
theoretically sound framework for constitutional              727 F.2d 1429 (9th Cir.1984); Kilgo v. Bowman Transp.,
adjudication." Sibley v. Bd. of Supervisors of Louisiana
                                                              Inc., 88 F.R.D. 592 (N.D.Ga.1980). Like Bernard, each
State University, 477 So.2d 1094, 1107 (La.1985)              of these three considered gag orders only in the limited
(plurality opinion).                                          context of the federal rules governing class action suits.
[55] For various attempts at an adequate "plain               [64] See supra, text accompanying note 52.
statement," see Long v. State, 742 S.W.2d 302, 323 n. 22
(Tex.Crim.App.1987) (en banc); State v. Kennedy, 295          [65] [W]e ordinarily look to such things as the language
Or. 260, 666 P.2d 1316, 1321 (1983); State v. Ball, 124       of the constitutional provision itself, its purpose, the
N.H. 226, 471 A.2d 347, 352 (1983). See also supra, note      historical context in which it was written, the intention of
17.                                                           the framers, the application in prior judicial decisions, the
                                                              relation of the provision to the law as a whole, the
[56] See, e.g.,Strahler v. St. Luke's Hosp., 706 S.W.2d 7,    understanding of other branches of government, the law
10-11 (Mo.1986) (en banc) (following this court's             in other jurisdictions, including federal law,
methodology and result in Sax in striking down a statute      constitutional and legal theory, and fundamental values
of limitations under the Missouri Constitution); Mountain     including justice and social policy.
States Tel. & Tel. Co. v. Arizona Corp. Comm'n, 160
Ariz. 350, 773 P.2d 455, 460 (1989) (following the Texas      834 S.W.2d at 30 (emphasis added).
Court of Criminal Appeals' approach in McCormick and
Foster in striking down prior restraints against              [66] None of the cases cited by the concurrence support
newspapers under their own state constitution); Coleman       the claim that "we ordinarily look to ... federal law" in
v. Utah State Land Bd., 795 P.2d 622, 632 n. 2 (Utah          interpreting our constitution. 834 S.W.2d at 30. Rather,
1990) (looking to other states' constitutions to help         each relied principally on the same factors as did Brown
determine whether the Utah Constitution's provisions are      v. Meyer, 787 S.W.2d 42, 45 (Tex.1990): we rest "upon
self-executing); Horton v. Meskill, 172 Conn. 615, 376        the language and prior construction of our own
A.2d 359, 373 (1977) (examining the law of other states       constitution."
rather than the Supreme Court's opinion in San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278,    [67] The assertion that "[n]ot before today has this Court
36 L.Ed.2d 16 (1973), in striking down state's school         insisted that the [state and federal speech] provisions are
financing).                                                   different in substance," 834 S.W.2d at 35, utterly ignores
                                                              the host of cases cited in today's opinion, including the
[57] SeeBarrio v. San Manuel Div. Hosp., 143 Ariz. 101,       significant observation by this court in LeCroy that our
692 P.2d 280, 283 (1984); Gray v. Dep't of Employment         constitution "has independent vitality." 713 S.W.2d at
Sec., 681 P.2d 807, 825 n. 2 (Utah 1984) (Durham, J.,         339.
concurring and dissenting); State v. Opperman, 247
N.W.2d 673 (S.D.1976). For cases which ordered further        [68] The concurrence's selective presentation of the
briefing, see State v. Jewett, 146 Vt. 221, 500 A.2d 233,     record and argument overlooks both counsel's written and
234 (1985); State v. Kennedy, 295 Or. 260, 666 P.2d           oral pleas for relief under both constitutions. A violation
1316, 1321 (1983).                                            of Relator's state constitutional rights was encompassed
                                                              by several of her written filings. Relator's Second
[58] Legal academia may have unwittingly contributed to       Request for Emergency Interim Relief, at 2; Petition for
the common failure of counsel to brief thoroughly state       Writ of Mandamus and Request for Emergency Relief at
constitutional issues by sometimes viewing them as the        1; Brief of Arguments and Authorities in Support of
"bush league of constitutional law." Linde,New                Relator's Petition for Writ of Mandamus at 7.
Federalism, at 251.
                                                              At oral argument, Relator contended that "[t]he gag order
itself goes far beyond any of the well established              expect to be disseminated by means of public
principles established by this court under article I,           communication if the lawyer knows or reasonably should
section eight of the Texas Constitution, and the First          know that it will have a substantial likelihood of
Amendment." Responding to Justice Hecht (prior to the           materially prejudicing an adjudicatory proceeding. A
"colloquy" quoted in the concurrence) counsel again             lawyer shall not counsel or assist another person to make
stated that "what the First Amendment teaches us and            such a statement." SUPREME COURT OF TEXAS,
what the Texas Constitution says even more for us is you        TEXAS DISCIPLINARY RULES OF PROFESSIONAL
let the speaker speak at his or her own peril." (emphasis       CONDUCT, TEX. GOV'T CODE tit. 2, subtit. G--App.
added).                                                         A, art. 10, § 9, Rule 3.07.

In truth, the parties presented us with as much--or as          I do not suggest that relator should be disciplined, only
little--state constitutional law as they did federal. Indeed,   that the rules of professional conduct address the
there is no preargument mention of Bernard, upon which          propriety of attorneys' extrajudicial statements during
near exclusive reliance is now placed by the concurrence.       pending litigation. Cf.Gentile v. State Bar of Nevada, 501
                                                                U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991).
[69] The Reporter believed, however, that the record was
not sealed to the lawyers or parties in the case.               [4] Until encouraged at oral argument to raise state
                                                                constitutional claims, relator centered her contentions on
[70] SeeZukerman v. Piper Pools, Inc., 232 N.J.Super.           the First Amendment and mentioned the Texas
74, 556 A.2d 775, 786 (1989) ("removal must be for good         Constitution only once. That single reference occurs in
cause ... of misconduct or inability to serve the best          her original brief, where she stated that the gag orders
interests of the ward"); Dicupe v. City of New York, 124        "cannot withstand State or Federal Constitutional
A.D.2d 542, 507 N.Y.S.2d 687, 689 (1986) ("If the court         scrutiny." Relator never cited article I, section 8, or any
believed that the [ad litem] was not acting in the child's      case construing it.
best interest ... it could have replaced him as a
guardian."); Ford v. Moore, 79 A.D.2d 403, 436                  To evade this fact, the Court states that this opinion's
N.Y.S.2d 882, 884 (1981) (noting power to remove an ad          description of the record is a "selective presentation"
litem "where the interests of the infant will ... be            which "overlooks" that some of the papers relator filed in
promoted.").                                                    this proceeding "encompassed" state constitutional
                                                                claims, and cites three references. Ante, at 23 n. 68. One
[1] The guardian proposed an alternative structure to the       of them, relator's second request for emergency interim
settlement that called for creation of a trust over which       relief, was filed after oral argument, when relator had
the guardian would act as trustee for a fee $200 per hour.      been urged to raise a state claim. Another, relator's
The guardian requested payment of $879,351.03 for her           original petition in this Court, states only that the gag
services for the preceding eighteen months and expenses         orders "violate[ ] her own Constitutional rights", without
and $294,592.00 for her future services. The court              mentioning the Texas Constitution. The last reference is
determined that the guardian's opposition to the proposed       to relator's brief, which I have quoted above. About the
settlement was not in the children's best interest.             most that can be said is that the contentions relator made
                                                                in the papers filed before oral argument are not
[2] The Court states that there is a confusing split of         inconsistent with a claim under the Texas Constitution.
federal authority on this matter, citing three cases: In re
Dow Jones & Co., Inc., 842 F.2d 603, 608-610 (2d Cir.),         Apart from the colloquy quoted, the Texas Constitution
cert. denied sub nom.Dow Jones & Co., Inc. v. Simon,            was referred to at oral argument exactly three times,
488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988);            twice by relator's counsel, and then once by counsel for
Journal Publ. Co. v. Mechem, 801 F.2d 1233, 1236 (10th          some of the real parties in interest, as follows:
Cir.1986) (holding to the contrary); In re Russell, 726
F.2d 1007, 1010 (4th Cir.), cert. denied sub nom.Russell        "The gag order goes far beyond any of the well
v. Flannery, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74         established principles established by this Court under
(1984). None of these cases is apposite here. Dow Jones         article I, section 8 of the Texas Constitution, and the First
and Russell were criminal cases, in which the use of gag        Amendment, and the decisions of the U.S. Supreme Court
orders involves different considerations, as explained in       implementing it."
Nebraska Press. The complaints in Dow Jones and
Mechem were not by persons subject to gag orders but by         "And what the First Amendment teaches us and what the
members of the press, also involving different                  Texas Constitution says even more for us is you let the
considerations.                                                 speaker speak at his or her peril."

[3] Rule 3.07(a) of the Texas Disciplinary Rules of             "I think that in terms of the Texas Constitution and the
Professional Conduct states: "In the course of                  U.S. Constitution that there are cases and instances in
representing a client, a lawyer shall not make an               which a judge in the course of a trial can say, "I don't
extrajudicial statement that a reasonable person would          want y'all talking to the newspapers."
[5] The Court correctly states that the parties have not        communication of thoughts and opinions is one of the
devoted much more attention to First Amendment                  invaluable rights of man, and that every person may
arguments and did not cite Bernard before oral argument.        freely speak, write, and print on any subject, being
Ante, at 23 n. 68. The fact remains that the parties' free      responsible for the abuse of that liberty...."
speech contentions and arguments have focused on the
First Amendment, not article I, section 8.                      N.Y.CONST. art. VII, § 8 (1821): "Every citizen may
                                                                freely speak, write, and publish his sentiments on all
[6] The Court is mistaken in its assertion that none of         subjects, being responsible for the abuse of that right...."
these cases recognizes federal law as a consideration in
construing state constitutional provisions. Ante, at 22 n.      OHIO CONST. art. VIII, § 6 (1802): "Every citizen has
66. Six of them--Project Principle, Spring Branch,              an indisputable right to speak, write, or print upon any
Tarrant County, Werblud,Travelers, and Mellinger--cite          subject as he thinks proper, being liable for the abuse of
extensively to federal law in applying state constitutional     that liberty."
provisions. This list is illustrative only, not exhaustive.
                                                                PA. CONST. art. IX, § 7 (1790): "The free
[7] Contrary to the Court's assertion, ante, at 8 n. 13, page   communication of thoughts and opinions is one of the
1, column 3 of the Oct. 13, 1875, edition of the Galveston      invaluable rights of man, and every citizen may freely
Daily News does not "record[ ] the rejection" of First          speak, write, and print on any subject, being responsible
Amendment language.                                             for the abuse of that liberty."

[8] ALA.CONST. art. I, § 8 (1819): "Every citizen may           TENN. CONST. art. XI, § 19 (1796): "The free
freely speak, write and publish his sentiments on all           communication of thoughts and opinions is one of the
subjects, being responsible for the abuse of that liberty."     invaluable rights of man; and every citizen may freely
                                                                speak, write, and print on any subject, being responsible
CONN.CONST. art. I, § 5 (1818): "Every citizen may              for the abuse of that liberty."
freely speak, write and publish his sentiments on all
subjects, being responsible for the abuse of that liberty."     See BENJAMIN PERLEY POORE, THE FEDERAL
                                                                AND    STATE   CONSTITUTIONS,          COLONIAL
DEL.CONST. art. I, § 5 (1831): "... any citizen may print       CHARTERS AND OTHER ORGANIC LAWS OF THE
on any subject, being responsible for the abuse of that         UNITED STATES, Vol. 1 & 2 (2d ed. 1878).
liberty."
                                                                [9] Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989);
ILL.CONST. art. XIII, § 22 (1818): "The free                    O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402
communication of thoughts and opinions is one of the            (Tex.1988); Channel 4, KGBT v. Briggs, 759 S.W.2d
invaluable rights of man; and every citizen may freely          939, 944 (Tex.1988) (GONZALEZ, J., concurring);
speak, write, and print on any subject, being responsible       Texas State Employees Union v. Texas Dep't of Mental
for the abuse of that liberty."                                 Health & Mental Retardation, 746 S.W.2d 203, 205
                                                                (Tex.1987) (provision neither applied nor discussed); Ex
IND.CONST. art. I, § 9 (1816): "The free communication          parte Price, 741 S.W.2d 366, 369 (Tex.1987)
of thoughts and opinions is one of the invaluable rights of     (GONZALEZ, J., concurring); LeCroy v. Hanlon, 713
man; and every citizen may freely and fully speak, write        S.W.2d 335, 338 (Tex.1986) (provision neither applied
and print on any subject, being responsible for the abuse       nor discussed); Hajek v. Bill Mowbray Motors, Inc., 647
of that liberty."                                               S.W.2d 253, 255 (Tex.1983) (per curiam) (provision held
                                                                violated without discussion, citing Tucker ); Ex parte
KY.CONST. art. X, § 7 (1799): "The free communication           Pruitt, 551 S.W.2d 706, 710 (Tex.1977) (provision
of thoughts and opinions is one of the invaluable rights of     neither applied nor discussed); Houston Chronicle Publ.
man, and every citizen may freely and fully speak, write,       Co. v. City of Houston, 536 S.W.2d 559, 561 (Tex.1976)
and print on any subject, being responsible for the abuse       (provision held not violated without discussion); City of
of that liberty."                                               Fort Worth v. Craik, 411 S.W.2d 541, 542-543
                                                                (Tex.1967) (provision neither applied nor discussed); Ex
LA.CONST. art. VI, § 21 (1812): "The free
                                                                parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, 194
communication of thoughts and opinions is one of the
                                                                (1958) (provision held not violated without discussion);
invaluable rights of man, and every citizen may freely
                                                                Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834, 839
speak, write, and print on any subject, being responsible
                                                                (1958) (provision neither applied nor discussed); Dallas
for the abuse of that liberty."
                                                                General Drivers v. Wamix, Inc., 156 Tex. 408, 295
ME.CONST. art. I, § 4 (1820): "Every citizen may freely         S.W.2d 873, 879-880 (1956) (provision held violated
speak, write, and publish his sentiments on any subject,        based upon Tucker without further discussion); Best
being responsible for the abuse of this liberty."               Motor Lines v. International Bhd. of Teamsters, 150 Tex.
                                                                95, 237 S.W.2d 589, 592 (1951) (provision mentioned
MO.CONST. art. XIII, § 16 (1820): "That the free                only in defendant's answer with no application or
discussion); Ex parte Thomas, 141 Tex. 591, 174 S.W.2d        238, 118 Cal.Rptr. 166, 171, 529 P.2d 590, 595 (1974);
958, 960-961 (1943), rev'd sub nom.Thomas v. Collins,         People v. Rolfingsmeyer, 101 Ill.2d 137, 77 Ill.Dec. 787,
323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945)               789, 461 N.E.2d 410, 412 (1984); State v. Hunt, 91 N.J.
(provision held not violated without discussion);             338, 450 A.2d 952, 955 (1982); O'Neill v. Oakgrove
Travelers' Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d       Constr., Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 2, 523
1007, 1010 (1934) (provision only mentioned and not           N.E.2d 277, 278 (1988) ("Our decision is based on an
applied); Ex parte Tucker, 220 S.W. 75, 76 (Tex.1920);        adequate and independent ground under our State
St. Louis Southwestern Ry. v. Griffin, 106 Tex. 477, 171      Constitution. Nevertheless, we are noting our agreement
S.W. 703, 705 (1914); St. Louis Southwestern Ry. v.           with the Federal courts that have reached the same result
Hixon, 104 Tex. 267, 137 S.W. 343, 344-345 (1911)             under the Federal Constitution in order that we might
(provision neither applied nor discussed).                    express our own view of the federal guarantee of a free
                                                              press which, of course, we are also bound to uphold. This
[10] See Ronald L. Collins, Reliance on State                 practice is in accord with our proper role in helping to
Constitutions--Away from a Reactionary Approach, 9            expound the Federal, as well as our State, Constitution
HASTINGS CONST. L.Q. 1 (1981); George Deukmejian              and, as some of the commentators have explained, it
& Clifford K. Thompson, Jr., All Sail and No                  contributes to the development of a body of case law of
Anchor--Judicial Review Under the California                  potential use to federal and other state courts...."); City of
Constitution, 6 HASTINGS CONST. L.Q. 975 (1979);              Hillsboro v. Purcell, 306 Or. 547, 761 P.2d 510, 512-13
James A. Gardner, The Failed Discourse of State               (1988); Commonwealth v. Edmunds, 526 Pa. 374, 586
Constitutionalism, 90 MICH.L.REV. 761, 764 (1992);            A.2d 887, 892-893 (1991); Farmers New World Life Ins.
Paul S. Hudnut, State Constitutions and Individual            Co. v. Bountiful City, 803 P.2d 1241, 1247 (Utah 1990);
Rights: The Case for Judicial Restraint, 63 DENVER            State v. Larocco, 794 P.2d 460, 464-65 (Utah 1990);
L.REV. 85, 90-98 (1985); Matthew W. Paul and Jeffrey          State v. Jewett, 146 Vt. 221, 500 A.2d 233, 235 (1985)
L. Van Horn, Heitman v. State: The Question Left              ("It would be a serious mistake for this Court to use its
Unanswered, 23 ST. MARY'S L.J. 929, 971-974 (1992);           state constitution chiefly to evade the impact of the
Robert F. Utter, Swimming in the Jaws of the Crocodile:       decisions of the United States Supreme Court. Our
State Court Comment on Federal Constitutional Issues          decisions must be principled, not result-oriented.").
when Disposing of Cases on State Constitutional
Grounds, 63 TEX.L.REV. 1025, 1027 (1985); Donald E.           Three cases involved state constitutional provisions
Wilkes, Jr., First Things Last: Amendomania and State         without a federal counterpart. Colorado Civil Rights
Bills of Rights, 54 MISS. L.J. 223, 229 (1984); Robert F.     Comm., 759 P.2d 1358, 1363-65 (Colo.1988) (equal
Williams, State Constitutional Law Processes, 24 WM. &        rights amendment); In re T.W., 551 So.2d 1186, 1190
MARY L.REV. 169, 189-90 (1983); Jeffrey White, Note,          (Fla.1989) (express constitutional provision guaranteeing
State Constitutional Guarantees as Adequate State             an independent right to privacy); State v. Beno, 116
Ground: Supreme Court Review and Problems of                  Wis.2d 122, 341 N.W.2d 668, 674-75 (1984) (federal
Federalism, 13 AM.CRIM.L.REV. 737, 741-749 (1976);            constitutional provision by its express language could not
Developments in the Law--The Interpretation of State          apply to state legislators).
Constitutional Rights, 95 HARV.L.REV. 1324, 1331
(1982).                                                       Even Justice Brennan, often credited with founding state
                                                              constitutionalism theory, does not argue that state courts
[11] The authorities the Court cites do not all support its   should ignore the federal constitution. William J.
approach of trying to construe a state constitutional         Brennan, Jr., The Bill of Rights and the States: The
provision without regard to federal law.                      Revival of State Constitutions as Guardians of Individual
                                                              Rights, 61 N.Y.U.L.REV. 535 (1986).
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,
293, 102 S.Ct. 1070, 1076-77, 71 L.Ed.2d 152 (1982),          Stewart G. Pollock, Adequate and Independent State
does not hold that the Texas Constitution does afford         Grounds as a Means of Balancing the Relationship
broader protections than the U.S. Constitution, only that     Between State and Federal Courts, 63 TEX.L.REV. 977
it might: "the language of the Texas constitutional           (1985), describes the method the Court uses but does not
provision [guaranteeing due course of law and equal           indorse it.
protection] is different from, and arguably significantly
broader than, the language of the corresponding federal       [12] The Court cites LeCroy for the proposition that our
provisions" (emphasis added).                                 constitution "has independent vitality." Ante, at 11. I fully
                                                              agree that it does. That observation, however, says
Several of the cases cited, some only to separate             nothing about gag orders.
opinions, expressly consider federal as well as state
constitutional law: Ravin v. State, 537 P.2d 494, 500, 504    [13] "When a minor, lunatic, idiot or a non-compos
(Alaska 1975); People v. Brisendine, 13 Cal.3d 528, 119       mentis may be a defendant to a suit and has no guardian
Cal.Rptr. 315, 531 P.2d 1099 (1975); Burrows v.               within this State, or where such person is a party to a suit
Superior Court of San Bernardino County, 13 Cal.3d            either as plaintiff, defendant or intervenor and is
represented by a next friend or a guardian who appears to
the court to have an interest adverse to such minor,
lunatic, idiot or non-compos mentis, the court shall
appoint a guardian ad litem for such person and shall
allow him a reasonable fee for his services to be taxed as
a part of the costs."

[14] Urbish v. 127th Judicial Dist. Court, 708 S.W.2d
429, 432 (Tex.1986), does not require a different result.
In Urbish the Court held that the best interests of a child
determine which of the divorced parents should represent
the child in pending litigation. I agree with the holding in
Urbish, but consider it inapposite in the present case,
where the issue is not which parent will represent the
child, but whether the parents or a third party will
represent the child.

---------
Page 75                                                         his opinions on any subject, being responsible for the
                                                                abuse of that privilege; and no law shall ever be passed
220 S.W. 75 (Tex. 1920)                                         curtailing the liberty of speech or of the press.'

110 Tex. 335                                                           The purpose of this provision is to preserve what we
                                                                call 'liberty of speech' and 'the freedom of the press,' and
Ex parte TUCKER.                                                at the same time hold all persons accountable to the law
                                                                for the misuse of that liberty or freedom. Responsibility
No. 3358.
                                                                for the abuse of the privilege is as fully emphasized by its
                                                                language as that the privilege itself shall be free from all
Supreme Court of Texas
                                                                species of restraint. But the abuse of the privilege, the
March 31, 1920                                                  provision commands, shall be dealt with in no other way.
                                                                It is not to be remedied by denial of the right to speak, but
     Original application by George Tucker for writ of          only by appropriate penalties for what is wrongfully
habeas corpus. Writ issued, and relator discharged.             spoken. Punishment for the abuse of the right, not
                                                                prevention of its exercise, is what the provision
     PHILLIPS, C.J.                                             contemplates. There can be no liberty in the individual to
                                                                speak, without the unhindered right to speak. It cannot
       The District Court of Anderson County, in a suit of      co-exist with a power to compel his silence or fashion the
the Palestine Telephone Company against the                     form of his speech. Responsibility for the abuse of the
International Brotherhood of Electrical Workers'                right, in its nature pre-supposes freedom in the exercise
Department, Local No. 388 of Palestine, and other               of the right. It is a denial of the authority, anywhere, to
organizations, in Palestine, their officers and members,        prevent its exercise.
enjoined the defendants from, among other things,
'vilifying, abusing, or using opprobrious epithests to or            It has never been the theory of free institutions that
concerning any party or parties in the employment of            the citizen could say only what courts or legislatures
plaintiff,' and 'from any and all conduct' toward such          might license him to say, or that his sentiments on any
employees, or concerning them, 'which might be                  subject or concerning any person should be supervised
calculated to provoke or inspire a breach of the peace.'        before he could utter them. Nothing could be more
                                                                odious, more violative or destructive of freedom, than a
     The relator was an officer and member of one of the        system of only licensed speech or licensed printing. The
defendant organizations.                                        experience of the English nation and some of the
                                                                American colonies under the tyranny of such systems is
     The plaintiff in the cause, later, filed an
                                                                the reason this provision in the Bill of Rights is one
                                                                common to the Constitutions of the American States, and
Page 76
                                                                for its incorporation, in like words, in the First
affidavit charging him with a violation of the injunction       Amendment to the Federal Constitution. Hallam
in having applied, in a conversation                            characterized the liberty of the press as finally gained in
                                                                England, as but exemption from a licenser.
[110 Tex. 337] with one Duncan, slanderous epithets to
the female telephone operators in its employ. The relator,            The theory of the provision is that no man or set of
on the hearing, denied having used the language charged         men are to be found, so infallible in mind and characte as
or the making of any remark reflecting upon such                to be clothed with
employees, but the court found him guilty of the charge
                                                                [110 Tex. 338] an absolute authority of determining what
and adjudged him in contempt. It appears from the record
                                                                other men may think, speak, write or publish; that
here that the relator was indicted for siander for the use of
                                                                freedom of speech is essential to the nature of a free state;
the same language charged against him in the contempt
                                                                that the ills suffered from its abuse are less than would be
proceedings.
                                                                imposed by its suppression; and, therefore, that every
      The existence of any power in a court of equity to        person shall be left at liberty to speak his mind on all
supervise one person's opinion of another, or to dictate        subjects, and for the abuse of the privilege be responsible
what one person may say of another, is plainly and              in civil damages and subject to the penalties of the
emphatically refuted by the 8th section of the Bill of          criminal law.
Rights.
                                                                     Let it once be admitted that courts may arrogate the
     That section, in part, reads:                              authority of deciding what the individual may say and
                                                                may not say, what he may write and may not write, and
'Every person shall be at liberty to speak, write or publish    by an injunction writ require him to adapt the expression
of his sentiments to only what some judge may deem
fitting and proper, and there may be readily brought
about the very condition against which the constitutional
guaranty was intended as a permanent protection. Liberty
of speech will end where such control of it begins.

      The courts of this country, to their credit, have
steadily refused to recognize that the powers of equity
may be so used. Pomeroy's Equitable Remedies, Sections
481, 629; Story's Equity, Section 1279; High on
Injunctions, Section 1093; Newell on Slander and Libel,
Section 265.

     There can be no justification for the utterance of a
slander. It cannot be too strongly condemned. The law
makes it a crime. But there is no power in courts to make
one person speak only well of another. The Constitution
leaves him free to speak well or ill; and if he wrongs
another by abusing this privilege, he is responsible in
damages or punishable by the criminal law.

       Equity will protect the exercise of natural and
contractual rights from interference by attempts at
intimidation or coercion. Verbal or written threats may
assume that character. When they do, they amount to
conduct, or threatened conduct, and for that reason may
properly be restrained. Cases of that sort, or of analogous
nature, are not to be confounded with this one.

      That part of the injunction which attempted to
control the relator in his speech, was beyond the power of
the court to issue and therefore void.

     The relator is discharged.

     GREENWOOD, J., took no part in this decision.
Page 544                                                      engage in any expressive activity; it just prevents him
                                                              from financing those activities with assets derived from
509 U.S. 544 (1993)                                           his prior racketeering offenses. RICO is oblivious to the
                                                              expressive or nonexpressive nature of the assets forfeited.
113 S.Ct. 2766, 125 L.Ed.2d 441, 61 USLW 4796                 Petitioner's assets were forfeited because they were
                                                              directly related to past racketeering violations, and thus
ALEXANDER
                                                              they differ from material seized or restrained on suspicion
                                                              of being obscene without a prior judicial obscenity
v.
                                                              determination, as occurred in, e. g., Marcus v. Search
UNITED STATES                                                 Warrant of Kansas City, Mo., Property, 367 U.S. 717.
                                                              Nor were his assets ordered forfeited without the requisite
No. 91-1526                                                   procedural safeguards.

United States Supreme Court                                   Page 545

June 28, 1993                                                 Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46,
                                                              distinguished. His claim is also inconsistent with Arcara
     Argued January 12, 1993                                  v. Cloud Books, Inc., 478 U.S. 697, in which the Court
                                                              rejected a claim that the closure of an adult bookstore
   CERTIORARI TO THE UNITED STATES                            under a general nuisance statute was an improper prior
COURT OF APPEALS FOR THE EIGHT CIRCUIT                        restraint. His definition of prior restraint also would
                                                              undermine the time-honored distinction between barring
     Syllabus
                                                              future speech and penalizing past speech. Pp. 549-554.
After a full criminal trial, petitioner, the owner of
                                                                    (b) Since the RICO statute does not criminalize
numerous businesses dealing in sexually explicit
                                                              constitutionally protected speech, it is materially different
materials, was convicted of, inter alia, violating federal
                                                              from the statutes at issue in this Court's overbreadth
obscenity laws and the Racketeer Influenced and Corrupt
                                                              cases. Cf., e. g., Board of Airport Comm'rs of Los
Organizations Act (RICO). The obscenity convictions,
                                                              Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574-575. In
based on a finding that seven items sold at several stores
                                                              addition, the threat of forfeiture has no more of a
were obscene, were the predicates for his RICO
                                                              "chilling" effect on free expression than threats of a
convictions. In addition to imposing a prison term and
                                                              prison term or large fine, which are constitutional under
fine, the District Court ordered petitioner, as punishment
                                                              Fort Wayne Books. Nor can the forfeiture be said to
for the RICO violations, to forfeit his businesses and
                                                              offend the First Amendment based on Arcara's analysis
almost $9 million acquired through racketeering activity.
                                                              that criminal sanctions with some incidental effect on
In affirming the forfeiture order, the Court of Appeals
                                                              First Amendment activities are subject to First
rejected petitioner's arguments that RICO's forfeiture
                                                              Amendment scrutiny where it was the expressive conduct
provisions constitute a prior restraint on speech and are
                                                              that drew the legal remedy, 478 U.S., at 706-707. While
overbroad. The court also held that the forfeiture did not
                                                              the conduct drawing the legal remedy here may have
violate the Eighth Amendment, concluding that
                                                              been expressive, "obscenity" can be regulated or actually
proportionality review is not required of any sentence
                                                              proscribed consistent with the Amendment, see, e. g.,
less than life imprisonment without the possibility of
                                                              Roth v. United States, 354 U.S. 476, 485. Pp. 554-558.
parole. It did not consider whether the forfeiture was
disproportionate or "excessive."                                   2. The case is remanded for the Court of Appeals to
                                                              consider petitioner's claim that the forfeiture, considered
     Held:
                                                              atop his prison term and fine, is "excessive" within the
                                                              meaning of the Excessive Fines Clause of the Eighth
     1. RICO's forfeiture provisions, as applied here, did
                                                              Amendment. The Court of Appeals rejected petitioner's
not violate the First Amendment. Pp. 549-558.
                                                              Eighth Amendment challenge with a statement that
      (a) The forfeiture here is a permissible criminal       applies only to the Amendment's prohibition against
punishment, not a prior restraint on speech. The              "cruel and unusual punishments." The Excessive Fines
distinction between prior restraints and subsequent           Clause limits the Government's power to extract
punishments is solidly grounded in this Court's cases. The    payments as punishment for an offense, and the in
term "prior restraint" describes orders forbidding certain    personam criminal forfeiture at issue here is clearly a
communications       that    are   issued    before     the   form of monetary punishment no different, for Eighth
communications occur. See, e. g., Near v. Minnesota ex        Amendment purposes, from a traditional "fine." The
rel. Olson, 283 U.S. 697. However, the order here             question whether the forfeiture was excessive must be
imposes no legal impediment to petitioner's ability to        considered in light of the extensive criminal activities that
petitioner apparently conducted through his enormous            against petitioner and others, alleging, inter alia,
racketeering enterprise over a substantial period of time       operation of a racketeering enterprise in violation of
rather than the number of materials actually found to be        RICO. The indictment charged 34 obscenity counts and 3
obscene. Pp. 558-559.                                           RICO counts, the racketeering counts being predicated on
                                                                the obscenity charges. The indictment also charged
943 F.2d 825, vacated and remanded.                             numerous counts of tax evasion and related offenses that
                                                                are not relevant to the questions before us.
     Rehnquist, C. J., delivered the opinion of the Court,
in which White, O'Connor, Scalia, and Thomas, JJ.,                   Following a 4-month jury trial in the United States
joined. Souter, J., filed an opinion concurring in the          District Court for the District of Minnesota, petitioner
judgment in part and dissenting in part, post, p. 559.          was convicted of 17 substantive obscenity offenses: 12
Kennedy, J., filed a dissenting opinion, in which               counts of transporting obscene material in interstate
Blackmun and Stevens, JJ., joined, and in Part II of which      commerce for the purpose of sale or distribution, in
Souter, J., joined, post, p. 560.                               violation of 18 U.S.C. § 1465; and 5 counts of engaging
                                                                in the business of selling obscene material, in violation of
Page 546                                                        18 U.S.C. § 1466 (1988 ed. and Supp. III). He also was
                                                                convicted of 3 RICO offenses that were predicated on the
    John H. Weston argued the cause for petitioner.
                                                                obscenity convictions: one count of receiving and using
With him on the briefs was G. Randall Garrou.
                                                                income derived from a pattern of racketeering activity, in
                                                                violation of 18 U.S.C. § 1962(a); one count of conducting
     Solicitor General Starr argued the cause for the
United States. With him on the brief were Assistant             a RICO enterprise, in violation of § 1962(c); and one
                                                                count of conspiring to conduct a RICO enterprise, in
Attorney General Mueller, Deputy Solicitor General
                                                                violation of § 1962(d). As a basis for the obscenity and
Bryson, and Paul J. Larkin, Jr.[*]
                                                                RICO convictions, the jury determined that four
    Chief Justice Rehnquist delivered the opinion of the        magazines and three videotapes were obscene. Multiple
Court.                                                          copies of these magazines and videos, which graphically
                                                                depicted
     After a full criminal trial, petitioner Ferris J.
Alexander, owner of more than a dozen stores and                Page 548
theaters dealing in sexually explicit materials, was
convicted on, inter alia, 17 obscenity counts and 3 counts      a variety of "hard core" sexual acts, were distributed
of violating the Racketeer Influenced and Corrupt               throughout petitioner's adult entertainment empire.
Organizations Act (RICO). The obscenity convictions,
                                                                      Petitioner was sentenced to a total of six years in
based on the jury's findings that four magazines and three
                                                                prison, fined $100,000, and ordered to pay the cost of
videotapes sold at several of petitioner's stores were
                                                                prosecution, incarceration, and supervised release. In
obscene, served as the predicates for his three RICO
                                                                addition to these punishments, the District Court
convictions. In addition to imposing a prison term and
                                                                reconvened the same jury and conducted a forfeiture
fine, the District Court ordered petitioner to forfeit,
                                                                proceeding pursuant to § 1963(a)(2). At this proceeding,
pursuant to 18 U.S.C. § 1963 (1988 ed. and Supp. III),
                                                                the Government sought forfeiture of the businesses and
certain assets that were directly related to his racketeering
                                                                real estate that represented petitioner's interest in the
activity as punishment for his RICO violations. Petitioner
                                                                racketeering enterprise, § 1963(a)(2)(A), the property that
argues that this forfeiture violated the First and Eighth
                                                                afforded petitioner influence over that enterprise, §
Amendments to the Constitution. We reject petitioner's
                                                                1963(a)(2)(D), and the assets and proceeds petitioner had
                                                                obtained from his racketeering offenses, §§ 1963(a)(1),
Page 547
                                                                (3). The jury found that petitioner had an interest in 10
claims under the First Amendment but remand for                 pieces of commercial real estate and 31 current or former
reconsideration of his Eighth Amendment challenge.              businesses, all of which had been used to conduct his
                                                                racketeering enterprise. Sitting without the jury, the
      Petitioner was in the so-called "adult entertainment"     District Court then found that petitioner had acquired a
business for more than 30 years, selling pornographic           variety of assets as a result of his racketeering activities.
magazines and sexual paraphernalia, showing sexually            The court ultimately ordered petitioner to forfeit his
explicit movies, and eventually selling and renting             wholesale and retail businesses (including all the assets of
videotapes of a similar nature. He received shipments of        those businesses) and almost $9 million in moneys
these materials at a warehouse in Minneapolis,                  acquired through racketeering activity.[1]
Minnesota, where they were wrapped in plastic, priced,
and boxed. He then sold his products through some 13                 The Court of Appeals affirmed the District Court's
retail stores in several different Minnesota cities,            forfeiture order. Alexander v. Thornburgh, 943 F.2d 825
generating millions of dollars in annual revenues. In           (CA81991). It rejected petitioner's argument that the
1989, federal authorities filed a 41-count indictment           application of RICO's forfeiture provisions constituted a
prior restraint on speech and hence violated the First         on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis
Amendment. Recognizing the well-established distinction        added). Temporary restraining orders and permanent
between prior restraints and subsequent criminal               injunctions— i. e., court orders that actually forbid speech
punishments, the Court of Appeals found that the               activities—are classic examples of prior restraints. See id.,
forfeiture here was "a criminal                                § 4.03, at 4-16. This understanding of what constitutes a
                                                               prior restraint is borne out by our cases, even those on
Page 549                                                       which petitioner relies. In Near v. Minnesota ex rel.
                                                               Olson, supra, we invalidated a court order that
penalty imposed following a conviction for conducting an       perpetually enjoined the named party, who had published
enterprise engaged in racketeering activities," and not a      a newspaper containing articles found to violate a state
prior restraint on speech. Id., at 834. The court also         nuisance statute, from producing any future "malicious,
rejected petitioner's claim that RICO's forfeiture             scandalous or defamatory" publication. Id., at 706. Near,
provisions are constitutionally overbroad, pointing out        therefore, involved a true restraint on future speech—a
that the forfeiture order was properly limited to assets       permanent injunction. So, too, did Organization for a
linked to petitioner's past racketeering offenses. Id., at     Better Austin v. Keefe, 402 U.S. 415 (1971), and Vance v.
835. Lastly, the Court of Appeals concluded that the           Universal Amusement Co., 445 U.S. 308 (1980) (per
forfeiture order does not violate the Eighth Amendment's       curiam), two other cases cited by petitioner. In Keefe, we
prohibition against "cruel and unusual punishments" and        vacated an order " enjoining petitioners from distributing
"excessive fines." In so ruling, however, the court did not    leaflets anywhere in the town of Westchester, Illinois."
consider whether the forfeiture in this case was grossly       402 U.S., at 415 (emphasis added). And in Vance, we
disproportionate or excessive, believing that the Eighth       struck down a Texas statute that authorized courts, upon a
Amendment " 'does not require a proportionality review         showing that obscene films had been shown in the past,
of any sentence less than life imprisonment without the        to issue an injunction of indefinite duration prohibiting
possibility of parole.' " Id., at 836 (quoting United States   the future exhibition of films that have not yet been found
v. Pryba, 900 F.2d 748, 757 (CA4), cert. denied, 498 U.S.      to be obscene. 445 U.S., at 311. See also New York Times
924(1990)). We granted certiorari, 505 U.S. 1217 (1992).       Co. v. United States, 403 U.S. 713, 714 (1971) (per
                                                               curiam) (Government sought to enjoin publication of the
      Petitioner first contends that the forfeiture in this
                                                               Pentagon Papers).
case, which effectively shut down his adult entertainment
business, constituted an unconstitutional prior restraint on        By contrast, the RICO forfeiture order in this case
speech, rather than a permissible criminal punishment.         does not forbid petitioner to engage in any expressive
According to petitioner, forfeiture of expressive materials    activities
and the assets of businesses engaged in expressive
activity, when predicated solely upon previous obscenity       Page 551
violations, operates as a prior restraint because it
prohibits future presumptively protected expression in         in the future, nor does it require him to obtain prior
retaliation for prior unprotected speech. Practically          approval for any expressive activities. It only deprives
speaking, petitioner argues, the effect of the RICO            him of specific assets that were found to be related to his
forfeiture order here was no different from the injunction     previous racketeering violations. Assuming, of course,
prohibiting the publication of expressive material found       that he has sufficient untainted assets to open new stores,
to be a prior restraint in Near v. Minnesota ex rel. Olson,    restock his inventory, and hire staff, petitioner can go
283 U.S. 697 (1931). As petitioner puts it, see Brief for      back into the adult entertainment business tomorrow, and
Petitioner 25, the forfeiture order imposed a complete         sell as many sexually explicit magazines and videotapes
ban on his future expression because of previous               as he likes, without any risk of being held in contempt for
unprotected speech. We disagree. By lumping the                violating a court order. Unlike the injunctions in Near,
forfeiture imposed in this case after a full criminal trial    Keefe, and Vance, the forfeiture order in this case
with an injunction enjoining future speech, petitioner         imposes no legal impediment to—no prior restraint
stretches the term "prior                                      on—petitioner's ability to engage in any expressive
                                                               activity he chooses. He is perfectly free to open an adult
Page 550                                                       bookstore or otherwise engage in the production and
                                                               distribution of erotic materials; he just cannot finance
restraint" well beyond the limits established by our cases.    these enterprises with assets derived from his prior
To accept petitioner's argument would virtually obliterate     racketeering offenses.
the distinction, solidly grounded in our cases, between
prior restraints and subsequent punishments.                         The constitutional infirmity in nearly all of our prior
                                                               restraint cases involving obscene material, including
     The term "prior restraint" is used "to describe           those on which petitioner and the dissent rely, see post, at
administrative and judicial orders forbidding certain          570-571, 577, was that the government had seized or
communications when issued in advance of the time that         otherwise restrained materials suspected of being obscene
such communications are to occur." M. Nimmer, Nimmer           without a prior judicial determination that they were in
fact so. See, e. g., Marcus v. Search Warrant of Kansas          "The closure order sought in this case differs from a prior
City, Mo., Property, 367 U.S. 717 (1961); Bantam Books,          restraint in two significant respects. First, the order would
Inc. v. Sullivan, 372 U.S. 58 (1963); Quantity of Copies         impose no restraint at all on the dissemination of
of Books v. Kansas, 378 U.S. 205 (1964); Roaden v.               particular materials, since respondents are free to carry on
Kentucky, 413 U.S. 496(1973); Vance, supra. In this case,        their bookselling business at another location, even if
however, the assets in question were ordered forfeited not       such locations are difficult to find. Second, the closure
because they were believed to be obscene, but because            order sought would not be imposed on the basis of an
they were directly related to petitioner's past racketeering     advance determination that the distribution of particular
violations. The RICO forfeiture statute calls for the            materials is prohibited—indeed, the imposition of the
forfeiture of assets because of the financial role they play     closure order has nothing to do with any expressive
in the operation of the racketeering enterprise. The statute     conduct at all." Id., at 705-706, n. 2
is oblivious to the expressive or nonexpressive nature of
the assets forfeited; books, sports cars, narcotics, and         This reasoning applies with equal force to this case, and
cash are all forfeitable alike under RICO.                       thus confirms that the RICO forfeiture order was not a
                                                                 prior restraint on speech, but a punishment for past
Page 552                                                         criminal conduct. Petitioner attempts to distinguish
                                                                 Arcara on the ground that obscenity, unlike prostitution
Indeed, a contrary scheme would be disastrous from a             or lewdness, has " 'a significant expressive element.' "
policy standpoint, enabling racketeers to evade forfeiture       Brief for Petitioner 16 (quoting Arcara, supra, at 706).
by investing the proceeds of their crimes in businesses          But that distinction has no bearing on the question
engaging in expressive activity.                                 whether the forfeiture order in this case was an
                                                                 impermissible prior restraint.
     Nor were the assets in question ordered forfeited
without according petitioner the requisite procedural                  Finally, petitioner's proposed definition of the term
safeguards, another recurring theme in our prior restraint       "prior restraint" would undermine the time-honored
cases. Contrasting this case with Fort Wayne Books, Inc.         distinction between barring speech in the future and
v. Indiana, 489 U.S. 46 (1989), aptly illustrates this point.    penalizing past speech. The doctrine of prior restraint
In Fort Wayne Books, we rejected on constitutional               originated in the common law of England, where prior
grounds the pre- trial seizure of certain expressive             restraints of the press were not permitted, but punishment
material that was based upon a finding of "no more than          after publication was. This very limited application of the
probable cause to believe that a RICO violation had              principle of freedom of speech was held inconsistent with
occurred." Id., at 66 (emphasis in original). In so holding,     our First Amendment as long ago as Grosjean v.
we emphasized that there had been no prior judicial              American Press Co., 297 U.S. 233, 246 (1936). While we
"determination that the seized items were 'obscene' or that      may have given a broader definition to the term "prior
a RICO violation ha[d] occurred. " Ibid. (emphasis in            restraint" than was given to it in English common law,[2]
original). "[M]ere probable cause to believe a legal             our decisions have steadfastly preserved the
violation ha[d] transpired," we said, "is not adequate to
remove books or films from circulation." Ibid. Here, by          Page 554
contrast, the seizure was not premature, because the
Government established beyond a reasonable doubt the             distinction between prior restraints and subsequent
basis for the forfeiture. Petitioner had a full criminal trial   punishments. Though petitioner tries to dismiss this
on the merits of the obscenity and RICO charges during           distinction as "neither meaningful nor useful," Brief for
which the Government proved that four magazines and              Petitioner 29, we think it is critical to our First
three videotapes were obscene and that the other forfeited       Amendment jurisprudence. Because we have interpreted
assets were directly linked to petitioner's commission of        the First Amendment as providing greater protection from
racketeering offenses.                                           prior restraints than from subsequent punishments, see
                                                                 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
      Petitioner's claim that the RICO forfeiture statute        558-559 (1975), it is important for us to delineate with
operated as an unconstitutional prior restraint in this case     some precision the defining characteristics of a prior
is also inconsistent with our decision in Arcara v. Cloud        restraint. To hold that the forfeiture order in this case
Books, Inc., 478 U.S. 697 (1986). In that case, we               constituted a prior restraint would have the exact opposite
sustained a court order, issued under a general nuisance         effect: It would blur the line separating prior restraints
statute, that closed down an adult bookstore that was            from subsequent punishments to such a degree that it
being used as a place of prostitution and lewdness. In           would be impossible to determine with any certainty
rejecting out-of-hand a claim that the closure order             whether a particular measure is a prior restraint or not.
amounted to an improper prior restraint on speech, we
stated:                                                               In sum, we think that fidelity to our cases requires us
                                                                 to analyze the forfeiture here not as a prior restraint, but
Page 553                                                         under normal First Amendment standards. So analyzing
                                                                 it, we find that petitioner's claim falls well short of the
mark. He does not challenge either his 6-year jail               legitimate end of state antiobscenity laws, and our cases
sentence or his $100,000 fine as violative of the First          have long recognized the practical reality that 'any form
Amendment. The first inquiry that comes to mind, then,           of criminal obscenity statute applicable to a bookseller
is why, if incarceration for six years and a fine of             will induce some tendency to self-censorship and have
$100,000 are permissible forms of punishment under the           some inhibitory effect on the dissemination of material
RICO statute, the challenged forfeiture of certain assets        not obscene.' " 489 U.S., at 60 (quoting Smith v.
directly related to petitioner's racketeering activity is not.   California, 361 U.S. 147, 154-155 (1959)).
Our cases support the instinct from which
                                                                      Fort Wayne Books is dispositive of any chilling
Page 555                                                         argument here, since the threat of forfeiture has no more
                                                                 of a chilling effect on free expression than the threat of a
this question arises; they establish quite clearly that the      prison term or a large fine. Each racketeering charge
First Amendment does not prohibit either stringent               exposes a defendant to a maximum penalty of 20 years'
criminal sanctions for obscenity offenses or forfeiture of       imprisonment and a fine of up to $250,000. 18 U.S.C. §
expressive materials as punishment for criminal conduct.         1963(a) (1988 ed. and Supp.III). See Brief for United
                                                                 States 19. Needless to say, the prospect of such a lengthy
      We have in the past rejected First Amendment               prison sentence would have a far more powerful deterrent
challenges to statutes that impose severe prison sentences       effect on protected speech than the prospect of any sort of
and fines as punishment for obscenity offenses. See, e. g.,      forfeiture. Cf. Blanton v. North Las Vegas, 489 U.S. 538,
Ginzburg v. United States, 383 U.S. 463, 464-465, n. 2           542 (1989) (loss of liberty is a more severe form of
(1966); Smith v. United States, 431 U.S. 291, 296, n. 3          punishment than any monetary sanction). Similarly, a
(1977); Fort Wayne Books, 489 U.S., at 59, n. 8.                 fine of several hundred thousand dollars would certainly
Petitioner does not question the holding of those cases; he      be just as fatal to most businesses—and, as such, would
instead argues that RICO's forfeiture provisions are             result in the same degree of self-censorship—as a
constitutionally overbroad because they are not limited          forfeiture of assets. Yet these penalties are clearly
solely to obscene materials and the proceeds from the            constitutional under Fort Wayne Books.
sale of such materials. Petitioner acknowledges that this
is an unprecedented use of the overbreadth principle. See              We also have rejected a First Amendment challenge
Brief for Petitioner 36. The "overbreadth" doctrine, which       to a court order closing down an entire business that was
is a departure from traditional rules of standing, permits a     engaged in expressive activity as punishment for criminal
defendant to make a facial challenge to an overly broad          conduct. See Arcara, 478 U.S., at 707. Once again,
statute restricting speech, even if he himself has engaged       petitioner does not question the holding of that case; in
in speech that could be regulated under a more narrowly          fact, he concedes that expressive businesses and assets
drawn statute. See, e. g., Broadrick v. Oklahoma, 413            can be forfeited
U.S. 601, 612-613 (1973); City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 798-801 (1984).             Page 557
But the RICO statute does not criminalize
constitutionally protected speech and therefore is               under RICO as punishment for, say, narcotic offenses.
materially different from the statutes at issue in our           See Brief for Petitioner 11 ("[F]orfeiture of a media
overbreadth cases. Cf., e. g., Board of Airport Comm'rs of       business purchased by a drug cartel would be
Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,               constitutionally permissible"). Petitioner instead insists
574-575 (1987).                                                  that the result here should be different because the RICO
                                                                 predicate acts were obscenity offenses. In Arcara, we
     Petitioner's real complaint is not that the RICO            held that criminal and civil sanctions having some
statute is overbroad, but that applying RICO's forfeiture        incidental effect on First Amendment activities are
provisions to businesses dealing in expressive materials         subject to First Amendment scrutiny "only where it was
may have an improper "chilling" effect on free expression        conduct with a significant expressive element that drew
by deterring others from engaging in protected speech.           the legal remedy in the first place, as in [ United States v.
No doubt the monetarily large forfeiture in this case may        ] O'Brien, [391 U.S. 367 (1968),] or where a statute based
induce cautious booksellers to practice self-censorship          on a nonexpressive activity has the inevitable effect of
and remove marginally protected materials from their             singling out those engaged in expressive activity, as in
shelves out of fear that                                         Minneapolis Star [ & Tribune Co. v. Minnesota Comm'r
                                                                 of Revenue, 460 U.S. 575 (1983)]." 478 U.S., at 706-707
Page 556                                                         (foot- note omitted). Applying that standard, we held that
                                                                 prostitution and lewdness, the criminal conduct at issue in
those materials could be found obscene and thus subject          Arcara, involve neither situation, and thus concluded that
them to forfeiture. But the defendant in Fort Wayne              the First Amendment was not implicated by the
Books made a similar argument, which was rejected by             enforcement of a general health regulation resulting in the
the Court in this language:                                      closure of an adult bookstore. Id., at 707. Under our
                                                                 analysis in Arcara, the forfeiture in this case cannot be
"[D]eterrence of the sale of obscene materials is a
said to offend the First Amendment. To be sure, the                    Petitioner contends that forfeiture of his entire
conduct that "drew the legal remedy" here—racketeering           business was an "excessive" penalty for the Government
committed through obscenity violations—may be                    to exact "[o]n the basis of a few materials the jury
"expressive," see R. A. V. v. St. Paul, 505 U.S. 377, 385        ultimately decided were obscene." Brief for Petitioner 40.
(1992), but our cases clearly hold that "obscenity" can be       It is somewhat misleading, we think, to characterize the
regulated or actually proscribed consistent with the First       racketeering crimes for which petitioner was convicted as
Amendment, see, e. g., Roth v. United States, 354 U.S.           involving just a few materials ultimately found to be
476, 485 (1957); Miller v. California, 413 U.S. 15,              obscene. Petitioner was convicted of creating and
23(1973).                                                        managing what the District Court described as "an
                                                                 enormous racketeering enterprise." App. to Pet. for Cert.
     Confronted with our decisions in Fort Wayne Books           160. It is in the light of the extensive criminal activities
and Arcara —neither of which he challenges—petitioner's          which petitioner apparently conducted through this
position boils down to this: Stiff criminal penalties for        racketeering enterprise over a substantial period of time
obscenity offenses are consistent with the First                 that the question whether the forfeiture was "excessive"
Amendment; so is the forfeiture of expressive materials          must be considered. We think it preferable that this
as punishment for criminal conduct; but the combination          question be addressed by the Court of Appeals in the first
of the two somehow results                                       instance.

Page 558                                                               For these reasons, we hold that RICO's forfeiture
                                                                 provisions, as applied in this case, did not violate the First
in a violation of the First Amendment. We reject this            Amendment, but that the Court of Appeals should have
counterintuitive conclusion, which in effect would say           considered whether they resulted in an "excessive"
that the whole is greater than the sum of the parts.             penalty within the meaning of the Eighth Amendment's
                                                                 Excessive Fines Clause. Accordingly, we vacate the
      Petitioner also argues that the forfeiture order in this
                                                                 judgment of the Court of Appeals and remand the case
case—considered atop his 6-year prison term and
                                                                 for further proceedings consistent with this opinion.
$100,000 fine—is disproportionate to the gravity of his
offenses and therefore violates the Eighth Amendment,                 It is so ordered.
either as a "cruel and unusual punishment" or as an
"excessive fine."[3] Brief for Petitioner 40. The Court of            Justice Souter, concurring in the judgment in part
Appeals, though, failed to distinguish between these two         and dissenting in part.
components of petitioner's Eighth Amendment challenge.
Instead, the court lumped the two together, disposing of              I agree with the Court that petitioner has not
them both with the general statement that the Eighth             demonstrated that the forfeiture at issue here qualifies as
Amendment does not require any proportionality review            a prior restraint as we have traditionally understood that
of a sentence less than life imprisonment without the            term. I
possibility of parole. 943 F.2d, at 836. But that statement
has relevance only to the Eighth Amendment's                     Page 560
prohibition against cruel and unusual punishments.
Unlike the Cruel and Unusual Punishments Clause, which           also agree with the Court that the case should be
is concerned with matters such as the duration or                remanded for a determination whether the forfeiture
conditions of confinement, "[t]he Excessive Fines Clause         violated the Excessive Fines Clause of the Eighth
limits the government's power to extract payments,               Amendment. Nonetheless, I agree with Justice Kennedy
whether in cash or in kind, as punishment for some               that the First Amendment forbids the forfeiture of
offense." Austin v. United States, post, at 609-610              petitioner's expressive material in the absence of an
(emphasis and internal quotation marks omitted); accord,         adjudication that it is obscene or otherwise of unprotected
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal,       character, and therefore I join Part II of his dissenting
Inc., 492 U.S. 257, 265 (1989) ("[A]t the time of the            opinion.
drafting and ratification of the [Eighth] Amendment, the
                                                                       Justice Kennedy, with whom Justice Blackmun and
word 'fine' was understood to mean a payment to a
                                                                 Justice Stevens join, and with whom Justice Souter joins
sovereign as punishment for some offense"); id., at 265,
                                                                 as to Part II, dissenting.
n. 6. The in personam criminal forfeiture at issue here is
clearly a form of monetary punishment no different, for               The Court today embraces a rule that would find no
Eighth Amendment purposes, from a traditional "fine."            affront to the First Amendment in the Government's
Accord,                                                          destruction of a book and film business and its entire
                                                                 inventory of legitimate expression as punishment for a
Page 559
                                                                 single past speech offense. Until now I had thought one
Austin, supra. [4] Accordingly, the forfeiture in this case      could browse through any book or film store in the
should be analyzed under the Excessive Fines Clause.             United States without fear that the proprietor had chosen
                                                                 each item to avoid risk to the whole inventory and indeed
to the business itself. This ominous, onerous threat             steps to combat organized crime were not successful, in
undermines free speech and press principles essential to         large part because traditional penalties targeted
our personal freedom.                                            individuals engaged in racketeering activity rather than
                                                                 the criminal enterprise itself. Punishing racketeers with
      Obscenity laws would not work unless an offender           fines and jail terms failed to
could be arrested and imprisoned despite the resulting
chill on his own further speech. But, at least before today,     Page 562
we have understood state action directed at protected
books or other expressive works themselves to raise              break the cycle of racketeering activity because the
distinct constitutional concerns. The Court's decision is a      criminal enterprises had the resources to replace
grave repudiation of First Amendment principles, and             convicted racketeers with new recruits. In passing RICO,
with respect I dissent.                                          Congress adopted a new approach aimed at the economic
                                                                 roots of organized crime:
     I
                                                                 "What is needed here . . . are new approaches that will
     A                                                           deal not only with individuals, but also with the economic
                                                                 base through which those individuals constitute such a
     The majority believes our cases "establish quite            serious threat to the economic well-being of the Nation.
clearly that the First Amendment does not prohibit either        In short, an attack must be made on their source of
stringent criminal sanctions for obscenity offenses or           economic power itself, and the attack must take place on
forfeiture of expressive materials as punishment for             all available fronts." S. Rep. No. 91-617, p. 79 (1969).
criminal conduct."
                                                                       Criminal liability under RICO is premised on the
Page 561                                                         commission of a "pattern of racketeering activity,"
                                                                 defined by the statute as engaging in two or more related
Ante, at 2773. True, we have held that obscenity is              predicate acts of racketeering within a 10-year period. 18
expression which can be regulated and punished, within           U.S.C. § 1961(5). A RICO conviction subjects the
proper limitations, without violating the First                  violator not only to traditional, though stringent, criminal
Amendment. See, e. g., New York v. Ferber, 458 U.S.              fines and prison terms, but also mandatory forfeiture
747 (1982); Miller v. California, 413 U.S. 15 (1973);            under § 1963.[*] It is the mandatory forfeiture penalty
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-58              that is at issue here.
(1973); Roth v. United States, 354 U.S. 476(1957). And
the majority is correct to note that we have upheld              Page 563
stringent fines and jail terms as punishments for
violations of the federal obscenity laws. See Fort Wayne               While forfeiture remedies have been employed with
Books, Inc. v. Indiana, 489 U.S. 46, 60 (1989); Ginzburg         increasing frequency in civil proceedings, forfeiture
v. United States, 383 U.S. 463, 464-465, n. 2 (1966). But        remedies and penalties are the subject of historic disfavor
that has little to do with the destruction of protected titles   in our country. Although in personam forfeiture statutes
and the facilities for their distribution or publication.        were well grounded in the English common law, see
None of our cases address that matter, or it would have          Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
been unnecessary for us to reserve the specific question         663, 682-683 (1974), in personam criminal forfeiture
four Terms ago in Fort Wayne Books, Inc. v. Indiana,             penalties like those authorized under § 1963 were
supra, at 60, 65.                                                unknown in the federal system until the enactment of
                                                                 RICO in 1970. See 1 C. Wright, Federal Practice and
      The fundamental defect in the majority's reasoning         Procedure § 125.1, p. 389 (2d ed. 1982). Section 1963's
is a failure to recognize that the forfeiture here cannot be     forfeiture penalties are novel for their punitive character
equated with traditional punishments such as fines and           as well as for their unprecedented sweep. Civil in rem
jail terms. Noting that petitioner does not challenge either     forfeiture is limited in application to contraband and
the 6-year jail sentence or the $100,000 fine imposed            articles put to unlawful use, or in its broadest reach, to
against him as punishment for his convictions under the          proceeds traceable to unlawful activity. See United States
Racketeer Influenced and Corrupt Organizations Act               v. Parcel of Land, Rumson, N. J., 507 U.S. 111, 118-123
(RICO), the majority ponders why RICO's forfeiture               (1993); The Palmyra, 12 Wheat. 1, 14-15 (1827).
penalty should be any different. See ante, at 2773. The          Extending beyond contraband or its traceable proceeds,
answer is that RICO's forfeiture penalties are different         RICO mandates the forfeiture of property constituting the
from traditional punishments by Congress' own design as          defendant's "interest in the racketeering enterprise" and
well as in their First Amendment consequences.                   property affording the violator a "source of influence"
                                                                 over the RICO enterprise. 18 U.S.C. § 1963(a) (1988 ed.
      The federal RICO statute was passed to eradicate the       and Supp. III). In a previous decision, we acknowledged
infiltration of legitimate business by organized crime.          the novelty of RICO's penalty scheme, stating that
Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18           Congress passed RICO to provide "new weapons of
U.S.C. §§ 1961-1968 (1988 ed. and Supp. III). Earlier
unprecedented scope for an assault upon organized crime        forfeiture scheme here is the pervasive danger of
and its economic roots." Russello v. United States, 464        government censorship, an issue, I submit, the Court does
U.S. 16, 26 (1983).                                            not confront.

     As enacted in 1970, RICO targeted offenses then                 In Arcara, we upheld against First Amendment
thought endemic to organized crime. 18 U.S.C. §                challenge a criminal law requiring the temporary closure
1961(1). When RICO was amended in 1984 to include              of an adult bookstore as a penal sanction for acts of
obscenity as a predicate offense, there was no comment         prostitution occurring on the premises. We did not
or debate in Congress on the First Amendment                   subject the closure penalty to First Amendment scrutiny
implications of the change. Act of Oct. 12, 1984, Pub. L.      even though the collateral consequence of its imposition
98-473, 98 Stat. 2143. The consequence of adding a             would be to affect interests of traditional First
speech offense to a statutory scheme designed                  Amendment concern. We said that such scrutiny was not
                                                               required when a criminal penalty followed conduct
Page 564                                                       "manifest[ing] absolutely no element of protected
                                                               expression." 478 U.S., at 705. That the RICO prosecution
to curtail a different kind of criminal conduct went far       of Alexander involved the targeting of a particular class
beyond the imposition of severe penalties for obscenity        of unlawful speech itself suffices to distinguish the
offenses. The result was to render vulnerable to               instant case from Arcara. There can be little doubt that
Government destruction any business daring to deal in          regulation and punishment of certain classes of
sexually explicit materials. The unrestrained power of the     unprotected speech have implications for other speech
forfeiture weapon was not lost on the Executive Branch,        that is close to the proscribed line, speech which is
which was quick to see in the amended statute the means        entitled to the protections of the First Amendment. See
and opportunity to move against certain types of               Speiser v. Randall, 357 U.S. 513, 525(1958). Further, a
disfavored speech. The Attorney General's Commission           sanction requiring the temporary closure of a bookstore
on Pornography soon advocated the use of RICO and              cannot be equated, as it is under the Court's unfortunate
similar state statutes to "substantially handicap" or          analysis, see ante, at 2774-2775, with a forfeiture
"eliminate" pornography businesses. 1 United States            punishment mandating its permanent destruction.
Dept. of Justice, Attorney General's Commission on
Pornography, Final Report 498 (1986). As these                      B
comments illustrate, the constitutional concerns raised by
a penalty of this destructive capacity are distinct from the         The majority tries to occupy the high ground by
concerns raised by traditional methods of punishment.          assuming the role of the defender of the doctrine of prior
                                                               restraint. It warns that we disparage the doctrine if we
      The Court says that, taken together, our decisions in    reason from it. But as an analysis of our prior restraint
Fort Wayne Books and Arcara v. Cloud Books, Inc., 478          cases reveals, our application of the First Amendment has
U.S. 697(1986), dispose of petitioner's First Amendment        adjusted to meet new threats to speech. The First
argument. See ante, at 2774-2775. But while instructive,       Amendment is a rule of substantive protection, not an
neither case is dispositive. In Fort Wayne Books we            artifice of categories. The admitted design and the overt
considered a state law patterned on the federal RICO           purpose of the forfeiture in this case are to destroy an
statute, and upheld its scheme of using obscenity offenses     entire speech business and all its protected
as the predicate acts resulting in fines and jail terms of
great severity. We recognized that the fear of severe          Page 566
penalties may result in some self-censorship by cautious
booksellers, but concluded that this is a necessary            titles, thus depriving the public of access to lawful
consequence of conventional obscenity prohibitions. 489        expression. This is restraint in more than theory. It is
U.S., at 60. In rejecting the argument that the fines and      censorship all too real.
jail terms in Fort Wayne Books infringed upon First
Amendment principles, we regarded the penalties as                   Relying on the distinction between prior restraints
equivalent to a sentence enhancement for multiple              and subsequent punishments, ante, at 2770, 2772, the
obscenity violations, a remedy of accepted constitutional      majority labels the forfeiture imposed here a punishment
legitimacy. Id., at 59-60. We did not consider in Fort         and dismisses any further debate over the
Wayne Books the First Amendment implications of                constitutionality of the forfeiture penalty under the First
extensive penal forfeitures, including the official            Amendment. Our cases do recognize a distinction
destruction of protected expression. Further, while Fort       between prior restraints and subsequent punishments, but
Wayne Books acknowledges that some                             that distinction is neither so rigid nor so precise that it can
                                                               bear the weight the Court places upon it to sustain the
Page 565                                                       destruction of a speech business and its inventory as a
                                                               punishment for past expression.
degree of self-censorship may be unavoidable in
obscenity regulation, the alarming element of the                  In its simple, most blatant form, a prior restraint is a
                                                               law which requires submission of speech to an official
who may grant or deny permission to utter or publish it        "The liberty of the press is indeed essential to the nature
based upon its contents. See Staub v. City of Baxley, 355      of a free state; but this consists in laying no previous
U.S. 313, 322(1958); Joseph Burstyn, Inc. v. Wilson, 343       restraints upon publications, and not in freedom from
U.S. 495, 503(1952); A Quantity of Copies of Books v.          censure for criminal matter when published. Every
Kansas, 378 U.S. 205, 222 (1964) (Harlan, J.,                  freeman has an undoubted right to lay what sentiments he
dissenting); see also M. Nimmer, Nimmer on Freedom of          pleases before the public: to forbid this, is to
Speech § 4.03, p. 4-14 (1984). In contrast are laws which
punish speech or expression only after it has occurred and     Page 568
been found unlawful. See Kingsley Books, Inc. v. Brown,
354 U.S. 436, 440-442 (1957). While each mechanism,            destroy the freedom of the press: but if he publishes what
once imposed, may abridge speech in a direct way by            is improper, mischievous, or illegal, he must take the
suppressing it, or in an indirect way by chilling its          consequence of his own temerity." 4 W. Blackstone,
dissemination, we have interpreted the First Amendment         Commentaries *151-*152.
as providing greater protection from prior restraints than
                                                               The English law which Blackstone was compiling had
from subsequent punishments. See, e. g., Arcara v. Cloud
                                                               come to distrust prior restraints, but with little
Books, Inc., supra, at 705-706; Southeastern Promotions,
                                                               accompanying condemnation of subsequent punishments.
Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975); Kingsley
                                                               Part of the explanation for this lies in the circumstance
Books, Inc. v. Brown, supra, at 440-442. In Southeastern
                                                               that, in the centuries before Blackstone wrote, prior
Promotions, Ltd. v. Conrad, we explained that "[b]ehind
                                                               censorship, including licensing, was the means by which
the distinction is a theory deeply etched in our law: a free
                                                               the Crown and the Parliament controlled speech and
society prefers to punish the few who abuse rights of
                                                               press. See Siebert, supra, at 56-63, 68-74. As those
speech after
                                                               methods were the principal means used by government to
Page 567                                                       control speech and press, it follows that an unyielding
                                                               populace would devote its first efforts to avoiding or
they break the law than to throttle them and all others        repealing restrictions in that form.
beforehand." 420 U.S., at 559.
                                                                     Even as Blackstone wrote, however, subsequent
      It has been suggested that the distinction between       punishments were replacing the earlier censorship
prior restraints and subsequent punishments may have           schemes as the mechanism for government control over
slight utility, see Nimmer, supra, § 4.04, at 4-18 to 4-25,    disfavored speech in England. Whether Blackstone's
for in a certain sense every criminal obscenity statute is a   apparent tolerance of subsequent punishments resulted
prior restraint because of the caution a speaker or            from his acceptance of the English law as it then existed
bookseller must exercise to avoid its imposition. See          or his failure to grasp the potential threat these measures
Vance v. Universal Amusement Co., 445 U.S. 308, 324            posed to liberty, or both, subsequent punishment in the
(1980) (White, J., joined by Rehnquist, J., dissenting); see   broad sweep that he commented upon would be in
also Jeffries, Rethinking Prior Restraint, 92 Yale L. J.       flagrant violation of the principles of free speech and
409, 437 (1982). To be sure, the term "prior restraint" is     press that we have come to know and understand as being
not self-defining. One problem, of course, is that some        fundamental to our First Amendment freedoms. Indeed,
governmental actions may have the characteristics both         in the beginning of our Republic, James Madison argued
of punishment and prior restraint. A historical example is     against the adoption of Blackstone's definition of free
the sentence imposed on Hugh Singleton in 1579 after he        speech under the First Amendment. Said Madison:
had enraged Elizabeth I by printing a certain tract. See F.    "[T]his idea of the freedom of the press can never be
Siebert, Freedom of the Press in England, 1476-1776, pp.       admitted to be the American idea of it" because a law
91-92 (1952). Singleton was condemned to lose his right        inflicting penalties would have the same effect as a law
hand, thus visiting upon him both a punishment and a           authorizing a prior restraint. 6 Writings of James
disability encumbering all further printing. Though the        Madison 386 (G. Hunt ed. 1906).
sentence appears not to have been carried out, it
illustrates that a prior restraint and a subsequent                  The enactment of the alien and sedition laws early in
punishment may occur together. Despite the concurrent          our own history is an unhappy testament to the allure that
operation of the two kinds of prohibitions in some cases,      restrictive
the distinction between them persists in our law, and it is
                                                               Page 569
instructive here to inquire why this is so.
                                                               measures have for governments tempted to control the
      Early in our legal tradition the source of the
                                                               speech and publications of their people. And our earliest
distinction was the English common law, in particular the
                                                               cases tended to repeat the suggestion by Blackstone that
oft cited passage from William Blackstone's 18th-century
                                                               prior restraints were the sole concern of First Amendment
Commentaries on the Laws of England. He observed as
                                                               protections. See Patterson v. Colorado ex rel. Attorney
follows:
                                                               General of Colorado, 205 U.S. 454, 462 (1907);
                                                               Robertson v. Baldwin, 165 U.S. 275, 281 (1897). In time,
however, the Court rejected the notion that First                state courts to abate as a nuisance an adult theater which
Amendment freedoms under our Constitution are                    had exhibited obscene films in the past because the effect
coextensive with liberties available under the common            of the procedure was to prevent future exhibitions of
law of England. See Grosjean v. American Press Co.,              pictures not yet found to be obscene). It is a flat
297 U.S. 233, 248-249 (1936). From this came the                 misreading of our precedents to declare as the majority
conclusion that "[t]he protection of the First Amendment         does that the definition of a prior restraint includes only
. . . is not limited to the Blackstonian idea that freedom of    those measures which impose a "legal impediment," ante,
the press means only freedom from restraint prior to             at 2771, on a speaker's ability to engage in future
publication." Chaplinsky v. New Hampshire, 315 U.S.              expressive activity. Bantam Books, Inc. v. Sullivan, 372
568, 572, n. 3 (1942).                                           U.S. 58, 70 (1963), best illustrates the point. There a state
                                                                 commission did nothing more than warn booksellers that
      As our First Amendment law has developed, we               certain titles could be obscene, implying that criminal
have not confined the application of the prior restraint         prosecutions could follow if their warnings were not
doctrine to its simpler forms, outright licensing or             heeded. The commission had no formal enforcement
censorship before speech takes place. In considering             powers, and failure to heed its warnings was not a
governmental measures deviating from the classic form            criminal offense. Although
of a prior restraint yet posing many of the same dangers
to First Amendment freedoms, we have extended prior              Page 571
restraint protection with some latitude, toward the end of
declaring certain governmental actions to fall within the        the commission could impose no legal impediment on a
presumption of invalidity. This approach is evident in           speaker's ability to engage in future expressive activity,
Near v. Minnesota ex rel. Olson, 283 U.S. 697(1931), the         we held that scheme was an impermissible "system of
leading case in which we invoked the prior restraint             prior administrative restraints." Ibid. There we said: "We
doctrine to invalidate a state injunctive decree.                are not the first court to look through forms to the
                                                                 substance and recognize that informal censorship may
     In Near, a Minnesota statute authorized judicial            sufficiently inhibit the circulation of publications to
proceedings to abate as a nuisance a " 'malicious,               warrant injunctive relief." Id., at 67. If mere warning
scandalous and defamatory newspaper, magazine or other           against sale of certain materials was a prior restraint, I
periodical.' " Id., at 701-702. In a suit brought by the         fail to see why the physical destruction of a speech
attorney for Hennepin County it was established that             enterprise and its protected inventory is not condemned
Near had published articles in various editions of The           by the same doctrinal principles.
Saturday Press in violation of the statutory standard. Id.,
at 703-705. Citing the instance of these past unlawful                 One wonders what today's majority would have
publications, the court enjoined any future                      done if faced in Near with a novel argument to extend the
                                                                 traditional conception of the prior restraint doctrine. In
Page 570                                                         view of the formalistic approach the Court advances
                                                                 today, the Court likely would have rejected Near's pleas
violations of the state statute. Id., at 705. In one sense the   on the theory that to accept his argument would be to
injunctive order, which paralleled the nuisance statute,         "blur the line separating prior restraints from subsequent
did nothing more than announce the conditions under              punishments to such a degree that it would be impossible
which some later punishment might be imposed, for one            to determine with any certainty whether a particular
presumes that contempt could not be found until there            measure is a prior restraint or not." Ante, at 2773. In so
was a further violation in contravention of the order. But       holding the Court would have ignored, as the Court does
in Near the publisher, because of past wrongs, was               today, that the applicability of First Amendment analysis
subjected to active state intervention for the control of        to a governmental action depends not alone upon the
future speech. We found that the scheme was a prior              name by which the action is called, but upon its operation
restraint because it embodied "the essence of censorship."       and effect on the suppression of speech. Near, supra, at
Id., at 713. This understanding is confirmed by our later        708 ("[T]he court has regard to substance and not to mere
decision in Kingsley Books v. Brown, where we said that          matters of form, and . . . in accordance with familiar
it had been enough to condemn the injunction in Near             principles. . .statute[s] must be tested by [their] operation
that Minnesota had "empowered its courts to enjoin the           and effect"). See also Smith v. Daily Mail Publishing Co.,
dissemination of future issues of a publication because its      443 U.S. 97, 101 (1979) (the First Amendment's
past issues had been found offensive." 354 U.S., at 445.         application to a civil or criminal sanction is not
                                                                 determined solely by whether that action is viewed "as a
      Indeed the Court has been consistent in adopting a         prior restraint or as a penal sanction"); Southeastern
speech- protective definition of prior restraint when the        Promotions, Ltd. v. Conrad, 420 U.S., at 552-553
state attempts to attack future speech in retribution for a      (challenged action is "indistinguishable in its censoring
speaker's past transgressions. See Vance v. Universal            effect" from official actions consistently identified as
Amusement Co., 445 U.S. 308 (1980) (per curiam)                  prior restraints); Schneider v. State (Town
(invalidating as a prior restraint procedure authorizing
Page 572                                                       imposing punishment after violations, but to "
                                                               'incapacitate, and . . . directly to remove the corrupting
of Irvington), 308 U.S. 147, 161 (1939) ("In every case,       influence from the channels of commerce.' " Russello v.
therefore, where legislative abridgment of [First              United States, 464 U.S., at 28, quoting 116 Cong. Rec.
Amendment] rights is asserted, the courts should be            18955 (1970) (remarks of sponsor Sen. McClellan). The
astute to examine the effect of the challenged                 particular nature of Ferris Alexander's activities ought not
legislation").                                                 blind the Court to what is at stake here. Under the
                                                               principle the Court adopts, any bookstore or press
      The cited cases identify a progression in our First      enterprise could be forfeited as punishment for even a
Amendment jurisprudence which results from a more              single obscenity conviction.
fundamental principle. As governments try new ways to
subvert essential freedoms, legal and constitutional                Assuming the constitutionality of the mandatory
systems respond by making more explicit the nature and         forfeiture under § 1963 when applied to
the extent of the liberty in question. First in Near, and      nonspeech-related conduct, the constitutional analysis
later in Bantam Books and Vance, we were faced with            must be different when that remedy is imposed for
official action which did not fall within the traditional      violations of the federal obscenity laws. "Our decisions
meaning of the term "prior restraint," yet posed many of       furnish examples of legal devices and doctrines, in most
the same censorship dangers. Our response was to hold          applications consistent with the Constitution, which
that the doctrine not only includes licensing schemes          cannot be applied in settings where they have the
requiring speech to be submitted to a censor for review        collateral effect of inhibiting the freedom of expression."
prior to dissemination, but also encompasses injunctive        Smith v. California , 361 U.S. 147, 150-151 (1959). The
systems which threaten or bar future speech based on           regulation of obscenity, often separated from protected
some past infraction.                                          expression only by a "dim and uncertain line," must be
                                                               accomplished through "procedures that will ensure
      Although we consider today a new method of               against the curtailment of constitutionally protected
government control with unmistakable dangers of official       expression." Bantam Books v. Sullivan, 372 U.S., at 66.
censorship, the majority concludes that First Amendment        Because freedoms of expression are "vulnerable to
freedoms are not endangered because forfeiture follows a       gravely damaging yet barely visible encroachments,"
lawful conviction for obscenity offenses. But this
explanation does not suffice. The rights of free speech        Page 574
and press in their broad and legitimate sphere cannot be
defeated by the simple expedient of punishing after in         ibid., the government must use measures that are
lieu of censoring before. See Smith v. Daily Mail              sensitive to First Amendment concerns in its task of
Publishing Co., supra, at 101-102; Thornhill v. Alabama,       regulating or punishing speech. Speiser v. Randall, 357
310 U.S. 88, 101-102 (1940). This is so because in some        U.S., at 525.
instances the operation and effect of a particular
enforcement scheme, though not in the form of a                     Whatever one might label the RICO forfeiture
traditional prior restraint, may be to raise the same          provisions at issue in this case, be it effective, innovative,
concerns which inform all of our prior restraint cases: the    or Draconian, § 1963 was not designed for sensitive and
evils of state censorship and the unacceptable chilling of     exacting application. What is happening here is simple:
protected speech.                                              Books and films are condemned and destroyed not for
                                                               their own content but for the content of their owner's
     The operation and effect of RICO's forfeiture             prior speech. Our law does not permit the government to
remedies are different from a heavy fine or a severe jail      burden future speech for this sort of taint. Section 1963
sentence because                                               requires trial courts to forfeit not only the unlawful items
                                                               and any proceeds from their sale, but also the defendant's
Page 573                                                       entire interest in the enterprise involved in the RICO
                                                               violations and any assets affording the defendant a source
RICO's forfeiture provisions are different in purpose and      of influence over the enterprise. 18 U.S.C. §§
kind from ordinary criminal sanctions. See supra, at           1963(a)(1)-(3) (1988 ed. and Supp. III). A defend- ant's
563-565. The Government's stated purpose under RICO,           exposure to this massive penalty is grounded on the
to destroy or incapacitate the offending enterprise, bears a   commission of just two or more related obscenity
striking resemblance to the motivation for the state           offenses committed within a 10-year period. Aptly
nuisance statute the Court struck down as an                   described, RICO's forfeiture provisions "arm prosecutors
impermissible prior restraint in Near. The purpose of the      not with scalpels to excise obscene portions of an adult
state statute in Near was "not punishment, in the ordinary     bookstore's inventory but with sickles to mow down the
sense, but suppression of the offending newspaper or           entire undesired use." Fort Wayne Books, 489 U.S., at 85
periodical." 283 U.S., at 711. In the context of the First     (Stevens, J., concurring in part and dissenting in part).
Amendment, it is quite odd indeed to apply a measure
implemented not only to deter unlawful conduct by                   What is at work in this case is not the power to
punish an individual for his past transgressions but the          obscenity laws, the operation of RICO's forfeiture
authority to suppress a particular class of disfavored            provisions is an exercise of Government censorship and
speech. The forfeiture provisions accomplish this in a            control over protected speech as condemned in our prior
direct way by seizing speech presumed to be protected             restraint cases. In my view the effect is just that. For this
along with the instruments of its dissemination, and in an        reason I would invalidate those portions of the judgment
indirect way by threatening all who engage in the                 which mandated the forfeiture of petitioner's business
business of distributing adult or sexually explicit               enterprise and inventory, as well as all property affording
materials with the same disabling measures. Cf.                   him a source of influence over that enterprise.
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human
Relations, 413 U.S. 376, 390 (1973) (the special vice of               II
the prior restraint is suppression of speech, either directly
or by inducing                                                          Quite apart from the direct bearing that our prior
                                                                  restraint cases have on the entire forfeiture that was
Page 575                                                          ordered in this case, the destruction of books and films
                                                                  that were not obscene and not adjudged to be so is a
caution in the speaker, prior to a determination that the         remedy with no parallel in our cases. The majority says
targeted speech is unprotected by the First Amendment).           that our cases "establish quite clearly that the First
                                                                  Amendment does not prohibit . . . forfeiture of expressive
      In a society committed to freedom of thought,               materials as punishment for criminal conduct." See ante,
inquiry, and discussion without interference or guidance          at 2773-2774. But the single case cited in support of this
from the state, public confidence in the institutions             stark new threat to all speech enterprises is Arcara v.
devoted to the dissemination of written matter and films          Cloud Books, Inc. Arcara, as discussed, supra, at 565, is
is essential. That confidence erodes if it is perceived that      quite inapposite. There we found unconvincing the
speakers and the press are vulnerable for all of their            argument that protected bookselling activities were
expression based on some errant expression in the past.           burdened by the closure, saying that the owners "remain
Independence of speech and press can be just as                   free to sell [and the public remains free to acquire] the
compromised by the threat of official intervention as by          same materials at another location." 478 U.S., at 705.
the fact of it. See Bantam Books, Inc. v. Sullivan, supra,        Alexander and the public do not have those choices here
at 70. Though perhaps not in the form of a classic prior          for a simple reason: The Government has destroyed the
restraint, the application of the forfeiture statute here         inventory. Further, the sanction in Arcara did not involve
bears its censorial cast.                                         a complete confiscation or destruction of protected
                                                                  expression as did the forfeiture in this case. Here the
      Arcara recognized, as the Court today does not, the         inventory forfeited consisted of hundreds of original titles
vital difference between a punishment imposed for a               and thousands of copies, all of which are presumed to be
speech offense and a punishment imposed for some other            protected speech. In fact, some of the materials seized
crime. Where the government seeks forfeiture of a                 were the very ones the jury here determined not to be
bookstore because of its owner's drug offenses, there is          obscene. Even so, all of the inventory was seized and
little reason to surmise, absent evidence of selective            destroyed.
prosecution, that abolishing the bookstore is related to the
government's disfavor of the publication outlet or its            Page 577
activities. Where, however, RICO forfeiture stems from a
previous speech offense, the punishment serves not only                Even when interim pretrial seizures are used, we
the Government's interest in purging organized-crime              have been careful to say that First Amendment materials
taint, but also its interest in deterring the activities of the   cannot be taken out of circulation until they have been
speech-related business itself. The threat of a censorial         determined to be unlawful. "[W]hile the general rule
motive and of ongoing speech supervision by the state             under the Fourth Amendment is that any and all
justifies the imposition of First Amendment protection.           contraband, instrumentalities, and evidence of crimes
Free speech principles, well established by our cases,            may be seized on probable cause. . ., it is otherwise when
require in this case that the forfeiture of the inventory and     materials presumptively protected by the First
of the speech distribution facilities be held invalid.            Amendment are involved." Fort Wayne Books, 489 U.S.,
                                                                  at 63. See id., at 65-66; Lo-Ji Sales, Inc. v. New York, 442
    The distinct concern raised by § 1963 forfeiture              U.S. 319, 326, n. 5 (1979) (the First Amendment imposes
penalties is not a proportionality concern; all punishments       special constraints on searches for, and seizures of,
are subject to analysis for proportionality and this              presumptively protected materials).
concern should be addressed under the Eighth
Amendment. See Austin v.                                               In Marcus v. Search Warrant, 367 U.S. 717,
                                                                  731-733(1961), we invalidated a mass pretrial seizure of
Page 576                                                          allegedly obscene publications achieved through a
                                                                  warrant that was vague and unspecific. The constitutional
United States, post, p. 602. Here, the question is whether,       defect there was that the seizure was imposed without
when imposed as punishment for violation of the federal
safeguards necessary to assure nonobscene material the          Expression et al. by Michael A. Bamberger; for the
constitutional protection to which it is entitled. In similar   American Civil Liberties Union et al. by Marvin E.
fashion we invalidated, in A Quantity of Copies of Books        Frankel, Steven R. Shapiro, and Marjorie Heins; for the
v. Kansas, 378 U.S., at 211- 213, a state procedure             American Library Association et al. by Bruce J. Ennis,
authorizing seizure of books alleged to be obscene prior        Jr., and David W. Ogden; for Feminists for Free
to hearing, even though the system involved judicial            Expression by Helen M. Mickiewicz; and for the Video
examination of some of the seized titles. While the force       Software Dealers Association by Charles B. Ruttenberg,
behind the special protection accorded searches for and         James P. Mercurio, and Theodore D. Frank.
seizures of First Amendment materials is the risk of prior
restraint, see Maryland v. Macon, 472 U.S. 463, 470             Briefs of amici curiae urging affirmance were filed for
(1985), in substance the rule prevents seizure and              Christian Legal Defense by Wendell R. Bird and David J.
destruction of expressive materials in circumstances such       Myers; for the National Family Legal Foundation et al.
as are presented in this case without an adjudication of        by James P. Mueller and Len L. Munsil; for Morality in
their unlawful character.                                       Media, Inc., by Paul J. McGeady; and for the Religious
                                                                Alliance Against Pornography et al. by H. Robert
      It follows from the search cases in which the First       Showers.
Amendment required exacting protection, that one title
does not become seizable or tainted because of its              [*] Section 1963(a) provides that in imposing sentence on
proximity on the shelf to another. And if that is the rule      one convicted of racketeering offenses under § 1962, the
for interim seizures, it follows with even greater force        district court shall order forfeiture of three classes of
that protected materials cannot be destroyed altogether         assets:
for some alleged taint from an owner who committed a
speech violation. In attempting                                 "(1) any interest the person has acquired or maintained in
                                                                violation of section 1962;
Page 578
                                                                "(2) any—
to distinguish the holdings of Marcus and A Quantity of
Books, the Court describes the constitutional infirmity in      "(A) interest in;
those cases as follows: "[T]he government had seized or
                                                                "(B) security of;
otherwise restrained materials suspected of being obscene
without a prior judicial determination that they were in        "(C) claim against; or
fact so." Ante, at 2772. But the same constitutional defect
is present in the case before us today, and the Court fails     "(D) property or contractual right of any kind affording a
to explain why it is not fatal to the forfeiture punishment     source of influence over;
here under review. Thus, while in the past we invalidated
seizures which resulted in a temporary removal of               "any enterprise which the person has established,
presumptively protected materials from circulation, today       operated, controlled, conducted, or participated in the
the Court approves of Government measures having the            conduct of, in violation of section 1962; and
same permanent effect. In my view, the forfeiture of
expressive material here that had not been adjudged to be       "(3) any property constituting, or derived from, any
obscene, or otherwise without the protection of the First       proceeds which the person obtained, directly or
Amendment, was unconstitutional.                                indirectly, from racketeering activity or unlawful debt
                                                                collection in violation of section 1962." 18 U.S.C. §§
      ***                                                       1963(a)(1)-(3).

     Given the Court's principal holding, I can interpose       [1] Not wishing to go into the business of selling
no objection to remanding the case for further                  pornographic materials— regardless of whether they were
consideration under the Eighth Amendment. But it is             legally obscene—the Government decided that it would
unnecessary to reach the Eighth Amendment question.             be better to destroy the forfeited expressive materials than
The Court's failure to reverse this flagrant violation of the   sell them to members of the public. See Brief for United
right of free speech and expression is a deplorable             States 26-27, n. 11.
abandonment of fundamental First Amendment
principles. I dissent from the judgment and from the            [2] The doctrine of prior restraint has its roots in the 16th-
opinion of the Court.                                           and 17th- century English system of censorship. Under
                                                                that system, all printing presses and printers were
---------------                                                 licensed by the government, and nothing could lawfully
                                                                be published without the prior approval of a government
Notes:                                                          or church censor. See generally T. Emerson, System of
                                                                Freedom of Expression 504 (1970). Beginning with Near
[*] Briefs of amici curiae urging reversal were filed for
                                                                v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), we
the American Booksellers Foundation for Free
expanded this doctrine to include not only licensing
schemes requiring speech to be submitted to an
administrative censor for prepublication review, but also
injunctions against future speech issued by judges. See
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human
Relations, 413 U.S. 376, 389-390 (1973) ("[T]he
protection against prior restraint at common law barred
only a system of administrative censorship. . . . [T]he
Court boldly stepped beyond this narrow doctrine in Near
"). Quite obviously, however, we have never before
countenanced the essentially limitless expansion of the
term that petitioner proposes.

[3] This sense of disproportionality animates much of
petitioner's First Amendment arguments as well.
Questions of proportionality, however, should be dealt
with directly and forthrightly under the Eighth
Amendment and not be allowed to influence sub silentio
courts' First Amendment analysis.

[4] Unlike Austin, this case involves in personam
criminal forfeiture not in rem civil forfeiture, so there was
no threshold question concerning the applicability of the
Eighth Amendment.

---------------
Page 539                                                      fair trial under all circumstances, as the authors of the
                                                              Bill of Rights themselves declined to do, the protection
427 U.S. 539 (1976)                                           against prior restraint should have particular force as
                                                              applied to reporting of criminal proceedings. Pp.
96 S.Ct. 2791, 49 L.Ed.2d 683                                 556-562.

Nebraska Press Assn.                                               3. The heavy burden imposed as a condition to
                                                              securing a prior restraint was not met in this case. Pp.
v.
                                                              562-570.
Stuart
                                                                    (a) On the pretrial record, the trial judge was
                                                              justified in concluding that there would be intense and
No. 75-817
                                                              pervasive pretrial publicity concerning the case, and he
United States Supreme Court                                   could also reasonably

June 30, 1976                                                 Page 540

     Argued April 19, 1976                                    conclude, based on common human experience, that
                                                              publicity might impair the accused's right to a fair trial.
   CERTIORARI TO THE SUPREME COURT OF                         His conclusion as to the impact of such publicity on
NEBRASKA                                                      prospective jurors was of necessity speculative, however,
                                                              dealing as he was with factors unknown and unknowable.
     Syllabus                                                 Pp. 562-563.

     Respondent Nebraska state trial judge, in anticipation         (b) There is no finding that measures short of prior
of a trial for a multiple murder which had attracted          restraint on the press and speech would not have
widespread news coverage, entered an order which, as          protected the accused's rights; the Nebraska Supreme
modified by the Nebraska Supreme Court, restrained            Court no more than implied that alternative measures
petitioner newspapers, broadcasters, journalists, news        might not suffice, and the record lacks evidence that
media associations, and national newswire services from       would support such a finding. Pp. 563-565.
publishing or broadcasting accounts of confessions or
admissions made by the accused to law enforcement                  (c) It is not clear that prior restraint on publication
officers or third parties, except members of the press, and   would have effectively protected the accused's rights, in
other facts "strongly implicative"                            view of such practical problems as the limited territorial
                                                              jurisdiction of the trial court issuing the restraining order,
[96 S.Ct. 2792] of the accused. The modification of the       the difficulties inherent in predicting what information
order had occurred in the course of an action by              will in fact undermine the jurors' impartiality, the
petitioners, which had sought a stay of the trial court's     problem of drafting an order that will effectively keep
original order and in which the accused and the State of      prejudicial information from prospective jurors, and the
Nebraska intervened. This Court granted certiorari to         fact that in this case the events occurred in a small
determine whether the order violated the constitutional       community where rumors would travel swiftly by word
guarantee of freedom of the press. The order expired by       of mouth. Pp. 565-567.
its own terms when the jury was impaneled. Respondent
was convicted; his appeal is pending in the Nebraska               (d) To the extent that the order prohibited the
Supreme Court.                                                reporting of evidence adduced at the open preliminary
                                                              hearing held to determine whether the accused should be
     Held:                                                    bound over for trial, it violated the settled principle that
                                                              "there is nothing that proscribes the press from reporting
[96 S.Ct. 2794] 1. The case is not moot simply because        events that transpire in the courtroom," Sheppard v.
the order has expired, since the controversy between the      Maxwell, 384 U.S. 333, 362-363, and the portion of the
parties is "capable of repetition, yet evading review." Pp.   order restraining publication of other facts "strongly
546-547.                                                      implicative" of the accused is too vague and too broad to
                                                              survive the scrutiny given to restraints on First
     2. While the guarantees of freedom of expression are
                                                              Amendment rights. Pp. 567-568.
not an absolute prohibition under all circumstances, the
barriers to prior restraint remain high and the                    194 Neb. 783, 236 N.W.2d 794, reversed.
presumption against its use continues intact. Although it
is unnecessary to establish a priority between First             BURGER, C.J., delivered the opinion of the Court,
Amendment rights and the Sixth Amendment right to a           in which WHITE, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. WHITE, J., post, p. 570, and          testimony given or evidence adduced;
POWELL, J., post, p. 571, filed concurring opinions.
BRENNAN, J., filed an opinion concurring in the                    the order also required members of the press to
judgment, in which STEWART and MARSHALL, JJ.,                 observe the Nebraska Bar-Press Guidelines.[1]
joined, post, p. 572. STEVENS, J., filed an opinion
concurring in the judgment, post, p. 617.                     Page 543

Page 541                                                           Simants' preliminary hearing was held the same day,
                                                              open to the public but subject to the order. The County
     BURGER, J., lead opinion                                 Court bound over the defendant for trial to the State
                                                              District Court. The charges, as amended to reflect the
     MR. CHIEF JUSTICE BURGER delivered the                   autopsy findings, were that Simants had committed the
opinion of the Court.                                         murders in the course of a sexual assault.

      The respondent State District Judge entered an order          Petitioners -- several press and broadcast
restraining the petitioners from publishing or                associations, publishers, and individual reporters --
broadcasting accounts of confessions or admissions made       moved on October 23 for leave to intervene in the District
by the accused or facts "strongly implicative" of the         Court, asking that the restrictive order imposed by the
accused in a widely reported murder of six persons. We        County Court be vacated. The District Court conducted a
granted certiorari to decide whether the entry of such an     hearing, at which the County Judge testified and
order on the showing made before the state court violated     newspaper articles about the Simants case were admitted
the constitutional guarantee of freedom of the press.         in evidence. The District Judge granted petitioners'
                                                              motion to intervene and, on October 27, entered his own
Page 542                                                      restrictive order. The judge found, "because of the nature
                                                              of the crimes charged in the complaint that there, is a
     I                                                        clear and present danger that pretrial publicity could
                                                              impinge upon the defendant's right to a fair trial." The
    On the evening of October 18, 1975, local police
                                                              order applied only until the jury was impaneled, and
found the six members of the Henry Kellie family
                                                              specifically prohibited petitioners from reporting five
murdered in their home in
                                                              subjects: (1) the existence or contents of a confession
                                                              Simants had made to law enforcement officers, which had
[96 S.Ct. 2795] Sutherland, Neb. a town of about 850
people. Police released the description of a suspect,         been introduced in open court at arraignment; (2) the fact
Erwin Charles Simants, to the reporters who had hastened      or nature of statements Simants had made to other
to the scene of the crime. Simants was arrested and           persons; (3) the contents of a note he had written the
arraigned in Lincoln County Court the following               night of the crime; (4) certain aspects of the medical
morning, ending a tense night for this small rural            testimony at the preliminary hearing; and (5) the identity
community.                                                    of the

      The crime immediately attracted widespread news         Page 544
coverage, by local, regional, and national newspapers,
                                                              victims of the alleged sexual assault and the nature of the
radio and television stations. Three days after the crime,
                                                              assault. It also prohibited reporting the exact nature of the
the County Attorney and Simants' attorney joined in
                                                              restrictive order itself. Like the County Court's order, this
asking the County Court to enter a restrictive order
                                                              order incorporated the Nebraska Bar-Press Guidelines.
relating to "matters that may or may not be publicly
                                                              Finally, the order set out a plan for attendance, seating,
reported or disclosed to the public," because of the "mass
                                                              and courthouse traffic control during the trial.
coverage by news media" and the
                                                                  Four days later, on October 31, petitioners asked the
reasonable likelihood of prejudicial news which would
                                                              District Court to stay its order. At the same time, they
make difficult, if not impossible, the impaneling of an
                                                              applied to
impartial jury and tend to prevent a fair trial.
                                                              [96 S.Ct. 2796] the Nebraska Supreme Court for a writ of
      The County Court heard oral argument, but took no
                                                              mandamus, a stay, and an expedited appeal from the
evidence; no attorney for members of the press appeared
                                                              order. The State of Nebraska and the defendant Simants
at this stage. The County Court granted the prosecutor's
                                                              intervened in these actions. The Nebraska Supreme Court
motion for a restrictive order and entered it the next day,
                                                              heard oral argument on November 25, and issued its per
October 22. The order prohibited everyone in attendance
                                                              curiam opinion December 1. State v. Simants, 194 Neb.
from
                                                              783, 236 N.W.2d 794 (1975).[2]
releas[ing] or authoriz[ing] the release for public
                                                              Page 545
dissemination in any form or manner whatsoever any
      The Nebraska Supreme Court balanced the "heavy           controversies. Indianapolis School Comm'rs v. Jacobs ,
presumption against . . . constitutional validity" that an     420 U.S. 128 (1975); Sosna v. Iowa, 419 U.S. 393,
order restraining publication bears, New York Times Co.        397-403 (1975). The Court has recognized, however, that
v. United States , 403 U.S. 713, 714 (1971), against the       jurisdiction is not necessarily defeated simply because the
importance of the defendant's right to trial by an impartial   order attacked has expired, if the underlying dispute
jury. Both society and the individual defendant, the court     between the parties is one "capable of repetition, yet
held, had a vital interest in assuring that Simants be tried   evading review." Southern Pacific Terminal Co. v. ICC ,
by an impartial jury. Because of the publicity surrounding     219 U.S. 498, 515 (1911).
the crime, the court determined that this right was in
jeopardy. The court noted that Nebraska statutes required           The controversy between the parties to this case is
the District Court to try Simants within six months of his     "capable of repetition" in two senses. First, if Simants'
arrest, and that a change of venue could move the trial        conviction is reversed by the Nebraska Supreme Court
only to adjoining counties, which had been subject to          and a new trial ordered, the District Court may enter
essentially the same publicity as Lincoln County. The          another restrictive order to prevent a resurgence of
Nebraska Supreme Court held that "[u]nless the absolutist      prejudicial publicity before Simants' retrial. Second, the
position of the relators was constitutionally correct, it      State of Nebraska is a party to this case; the Nebraska
would appear that the District Court acted properly." 194      Supreme Court's decision authorizes state prosecutors to
Neb. at 797, 236 N.W.2d at 803.
                                                               Page 547
     The Nebraska Supreme Court rejected that
"absolutist position," but modified the District Court's       seek restrictive orders in appropriate cases. The dispute
order to accommodate the defendant's right to a fair trial     between the State and the petitioners who cover events
and the petitioners' interest in reporting pretrial events.    throughout the State is thus "capable of repetition." Yet,
The order as modified prohibited reporting of only three       if we decline to address the issues in this case on grounds
matters: (a) the existence and nature of any confessions       of mootness, the dispute will evade review, or at least
or admissions made by the defendant to law enforcement         considered plenary review in this Court, since these
officers, (b) any confessions or admissions made to any        orders are by nature short-lived. See, e.g., Weinstein v.
third parties, except members of the press, and (c) other      Bradford, 423 U.S. 147 (1975); Sosna v. Iowa, supra;
facts "strongly implicative" of the accused. The Nebraska      Roe v. Wade, 410 U.S. 113, 125 (1973); Moore v.
Supreme Court did not rely on the Nebraska Bar Press           Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess
Guidelines. See n. 1, supra. After construing Nebraska         Anne, 393 U.S. 175, 178-179 (1968). We therefore
law to permit closure in certain circumstances, the court      conclude that this case is not moot, and proceed to the
remanded the case to the District Judge for                    merits.
reconsideration of the issue whether pretrial hearings
                                                                    III
should be closed to the press and public.
                                                                     The problems presented by this case are almost as
Page 546
                                                               old as the Republic. Neither in the Constitution nor in
     We granted certiorari to address the important issues     contemporaneous writings do we find that the conflict
raised by the District Court order as modified by the          between these two important rights was anticipated, yet it
Nebraska Supreme Court, but we denied the motion to            is inconceivable that the authors of the Constitution were
expedite review or to stay entirely the order of the State     unaware of the potential conflicts between the right to an
District Court pending Simants' trial. 423 U.S. 1027           unbiased jury and the guarantee of freedom of the press.
(1975). We are informed by the parties that, since we          The unusually able lawyers who helped write the
granted certiorari, Simants has been convicted of murder       Constitution and later drafted the Bill of Rights were
and sentenced to death. His appeal is pending in the           familiar with the historic episode in which John Adams
Nebraska Supreme Court.                                        defended British soldiers charged with homicide for
                                                               firing into a crowd of Boston demonstrators; they were
     II                                                        intimately familiar with the clash of the adversary system
                                                               and the part that passions of the populace sometimes play
    The order at issue in this case expired by its own         in influencing potential jurors. They did not address
terms when the jury was impaneled on January 7, 1976.          themselves directly to the situation presented by this
There were no restraints                                       case; their chief concern was the need for freedom of
                                                               expression in the political arena and the dialogue in ideas.
[96 S.Ct. 2797] on publication once the jury was               But they recognized that there were risks to private rights
selected, and there are now no restrictions on what may        from an unfettered press. Jefferson, for example,
be spoken or written about the Simants case. Intervenor
Simants argues that for this reason the case is moot.          Page 548

    Our jurisdiction under Art. III, § 2, of the               writing from Paris in 1786 concerning press attacks on
Constitution extends only to actual cases and
John Jay, stated:                                                case and others of that era led to efforts to develop
                                                                 voluntary guidelines for courts, lawyers, press, and
In truth, it is afflicting that a man who has past his life in   broadcasters. See generally J. Lofton, Justice and the
serving the public . . . should yet be liable to have his        Press 117-130 (1966).[3] The effort was renewed in
peace of mind so much disturbed by any individual who            1965, when the American Bar Association embarked on a
shall think proper to arraign him in a newspaper. It is,         project to develop standards for all aspects of criminal
however, an evil for which there is no remedy. Our               justice, including guidelines to accommodate the right to
liberty depends on the freedom of the press, and that            a fair trial and the rights of a free press. See Powell, The
cannot be limited without being lost. . . .                      Right to a

     9 Papers of Thomas Jefferson 239 (J. Boyd                   Page 550
ed.1954). See also F. Mott, Jefferson and the Press 21,
38-46 (1943).                                                    Fair Trial, 51 A.B.A.J. 534 (1965). The resulting
                                                                 standards, approved by the Association in 1968, received
     The trial of Aaron Burr in 1807 presented Mr. Chief         support from most of the legal profession. American Bar
Justice Marshall, presiding as a trial judge, with acute         Association Project on Standards for Criminal Justice,
problems in selecting an unbiased jury. Few people in the        Fair Trial and Free Press (Approved Draft 1968). Other
area of Virginia from which jurors were drawn had not            groups have undertaken similar studies. See Report of the
formed some opinions concerning                                  Judicial Conference Committee on the Operation of the
                                                                 Jury System, "Free Press-Fair Trial" Issue, 45 F.R.D. 391
[96 S.Ct. 2798] Mr. Burr or the case, from newspaper             (1968); Special Committee on Radio, Television, and the
accounts and heightened discussion both private and              Administration of Justice of the Association of the Bar of
public. The Chief Justice conducted a searching voir dire        the City of New York, Freedom of the Press and Fair
of the two panels eventually called, and rendered a              Trial (1967). In the wake of these efforts, the cooperation
substantial opinion on the purposes of voir dire and the         between bar associations and members of the press led to
standards to be applied. See 1 Causes Celebres, Trial of         the adoption of voluntary guidelines like Nebraska's. See
Aaron Burr for Treason 40427, 473481 (1879); United              n. 1, supra; American Bar Association Legal Advisory
States v. Burr, 25 F.Cas. 49 (No. 14,692g) (CC Va.               Committee on Fair Trial and Free Press, The Rights of
1807). Burr was acquitted, so there was no occasion for          Fair Trial and Free Press 1-6 (1969).
appellate review to examine the problem of prejudicial
pretrial publicity. Mr. Chief Justice Marshall's careful              In practice, of course, even the most ideal guidelines
voir dire inquiry into the matter of possible bias makes         are subjected to powerful strains when a case such as
clear that the problem is not a new one.                         Simants' arises, with reporters from many parts of the
                                                                 country on the scene. Reporters from distant places are
     The speed of communication and the pervasiveness            unlikely to consider themselves bound by local standards.
of the modern news media have exacerbated these                  They report to editors outside the area covered by the
problems, however, as numerous appeals demonstrate.              guidelines,
The trial of Bruno Hauptmann in a small New Jersey
community for                                                    [96 S.Ct. 2799] and their editors are likely to be guided
                                                                 only by their own standards. To contemplate how a state
Page 549                                                         court can control acts of a newspaper or broadcaster
                                                                 outside its jurisdiction, even though the newspapers and
the abduction and murder of the Charles Lindberghs'
                                                                 broadcasts reach the very community from which jurors
infant child probably was the most widely covered trial
                                                                 are to be selected, suggests something of the practical
up to that time, and the nature of the coverage produced
                                                                 difficulties of managing such guidelines.
widespread public reaction. Criticism was directed at the
"carnival" atmosphere that pervaded the community and                  The problems presented in this case have a
the courtroom itself. Responsible leaders of press and the       substantial history outside the reported decisions of
legal profession -- including other judges -- pointed out        courts, in the efforts of many responsible people to
that much of this sorry performance could have been              accommodate the competing interests. We cannot resolve
controlled by a vigilant trial judge and by other public         all of them, for
officers subject to the control of the court. See generally
Hudson, Freedom of the Press Versus Fair Trial: The              Page 551
Remedy Lies With the Courts, 1 Val.U.L.Rev. 8, 114
(1966); Hallam, Some Object Lessons on Publicity in              it is not the function of this Court to write a code. We
Criminal Trials, 24 Minn.L.Rev. 453 (1940); Lippmann,            look instead to this particular case and the legal context in
The Lindbergh Case in Its Relation to American                   which it arises.
Newspapers, in Problems of Journalism 154-156 (1936).
                                                                      IV
     The excesses of press and radio and lack of
responsibility of those in authority in the Hauptmann                 The Sixth Amendment in terms guarantees "trial, by
an impartial jury . . ." in federal criminal prosecutions.          v. United States, 360 U.S. 310 (1959)
Because "trial by jury in criminal cases is fundamental to
the American scheme of justice," the Due Process Clause                In Sheppard v. Maxwell , 384 U.S. 333 (1966), the
of the Fourteenth Amendment guarantees the same right               Court focused sharply on the impact of pretrial
in state criminal prosecutions. Duncan v. Louisiana, 391
U.S. 145, 149 (1968).                                               [96 S.Ct. 2800] publicity and a trial court's duty to
                                                                    protect the defendant's constitutional right to a fair trial.
In essence, the right to jury trial guarantees to the               With only Mr. Justice Black dissenting, and he without
criminally accused a fair trial by a panel of impartial,            opinion, the Court ordered a new trial for the petitioner,
"indifferent" jurors. . . . "A fair trial in a fair tribunal is a   even though the first trial had occurred 12 years before.
basic requirement of due process." In re Murchison, 349             Beyond doubt, the press had shown no responsible
U.S. 133, 136. In the ultimate analysis, only the jury can          concern for the constitutional guarantee of a fair trial; the
strip a man of his liberty or his life. In the language of          community
Lord Coke, a juror must be as "indifferent as he stands
unsworne." Co.Litt. 155b. His verdict must be based upon            Page 553
the evidence developed at the trial.
                                                                    from which the jury was drawn had been inundated by
     Irvin v. Dowd, 366 U.S. 717, 722 (1961).                       publicity hostile to the defendant. But the trial judge

      In the overwhelming majority of criminal trials,              did not fulfill his duty to protect [the defendant] from the
pretrial publicity presents few unmanageable threats to             inherently prejudicial publicity which saturated the
this important right. But when the case is a "sensational"          community and to control disruptive influences in the
one, tensions develop between the right of the accused to           courtroom.
trial by an impartial jury and the rights guaranteed others
                                                                         Id. at 363. The Court noted that "unfair and
by the First Amendment. The relevant decisions of this
                                                                    prejudicial news comment on pending trials has become
Court, even if not dispositive, are instructive by way of
                                                                    increasingly prevalent," id. at 362, and issued a strong
background.
                                                                    warning:
    In Irvin v. Dowd, supra, for example, the defendant
                                                                    Due process requires that the accused receive a trial by an
was convicted of murder following intensive and hostile
                                                                    impartial jury free from outside influences. Given the
news coverage. The trial judge had granted a defense
                                                                    pervasiveness of modern communications and the
motion for a change of venue, but only to an
                                                                    difficulty of effacing prejudicial publicity from the minds
Page 552                                                            of the jurors, the trial courts must take strong measures
                                                                    to ensure that the balance is never weighed against the
adjacent county, which had been exposed to essentially              accused. . . . Of course, there is nothing that proscribes
the same news coverage. At trial, 430 persons were called           the press from reporting events that transpire in the
for jury service; 268 were excused because they had fixed           courtroom. But where there is a reasonable likelihood
opinions as to guilt. Eight of the 12 who served as jurors          that prejudicial news prior to trial will prevent a fair trial,
thought the defendant guilty, but said they could                   the judge should continue the case until the threat abates,
nevertheless render an impartial verdict. On review, the            or transfer it to another county not so permeated with
Court vacated the conviction and death sentence and                 publicity. In addition, sequestration of the jury was
remanded to allow a new trial for, "[w]ith his life at stake,       something the judge should have raised sua sponte with
it is not requiring too much that petitioner be tried in an         counsel. If publicity during the proceedings threatens the
atmosphere undisturbed by so huge a wave of public                  fairness of the trial, a new trial should be ordered. But we
passion. . . ." 366 U.S. at 728.                                    must remember that reversals are but palliatives; the cure
                                                                    lies in those remedial measures that will prevent the
      Similarly, in Rideau v. Louisiana , 373 U.S. 723              prejudice at its inception. The courts must take such steps
(1963), the Court reversed the conviction of a defendant            by rule and regulation that will protect their processes
whose staged, highly emotional confession had been                  from prejudicial outside interferences. Neither
filmed with the cooperation of local police and later               prosecutors, counsel for defense, the accused, witnesses,
broadcast on television for three days while he was                 court staff nor enforcement officers coming under the
awaiting trial, saying "[a]ny subsequent court                      jurisdiction of the
proceedings in a community so pervasively exposed to
such a spectacle could be but a hollow formality." Id. at           Page 554
726. And in Estes v. Texas, 381 U.S. 532 (1965), the
Court held that the defendant had not been afforded due             court should be permitted to frustrate its function.
process where the volume of trial publicity, the judge's            Collaboration between counsel and the press as to
failure to control the proceedings, and the telecast of a           information affecting the fairness of a criminal trial is not
hearing and of the trial itself "inherently prevented a             only subject to regulation, but is highly censurable and
sober search for the truth." Id. at 551. See also Marshall
worthy of disciplinary measures.                                 these costs from society or from the accused.

      Id. at 362-363 (emphasis added). Because the trial              The state trial judge in the case before us acted
court had failed to use even minimal efforts to insulate         responsibly, out of a legitimate concern, in an effort to
the trial and the jurors from the "deluge of publicity," id.     protect the defendant's right to a fair trial.[4] What we
at 357, the Court vacated the judgment of conviction and         must decide is not simply whether the Nebraska courts
a new trial followed, in which the accused was acquitted.        erred

     Cases such as these are relatively rare, and we have        Page 556
held in other cases that trials have been fair in spite of
widespread publicity. In Stroble v. California , 343 U.S.        in seeing the possibility of real danger to the defendant's
181 (1952), for example, the Court affirmed a conviction         rights, but whether in the circumstances of this case the
and death sentence challenged on the ground that pretrial        means employed were foreclosed by another provision of
news accounts, including the prosecutor's release of the         the Constitution.
defendant's recorded confession, were allegedly so
inflammatory as to amount to a denial of due process.                 V
The Court disapproved of the prosecutor's conduct, but
                                                                      The First Amendment provides that "Congress shall
noted that the publicity had receded some six weeks
                                                                 make no law . . . abridging the freedom . . . of the press,"
before trial, that the defendant had not moved for a
                                                                 and it is
change of venue, and that the confession had been found
voluntary and admitted in evidence at trial. The Court           no longer open to doubt that the liberty of the press, and
also noted the thorough examination of jurors on voir            of speech, is within the liberty safeguarded by the due
dire and the careful review of the facts by the state courts,    process clause of the Fourteenth Amendment from
and held that petitioner had failed to demonstrate a denial      invasion by state action.
of due process. See also Murphy v. Florida, 421 U.S. 794
(1975); Beck v. Washington, 369 U.S. 541 (1962).                      Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707
                                                                 (1931). See also Grosjean v. American Press Co., 297
     Taken together, these cases demonstrate that pretrial       U.S. 233, 244 (1936). The Court has interpreted these
publicity even pervasive, adverse publicity -- does not          guarantees to afford special protection against orders that
inevitably lead to an unfair trial. The capacity of the jury     prohibit the publication or broadcast of particular
eventually impaneled to decide the case fairly is                information or commentary -- orders that impose a
influenced by the tone and                                       "previous" or "prior" restraint on speech. None of our
                                                                 decided cases on prior restraint involved restrictive orders
[96 S.Ct. 2801] extent of the publicity,
                                                                 entered to protect a defendant's right to a fair and
Page 555                                                         impartial jury, but the opinions on prior restraint have a
                                                                 common thread relevant to this case.
which is in part, and often in large part, shaped by what
attorneys, police, and other officials do to precipitate              In Near v. Minnesota ex rel. Olson, supra, the Court
news coverage. The trial judge has a major responsibility.       held invalid a Minnesota statute providing for the
What the judge says about a case, in or out of the               abatement as a public nuisance of any "malicious,
courtroom, is likely to appear in newspapers and                 scandalous and defamatory newspaper, magazine or other
broadcasts. More important, the measures a judge takes           periodical." Near had published an occasional weekly
or fails to take to mitigate the effects of pretrial publicity   newspaper described by the County Attorney's complaint
-- the measures described in Sheppard -- may well                as "largely devoted to malicious, scandalous and
determine whether the defendant receives a trial                 defamatory articles" concerning political and other public
consistent with the requirements of due process. That this       figures. 283 U.S. at 703. Publication was enjoined
responsibility has not always been properly discharged is        pursuant to the statute. Excerpts from Near's paper, set
apparent from the decisions just reviewed.                       out in the dissenting opinion of Mr. Justice Butler, show
                                                                 beyond question that one of its principal characteristics
     The costs of failure to afford a fair trial are high. In    was blatant anti-Semitism. See id. at 723, 724-727, n. 1.
the most extreme cases, like Sheppard and Estes, the risk
of injustice was avoided when the convictions were               Page 557
reversed. But a reversal means that justice has been
                                                                      Mr. Chief Justice Hughes, writing for the Court,
delayed for both the defendant and the State; in some
                                                                 noted that freedom of the press is not an absolute right,
cases, because of lapse of time retrial is impossible or
                                                                 and the State may punish its abuses. He observed that the
further prosecution is gravely handicapped. Moreover, in
                                                                 statute was "not aimed at the redress of individual or
borderline cases in which the conviction is not reversed,
                                                                 private wrongs." Id. at 708, 709.
there is some possibility of an injustice unredressed. The
"strong measures" outlined in Sheppard v. Maxwell are
means by which a trial judge can try to avoid exacting
[96 S.Ct. 2802] He then focused on the statute:                    Each of the six concurring Justices and the three
                                                                   dissenting Justices expressed his views separately, but
[T]he operation and effect of the statute in substance is
that public authorities may bring the owner or publisher           every member of the Court, tacitly or explicitly, accepted
of a newspaper or periodical before a judge upon a charge          the Near and Keefe condemnation of prior restraint as
of conducting a business of publishing scandalous and              presumptively unconstitutional.
defamatory matter . . . and unless the owner or publisher
is able . . . to satisfy the judge that the [matter is] true and        Pittsburgh Press Co. v. Human Rel.
. . . published with good motives . . . his newspaper or
periodical is suppressed. . . . This is of the essence of          Page 559
censorship.
                                                                   Comm'n, 413 U.S. 376, 396 (1973) (BURGER, C.J.,
    Id. at 713. The Court relied on Patterson v.                   dissenting). The Court's conclusion in New York Times
Colorado ex rel. Attorney General , 205 U.S. 454, 462              suggests that the burden on the Government is not
(1907):                                                            reduced by the temporary nature of a restraint; in that
                                                                   case the Government asked for a temporary restraint
[T]he main purpose of [the First Amendment] is "to                 solely to permit it to study and
prevent all such previous restraints upon publications as
had been practiced by other governments."[5]                       [96 S.Ct. 2803] assess the impact on national security of
                                                                   the lengthy documents at issue.
     The principles enunciated in Near were so
universally accepted that the precise issue did not come                The thread running through all these cases is that
before us again until Organization for a Better Austin v.          prior restraints on speech and publication are the most
Keefe,                                                             serious and the least tolerable infringement on First
                                                                   Amendment rights. A criminal penalty or a judgment in a
Page 558                                                           defamation case is subject to the whole panoply of
                                                                   protections afforded by deferring the impact of the
402 U.S. 415 (1971). There the state courts had enjoined           judgment until all avenues of appellate review have been
the petitioners from picketing or passing out literature of        exhausted. Only after judgment has become final, correct
any kind in a specified area. Noting the similarity to Near        or otherwise, does the law's sanction become fully
v. Minnesota, a unanimous Court held:                              operative.

Here, as in that case, the injunction operates not to                    A prior restraint, by contrast and by definition, has
redress alleged private wrongs, but to suppress, on the            an immediate and irreversible sanction. If it can be said
basis of previous publications, distribution of literature         that a threat of criminal or civil sanctions after
"of any kind" in a city of 18,000.                                 publication "chills" speech, prior restraint "freezes" it at
                                                                   least for the time.[6]
     ****
                                                                         The damage can be particularly great when the prior
Any prior restraint on expression comes to this Court              restraint falls upon the communication of news and
with a "heavy presumption" against its constitutional              commentary on current events. Truthful reports of public
validity. Carroll v. Princess Anne, 393 U.S. 175, 181              judicial proceedings have been afforded special
(1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70            protection against subsequent punishment. See Cox
(1963). Respondent thus carries a heavy burden of                  Broadcasting Corp v. Cohn, 420 U.S. 469,
showing justification for the imposition of such a                 492-493(1975); see also, Craig v. Harney, 331 U.S. 367,
restraint. He has not met that burden. . . . Designating the       374 (1947). For the same reasons the protection against
conduct as an invasion of privacy, the apparent basis for          prior restraint should have particular force as applied to
the injunction here, is not sufficient to support an               reporting of criminal proceedings, whether the crime in
injunction against peaceful distribution of informational          question is a single isolated act or a pattern of criminal
literature of the nature revealed by this record.                  conduct.

     402 U.S. at 418-420.                                          A responsible press has always been regarded as

     More recently in New York Times Co. v. United                 Page 560
States, 403 U.S. 713 (1971), the Government sought to
enjoin the publication of excerpts from a massive,                   the handmaiden of effective judicial administration,
classified study of this Nation's involvement in the               especially in the criminal field. Its function in this regard
Vietnam conflict, going back to the end of the Second              is documented by an impressive record of service over
World War. The dispositive opinion of the Court simply             several centuries. The press does not simply publish
concluded that the Government had not met its heavy                information about trials, but guards against the
burden of showing justification for the prior restraint.           miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public          nearly a quarter of our national existence and implied
scrutiny and criticism.                                          throughout all of it. The history of even wartime
                                                                 suspension of categorical guarantees, such as habeas
      Sheppard v. Maxwell, 384 U.S. at 350. The                  corpus or the right to trial by civilian courts, see Ex parte
extraordinary protections afforded by the First                  Milligan, 4 Wall. 2 (1867), cautions against suspending
Amendment carry with them something in the nature of a           explicit guarantees.
fiduciary duty to exercise the protected rights responsibly
-- a duty widely acknowledged but not always observed                 The Nebraska courts in this case enjoined the
by editors and publishers. It is not asking too much to          publication of certain kinds of information about the
suggest that those who exercise First Amendment rights           Simants case. There are, as we suggested earlier, marked
in newspapers or broadcasting enterprises direct some            differences in setting and purpose between the order
effort to protect the rights of an accused to a fair trial by    entered here and the orders in Near, Keefe, and New York
unbiased jurors.                                                 Times, but as to the underlying issue the right of the press
                                                                 to be free from prior restraints on publication -- those
     Of course, the order at issue like the order requested
in New York Times -- does not prohibit, but only                 Page 562
postpones, publication. Some news can be delayed, and
most commentary can even more readily be delayed                 cases form the backdrop against which we must decide
without serious injury, and there often is a self-imposed        this case.
delay when responsible editors call for verification of
information. But such delays are normally slight, and                 VI
they are self-imposed. Delays imposed by governmental
                                                                       We turn now to the record in this case to determine
authority are a different matter.
                                                                 whether, as Learned Hand put it, "the gravity of the `evil,'
We have learned, and continue to learn, from what we             discounted by its improbability, justifies such invasion of
view as the unhappy experiences of other nations where           free speech as is necessary to avoid the danger." United
government has been allowed to meddle in the internal            States v. Dennis, 183 F.2d 201, 212 (CA2 1950), aff'd,
editorial affairs of newspapers. Regardless of how               341 U.S. 494 (1951); see also L. Hand, The Bill of Rights
beneficent-sounding the purposes of controlling the press        58-61 (1958). To do so, we must examine the evidence
might be, we . . . remain intensely skeptical about those        before the trial judge when the order was entered to
measures that would allow government to insinuate itself         determine (a) the nature and extent of pretrial news
into the editorial                                               coverage; (b) whether other measures would be likely to
                                                                 mitigate the effects of unrestrained pretrial publicity; and
Page 561                                                         (c) how effectively a restraining order would operate to
                                                                 prevent the threatened danger. The precise terms of the
rooms of. this Nation's press.                                   restraining order are also important. We must then
                                                                 consider whether the record supports the entry of a prior
      Miami Herald Publishing Co. v. Tornillo , 418 U.S.         restraint on publication, one of the most extraordinary
241, 259 (1974) (WHITE, J., concurring). See also                remedies known to our jurisprudence.
Columbia Broadcasting v. Democratic Comm. , 412 U.S.
94 (1973). As a practical matter, moreover, the element               A
of time is not unimportant if press coverage is to fulfill its
traditional function of bringing news to the public                    In assessing the probable extent of publicity, the trial
promptly.                                                        judge had before him newspapers demonstrating that the
                                                                 crime had already drawn intensive news coverage, and
     The authors of the Bill of Rights did not undertake to      the testimony of the County Judge, who had entered the
assign priorities as                                             initial restraining order based on the local and national
                                                                 attention the case had attracted. The District Judge was
[96 S.Ct. 2804] between First Amendment and Sixth                required to assess the probable publicity that would be
Amendment rights, ranking one as superior to the other.          given these shocking crimes prior to the time a jury was
In this case, the petitioners would have us declare the          selected and sequestered. He then had to examine the
right of an accused subordinate to their right to publish in     probable nature of the publicity and determine how it
all circumstances. But if the authors of these guarantees,       would affect prospective jurors.
fully aware of the potential conflicts between them, were
unwilling or unable to resolve the issue by assigning to              Our review of the pretrial record persuades us that
one priority over the other, it is not for us to rewrite the     the trial judge was justified in concluding that there
Constitution by undertaking what they declined to do. It         would
is unnecessary, after nearly two centuries, to establish a
priority applicable in all circumstances. Yet it is              Page 563
nonetheless clear that the barriers to prior restraint remain
high unless we are to abandon what the Court has said for        be intense and pervasive pretrial publicity concerning this
case. He could also reasonably conclude, based on              to an unfair trial. The decided cases
common human experience, that publicity might impair
the defendant's right to a fair trial. He did not purport to   cannot be made to stand for the proposition that juror
say more, for he found only "a clear and present danger        exposure to information about a state defendant's prior
that pretrial publicity could impinge upon the defendant's     convictions or to news accounts of the crime with which
right to a fair trial." (Emphasis added.) His conclusion as    he is charged alone presumptively deprives the defendant
to the impact of such publicity on prospective jurors was,     of due process.
of necessity, speculative, dealing as he was with factors
unknown and unknowable.                                             Murphy v. Florida, 421 U.S. at 799. Appellate
                                                               evaluations as to the impact of publicity take into account
     B                                                         what other measures were used to mitigate the adverse
                                                               effects of publicity. The more difficult prospective or
     We find little in the record that goes to another         predictive assessment that a trial judge must make also
aspect of our task, determining whether measures short of      calls for a judgment as to whether other precautionary
an order restraining all publication would have insured        steps will suffice.
the defendant a
                                                               [96 S.Ct. 2806] We have therefore examined this record
[96 S.Ct. 2805] fair trial. Although the entry of the order    to determine the probable efficacy of the measures short
might be read as a judicial determination that other           of prior restraint on the press and speech. There is no
measures would not suffice, the trial court made no            finding that alternative measures would not have
express findings to that effect; the Nebraska Supreme          protected Simants' rights, and the Nebraska Supreme
Court referred to the issue only by implication. See 194       Court did no more than imply that such measures might
Neb. at 797-798, 236 N.W.2d at 803.                            not be adequate. Moreover, the record is lacking in
                                                               evidence to support such a finding.
     Most of the alternatives to prior restraint of
publication in these circumstances were discussed with              C
obvious approval in Sheppard v. Maxwell, 384 U.S. at
357-362: (a) change of trial venue to a place less exposed           We must also assess the probable efficacy of prior
to the intense publicity that seemed imminent in Lincoln       restraint on publication as a workable method of
County;[7] (b) postponement of the trial to allow              protecting Simants' right to a fair trial, and we cannot
                                                               ignore the reality of the problems of managing and
Page 564                                                       enforcing pretrial restraining orders. The territorial
                                                               jurisdiction of the issuing court is limited by concepts of
public attention to subside; (c) searching questioning of      sovereignty, see, e.g., Hanson v. Denckla , 357 U.S. 235
prospective jurors, as Mr. Chief Justice Marshall used in      (1958); Pennoyer v. Neff , 95 U.S. 714 (1878). The need
the Burr case, to screen out those with fixed opinions as      for in
to guilt or innocence; (d) the use of emphatic and clear
instructions on the sworn duty of each juror to decide the     Page 566
issues only on evidence presented in open court.
Sequestration of jurors is, of course, always available.       personam jurisdiction also presents an obstacle to a
Although that measure insulates jurors only after they are     restraining order that applies to publication at large a
sworn, it also enhances the likelihood of dissipating the      distinguished from restraining publication within a given
impact of pretrial publicity and emphasizes the elements       Jurisdiction.[9] See generally American Bar Association,
of the jurors' oaths.                                          Legal Advisory Committee on Fair Trial and Free Press,
                                                               Recommended Court Procedure to Accommodate Rights
      This Court has outlined other measures short of prior    of Fair Trial and Free Press (Rev. Draft, Nov.1975);
restraints on publication tending to blunt the impact of       Rendleman, Free Press-Fair Trial: Review of Silence
pretrial publicity. See Sheppard v. Maxwell, supra at          Orders, 52 N.C.L.Rev. 127, 149-155 (1973).[10]
361-362. Professional studies have filled out these
suggestions, recommending that trial courts in                        The Nebraska Supreme Court narrowed the scope of
appropriate cases limit what the contending lawyers, the       the restrictive order, and its opinion reflects awareness of
police, and witnesses may say to anyone. See American          the tensions between the need to protect the accused as
Bar Association Project on Standards for Criminal              fully as possible and the need to restrict publication as
Justice, Fair Trial and Free Press 2-15 (App.Draft             little as possible. The dilemma posed underscores how
168).[8]
                                                               Page 567
Page 565
                                                               difficult it is for trial judges to predict what information
     We have noted earlier that pretrial publicity, even if    will, in fact, undermine the impartiality of jurors, and the
pervasive and concentrated, cannot be regarded as              difficulty of drafting an order that will effectively keep
leading automatically and in every kind of criminal case       prejudicial information from prospective jurors. When a
restrictive order is sought, a court can anticipate only part        The third prohibition of the order was defective in
of what will develop that may injure the accused. But           another respect as well. As part of a final order, entered
information not so obviously prejudicial may emerge, and        after plenary review, this prohibition regarding
what may properly be published in these "gray zone"             "implicative" information is too vague and too broad to
circumstances may not violate the restrictive order and         survive the scrutiny we have given to restraints on First
yet be prejudicial.                                             Amendment rights. See, e.g., Hynes v. Mayor of Oradell,
                                                                425 U.S. 610 (1976); Buckley v. Valeo , 424 U.S. 1, 762
     Finally, we note that the events disclosed by the          (1976); NAACP v. Button, 371 U.S. 415 (1963). The third
record took place in a community of 850 people. It is           phase of the order entered falls outside permissible limits.
reasonable to assume that, without any news accounts
being printed or broadcast, rumors would travel swiftly              E
by word of mouth. One can only speculate on the
accuracy of such reports, given the generative                       The record demonstrates, as the Nebraska courts
propensities of rumors; they could well be more                 held, that there was indeed a risk that pretrial news
damaging than reasonably accurate news accounts. But            accounts,
plainly a whole community cannot be restrained from
discussing a subject intimately affecting life within it.       Page 569

[96 S.Ct. 2807] Given these practical problems, it is far       true or false, would have some adverse impact on the
from clear that prior restraint on publication would have       attitudes of those who might be called as jurors. But, on
protected Simants' rights.                                      the record now before us, it is not clear that further
                                                                publicity, unchecked, would so distort the views of
     D                                                          potential jurors that 12 could not be found who would,
                                                                under proper instructions, fulfill their sworn duty to
     Finally, another feature of this case leads us to          render a just verdict exclusively on the evidence
conclude that the restrictive order entered here is not         presented in open court. We cannot say on this record
supportable. At the outset, the County Court entered a          that alternatives to a prior restraint on petitioners would
very broad restrictive order, the terms of which are not        not have sufficiently mitigated the adverse effects of
before us; it then held a preliminary hearing open to the       pretrial publicity so as to make prior restraint
public and the press. There was testimony concerning at         unnecessary. Nor can we conclude that the restraining
least two incriminating statements made by Simants to           order actually entered would serve its intended purpose.
private persons; the statement -- evidently a confession --     Reasonable minds can have few doubts about the gravity
that he gave to law enforcement officials was also              of the evil pretrial publicity can work, but the probability
introduced. The State District Court's later order was          that it would do so here was not demonstrated with the
entered after this public hearing and, as modified by the       degree of certainty our cases on prior restraint require.

Page 568                                                             Of necessity, our holding is confined to the record
                                                                before us. But our conclusion is not simply a result of
Nebraska Supreme Court, enjoined reporting of (1)               assessing the adequacy of the showing made in this case;
"[c]onfessions or admissions against interest made by the       it results in part from the problems inherent in meeting
accused to law enforcement officials"; (2) "[c]onfessions       the heavy burden of demonstrating,
or admissions against interest, oral or written, if any,
made by the accused to third parties, excepting any             [96 S.Ct. 2808] in advance of trial, that without prior
statements, if any, made by the accused to representatives      restraint a fair trial will be denied. The practical problems
of the news media"; and (3) all "[o]ther information            of managing and enforcing restrictive orders will always
strongly implicative of the accused as the perpetrator of       be present. In this sense, the record now before us is
the slayings." 194 Neb. at 801, 236 N.W.2d at 805.              illustrative, rather than exceptional. It is significant that,
                                                                when this Court has reversed a state conviction because
     To the extent that this order prohibited the reporting     of prejudicial publicity, it has carefully noted that some
of evidence adduced at the open preliminary hearing, it         course of action short of prior restraint would have made
plainly violated settled principles: "[T]here is nothing that   a critical difference. See Sheppard v. Maxwell, supra at
proscribes the press from reporting events that transpire       363; Estes v. Texas, 381 U.S. at 550-551; Rideau v.
in the courtroom." Sheppard v. Maxwell, 384 U.S. at             Louisiana, 373 U.S. at 726; Irwin v. Dowd, 366 U.S. at
362-363. See also Cox Broadcasting Corp. v. Cohn, 420           728. However difficult it may be, we need not rule out
U.S. 469 (1975); Craig v. Harney, 331 U.S. 367 (1947).          the possibility of showing the kind of threat to fair trial
The County Court could not know that closure of the             rights that would possess
preliminary hearing was an alternative open to it until the
Nebraska Supreme Court so construed state law; but once         Page 570
a public hearing had been held, what transpired there
could not be subject to prior restraint.                        the requisite degree of certainty to justify restraint. This
                                                                Court has frequently denied that First Amendment rights
are absolute and has consistently rejected the proposition    necessity for prior restraint on pretrial publicity. *
that a prior restraint can never be employed. See New
York Times Co. v. United States , 403 U.S. 713 (1971);             In my judgment, a prior restraint properly may issue
Organization for a Better Austin v. Keefe , 402 U.S. 415      only when it is shown to be necessary to prevent the
(1971); Near v. Minnesota ex rel. Olson , 283 U.S. 697        dissemination of prejudicial publicity that otherwise
(1931).                                                       poses a high likelihood of preventing, directly and
                                                              irreparably, the impaneling of a jury meeting
      Our analysis ends as it began, with a confrontation
between prior restraint imposed to protect one vital          [96 S.Ct. 2809] the Sixth Amendment requirement of
constitutional guarantee and the explicit command of          impartiality. This requires a showing that (i) there is a
another that the freedom to speak and publish shall not be    clear threat to the fairness of trial, (ii) such a threat is
abridged. We reaffirm that the guarantees of freedom of       posed by the actual publicity to be restrained, and (iii) no
expression are not an absolute prohibition under all          less restrictive alternatives are available. Notwithstanding
circumstances, but the barriers to prior restraint remain     such a showing, a restraint may not issue unless it also is
high, and the presumption against its use continues intact.   shown that previous publicity or publicity from
We hold that, with respect to the order entered in this       unrestrained sources will not render the restraint
case prohibiting reporting or commentary on judicial          inefficacious. The threat to the fairness
proceedings held in public, the barriers have not been
overcome; to the extent that this order restrained            Page 572
publication of such material, it is clearly invalid. To the
                                                              of the trial is to be evaluated in the context of Sixth
extent that it prohibited publication based on information
                                                              Amendment law on impartiality, and any restraint must
gained from other sources, we conclude that the heavy
                                                              comply with the standards of specificity always required
burden imposed as a condition to securing a prior
                                                              in the First Amendment context.
restraint was not met, and the judgment of the Nebraska
Supreme Court is therefore
                                                                   I believe these factors are sufficiently addressed in
                                                              the Court's opinion to demonstrate beyond question that
     Reversed.
                                                              the prior restraint here was impermissible.
     WHITE, J., concurring
                                                                   BRENNAN, J., concurring
     MR. JUSTICE WHITE, concurring.
                                                                    MR. JUSTICE BRENNAN, with whom MR.
     Technically, there is no need to go farther than the     JUSTICE STEWART and MR. JUSTICE MARSHALL
Court does to dispose of this case, and I join the Court's    join, concurring in the judgment.
opinion. I should add, however, that, for the reasons
                                                                    The question presented in this case is whether,
which the Court itself canvasses, there is grave doubt in
                                                              consistently with the First Amendment, a court may
my mind whether orders with respect to the press such as
                                                              enjoin the press, in advance of publication,[1] from
were entered in this case would ever be justifiable.
                                                              reporting or commenting on information acquired from
Page 571                                                      public court proceedings, public court records, or other
                                                              sources about pending judicial proceedings. The
It may be the better part of discretion, however, not to      Nebraska Supreme Court upheld such a direct prior
announce such a rule in the first case in which the issue     restraint on the press, issued by the judge presiding over a
has been squarely presented here. Perhaps we should go        sensational state murder trial, on the ground that there
no further than absolutely necessary until the federal        existed a
courts, and ourselves, have been exposed to a broader
spectrum of cases presenting similar issues. If the           clear and present danger that pretrial publicity could
recurring result, however, in case after case is to be        substantially impair the right of the defendant [in the
similar to our judgment today, we should at some point        murder trial] to a trial by an impartial jury unless
announce a more general rule, and avoid the interminable      restraints were imposed.
litigation that our failure to do so would necessarily
                                                                   State v. Simants, 194 Neb. 783, 794, 236 N.W.2d
entail.
                                                              794, 802 (1975). The right to a fair trial by a jury of one's
     POWELL, J., concurring                                   peers is unquestionably one of the most precious and
                                                              sacred safeguards enshrined in the Bill of Rights. I would
     MR. JUSTICE POWELL, concurring.                          hold, however, that resort to prior restraints on the
                                                              freedom of the press is a constitutionally impermissible
     Although I join the opinion of the Court, in view of     method for enforcing that right; judges have at their
the importance of the case, I write to emphasize the          disposal a broad spectrum of devices for ensuring that
unique burden that rests upon the party, whether it be the    fundamental fairness is accorded the
State or a defendant, who undertakes to show the
Page 573                                                         support, stated:

accused without necessitating so drastic an incursion on         The State of Nebraska hereby represents unto the Court
the equally fundamental and salutary constitutional              that, by reason of the nature of the above-captioned case,
mandate that discussion of public affairs in a free society      there has been, and no doubt there will continue to be,
cannot depend on the preliminary grace of judicial               mass coverage by news media not only locally, but
censors.                                                         nationally as well; that a preliminary hearing on the
                                                                 charges has been set to commence at 9:00 a.m. on
     I                                                           October 22, 1975; and there is a reasonable likelihood of
                                                                 prejudicial news which would make difficult, if not
     The history of the current litigation highlights many       impossible, the impaneling of an impartial jury and tend
of the dangers inherent in allowing any prior restraint on       to prevent a fair trial should the defendant be bound over
press reporting and commentary concerning the                    to trial in the District Court if testimony of witnesses at
operations of the criminal justice system.                       the preliminary hearing is reported to the public.

     This action arose out of events surrounding the             Wherefore the State of Nebraska moves that the Court
prosecution of respondent intervenor Simants for the             forthwith enter a Restrictive Order setting forth the
premeditated mass murder of the six members of the               matters that may or may not be publicly reported or
Kellie family in Sutherland, Neb. on October 18, 1975.           disclosed to the public with reference to said case or with
Shortly after the crimes occurred, the community of 850          reference to the preliminary hearing thereon, and to
was alerted by a special announcement over the local             whom said order shall apply.
television station. Residents were requested by the police
to stay off the streets and exercise caution as to whom               App. 8. (Emphasis supplied.)
they admitted into their houses, and rumors quickly
spread that a sniper was loose in Sutherland. When an                 Half an hour later, the County Court Judge heard
investigation implicated Simants as a suspect, his name
and description were provided to the press and then              Page 575
disseminated to the public.
                                                                 argument on the prosecution motion. Defense counsel
     Simants was apprehended on the morning of October           joined in urging imposition of a restrictive order, and
19, charged with six counts of premeditated murder, and          further moved that the preliminary hearing be closed to
arraigned before the County Court of Lincoln County,             both the press and the public. No representatives of the
Neb. Because several journalists were in attendance and          media were notified of or called to testify at the hearing,
"proof concerning bail . . . would be prejudicial to the         and no evidence of any kind was introduced.
rights of the defendant to later obtain a fair trial," App. 7,
a portion of the bail hearing was closed, over Simants'                On October 22, when the autopsy results were
objection, pursuant to the request of the Lincoln County         completed, the County Attorney filed an amended
Attorney. At the hearing, counsel was appointed for              complaint charging that the six premeditated murders had
Simants, bail was denied, and October 22 was set as the          been committed by Simants in conjunction with the
date for a preliminary hearing                                   perpetration of or attempt to perpetrate a sexual assault.
                                                                 About the same time, at the commencement of the
[96 S.Ct. 2810] to determine whether Simants should be           preliminary hearing, the County Court entered a
bound over for trial in                                          restrictive order premised on its finding that there was

Page 574                                                         a reasonable likelihood of prejudicial news which would
                                                                 make difficult, if not impossible, the impaneling of an
the District Court of Lincoln County, Neb. News of               impartial jury in the event that the defendant is bound
Simants' apprehension, which was broadcast over radio            over to the District Court for trial. . . .
and television and reported in the press, relieved much of
the tension that had built up during the night. During the            Amended Pet. for Cert. 1a. Accordingly, the County
period from October 19 until the first restrictive order         Court ordered that all parties to the case, attorneys, court
was entered three days later, representatives of the press       personnel, public officials, law enforcement officials,
made accurate factual reports of the events that                 witnesses, and "any other person present in Court" during
transpired, including reports of incriminating statements        the preliminary hearing, were not to
made by Simants to various relatives.
                                                                 release or authorize the release for public dissemination
     On the evening of October 21, the prosecution filed         in any form or manner whatsoever any testimony given
a motion that the County Court issue a restrictive order         or evidence adduced during the preliminary hearing.
enjoining the press from reporting significant aspects of
the case. The motion, filed without further evidentiary               Id. at 2a. The court further ordered that no law
                                                                 enforcement official, public officer, attorney, witness, or
"news media"                                                   right to a fair trial, and that an order setting forth the
                                                               limitations of pretrial publicity is appropriate. . . .
disseminate any information concerning this matter apart
from the preliminary hearing other than as set forth in the         Amended Pet. for Cert. 9a (emphasis supplied).
Nebraska Bar-Press Guidelines for Disclosure and               Respondent Stuart, the District Court Judge, then
Reporting of Information Relating to Imminent or               "adopted" as his order the Nebraska Bar-Press Guidelines
Pending Criminal Litigation.                                   as "clarified" by him in certain respects.[4]

    Ibid.[2] The                                               Page 578

[96 S.Ct. 2811] order was to                                   [96 S.Ct. 2812] On October 31, petitioners sought a stay
                                                               of the order from the District Court and immediate relief
Page 576                                                       from the Nebraska Supreme Court by way of mandamus,
                                                               stay, or expedited appeal. When neither the District Court
remain in effect "until modified or rescinded by a higher      nor the Nebraska Supreme Court acted on these motions,
court or until the defendant is ordered released from these
charges." Id. at 3a. The court also denied the defense         Page 579
request to close the preliminary hearing,[3] and an open
hearing was then held, at which time various witnesses         petitioners on November 5 applied to MR. JUSTICE
testified, disclosing significant factual information          BLACKMUN, as Circuit Justice, for a stay of the District
concerning the events surrounding the alleged crimes.          Court's order. Five days later, the Nebraska Supreme
Upon completion of the hearing, the County Court bound         Court issued a per curiam statement that, to avoid being
the defendant over for trial in the District Court, since it   put in the position of "exercising parallel jurisdiction with
found that the offenses charged in the indictment had          the Supreme Court of the United States," it would
been committed, and that there was probable cause to           continue the matter until this Court "made known
believe that Simants had committed them.                       whether or not it will accept jurisdiction in the matter."
                                                               Id. at 19a-20a.
     The next day, petitioners -- Nebraska newspaper
publishers, broadcasters, journalists, and media                     On November 13, MR. JUSTICE BLACKMUN
associations,                                                  filed an in-chambers opinion in which he declined to act
                                                               on the stay "at least for the immediate present." 423 U.S.
Page 577                                                       1319, 1326. He observed:

and national newswire services that report from and to         [I]f no action on the [petitioners'] application to the
Nebraska -- sought leave from the District Court to            Supreme Court of Nebraska could be anticipated before
intervene in the criminal case and vacation of the County      December 1, [as was indicated by a communication from
Court's restrictive order as repugnant to the First and        that court's clerk before the court issued the per curiam
Sixth Amendments to the United States Constitution as          statement,] . . . a definitive decision by the State's highest
well as relevant provisions of the Nebraska Constitution.      court on an issue of profound constitutional implications,
Simants' attorney moved that the order be continued, and       demanding immediate resolution, would be delayed for a
that future pretrial hearings in the case be closed. The       period so long that the very day-to-day duration of that
District Court then held an evidentiary hearing, after         delay would constitute and aggravate a deprival of such
which it denied the motion to close any hearings, granted      constitutional rights, if any, that the [petitioners] possess
petitioners' motion to intervene, and adopted on an            and may properly assert. Under those circumstances, I
interim basis the County Court's restrictive order. The        would not hesitate promptly to act.
only testimony adduced at the hearing with respect to the
need for the restrictive order was that of the County Court          Id. at 1324-1325. However, since the Nebraska
Judge, who stated that he had premised his order on his        Supreme Court had indicated in its per curiam statement
awareness of media publicity, "[c]onversation around the       that it was only declining to act because of uncertainty as
courthouse," and "statements of counsel. "App. 64, 65. In      to what this Court would do, and since it was deemed
addition, several newspaper clippings pertaining to the        appropriate for the state court to pass initially on the
case were introduced as exhibits before the District           validity of the restrictive order, MR. JUSTICE
Court.                                                         BLACKMUN, "without prejudice to the [petitioners] to
                                                               reapply to me should prompt action not be forthcoming,"
     Without any further hearings, the District Court, on      id. at 1326, denied the stay
October 27, terminated the County Court's order and
substituted its own. The court found that,                     [o]n the expectation . . . that the Supreme Court of
                                                               Nebraska, forthwith and without delay will entertain the
because of the nature of the crimes charged in the
complaint . . . , there is a clear and present danger that     Page 580
pretrial publicity could impinge upon the defendant's
 [petitioners'] application made to it, and will promptly      those
decide it in the full consciousness that "time is of the
essence."                                                      that are not necessarily implicative, but that are highly
                                                               prejudicial, as, for example, facts associated with the
     Id. at 1325.                                              accused's criminal record, if he has one,

     When, on November 18, the Supreme Court of                     and "statements as to the accused's guilt by those
Nebraska set November 25 as the date to hear arguments         associated with the prosecution." Id. at 1333.[5] Finally,
on petitioners' motions, petitioners reapplied to MR.          the restrictive order's limitation on disclosure of the
JUSTICE BLACKMUN for relief. On November 20,                   nature of the limitations themselves was stayed "to the
MR. JUSTICE BLACKMUN, concluding that each                     same extent" as the limitations. Ibid.[6]
passing day constituted an irreparable infringement on
First Amendment values and that the state courts had                The following day petitioners filed a motion that the
delayed adjudication of petitioners' claims beyond             Court vacate MR. JUSTICE BLACKMUN's order to the
"tolerable limits," 423 U.S. 1327, 1329, granted a partial     extent it permitted the imposition of any prior restraint on
stay of the District Court's order. First, the "wholesale      publication. Meanwhile, on November 25, the Supreme
incorporation" of the Nebraska Bar-Press Guidelines was        Court of Nebraska heard oral argument as scheduled,
stayed on the ground that they "constitute a `voluntary
code' which was not intended to be mandatory"                  Page 582

[96 S.Ct. 2813] and which was "sufficiently riddled with       and, on December 1, filed a per curiam opinion.[7]
vague and indefinite admonitions -- understandably so in       Initially, the court held that it was improper for
view of the basic nature of `guidelines,'" that they did       petitioners or any other third party to intervene in a
"not provide the substance of a permissible court order in     criminal case, and that the appeal from that case must
the First Amendment area." Id. at 1330, 1331. However,         therefore be denied. However, the court concluded that it
the state courts could                                         had jurisdiction over petitioners' mandamus action
                                                               against respondent Stuart, and that respondents Simants
reimpose particular provisions included in the Guidelines      and State of Nebraska had properly intervened in that
so long as they are deemed pertinent to the facts of this      action.[8] Addressing the merits of the prior restraint
particular case and so long as they are adequately specific    issued by
and in keeping with the remainder of this order.
                                                               [96 S.Ct. 2814] the District Court, the Nebraska Supreme
     Id. at 1331. Second, the portion of the District Court    Court acknowledged that this Court
order prohibiting reporting of the details of the crimes,
the identities of the victims, and the pathologist's           has not yet had occasion to speak definitively where a
testimony at the preliminary hearing was stayed because        clash between these two preferred rights [the First
there was "[n]o persuasive justification" for the restraint;   Amendment freedom of speech and of the press and the
such "facts in themselves do not implicate a particular        Sixth Amendment right to trial by an impartial jury] was
putative defendant," ibid., and,                               sought to be accommodated by a prior restraint on
                                                               freedom of the press.
until the bare facts concerning the crimes are related to a
particular accused, . . . their being reported in the media         194 Neb. at 791, 236 N.W.2d at 800. However,
[does not appear to] irreparably infringe the accused's        relying on dictum in Branzburg v. Hayes , 408 U.S. 665
right                                                          (1972),[9] and our statement in New York Times Co. v.
                                                               United States, 403 U.S. 713 (1971), that a prior restraint
Page 581                                                       on the

to a fair trial of the issue as to whether he was the one      Page 583
who committed the crimes.
                                                               media bears "`a heavy presumption against its
     Id. at 1332. Third, believing that prior restraints of    constitutional validity,'" id. at 714, the court discerned an
this kind "are not necessarily and in all cases invalid,"      "implication"
MR. JUSTICE BiACKMUN concluded that
                                                               that, if there is only a presumption of unconstitutionality,
certain facts that strongly implicate an accused may be        then there must be some circumstances under which prior
restrained from publication by the media prior to his trial.   restraints may be constitutional, for otherwise there is no
A confession or statement against interest is the              need for a mere presumption.
paradigm,
                                                                   194 Neb. at 793, 236 N.W.2d at 801. The court then
     id. at 1332-1333, and other such facts would include      concluded that there was evidence "to overcome the
"those associated with the circumstances of his arrest,"       heavy presumption" in that the State's obligation to
accord Simants an impartial jury trial "may be impaired"       Amendment, see, e.g., Duncan v. Louisiana , 391 U.S.
by pretrial publicity, and that pretrial publicity "might      145 (1968), is essentially
make it difficult or impossible" to accord Simants a fair
trial. Id. at 794, 797, 236 N.W.2d at 802, 803.[10]            Page 586
Accordingly, the court held, id. at 801, 236 N.W.2d at
805:                                                           the right to a "fair trial by a panel of impartial,
                                                               `indifferent' jurors," Irvin v. Dowd, 366 U.S. 717, 722
[T]he order of the District Court of October 27, 1975, is      (1961), jurors who are "`indifferent as [they] stand
void insofar as it incorporates the voluntary guidelines       unsworn.'" Reynolds v. United States , 98 U.S. 145, 154
and in certain other respects in that it impinges too          (1879), quoting E. Coke, A Commentary upon Littleton
greatly upon freedom of the press. The guidelines were         155b (19th ed. 1832). See also, e.g., Ristaino v. Ross, 424
not intended to be contractual, and cannot be enforced as      U.S. 589, 597 n. 9 (1976); Rideau v. Louisiana, 373 U.S.
if they were.                                                  723 (1963); Irvin v. Dowd, supra at 722; In re
                                                               Murchison, 349 U.S. 133, 136 (1955); In re Oliver , 333
The order of the District Court of October 27, 1975, is        U.S. 257 (1948). So basic to our jurisprudence is the right
vacated, and is modified and reinstated in the                 to a fair trial that it has been called "the most fundamental
                                                               of all freedoms." Estes v. Texas, 381 U.S. 532, 540
Page 584                                                       (1965). It is a right essential to the preservation and
                                                               enjoyment of all other rights, providing a necessary
 following respects: it shall be effective only as to events   means of safeguarding personal liberties against
which have occurred prior to the filing of this opinion,       government oppression. See, e.g., Rideau v. Louisiana,
and only as it applies to the relators herein, and only        supra at 726-727. See generally Duncan v. Louisiana,
insofar as it restricts publication of the existence or        supra at 149-158.
content of the following, if any such there be: (1)
Confessions or admissions against interest made by the             The First Amendment to the United States
accused to law enforcement officials. (2) Confessions or       Constitution,   however,    secures rights equally
admissions against interest, oral or written, if any, made     fundamental in our jurisprudence, and its ringing
by the accused to third parties, excepting any statements,     proclamation that "Congress
if any, made by the accused to representatives of the
news media. (3) Other information strongly implicative         [96 S.Ct. 2816] shall make no law . . . abridging the
of the accused as the perpetrator of the slayings.[11]         freedom of speech, or of the press . . ." has been both
                                                               applied through the Fourteenth Amendment to invalidate
     On December 4, petitioners applied to this Court for      restraints on freedom of the press imposed by the States,
a stay of that order and moved that their previously filed     see, e.g., Miami Herald Publishing Co. v. Tornillo , 418
papers be treated as a petition for a writ of certiorari. On   U.S. 241 (1974); New York Times Co. v. Sullivan , 376
December 8, we granted the latter                              U.S. 254 (1964); Near v. Minnesota ex rel. Olson , 283
                                                               U.S. 697 (1931), and interpreted to interdict such
[96 S.Ct. 2815] motion and deferred consideration of the       restraints imposed by the courts, see, e.g., New York
petition for a writ and application for a stay pending         Times Co. v. United States, 403 U.S. 713 (1971); Craig v.
responses from respondents on the close of business the        Harney, 331 U.S. 367 (1947); Bridges v. California, 314
following day. 423 U.S. 1011.[12] On December 12, we           U.S. 252 (1941). Indeed, it has been correctly perceived
granted the petition for a writ of certiorari, denied the      that a
motion to expedite, and denied the application for a stay.
423 U.S. 1027.[13]                                             responsible press has always been regarded as the
                                                               handmaiden of effective judicial administration,
Page 585                                                       especially in the criminal field. . . . The

     II                                                        Page 587
     A                                                          press does not simply publish information about trials,
                                                               but guards against the miscarriage of justice by subjecting
    The Sixth Amendment to the United States
                                                               the police, prosecutors, and judicial processes to
Constitution guarantees that,
                                                               extensive public scrutiny and criticism.
[i]n all criminal prosecutions, the accused shall enjoy the
                                                                    Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). See
right to a speedy and public trial, by an impartial jury of
                                                               also, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S.
the State and district wherein the crime shall have been
                                                               469, 491-496 (1975). Commentary and reporting on the
committed. . . .
                                                               criminal justice system is at the core of First Amendment
     The right to a jury trial, applicable to the States       values, for the operation and integrity of that system is of
through the Due Process Clause of the Fourteenth               crucial import to citizens concerned with the
                                                               administration of government. Secrecy of judicial action
can only breed ignorance and distrust of courts and            The First Amendment thus accords greater protection
suspicion concerning the competence and impartiality of        against prior restraints than it does against subsequent
judges; free and robust reporting, criticism, and debate       punishment for a particular speech, see, e.g., Carroll v.
can contribute to public understanding of the rule of law      Princess Anne, 393 U.S. 175, 180-181 (1968); Near v.
and to comprehension of the functioning of the entire          Minnesota ex rel. Olson, supra;
criminal justice system, as well as improve the quality of
that system by subjecting it to the cleansing effects of       a free society prefers to punish the few who abuse rights
exposure and public accountability. See, e.g., In re           of speech after they break the law than to throttle them
Oliver, supra, at 270-271; L. Brandeis, Other People's         and all others beforehand. It is always difficult to know in
Money 62 (1933) ("Sunlight is said to be the best of           advance what an individual will say, and the line between
disinfectants; electric light the most efficient               legitimate and illegitimate speech is often so finely drawn
policeman").                                                   that the risks of free-wheeling censorship are formidable.

      No one can seriously doubt, however, that                     Southeastern Promotions, Ltd. v. Conrad, supra at
uninhibited prejudicial pretrial publicity may destroy the     559. A commentator has cogently summarized many of
fairness of a criminal trial, see, e.g., Sheppard v.           the reasons for this deep-seated American hostility to
Maxwell, supra, and the past decade has witnessed              prior restraints:
substantial debate, colloquially known as the Free
Press/Fair Trial controversy, concerning this interface of     A system of prior restraint is in many ways more
First and Sixth Amendment rights. In effect, we are now        inhibiting than a system of subsequent punishment: it is
told by respondents that the two rights can no longer          likely to bring under government scrutiny a far wider
coexist when the press possesses and seeks to publish          range of expression; it shuts off communication before it
"confessions or admissions against interest" and other         takes place; suppression by a stroke of the pen is more
information "strongly implicative"[14] of a criminal           likely to be applied than suppression through a criminal
defendant as the                                               process; the procedures

Page 588                                                       Page 590

perpetrator of a crime, and that one or the other right         do not require attention to the safeguards of the criminal
must therefore be subordinated. I disagree. Settled case       process; the system allows less opportunity for public
law concerning the impropriety and constitutional              appraisal and criticism; the dynamics of the system drive
invalidity of prior restraints on the press compels the        toward excesses, as the history of all censorship shows.
conclusion that there can be no prohibition on the
                                                                    T. Emerson, The System of Freedom of Expression
publication by the press of any information pertaining to
                                                               506 (1970).[17]
pending judicial proceedings or the operation of the
criminal justice system, no matter how shabby the means            Respondents correctly contend that "the [First
by which the                                                   Amendment] protection even as to previous restraint is
                                                               not absolutely unlimited." Near v. Minnesota ex rel.
[96 S.Ct. 2817] information is obtained.[15] This does
                                                               Olson, supra at 716. However, the exceptions to the rule
not imply, however, any subordination of Sixth
                                                               have been confined to "exceptional cases." Ibid. The
Amendment rights, for an accused's right to a fair trial
                                                               Court in Near, the first case in which we were faced with
may be adequately assured through methods that do not
                                                               a prior restraint against the press, delimited three such
infringe First Amendment values.
                                                               possible exceptional circumstances. The first two
     B                                                         exceptions were that "the primary requirements of
                                                               decency may be
[I]t has been generally, if not universally, considered that
it is the chief purpose of the [First Amendment's]             [96 S.Ct. 2818] enforced against obscene publications,"
guaranty to prevent previous restraints upon publication.      and that

Page 589                                                       [t]he security of the community life may be protected
                                                               against incitements to acts of violence and the overthrow
Near v. Minnesota ex rel. Olson, 283 U.S. at 713. See          by force of orderly government [for] [t]he constitutional
also, e.g., id. at 716-717; Patterson v. Colorado ex rel.      guaranty of free speech does not "protect a man from an
Attorney General, 205 U.S. 454, 462 (1907); Grosjean v.        injunction against uttering words that may have all the
American Press Co., 297 U.S. 233, 249 (1936).[16] Prior        effect of force. . . ."
restraints are "the essence of censorship," Near v.
Minnesota ex rel. Olson, supra at 713, and "[o]ur distaste          Ibid. These exceptions have since come to be
for censorship -- reflecting the natural distaste of a free    interpreted as situations in which the "speech" involved is
people -- is deep-written in our law." Southeastern            not encompassed within the meaning of the First
Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975).          Amendment. See, e.g., Roth v. United States , 354 U.S.
476, 481 (1957); Miller v. California , 413 U.S. 15            assumed,[18] that prior restraints can be justified on an
(1973); Chaplinsky v. New Hampshire , 315 U.S. 568             ad hoc balancing approach that concludes that the
(1942). See also New York Times Co. v. United States,          "presumption" must be overcome in light of some
403 U.S. at 726 n. (BRENNAN, J., concurring); id. at           perceived "justification." Rather, this language refers to
731 n. 1 (WHITE, J., concurring).                              the fact that, as a matter of procedural safeguards and
                                                               burden of proof, prior restraints, even
Page 591
                                                               [96 S.Ct. 2819] within a recognized exception to the rule
And even in these situations, adequate and timely              against prior restraints, will be extremely difficult to
procedures are mandated to protect against any restraint       justify; but, as an initial matter, the purpose for which a
of speech that does come within the ambit of the First         prior restraint is sought to be imposed "must fit within
Amendment. See, e.g., Southeastern Promotions, Ltd. v.         one of the narrowly defined exceptions to the prohibition
Conrad, supra; United States v. Thirty-seven                   against prior restraints." Southeastern Promotions, Ltd. v.
Photographs, 402 U.S. 363 (1971); Freedman v.                  Conrad, 420 U.S. at 559; see also, e.g.,, id. at 555;
Maryland, 380 U.S. 51 (1965); Bantam Books, Inc. v.            Pittsburgh Press Co. v. Human Rel. Comm'n , 413 U.S.
Sullivan, 372 U.S. 58 (1963); Speiser v. Randall , 357         376, 382 (1973); Organization for a Better Austin v.
U.S. 513 (1958); Kingsley Books, Inc. v. Brown, 354 U.S.       Keefe, supra at 419-420; cf., e.g., Healy v. James , 408
436 (1957). Thus, only the third category in Near              U.S. 169 (1972); Freedman v. Maryland, 380 U.S. at
contemplated the possibility that speech meriting and          58-59. Indeed, two Justices in New York Times apparently
entitled to constitutional protection might nevertheless be    controverted the existence of even a limited "military
suppressed before publication in the interest of some          security" exception to the rule against prior restraints on
overriding countervailing interest:                            the publication of otherwise protected material, see 403
                                                               U.S.
"When a nation is at war, many things that might be said
in time of peace are such a hindrance to its effort that       Page 593
their utterance will not be endured so long as men fight
and that no Court could regard them as protected by any        at 714 (Black, J.,. concurring); id. at 720 (Douglas, J.,
constitutional right." Schenck v. United States , 249 U.S.     concurring). And a majority of the other Justices who
47, 52. No one would question but that a government            expressed their views on the merits made it clear that they
might prevent actual obstruction to its recruiting service     would take cognizance only of a "single, extremely
or the publication of the sailing dates of transports or the   narrow class of cases in which the First Amendment's ban
number and location of troops.                                 on prior judicial restraint may be overridden." Id. at 726
                                                               (BRENNAN, J., concurring). Although variously
     283 U.S. at 716.                                          expressed, it was evident that even the exception was to
                                                               be construed very, very narrowly: when disclosure "will
     Even this third category, however, has only been          surely result in direct, immediate, and irreparable
adverted to in dictum, and has never served as the basis       damage to our Nation or its people," id. at 730
for actually upholding a prior restraint against the           (STEWART, J., joined by WHITE, J., concurring)
publication of constitutionally protected materials. In        (emphasis supplied) or when there is
New York Times Co. v. United States, supra, we
specifically addressed the scope of the "military security"    governmental allegation and proof that publication must
exception alluded to in Near, and held that there could be     inevitably, directly, and immediately cause the occurrence
no prior restraint on publication of the "Pentagon Papers"     of an event kindred to imperiling the safety of a transport
despite the fact that a majority of the Court believed that    already at sea. . . . [But] [i]n no event may mere
release of the documents, which were                           conclusions be sufficient.

Page 592                                                             Id. at 726-727 (BRENNAN, J., concurring)
                                                               (emphasis supplied). See also id. at 730-731 (WHITE, J.,
classified "Top Secret-Sensitive" and which were               joined by STEWART, J., concurring) ("concededly
obtained surreptitiously, would be harmful to the Nation       extraordinary protection against prior restraints enjoyed
and might even be prosecuted after publication as a            by the press under our constitutional system" is not
violation of various espionage statutes. To be sure, our       overcome even by a showing that "revelation of these
brief per curiam declared that "`[a]ny system of prior         documents will do substantial damage to public
restraints of expression comes to this Court bearing a         interests").[19] It is thus clear that, even within the sole
heavy presumption against its constitutional validity,'" id.   possible exception to the prohibition against prior
at 714, quoting Bantam Books, Inc. v. Sullivan, supra at       restraints on publication of constitutionally protected
70, and that the "Government `thus carries a heavy             materials,
burden of showing justification for the imposition of such
a restraint.'" 403 U.S. at 714, quoting Organization for a     Page 594
Better Austin v. Keefe, 402 U.S. 415, 419 (1971). This
does not mean, as the Nebraska Supreme Court                   the obstacles to issuance of such an injunction are
formidable. What respondents urge upon us, however, is        interest of its citizens. In holding that
the creation of a new, potentially pervasive exception to
this settled rule of virtually blanket prohibition of prior   Page 597
restraints.[20]
                                                              a "State may [not] impose sanctions on the accurate
[96 S.Ct. 2820] I would decline this invitation. In           publication of the name of a rape victim obtained from
addition to the almost insuperable presumption against        public records," 420 U.S. at 491, we observed:
the constitutionality of prior restraints even under a
recognized exception, and however laudable the State's        [I]n a society in which each individual has but limited
motivation for imposing restraints in this case,[21] there    time and resources with which to observe at first hand the
are compelling                                                operations of his government, he relies necessarily upon
                                                              the press to bring to him in convenient form the facts of
Page 595                                                      those operations. Great responsibility is accordingly
                                                              placed upon the news media to report fully and
reasons for not carving out a new exception to the rule       accurately the proceedings of government, and official
against prior censorship of publication.                      records and documents open to the public are the basic
                                                              data of governmental operations. Without the
     1                                                        information provided by the press, most of us and many
                                                              of our representatives would be unable to vote
     Much of the information that the Nebraska courts         intelligently or to register opinions on the administration
                                                              of government generally. With respect to judicial
Page 596
                                                              proceedings in particular, the function of the press serves
enjoined petitioners from publishing was already in the       to guarantee the fairness of trials and to bring to bear the
public domain, having been revealed in open court             beneficial effects of public scrutiny upon the
proceedings or through public documents. Our prior cases      administration of justice.See Sheppard v. Maxwell , 384
have foreclosed any serious contention that further           U.S. 333, 350 (1966).
disclosure of such information can be suppressed before
                                                              Appellee has claimed in this litigation that the efforts of
publication or even punished after publication.
                                                              the press have infringed his right to privacy by
A trial is a public event. What transpires in the court       broadcasting to the world the fact that his daughter was a
room is public property. . . . Those who see and hear what    rape victim. The commission of crime, prosecutions
transpired can report it with impunity. There is no special   resulting from it, and judicial proceedings arising from
perquisite of the judiciary which enables it, as              the prosecutions, however, are, without question, events
distinguished from other institutions of democratic           of legitimate concern to the public, and consequently fall
government, to suppress, edit, or censor events which         within the responsibility of the press to report the
transpire in proceedings before it.                           operations of government.

    Craig v. Harney, 331 U.S. at 374. Similarly, Estes v.     The special protected nature of accurate reports of
Texas, 381 U.S. at 541-542, a case involving the Sixth        judicial proceedings has repeatedly been recognized.
Amendment right to a fair trial, observed:
                                                                   Id. at 491-492 (emphasis supplied).
[R]eporters of all media . . . are plainly free to report
                                                              Page 598
whatever occurs in open court through their respective
media. This was settled in Bridges v. California, 314 U.S.    By placing the information in the public domain on
252 (1941),                                                   official court records, the State must be presumed to have
                                                              concluded that the public interest was thereby being
[96 S.Ct. 2821] and Pennekamp v. Florida, 328 U.S. 331
                                                              served. Public records by their very nature are of interest
(1946), which we reaffirm.
                                                              to those concerned with the administration of
                                                              government, and a public benefit is performed by the
      See also id. at 583-585 (Warren, C.J., concurring).
And Sheppard v. Maxwell, 384 U.S. at 362-363, a case          reporting of the true contents of the records by the media.
                                                              The freedom of the press to publish that information
that detailed numerous devices that could be employed
                                                              appears to us to be of critical importance to our type of
for ensuring fair trials, explicitly reiterated that, "[o]f
                                                              government in which the citizenry is the final judge of the
course, there is nothing that proscribes the press from
                                                              proper conduct of public business. In preserving that
reporting events that transpire in the courtroom." See also
                                                              form of government the First and Fourteenth
id. at 350; Stroble v. California , 343 U.S. 181, 193
                                                              Amendments command nothing less than that the States
(1952). The continuing vitality of these statements was
                                                              may not impose sanctions on the publication of truthful
reaffirmed only last Term in Cox Broadcasting Corp. v.
                                                              information contained in official court records open to
Cohn, a case involving a suit for damages brought after
                                                              public inspection.
publication under state law recognizing the privacy
     Id. at 495 (emphasis supplied). See also id. at 496.      take judicial notice of the fact that, given the prevalence
Prior restraints are particularly anathematic to the First     of plea bargaining, few criminal cases proceed to trial,
Amendment, and any immunity from punishment                    and the judge would thus have to predict what the
subsequent to publication of given material applies a          likelihood was that a jury would even have to be
fortiori to immunity from suppression of that material         impaneled.[24] Indeed, even in cases that do proceed to
before publication. Thus, in light of Craig, which             trial, the material sought to be suppressed before trial will
involved a contempt citation for a threat to the               often be admissible and may be admitted in
administration of justice, and Cox Broadcasting, which
similarly involved an attempt to establish civil liability     [96 S.Ct. 2823] any event.[25]
after
                                                               Page 601
[96 S.Ct. 2822] publication, it should be clear that no
injunction against the reporting of such information can       And, more basically, there are adequate devices for
be permissible.                                                screening from jury duty those individuals who have, in
                                                               fact, been exposed to prejudicial pretrial publicity.
     2
                                                                    Initially, it is important to note that, once the jury is
     The order of the Nebraska Supreme Court also              impaneled, the techniques of sequestration of jurors and
applied, of course to "confessions" and other information      control over the courtroom and conduct of trial should
"strongly implicative" of the accused which were               prevent prejudicial publicity from infecting the fairness
obtained from sources other than official records or open      of judicial proceedings.[26] Similarly, judges may stem
                                                               much of the flow of prejudicial publicity at its source,
Page 599                                                       before it is obtained by representatives of the press.[27]
                                                               But even if the press nevertheless obtains potentially
court proceedings. But for the reasons that follow --          prejudicial information and decides to publish that
reasons equally applicable to information obtained by the      information,
press from official records or public court proceedings --
I believe that the same rule against prior restraints          Page 602
governs any information pertaining to the criminal justice
system, even if derived from nonpublic sources and             the Sixth Amendment rights of the accused may still be
regardless of the means employed by the press in its           adequately protected. In particular, the trial judge should
acquisition.                                                   employ the voir dire to probe fully into the effect of
                                                               publicity. The judge should broadly explore such matters
      The only exception that has thus far been recognized     as the extent to which prospective jurors had read
even in dictum to the blanket prohibition against prior        particular news accounts or whether they had heard about
restraints against publication of material which would         incriminating data such as an alleged confession or
otherwise be constitutionally shielded was the "military       statements by purportedly reliable sources concerning the
security" situation addressed in New York Times Co. v.         defendant's guilt. See, e.g., Ham v. South Carolina , 409
United States. But unlike the virtually certain, direct, and   U.S. 524, 531-534 (1973) (opinion of MARSHALL, J.);
immediate harm required for such a restraint under Near        Swain v. Alabama, 380 U.S. 202, 209-222 (1965).
and New York Times, the harm to a fair trial that might        Particularly in cases of extensive publicity, defense
otherwise eventuate from publications which are                counsel should be accorded more latitude in personally
suppressed pursuant to orders such as that, under review       asking or tendering searching questions that might root
must inherently remain speculative.                            out indications of bias, both to facilitate intelligent
                                                               exercise of peremptory challenges and to help uncover
     A judge importuned to issue a prior restraint in the      factors that would dictate disqualification for cause.
pretrial context will be unable to predict the manner in       Indeed, it may sometimes be necessary to question on
which the potentially prejudicial information would be         voir dire prospective jurors individually or in small
published, the frequency with which it would be repeated       groups, both to maximize the likelihood that members of
or the emphasis it would be given, the context in which or     the venire will respond honestly to questions concerning
purpose for which it would be reported, the scope of the       bias, and to avoid contaminating unbiased members of
audience that would be exposed to the information,[22]         the venire when other members disclose prior knowledge
                                                               of prejudicial information. Moreover, voir dire may
Page 600                                                       indicate the need to grant a brief continuance[28] or to
                                                               grant a change of
or the impact, evaluated in terms of current standards for
assessing juror impartiality,[23] the information would        [96 S.Ct. 2824] venue,[29]           techniques that can
have on that audience. These considerations would render       effectively
speculative the prospective impact on a fair trial of
reporting even an alleged confession or other information      Page 603
"strongly implicative" of the accused. Moreover, we can
mitigate any publicity at a particular time or in a               Page 606
particular locale. Finally, if the trial court fails or refuses
to utilize these devices effectively, there are the               circumstances surrounding the obtaining of an
"palliatives" of reversals on appeal and directions for a         involuntary confession or the conduct of an illegal search
new trial. Sheppard v. Maxwell, 384 U.S. at 363.[30] We           resulting in incriminating fruits may be the necessary
have indicated that, even in a case involving outrageous          predicate for a movement to reform police methods, pass
publicity and a "carnival atmosphere" in the courtroom,           regulatory statutes, or remove judges who do not
"these procedures would have been sufficient to                   adequately oversee law enforcement activity; publication
guarantee [the defendant] a fair trial. . . ." Id. at 358. See    of facts surrounding particular plea-bargaining
generally id. at 358-363; cf. Times-Picayune Pub. Corp.           proceedings or the practice of plea bargaining generally
v. Schulingkamp , 419 U.S. 1301, 1308, and n. 3 (1974)            may provoke substantial public concern as to the
(POWELL, J., in chambers). For this reason, the one               operations of the judiciary or the fairness of prosecutorial
thing Sheppard did not approve was "any direct                    decisions; reporting the details of the confession of one
limitations on the freedom traditionally exercised by the         accused may reveal that it may implicate others as well,
news media." 384 U.S. at 350.[31] Indeed, the                     and the public may rightly demand to know what actions
                                                                  are being taken by law enforcement personnel to bring
Page 604                                                          those other individuals to justice; commentary on the fact
                                                                  that there is strong evidence implicating a government
traditional .techniques approved in Sheppard for ensuring         official in criminal activity goes to the very core of
fair trials would have been adequate in every case in             matters of public concern, and even a brief delay in
which we have found that a new trial was required due to          reporting that information shortly before an election may
lack of fundamental fairness to the accused.                      have a decisive impact on the outcome of the democratic
                                                                  process, see Carroll v. Princess Anne, 393 U.S. at 182;
     For these reasons alone, I would reject the                  dissemination of the fact that indicated individuals who
contention that speculative deprivation of an accused's           had been accused of similar misdeeds in the past had not
Sixth Amendment right to an impartial jury is comparable          been prosecuted or had received only mild sentences may
to the damage to the Nation or its people that Near and           generate crucial debate on the functioning of the criminal
New York Times would have found sufficient to justify a           justice system; revelation of the fact that despite
prior restraint on reporting. Damage to that Sixth                apparently overwhelming evidence of guilt, prosecutions
Amendment right could never be considered so direct,              were dropped or never commenced against large
immediate and irreparable, and based on such proof,               campaign contributors or members of special interest
rather than speculation, that prior restraints on the press       groups may indicate possible corruption among
could be justified on this basis.                                 government officials; and disclosure of the fact that a
                                                                  suspect has been apprehended as the perpetrator of a
     C
                                                                  heinous crime may be necessary to calm community fears
      There are additional, practical reasons for not             that the actual perpetrator is still at large. Cf.
starting down the path urged by respondents.[32] The              Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. at
exception                                                         1302

Page 605                                                          Page 607

to the prohibition                                                (POWELL, J., in chambers).[34] In all of these situations,
                                                                  judges would be forced to
[96 S.Ct. 2825] of prior restraints adumbrated in Near
and New York Times involves no judicial weighing of the           [96 S.Ct. 2826] evaluate whether the public interest in
countervailing public interest in receiving the suppressed        receiving the information outweighed the speculative
information; the direct, immediate, and irreparable harm          impact on Sixth Amendment rights.
that would result from disclosure is simply deemed to
                                                                       These are obviously only some examples of the
outweigh the public's interest in knowing, for example,
                                                                  problems that plainly would recur, not in the almost
the specific details of troop movements during wartime.
                                                                  theoretical situation of suppressing disclosure of the
As the Supreme Court of Nebraska itself admitted,[33]
                                                                  location of troops during wartime, but on a regular basis
however, any attempt to impose a prior restraint on the
                                                                  throughout the courts of the land. Recognition of any
reporting of information concerning the operation of the
                                                                  judicial authority to impose prior restraints on the basis of
criminal justice system will inevitably involve the courts
                                                                  harm to the Sixth Amendment rights of particular
in an ad hoc evaluation of the need for the public to
                                                                  defendants, especially since that harm must remain
receive particular information that might nevertheless
                                                                  speculative, will thus inevitably interject judges at all
implicate the accused as the perpetrator of a crime. For
                                                                  levels into censorship roles that are simply inappropriate
example, disclosure of the
                                                                  and impermissible under the First Amendment. Indeed,
                                                                  the potential for arbitrary and excessive judicial
utilization of any such power would be exacerbated by           each case, and because precious First Amendment rights
the fact that judges and committing magistrates might in        are at stake, those who could afford the substantial costs
some cases be determining the propriety of publishing           would seek appellate review. But that review is often
information that reflects on their competence, integrity,       inadequate, since delay inherent in judicial proceedings
or general performance on the bench.                            could itself destroy the contemporary news value of the
                                                                information the press seeks to disseminate.[38] As one
      There would be, in addition, almost intractable           commentator has observed:
procedural difficulties associated with any attempt to
impose prior restraints on publication of information           Prior restraints fall on speech with a brutality and a
relating to pending criminal proceedings, and the               finality all their own. Even if they are ultimately lifted
ramifications of these procedural difficulties would            they cause irremediable loss -- a loss in the immediacy,
accentuate the burden on First Amendment rights. The            the impact, of speech. . . . Indeed, it is the hypothesis of
incentives and dynamics of the system of prior restraints       the First Amendment that injury is inflicted on our
would inevitably lead to overemployment of the                  society when we stifle the immediacy of speech.
technique. In order to minimize pretrial publicity against
                                                                     A. Bickel, The Morality of Consent 61 (1975).[39]
Page 608
                                                                Page 610
his clients and preempt "ineffective assistance of counsel"
claims, counsel for defendants might routinely seek such        And, as noted, given the significant financial
restrictive orders. Prosecutors would often acquiesce in        disincentives, particularly on the smaller organs of the
such motions to avoid jeopardizing a conviction on              media,[40] to challenge any
appeal. And, although judges could readily reject many
such claims as frivolous, there would be a significant          [96 S.Ct. 2828] restrictive orders once they are imposed
danger that judges would nevertheless be predisposed to
                                                                Page 611
grant the motions, both to ease their task of ensuring fair
proceedings and to insulate their conduct in the criminal       by trial judges, there is the distinct possibility that many
proceeding from reversal. We need not raise any specter         erroneous impositions would remain uncorrected. ,[41]
of floodgates of litigation or drain on judicial resources to
note that the litigation with respect to these motions will          III
substantially burden the media. For, to bind the media,
they would have to be notified and accorded an                       I unreservedly agree with Mr. Justice Black that
opportunity to be heard. See, e.g., Carroll v. Princess
Anne, supra; McKinney v. Alabama, 424 U.S. 669                  free speech and fair trials are two of the most cherished
(1976). This would at least entail the possibility of           policies of our civilization, and it would be a trying task
restraint proceedings collateral to every criminal case         to choose between them.
before the courts, and there would be a significant
financial drain on the media involuntarily made parties to           Bridges v. California, 314 U.S. at 260. But I would
these proceedings. Indeed, small news organs on the             reject the notion that a
margin of economic viability might choose not to contest
                                                                Page 612
even blatantly unconstitutional restraints or to avoid all
crime coverage, with concomitant harm to the public's
                                                                choice is necessary, that there is an inherent conflict that
right to be informed of such proceedings.[35] Such
                                                                cannot be resolved without essentially abrogating one
acquiescence might also mean that significant erroneous
                                                                right or the other. To hold that courts cannot impose any
precedents will remain unchallenged, to be relied on for
                                                                prior restraints on the reporting of or commentary upon
even broader restraints in the future. Moreover, these
                                                                information revealed in open court proceedings, disclosed
collateral restraint proceedings would be unlikely to
                                                                in public documents, or divulged by other sources with
result in equal treatment of all
                                                                respect to the criminal justice system is not, I must
                                                                emphasize, to countenance the sacrifice of precious Sixth
Page 609
                                                                Amendment rights on the altar of the First Amendment.
organs of the media[36] and, even if all the press could be     For although there may in some instances be tension
brought into the proceeding, would often be ineffective,        between uninhibited and robust reporting by the press and
since disclosure                                                fair trials for criminal defendants, judges possess
                                                                adequate tools short of injunctions against reporting for
[96 S.Ct. 2827] of incriminating material may transpire         relieving that tension. To be sure, these alternatives may
before an effective restraint could be imposed.[37]             require greater sensitivity and effort on the part of judges
                                                                conducting criminal trials than would the stifling of
      To be sure, because the decision to impose such           publicity through the simple expedient of issuing a
restraints even on the disclosure of supposedly narrow          restrictive order on the press; but that sensitivity and
categories of information would depend on the facts of          effort is required in order to ensure the full enjoyment
and proper accommodation of both First and Sixth              basis, the correlative constitutional rights of free speech
Amendment rights.                                             and free press with the right of an accused to a fair trial.
                                                              They
     There is, beyond peradventure, a clear and
substantial damage to freedom of the press whenever           Page 614
even a temporary restraint is imposed on reporting of
material concerning the operations of the criminal justice    are not intended to prevent the news media from
system, an institution of such pervasive influence in our     inquiring into and reporting on the integrity, fairness,
constitutional scheme. And the necessary impact of            efficiency and effectiveness of law enforcement, the
reporting even confessions can never be so direct,            administration of justice, or political or governmental
immediate, and irreparable that I would give credence to      questions whenever involved in the judicial process.
any notion that prior restraints may be imposed on that
rationale. It may be that such incriminating material              As a voluntary code, these guidelines do not
would be of such slight news value or so inflammatory in      necessarily reflect in all respects what the members of the
particular cases that responsible organs of the media, in     bar or the news media believe would be permitted or
an exercise of self-restraint, would choose not to            required by law.
publicize that material, and not make the judicial task of
                                                                   Information Generally Appropriate for
safeguarding
                                                                   Disclosure, Reporting
Page 613
                                                                   Generally, it is appropriate to disclose and report the
precious rights of criminal defendants more difficult.
                                                              following information:
Voluntary codes such as the Nebraska Bar-Press
Guidelines are a commendable acknowledgment by the                 1. The arrested person's name, age, residence,
media that constitutional prerogatives bring enormous         employment, marital status and similar biographical
responsibilities, and I would encourage continuation of       information.
such voluntary cooperative efforts between the bar and
the media. However, the press may be arrogant,                     2. The charge, its text, any amendments thereto, and,
tyrannical, abusive, and sensationalist, just as it may be    if applicable, the identity of the complainant.
incisive, probing, and informative. But at least in the
context of prior restraints on publication, the decision of        3. The amount or conditions of bail.
what, when, and how to publish is for editors, not judges.
See, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. at            4. The identity of and biographical information
720; Cox Broadcasting Corp. v. Cohn, 420 U.S. at 496;         concerning the complaining party and victim, and, if a
Miami Herald Publishing Co. v. Tornillo, 418 U.S. at          death is involved, the apparent cause of death unless it
258; id. at 259 (WHITE, J., concurring); cf. New York         appears that the cause of death may be a contested issue.
Times Co. v. Sullivan, 376 U.S. at 269-283. Every
restrictive order imposed on the press in this case was           5. The identity of the investigating and arresting
accordingly                                                   agencies and the length of the investigation.

[96 S.Ct. 2829] an unconstitutional prior restraint on the          6. The circumstances of arrest, including time, place,
freedom of the press, and I would therefore reverse the       resistance, pursuit, possession of and all weapons used,
judgment of the Nebraska Supreme Court and remand for         and a description of the items seized at the time of arrest.
further proceedings not inconsistent with this opinion.       It is appropriate to disclose and report at the time of
                                                              seizure the description of physical evidence subsequently
     APPENDIX TO OPINION OF BRENNAN, J.,                      seized other than a confession, admission or statement. It
                                                              is appropriate to disclose and report the subsequent
     CONCURRING IN JUDGMENT                                   finding of weapons, bodies, contraband, stolen property
                                                              and similar physical items if, in view
    NEBRASKA BAR-PRESS GUIDELINES FOR
DISCLOSURE                                                    Page 615

   AND    REPORTING              OF      INFORMATION          of the time and other circumstances, such disclosure and
RELATING TO                                                   reporting are not likely to interfere with a fair trial.

    IMMINENT          OR      PENDING         CRIMINAL               7. Information disclosed by the public records,
LITIGATION                                                    including all testimony and other evidence adduced at the
                                                              trial.
     These voluntary guidelines reflect standards which
bar and news media representatives believe are a                   Information Generally Not Appropriate for
reasonable means of accommodating, on a voluntary
     Disclosure, Reporting                                    such photographing or televising except in compliance
                                                              with an order of the court or unless such photographing
     Generally, it is not appropriate to disclose or report   or televising would interfere with their official duties.
the following information because of the risk of prejudice
to the right of an accused to a fair trial:                        3. It is appropriate for law enforcement personnel to
                                                              release to representatives of the news media photographs
     1. The existence or contents of any confession,          of a suspect or an accused. Before publication of any
admission or statement given by the accused, except it        such photographs, the news media should eliminate any
may be stated that the accused denies the charges made        portions of the photographs that would indicate a prior
against him. This paragraph is not intended to apply to       criminal offense or police record.
statements made by the accused to representatives of the
news media or to the public.                                        Continuing Committee for Cooperation

     2. Opinions concerning the guilt, the innocence or            The members of the bar and the news media
the character of the accused.                                 recognize the desirability of continued joint efforts in
                                                              attempting to resolve any areas of differences that may
     3. Statements predicting or influencing the outcome      arise in their mutual objective of assuring to all
of the trial.                                                 Americans both the correlative constitutional rights to
                                                              freedom
      4. Results of any examination or tests or the
accused's refusal or failure to submit to an examination or   Page 617
test.
                                                              of speech and press and to a fair trial. The bar and the
     5. Statements or opinions concerning the credibility     news media, through their respective associations, have
or anticipated testimony of prospective witnesses.            determined to establish a permanent committee to revise
                                                              these guidelines whenever this appears necessary or
[96 S.Ct. 2830] 6. Statements made in the judicial            appropriate, to issue opinions as to their application to
proceedings outside the presence of the jury relating to      specific situations, to receive, evaluate and make
confessions or other matters which, if reported, would        recommendations with respect to complaints and to seek
likely interfere with a fair trial.                           to effect through educational and other voluntary means a
                                                              proper accommodation of the constitutional correlative
     Prior Criminal Records
                                                              rights of free speech, free press and fair trial.
      Lawyers and law enforcement personnel should not
                                                                    June, 1970
volunteer the prior criminal records of an accused except
to aid in his apprehension or to warn the public of any             STEVENS, J., concurring
dangers he presents. The news media can obtain prior
criminal records from the public records of the courts,           MR. JUSTICE STEVENS, concurring in the
                                                              judgment.
Page 616
                                                                   For the reasons eloquently stated by MR. JUSTICE
police agencies and other governmental agencies and           BRENNAN, I agree that the judiciary is capable of
from their own files. The news media acknowledge,             protecting the defendant's right to a fair trial without
however, that publication or broadcast of an individual's     enjoining the press from publishing information in the
criminal record can be prejudicial, and its publication or    public domain, and that it may not do so. Whether the
broadcast should be considered very carefully,                same absolute protection would apply no matter how
particularly after the filing of formal charges and as the    shabby or illegal the means by which the information is
time of the trial approaches, and such publication or         obtained, no matter how serious an intrusion on privacy
broadcast should generally be avoided because readers,        might be involved, no matter how demonstrably false the
viewers and listeners are potential jurors and an accused     information might be, no matter how prejudicial it might
is presumed innocent until proven guilty.                     be to the interests of innocent persons, and no matter how
                                                              perverse the motivation for publishing it, is a question I
     Photographs
                                                              would not answer without further argument. See
     1. Generally, it is not appropriate for law              Ashwander v. TVA, 297 U.S. 288, 346-347 (Brandeis, J.,
enforcement personnel to deliberately pose a person in        concurring). I do, however, subscribe to most of what
custody for photographing or televising by                    MR. JUSTICE BRENNAN says and, if ever required to
representatives of the news media.                            face the issue squarely, may well accept his ultimate
                                                              conclusion.
     2. Unposed photographing and televising of an
accused outside the courtroom is generally appropriate,       ---------
and law enforcement personnel should not interfere with
Notes:                                                        A.B.A.J. 534 (1965).

[1] These Guidelines are voluntary standards adopted by       [4] The record also reveals that counsel for both sides
members of the state bar and news media to deal with the      acted responsibly in this case, and there is no suggestion
reporting of crimes and criminal trials. They outline the     that either sought to use pretrial news coverage for
matters of fact that may appropriately be reported, and       partisan advantage. A few days after the crime,
also list what items are not generally appropriate for        newspaper accounts indicated that the prosecutor had
reporting, including confessions, opinions on guilt or        announced the existence of a confession; we learned at
innocence, statements that would influence the outcome        oral argument that these accounts were false, although, in
of a trial, the results of tests or examinations, comments    fact, a confession had been made. Tr. of Oral Arg. 337,
on the credibility of witnesses, and evidence presented in    59.
the jury's absence. The publication of an accused's
criminal record should, under the Guidelines, be              [5] In Near v. Minnesota, Mr. Chief Justice Hughes was
"considered very carefully." The Guidelines also set out      also able to say:
standards for taking and publishing photographs, and set
up a joint bar-press committee to foster cooperation in       There is also the conceded authority of courts to punish
resolving particular problems that emerge.                    for contempt when publications directly tend to prevent
                                                              the proper discharge of judicial functions.
[2] In the interim, petitioners applied to MR. JUSTICE
BLACKMUN as Circuit Justice for a stay of the State           283 U.S. at 715. A subsequent line of cases limited
District Court's order. He postponed ruling on the            sharply the circumstances under which courts may exact
application out of deference to the Nebraska Supreme          such punishment. See Craig v. Harney, 331 U.S. 367
Court, 423 U.S. 1319 (Nov. 13, 1975) (in chambers);           (1947); Pennekamp v. Florida, 328 U.S. 331 (1946);
when he concluded that the delay before that court had        Bridges v. California , 314 U.S. 252 (1941). Because
"exceed[ed] tolerable limits," he entered an order. 423       these cases deal with punishment based on contempt,
U.S. 1327, 1329 (Nov. 20, 1975) (in chambers). We need        however, they deal with problems substantially different
not set out in detail MR. JUSTICE BLACKMUN's                  from those raised by prior restraint. See also Barist, The
careful decision on this difficult issue. In essence he       First Amendment and Regulation of Prejudicial Publicity
stayed the order insofar as it incorporated the admonitory    -- An Analysis, 36 Ford.L.Rev. 425, 433-442 (1968).
Bar-Press Guidelines and prohibited reporting of some
                                                              [6] See A. Bickel, The Morality of Consent 61 (1975).
other matters. But he declined
                                                              [7] The respondent and intervenors argue here that a
at least on an application for a stay and at this distance,
                                                              change of venue would not have helped, since Nebraska
[to] impose a prohibition upon the Nebraska courts from
                                                              law permits a change only to adjacent counties, which
placing any restrictions at all upon what the media may
                                                              had been as exposed to pretrial publicity in this case as
report prior to trial.
                                                              Lincoln County. We have held that state laws restricting
Id. at 1332. He therefore let stand that portion of the       venue must on occasion yield to the constitutional
District Court's order that prohibited reporting the          requirement that the State afford a fair trial. Groppi v.
existence or nature of a confession, and declined to          Wisconsin, 400 U.S. 505 (1971). We note also that the
prohibit that court from restraining publication of facts     combined population of Lincoln County and the adjacent
that were so "highly prejudicial" to the accused or           counties is over 80,000, providing a substantial pool of
"strongly implicative" of him that they would                 prospective jurors.
"irreparably impair the ability of those exposed to them to
                                                              [8] Closing of pretrial proceedings with the consent of the
reach an independent and impartial judgment as to guilt."
                                                              defendant when required is also recommended in
Id. at 1333. Subsequently, petitioners applied for a more
                                                              guidelines that have emerged from various studies. At
extensive stay; this was denied by the full Court. 423
                                                              oral argument, petitioners' counsel asserted that judicially
U.S. 1027 (1975).
                                                              imposed restraints on lawyers and others would be
[3] The Warren Commission conducting an inquiry into          subject to challenge as interfering with press rights to
the murder of President Kennedy implied grave doubts          news sources. Tr. of Oral Arg. 7-8. See, e.g., Chicago
whether, after the dissemination of "a great deal of          Council of Lawyers v. Bauer, 522 F.2d 242 (CA7 1975),
misinformation" prejudicial to Oswald, a fair trial could     cert. denied sub nom. Cunningham v. Chicago Council of
be had. Report of the President's Commission on the           Lawyers, post, p. 912. We are not now confronted with
Assassination of President John F. Kennedy 231 (1964).        such issues.
Probably the same could be said in turn with respect to a
                                                              We note that, in making its proposals, the American Bar
trial of Oswald's murderer even though a multitude were
                                                              Association recommended strongly against resort to
eyewitnesses to the guilty act. See generally id. at
                                                              direct restraints on the press to prohibit publication.
231-242; Jaffe, Trial by Newspaper, 40 N.Y.U.L.Rev.
                                                              American Bar Association Project on Standards for
504 (1965); Powell, The Right to a Fair Trial, 51
                                                              Criminal Justice, Fair Trial and Free Press 68-73
(App.Draft 1968). Other groups have reached similar             residence, occupation, and family status; (2) the
conclusions. See Report of the Judicial Conference              circumstances of the arrest (time and place, identity of the
Committee on the Operation of the Jury System, "Free            arresting and investigating officers and agencies, and the
Press-Fair Trial" Issue, 45 F.R.D. 391, 401 403 (1968);         length of the investigation); (3) the nature, substance, and
Special Committee on Radio, Television, and the                 text of the charge; (4) quotations from, or any reference
Administration of Justice of the Association of the Bar of      without comment to, public records or communications
the City of New York, Freedom of the Press and Fair             heretofore disseminated to the public; (5) the scheduling
Trial 111 (1967).                                               and result of any stage of the judicial proceeding held in
                                                                open court; (6) a request for assistance in obtaining
[9] Here, for example, the Nebraska Supreme Court               evidence; and (7) a request for assistance in obtaining the
decided that the District Court had no jurisdiction of the      names of possible witnesses. The court also ordered that a
petitioners except by virtue of their voluntary submission      copy of the preliminary hearing proceedings was to be
to the jurisdiction of that court when they moved to            made available to the public at the expiration of the order.
intervene. Except for the intervention which placed them
within reach of the court, the Nebraska Supreme Court           [3] The court apparently believed that a public
conceded, the petitioners "could have ignored the               preliminary hearing was required by state law. The
[restraining] order. . . ." State v. Simants, 194 Neb. 783,     Nebraska Supreme Court subsequently held that the
795, 236 N.W.2d 794, 802 (1975).                                pertinent state statute did not require that pretrial hearings
                                                                be open to the public. Both petitioners and the State of
[10] Assuming, arguendo, that these problems are within         Nebraska agree that the question whether preliminary
reach of legislative enactment, or that some application of     hearings may be closed to the public consistently with the
evolving concepts of long-arm jurisdiction would solve          "Public Trial" Clause of the Sixth Amendment is not
the problems of personal jurisdiction, even a cursory           before us, and it is therefore one on which I would
examination suggests how awkwardly broad prior                  express no views.
restraints on publication, directed not at named parties
but at large, would fit into our jurisprudence. The British     [4] The Nebraska Bar-Press Guidelines, see appendix to
experience is in sharp contrast for a variety of reasons;       this opinion, were "clarified" as follows, Amended Pet.
Great Britain has a smaller and unitary court system            for Cert. 10a-11a:
permitting the development of a manageable system of
prior restraints by the application of the constructive         1. It is hereby stated the trial of the case commences
contempt doctrine. Cf. n. 5, supra at 557; see generally        when a jury is empaneled to try the case, and that all
Maryland v. Baltimore Radio Show, 338 U.S. 912,                 reporting prior to that event, specifically including the
921-936 (1950) (App. to opinion of Frankfurter, J.,             preliminary hearing is "pretrial" publicity.
respecting denial of certiorari); Gillmor, Free Press and
Fair Trial in English Law, 22 Wash. & Lee L.Rev. 17             2. It would appear that defendant has made a statement or
(1965). Moreover, any comparison between the two                confession to law enforcement officials and it is
systems must take into account that, although England           inappropriate to report the existence of such statement or
gives a very high place to freedom of the press and             the contents of it.
speech, its courts are not subject to the explicit strictures
                                                                3. It appears that the defendant may have made
of a written constitution.
                                                                statements against interest to James Robert Boggs, Amos
[*] In Times-Picayune Pub. Corp. v. Schulingkamp , 419          Simants and Grace Simants, and may have left a note in
U.S. 1301, 1307 (1974), an in-chambers opinion, I noted         the William Boggs residence, and that the nature of such
that there is a heavy presumption against the                   statements, or the fact that such statements were made, or
constitutional validity of a court order restraining pretrial   the nature of the testimony of these witnesses with
publicity.                                                      reference to such statements in the preliminary hearing
                                                                will not be reported.
[1] In referring to the "press" and to "publication" in this
opinion, I of course use those words as terms of art that       4. The non-technical aspects of the testimony of Dr.
encompass broadcasting by the electronic media as well.         Miles Foster may be reported within the guidelines and at
                                                                the careful discretion of the press. The testimony of this
[2] A copy of the "Nebraska Bar-Press Guidelines,"              witness dealing with technical subjects, tests or
ostensibly a voluntary code formulated by representatives       investigations performed or the results thereof, or his
of the media and the bar, was attached to the order. The        opinions or conclusions as a result of such tests or
Guidelines, which are similar to voluntary codes adhered        investigations will not be reported.
to by the press in several States, are attached as an
appendix to this opinion.                                       5. The general physical facts found at the scene of the
                                                                crime may be reported within the guidelines and at the
Excepted from the scope of the County Court's order             careful discretion of the press. However, the identity of
were: (1) factual statements of the accused's name, age,        the person or persons allegedly sexually assaulted or the
                                                                details of any alleged assault by the defendant will not be
reported.                                                      [10] The evidence relied on by the Nebraska Supreme
                                                               Court included the following: the fact that, before entry
6. The exact nature of the limitations of publicity as         of the restrictive order, certain newspapers had reported
entered by this order will not be reported. That is to say,    information "which, if true, tended clearly to connect the
the fact of the entering of this order limiting pretrial       accused with the slayings," 194 Neb. at 796, 236 N.W.2d
publicity and the adoption of the Bar-Press Guidelines         at 802; the fact that "counsel for the media stated that it is
may be reported, but specific reference to confessions,        already doubtful that an unbiased jury can be found to
statements against interest, witnesses or type of evidence     hear the Simants case in Lincoln County," id. at 797, 236
to which this order will apply will not be reported.           N.W.2d at 803; the fact that Nebraska law required the
                                                               trial to transpire within six months of the date the
An additional portion of the order relating to the press'      information was filed, ibid.; the relatively small
accommodations in the courtroom and the taking of              population of the counties to which Nebraska law would
photographs in the courthouse was not contested below,         permit a change of venue, id. at 797-798, 236 N.W.2d at
and is not before this Court. The full order, including its    803; the "mere heinousness or enormity of a crime"; and
references to confessions, was read in open court.             "the trial court's own knowledge of the surrounding
                                                               circumstances," id. at 798, 236 N.W.2d at 803.
[5] MR. JUSTICE BLACKMUN's view of the burden of
proof for imposing such restraints was as follows:             [11] The Nebraska Supreme Court also "adopted"
                                                               American Bar Association Project on Standards for
The accused, and the prosecution if it joins him, bears the
                                                               Criminal Justice, Fair Trial and Free Press § 3.1, Pretrial
burden of showing that publicizing particular facts will
                                                               Hearings (App.Draft 1968) which provides for exclusion
irreparably impair the ability of those exposed to them to
                                                               of the press and public from pretrial hearings under
reach an independent and impartial judgment as to guilt.
                                                               certain circumstances, and remanded the case to the
423 U.S. at 1333.                                              District Court to consider any applications to close future
                                                               pretrial proceedings under that standard. The
[6] The in-chambers opinion also stayed any prohibition        constitutionality of closing pretrial proceedings under
concerning reporting of the pending application for relief     specific conditions is not before us, and is a question on
in the Supreme Court of Nebraska, but permitted a              which I would intimate no views.
prohibition of reporting of the two in-chambers opinions
to the extent they contained "facts properly suppressed."      [12] JUSTICES STEWART and MARSHALL and I
                                                               noted that we would have granted the application for a
Id. at 1334. Nothing in the opinion was to be
                                                               stay.
deemed as barring what the District Judge may impose by
way of restriction on what the parties and officers of the     [13] JUSTICES STEWART and MARSHALL and I
court may say to any representative of the media.              dissented from denial of the motions to expedite and to
                                                               grant a stay; MR. JUSTICE WHITE dissented from the
Ibid.                                                          latter motion to the extent the state courts had prohibited
                                                               the reporting of information publicly disclosed during the
[7] Two justices of the Supreme Court of Nebraska              preliminary hearing in the underlying criminal
dissented on jurisdictional grounds similar to those that      proceeding.
formed the predicate for that court's earlier per curiam
statement, and two other justices who agreed with those        Although the order of the Nebraska Supreme Court
jurisdictional claims nevertheless joined the per curiam to    expired when the jury in State v. Simants was impaneled
avoid a procedural deadlock.                                   and sequestered on January 7, 1976, this case is not moot.
                                                               This is a paradigmatic situation of "short term orders,
[8] These rulings resulted in the paradoxical situation that   capable of repetition, yet evading review." E.g., Southern
"[p]etitioners could have ignored the [County Court's]         Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). It
order" because that court had not obtained personal            is evident that the decision of the Nebraska Supreme
jurisdiction over them and because "courts have no             Court will subject petitioners to future restrictive orders
general power in any kind of case to enjoin or restrain        with respect to pretrial publicity, and that the validity of
'everybody,'" State v. Simants, 194 Neb. 783, 795, 236         these orders, which typically expire when the jury is
N.W.2d 794, 802 (1975). However, because they had              sequestered, generally cannot be fully litigated within
improperly intervened in the criminal case (from which         that period of time. See, e.g., Weinstein v. Bradford, 423
they could not appeal), a prior restraint could issue          U.S. 147, 149 (1975). See also Carroll v. Princess Anne,
against them. Indeed, the court noted that the prior           393 U.S. 175, 178-179 (1968).
restraint "applies only to [petitioners]" and not to any
other organs of the media. Id. at 788, 236 N.W.2d at 798.      Counsel informs us that Simants has subsequently been
                                                               tried, convicted, and sentenced to death, and that his
[9] See n. 21, infra.                                          appeal is currently pending in the Nebraska Supreme
                                                               Court. Simants' defense rested on a plea of not guilty by
reason of insanity, and all of the information which            been almost an entire absence of attempts to impose
remained unreported during the pretrial period was              previous restraints upon publications relating to the
ultimately received in evidence. The trial judge also           malfeasance of public officers is significant of the
declined to close further pretrial hearings, granted            deep=seated conviction that such restraints would violate
Simmants' requests to sequester the jury and conduct voir       constitutional right").
dire with no more than four prospective jurors present at
one time, and denied Simants' request for a change of           [20] The Nebraska Supreme Court denigrated what it
venue. A Jackson v. Denno (378 U.S. 368 (1964))                 termed the "extremist and absolutist" position of
hearing and the first day of voir dire were also closed to      petitioners for assuming that "each and every exercise of
the public. Petitioners have challenged the latter rulings,     freedom of the press is equally important" and that "there
and that litigation is still pending in the state courts.       can be no degree of values for the particular right in
                                                                which the absolutist has a special interest." 194 Neb. at
[14] The precise scope of these terms is not, of course,        799, 800, 236 N.W.2d at 804. This seriously
self-evident. Almost any statement may be an "admission         mischaracterizes petitioners' contentions, for petitioners
against interest" if, for example, it can be shown to be        do not assert that First Amendment freedoms are
false, and thus destructive of the accused's credibility.       paramount in all circumstances. For example, this case
This would even be true with respect to exculpatory             does not involve the question of when, if ever, the press
statements made by an accused, such as those relating to        may be held in contempt subsequent to publication of
alleged alibi defenses. Similarly, there is considerable        certain material, see Wood v. Georgia, 370 U.S. 375
vagueness in the phrase "strongly implicative" of the           (1962); Craig v. Harney, 331 U.S. 367, 376 (1947);
accused's guilt. The Nebraska Supreme Court did not             Pennekamp v. Florida , 328 U.S. 331 (1946); Bridges v.
elaborate on its meaning, and counsel for the State             California, 314 U.S. 252 (1941). Nor does it involve the
suggests it only covers the existence of the accused's          question of damages actions for malicious publication of
prior criminal record, if any. Tr. of Oral Arg. 54. Others      erroneous material concerning those involved in the
might view the phrase considerably more expansively.            criminal justice system, see New York Times Co. v.
See supra at 581; cf. 194 Neb. at 789-790, 236 N.W.2d at        Sullivan, 376 U.S. 254 (1964). See also Time, Inc. v.
799. Indeed, even the fact the accused was indicated            Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch
might be viewed as "strongly implicative" of his guilt by       Inc., 418 U.S. 323 (1974). And no contention is made
reporters not schooled in the law, and the threat of            that the press would be immune from criminal liability
contempt for transgression of such directives would thus        for crimes committed in acquiring material for
tend to self-censorship even as to materials not intended       publication. However, to the extent petitioners take a
to be covered b the restrictive order.                          forceful stand against the imposition of any prior
                                                                restraints on publication, their position is anything but
[15] Of course, even if the press cannot be enjoined from       "extremist," for the history of the press under our
reporting certain information, that does not necessarily        Constitution has been one in which freedom from prior
immunize it from civil liability for libel or invasion of       restraint is all but absolute.
privacy or from criminal liability for transgressions of
general criminal laws during the course of obtaining that       [21] One can understand the reasons why the four prior
information.                                                    restraint orders issued in this case. The crucial
                                                                importance of preserving Sixth Amendment rights was
[16] The only criticism of this statement is that it does not   obviously of uppermost concern, and the question had not
embrace all of the protection accorded freedom of speech        been definitively resolved in this Court. Our language
and of the press by the First Amendment. See, e.g., Near        concerning the "presumption" against prior restraints
v. Minnesota ex rel. Olson, 283 U.S. at 714-715.                could have been misinterpreted to condone an ad hoc
                                                                balancing approach, rather than merely to state the test
[17] Thus the First Amendment constitutes a direct              for assessing the adequacy of procedural safeguards.and
repudiation of the British system of licensing. See, e.g.,      for determining whether the high burden of proof had
Near v. Minnesota ex rel. Olson, supra at 713-714;              been met in a case falling within one of the categories
Grosjean v. American Press Co., 297 U.S. 233, 245-250           that constitute the exceptions to the rule against prior
(1936); Bridges v. California , 314 U.S. 252, 263-264           restraints. Indeed, in Branzburg v. Hayes , 408 U.S. 665
(1941); Wood v. Georgia , 370 U.S. 375, 384, and n. 5           (1972), there was even an intimation that such restraints
(1962).                                                         might be permissible, since the Court stated that

[18] See n. 33, infra; supra at 582-583.                        [n]ewsmen have no constitutional right of access to the
                                                                scenes of crime or disaster when the general public is
[19] The rarity of prior restraint cases of any type in this
                                                                excluded, and they may be prohibited from attending or
Court's jurisprudence has also been noted. See, e.g., New
                                                                publishing information about trials if such restrictions
York Times Co. v. United States, 403 U.S. at 733; Near v.
                                                                are necessary to assure a defendant a fair trial before an
Minnesota ex rel. Olson, 283 U.S. at 718 ("The fact that,
                                                                impartial tribunal.
for approximately one hundred and fifty years, there has
Id. at 684-685 (emphasis supplied). However, the Court          defendant of due process.
in Branzburg had taken pains to emphasize that the case,
which presented the question whether the First                  Murphy v. Florida , 421 U.S. 794, 799 (1975). See also,
Amendment accorded a reporter a testimonial privilege           e.g., id. at 800, and n. 4; Beck v. Washington , 369 U.S.
for an agreement not to reveal facts relevant to a grand        541, 555-558 (1962); Irvin v. Dowd, 366 U.S. 717,
jury's investigation of a crime or the criminal conduct of      722-723 (1961); Reynolds v. United States, 98 U.S. 145,
his source, did not involve any "prior restraint or             165-156 (1879).
restriction on what the press may publish." Id. at 681. It
was evident from the full passage in which the sentence         [24] Of course, judges accepting guilty pleas must guard
appeared, which focused on the fact that there is no            against the danger that pretrial publicity has effectively
"constitutional right of special access [by the press] to       coerced the defendant into pleading guilty.
information not available to the public generally," id. at
                                                                [25] Cf. Stroble v. California, 343 U.S. 181, 195 (1952).
684, that the passage is best regarded as indicating that, to
                                                                For example, all of the material that was suppressed in
the extent newsmen are properly excluded from judicial
                                                                this case was eventually admitted at Simants' trial.
proceedings, they would probably be unable to report
                                                                Indeed, even if Simants' statements to police officials had
about those proceedings. See generally id. at 683-685.
                                                                been deemed involuntary and thus suppressed, no one has
See also id. at 691 (decision "involves no restraint on
                                                                suggested that confessions or statements against interest
what newspapers may publish or on the type or quality of
                                                                made by an accused to private individuals, for example,
information reporters may seek to acquire"); Pell v.
                                                                would be inadmissible.
Procunier, 417 U.S. 817, 833-834 (1974). It is clear that
the passage was not intended to decide the important            [26] Failure of the trial judge to take such measures was a
question presented by this case. In any event, in light of      significant factor in our reversals of the convictions in
my views respecting prior restraints, it should be
                                                                Sheppard v. Maxwell, 384 U.S. 333 (1966), and Estes v.
unmistakable that the First Amendment stands as an
                                                                Texas, 381 U.S. 532 (1965).
absolute bar even to the imposition of interim restraints
on reports or commentary relating to the criminal justice       [27] A significant component of prejudicial pretrial
system, and that to the extent anything in Branzburg            publicity may be traced to public commentary on pending
could be read as implying a different result, I think that it   cases by court personnel, law enforcement officials, and
should be disapproved. Cf. New York Times Co. v. United         the attorneys involved in the case. In Sheppard v.
States, supra at 724-725 (BRENNAN, J., concurring).             Maxwell, supra, we observed that

[22] It is suggested that prior restraints are really only      the trial court might well have proscribed extrajudicial
necessary in "small towns," since media saturation would        statements by any lawyer, party, witness, or court official
be more likely and incriminating materials that are             which divulged prejudicial matters.
published would therefore probably come to the attention
of all inhabitants. Of course, the smaller the community,       384 U.S. at 361. See also id. at 360 ("[T]he judge should
the more likely such information would become available         have further sought to alleviate this problem [of publicity
through rumors and gossip, whether or not the press is          that misrepresented the trial testimony] by imposing
enjoined from publication. For example, even with the           control over the statements made to the news media by
restrictive order in the Simants case, all residents of         counsel, witnesses, and especially the Coroner and police
Sutherland had to be excluded from the jury. Indeed, the        officers"); id. at 359, 363. As officers of the court, court
media in such situations could help dispel erroneous            personnel and attorneys have a fiduciary responsibility
conceptions circulating among the populace. And the             not to engage in public debate that will redound to the
smaller the community, the more likely there will be a          detriment of the accused or that will obstruct the fair
need for a change of venue in any event when a heinous          administration of justice. It is very doubtful that the court
crime is committed. There is, in short, no justification for    would not have the power to control release of
conditioning the scope of First Amendment protection the        information by these individuals in appropriate cases, see
media will receive on the size of the community they            In re Sawyer, 360 U.S. 622 (1959), and to impose
serve.                                                          suitable limitations whose transgression could result in
                                                                disciplinary proceedings. Cf. New York Times Co. v.
[23] Some exposure to the facts of a case need not, under       United States, 403 U.S. at 728-730 (STEWART, J.,
prevailing law concerning the contours of the Sixth             joined by WHITE, J., concurring). Similarly, in most
Amendment right to an impartial jury, disqualify a              cases, courts would have ample power to control such
prospective juror or render him incapable of according          actions by law enforcement personnel.
the accused a fair hearing based solely on the competent
evidence adduced in open court.                                 [28] Excessive delay, of course, would be impermissible
                                                                in light of the Sixth Amendment right to a speedy trial.
[E]xposure to information about a state defendant's prior       See, e.g., Barker v. Wingo, 407 U.S. 514 (1972).
convictions or to news accounts of the crime with which         However, even short continuances can be effective in
he is charged [does not] alone presumptively deprive the        attenuating the impact of publicity, especially as other
news crowds past events off the front pages. And                 prohibition against prior restraints of publication of any
somewhat substantial delays designed to ensure fair              material otherwise covered within the meaning of the free
proceedings need not transgress the speedy trial                 press guarantee of the First Amendment. See supra at
guarantee. See Groppi v. Wisconsin , 400 U.S. 505, 510           588-594.
(1971); cf. 18 U.S.C. § 3161(h)(8) (1970 ed., Supp. IV).
                                                                 [33] For example, in addition to numerous comments
[29] In Rideau v. Louisiana , 373 U.S. 723 (1963), we            about accommodating First and Sixth Amendment rights
held that it was a denial of due process to deny a request       in each case, the court observed:
for a change of venue that was necessary to preserve the
accused's Sixth Amendment rights. And state statutes             That the press be absolutely free to report corruption and
may not restrict changes of venue if to do so would deny         wrongdoing, actual or apparent, or incompetence of
an accused a fair trial. Groppi v. Wisconsin, supra.             public officials of whatever branch of government is
                                                                 vastly important to the future of our state and nation
[30] To be sure, as the Supreme Court of Nebraska                cannot be denied as anyone who is familiar with recent
contended, society would be paying a heavy price if an           events must be well aware. Prior restraint of the press,
individual who is in fact guilty must be released. But in        however slight, in such instances is unthinkable. Near v.
no decision of this Court has it been necessary to release       Minnesota ex rel. Olson, supra. In these instances and
an accused on the ground that an impartial jury could not        many others no preferred constitutional rights collide.
be assembled; we remanded for further proceedings,
assuming that a retrial before an impartial forum was still      In cases where equally important constitutional rights
possible.                                                        may collide then it would seem that, under some
                                                                 circumstances, rare though they will be, that an
As to the contention that pretrial publicity may result in       accommodation of some sort must be reached.
conviction of an innocent person, surely the trial judge
has adequate means to control the voir dire, the conduct         194 Neb. at 798-799, 236 N.W.2d at 803-804. Thus, at
of trial, and the actions of the jury, so as to preclude that    least when reporting of information "strongly
untoward possibility. Indeed, where the evidence                 implicative" of the accused also reflects on official
presented at trial is insufficient, the trial judge has the      actions, a particularized analysis of the need to
responsibility not even to submit the case to the jury.          disseminate the information is contemplated even by
                                                                 those who believe prior restraints might sometimes be
[31] Although various committees that have recently              justifiable with respect to commentary on the criminal
analyzed the "Free Press/Fair Trial" issue have differed         justice system.
over the devices that they believed could properly be
employed to ensure fair trials, they have unanimously            [34] Prior restraints may also effectively curtail the
failed to embrace prior restraints on publication as within      incentives for independent investigative work by the
the acceptable methods. See, e.g., Report of the Judicial        media which could otherwise uncover evidence of guilt
Conference Committee on the Operation of the Jury                or exonerating evidence that nevertheless threatens the
System, "Free Press-Fair Trial" Issue, 45 F.R.D. 396,            Sixth Amendment rights of others by strongly implicating
401-402 (1968) (Judicial Conference Committee headed             them in illegal activity.
by Judge Kaufman); Special Committee on Radio,
Television, and the Administration of Justice of the             [35] Indeed, to the extent media notified of the restraint
Association of the Bar of the City of New York, Freedom          proceedings choose not to appear in light of the cost and
of the Press and Fair Trial: Final Report with                   time potentially involved in overturning any restraint
Recommendations 10-11 (1967); American Bar                       ultimately imposed, there will be no presentation of the
Association Project on Standards for Criminal Justice,           countervailing public interest in maintaining a free flow
Fair Trial and Free Press 68-73 (App.Draft 1968); see            of information, as opposed to the interests of prosecution,
also American Bar Association, Legal Advisory                    defense, and judges in maintaining fair proceedings.
Committee on Fair Trial and Free Press, Recommended
                                                                 [36] For example, in this case the restraints only applied
Court Procedure to Accommodate Rights of Fair Trial
                                                                 to petitioners, who improperly intervened in the criminal
and Free Press 7 (Rev. Draft, Nov.1975).
                                                                 case, and thus subjected themselves to the court's
[32] I include these additional considerations, many of          jurisdiction. The numerous amici, however, were not
which apply generally to any system of prior restraints,         subject to the restraining orders and were free to
only because of the fundamentality of the Sixth                  disseminate prejudicial information in the same areas in
Amendment right invoked as the justification for                 which petitioners were precluded from doing so.
imposition of the restraints in this case; the fact that there
                                                                 [37] Cf. New York Times Co. v. United States, 403 U.S. at
are such overwhelming reasons for precluding any prior
                                                                 733 (WHITE, J., joined by STEWART, J., concurring).
restraints even to facilitate preservation of such a
fundamental right reinforces the longstanding                    [38] In this case, prior restraints were in effect for over 11
constitutional doctrine that there is effectively an absolute    weeks, and yet by the time those restraints expired,
appellate review had not yet been exhausted. Moreover,        and weekly newspapers are published.
appellate courts might not accord these cases the
expedited hearings they so clearly would merit. See Tr. of    Our papers are not read in the White House, the
Oral Arg. 43-48.                                              Congress, the Supreme Court or by network news
                                                              executives. The causes for which we contend and the
[39] As we observed in Bridges v. California, 314 U.S. at     problems we face are invisible to the world of power and
268, which held that the convictions of a newspaper           intellect. We have no in-house legal staff. We retain no
publisher and editor for contempt, based on editorial         great, national law firms. We do not have spacious profits
comment concerning pending cases, were violative of the       with which to defend ourselves and our principles, all the
First Amendment:                                              way to the Supreme Court, each and every time we feel
                                                              them to be under attack.
It must be recognized that public interest is much more
likely to be kindled by a controversial event of the day      Our only alternative is obedient silence. You hear us
than by a generalization, however penetrating, of the         when we speak now. Who will notice if we are silenced?
historian or scientist. Since they punish utterances made     The small town press will be the unknown soldier of a
during the pendency of a case, the judgments below            war between the First and Sixth Amendments, a war that
therefore produce their restrictive results at the precise    should never have been declared, and can still be
time when public interest in the matters discussed would      avoided.
naturally be at its height. Moreover, the ban is likely to
fall not only at a crucial time but upon the most important   Only by associating ourselves in this brief with our
topics of discussion.                                         stronger brothers are we able to raise our voices on this
                                                              issue at all, but I am confident that the Court will listen to
No suggestion can be found in the Constitution that the       us because we represent the most defenseless among the
freedom there guaranteed for speech and the press bears       petitioners.
an inverse ratio to the timeliness and importance of the
ideas seeking expression. Yet, it would follow as a           Brief for Washington Post Co. et al. as Amici Curiae
practical result of the decisions below that anyone who       31-32.
might wish to give public expression to his views on a
pending case involving no matter what problem of public       [41] There is also the danger that creation of a second
interest, just at the time his audience would be most         "narrow" category of exceptions to the rule against prior
receptive, would be as effectively discouraged as if a        restraints would be interpreted as a license to create
deliberate statutory scheme of censorship had been            further "narrow" exceptions when some "justification" for
adopted. . . .                                                overcoming a mere "presumption" of unconstitutionality
                                                              is presented. Such was the reasoning which eventuated in
This unfocussed threat is, to be sure, limited in time,       this litigation in the first place. See supra at 582-583.
terminating as it does upon final disposition of the case.
But this does not change its censorial quality. An endless    ---------
series of moratoria on public discussion, even if each
were very short, could hardly be dismissed as an
insignificant abridgment of freedom of expression. And
to assume that each would be short is to overlook the fact
that the "pendency" of a case is frequently a matter of
months or even years rather than days or weeks.

Id. at 269. See also id. at 277-278; Carroll v. Princess
Anne, 393 U.S. at 182; Wood v. Georgia, 370 U.S. at 392;
Pennekamp v. Florida, 328 U.S. at 346-347.

[40] The editor and publisher of amicus Anniston (Ala.)
Star poignantly depicted in a letter to counsel the likely
plight of such small, independent newspapers if the
power to impose prior restraints against pretrial publicity
were recognized:

Small town dailies would be the unknown, unseen and
friendless victims if the Supreme Court upholds the order
of Judge Stuart. If the already irresistible powers of the
judiciary are swollen by absorbing an additional function,
that of government censor, the chilling effect upon
vigorous public debate would be deepest in the thousands
of small towns where independent, locally owned, daily
Page 58                                                      regulation by the States of obscenity conform to
                                                             procedures that will ensure against the curtailment of
372 U.S. 58 (1963)                                           constitutionally protected expression, which is often
                                                             separated from obscenity only by a dim and uncertain
83 S.Ct. 631, 9 L.Ed.2d 584                                  line. Pp. 65-66.

Bantam Books, Inc.                                                (b) Although the Rhode Island Commission is
                                                             limited to informal sanctions, the record amply
v.
                                                             demonstrates that it deliberately set about to achieve the
                                                             suppression of publications deemed "objectionable," and
Sullivan
                                                             succeeded in its aim. Pp. 66-67.
No. 118
                                                                 (c) The acts and practices of the members and
United States Supreme Court                                  Executive Secretary of the Commission were performed
                                                             under color of state law,
February 18, 1963
                                                             Page 59
     Argued December 3, 1962
                                                             and so constituted acts of the State within the meaning of
   APPEAL FROM THE SUPERIOR COURT OF                         the Fourteenth Amendment. P. 68.
RHODE ISLAND
                                                                   (d) The Commission's practice provides no
     Syllabus                                                safeguards whatever against the suppression of
                                                             nonobscene and constitutionally protected matter, and it
     The Rhode Island Legislature created a Commission       is a form of regulation that creates hazards to protected
                                                             freedoms markedly greater than those that attend reliance
to educate the public concerning any book . . . or other     upon criminal sanctions, which may be applied only after
thing containing obscene, indecent or impure language,       a determination of obscenity has been made in a criminal
or manifestly tending to the corruption of the youth as      trial hedged about with the procedural safeguards of the
defined [in other sections] and to investigate and           criminal process. Pp. 68-70
recommend the prosecution of all violations of said
sections.                                                         (e) What Rhode Island has done, in fact, has been to
                                                             subject the distribution of publications to a system of
      The Commission's practice was to notify a              prior administrative restraints without any provision for
distributor that certain books or magazines distributed by   notice and hearing before publications are listed as
him had been reviewed by the Commission and had been         "objectionable" and without any provision for judicial
declared by a majority of its members to be objectionable    review of the Commission's determination that such
for sale, distribution or display to youths under 18 years   publications are "objectionable." Pp. 70-72.
of age. Such notices requested the distributor's
"cooperation," and advised him that copies of the lists of       Reversed and cause remanded.
"objectionable" publications were circulated to local
police departments, and that it was the Commission's             BRENNAN, J., lead opinion
duty to recommend prosecution of purveyors of
obscenity. Four out-of-state publishers of books widely           MR. JUSTICE BRENNAN delivered the opinion of
distributed in the State sued in a Rhode Island court for    the Court.
injunctive relief and a declaratory judgment that the law
and the practices thereunder were unconstitutional. The           The Rhode Island Legislature created the "Rhode
court found that the effect of the Commission's notices      Island Commission to Encourage Morality in Youth,"
was to intimidate distributors and retailers and that they   whose members and Executive Secretary are the
had resulted in the suppression of the sale of the books     appellees herein, and gave the Commission, inter alia,
listed. In this Court, the State Attorney General conceded
                                                              . . . the duty . . . to educate the public concerning any
that the notices listed several publications that were not
                                                             book, picture, pamphlet, ballad, printed paper or other
obscene within this Court's definition of the term.
                                                             thing containing obscene, indecent or impure language,
                                                             or manifestly tending to the corruption of the youth as
     Held: The system of informal censorship disclosed
by this record violates the Fourteenth Amendment. Pp.        defined
59-72.
                                                             Page 60
     (a) The Fourteenth Amendment requires that
 in sections 13, 47, 48 and 49 of chapter 610 of the               Silverstein's reaction on receipt of a notice was to
general laws, as amended, and to investigate and             take steps to stop further circulation of copies of the listed
recommend the prosecution of all violations of said          publications. He would not fill pending orders for such
sections. . . .[1]                                           publications, and would refuse new orders. He instructed
                                                             his field men to visit his retailers and to pick up all unsold
    The                                                      copies, and would then promptly return them to the
                                                             publishers. A local police officer usually visited
[83 S.Ct. 634] appellants brought this action in             Silverstein shortly after Silverstein's receipt of a notice to
                                                             learn what action he had taken. Silverstein was usually
Page 61
                                                             able to inform the officer that a specified number of the
the Superior Court of Rhode Island (1) to declare the law    total of copies received from a publisher had been
creating the Commission in violation of the First and        returned. According to the testimony, Silverstein acted as
Fourteenth Amendments, and (2) to declare                    he did on receipt of the notice "rather than face the
unconstitutional and enjoin the acts and practices of the    possibility of some sort of a court action against
appellees thereunder. The Superior Court declined to         ourselves, as well as the people that we supply." His
declare the law creating the Commission unconstitutional     "cooperation" was given to avoid becoming involved in a
on its face, but granted the appellants an injunction        "court proceeding" with a "duly authorized organization."
against the acts and practices of the appellees in
                                                                  The Superior Court made fact findings and the
performance of their duties. The Supreme Court of Rhode
                                                             following two, supported by the evidence and not
Island affirmed the Superior Court with respect to
                                                             rejected by the Supreme Court of Rhode Island, are
appellants first prayer, but reversed the grant of
                                                             particularly relevant:
injunctive relief. ___ R.I. ___, 176 A.2d 393 (1961).[2]
Appellants brought this appeal, and we noted probable        8. The effect of the said notices (those received by
jurisdiction, 370 U.S. 933.[3]                               Silverstein, including the two listing publications

     Appellants are four New York publishers of              Page 64
paperback books which have for sometime been widely
distributed in Rhode Island. Max Silverstein & Sons is        of appellants) were [sic] clearly to intimidate the various
the exclusive wholesale distributor of appellants            book and magazine wholesale distributors and retailers
publications throughout most of the State. The               and to cause them, by reason of such intimidation and
Commission's practice has been to notify a distributor on    threat of prosecution, (a) to refuse to take new orders for
official Commission stationery that certain designated       the proscribed publications, (b) to cease selling any of the
books or magazines distributed by him had been               copies on hand, (c) to withdraw from retailers all unsold
reviewed by the Commission and had been declared by a        copies, and (d) to return all unsold copies to the
majority of its members to be objectionable for sale,        publishers.
distribution or display to youths under 18 years of age.
Silverstein had received at least 35 such notices            9. The activities of the Respondents (appellees here) have
                                                             resulted in the suppression of the sale and circulation of
[83 S.Ct. 635] at the time this suit was brought. Among      the books listed in said notices. . . .

Page 62                                                           In addition to these findings, it should be noted that
                                                             the Attorney General of Rhode Island conceded on oral
the paperback books listed by the Commission as              argument in this Court that the books listed in the notices
"objectionable" were one published by appellant Dell         included several that were not obscene within this Court's
Publishing Co., Inc., and another published by appellant     definition of the term.
Bantam Books, Inc.[4]
                                                                  Appellants argue that the Commission's activities
     The typical notice to Silverstein either solicited or   under Resolution 73, as amended, amount to a scheme of
thanked Silverstein, in advance, for his "cooperation"       governmental censorship devoid of the constitutionally
with the Commission, usually reminding Silverstein of        required safeguards for state regulation of obscenity, and
the Commission's duty to recommend to the Attorney           thus abridge First Amendment liberties, protected by the
General prosecution of purveyors of obscenity.[5] Copies     Fourteenth Amendment from infringement by the States.
of the                                                       We agree that the activities of the Commission are
                                                             unconstitutional, and therefore reverse the Rhode Island
Page 63
                                                             court's judgment and remand the case for further
                                                             proceedings not inconsistent with this opinion.[6]
lists of "objectionable" publications were circulated to
local police departments, and Silverstein was so informed
                                                             Page 65
in the notices.
                                                                 We held in Alberts v. California, decided with Roth
v. United States, 354 U.S. 476, 485, that "obscenity is not   been prosecuted for their possession or sale. But though
within the area of                                            the Commission is limited to informal sanctions -- the
                                                              threat of invoking legal sanctions and other means of
[83 S.Ct. 637] constitutionally protected speech or           coercion, persuasion, and intimidation -- the record
press," and may therefore be regulated by the States. But     amply demonstrates that the Commission deliberately set
this principle cannot be stated without an important          about to achieve the suppression of publications deemed
qualification:                                                "objectionable," and succeeded in its aim.[7] We are not
                                                              the first court to look through forms
 . . . [I]n Roth itself, we expressly recognized the
complexity of the test of obscenity fashioned in that case    [83 S.Ct. 638] to the substance and recognize that
and the vital necessity in its application of safeguards to   informal censorship may sufficiently inhibit the
prevent denial of "the protection of freedom of speech        circulation of publications to warrant injunctive relief.[8]
and press for material which does not treat
                                                              Page 68
Page 66
                                                                    It is not as if this were not regulation by the State of
 sex in a manner appealing to prurient interest." [354 U.S.   Rhode Island. The acts and practices of the members and
at 488]. . . . It follows that, under the Fourteenth          Executive Secretary of the Commission disclosed on this
Amendment, a State is not free to adopt whatever              record were performed under color of state law, and so
procedures it pleases for dealing with obscenity . . .        constituted acts of the State within the meaning of the
without regard to the possible consequences for               Fourteenth Amendment. Ex parte Young , 209 U.S. 123.
constitutionally protected speech.                            Cf. Terry v. Adams, 345 U.S. 461. These acts and
                                                              practices directly and designedly stopped the circulation
     Marcus v. Search Warrant, 367 U.S. 717, 730-731.         of publications in many parts of Rhode Island. It is true,
                                                              as noted by the Supreme Court of Rhode Island, that
      Thus, the Fourteenth Amendment requires that
                                                              Silverstein was "free" to ignore the Commission's notices,
regulation by the States of obscenity conform to
                                                              in the sense that his refusal to "cooperate" would have
procedures that will ensure against the curtailment of
                                                              violated no law. But it was found as a fact -- and the
constitutionally protected expression, which is often
                                                              finding, being amply supported by the record, binds us --
separated from obscenity only by a dim and uncertain
                                                              that Silverstein's compliance with the Commission's
line. It is characteristic of the freedoms of expression in
                                                              directives was not voluntary. People do not lightly
general that they are vulnerable to gravely damaging, yet
                                                              disregard public officers' thinly veiled threats to institute
barely visible, encroachments. Our insistence that
                                                              criminal proceedings against them if they do not come
regulations of obscenity scrupulously embody the most
                                                              around, and Silverstein's reaction, according to
rigorous procedural safeguards, Smith v. California , 361
                                                              uncontroverted testimony, was no exception to this
U.S. 147; Marcus v. Search Warrant, supra, is therefore
                                                              general rule. The Commission's notices, phrased virtually
but a special instance of the larger principle that the
                                                              as orders, reasonably understood to be such by the
freedoms of expression must be ringed about with
                                                              distributor, invariably followed up by police visitations,
adequate bulwarks. See, e.g., Thornhill v. Alabama, 310,
                                                              in fact stopped the circulation of the listed publications ex
U.S. 88; Winters v. New York , 333 U.S. 507; NAACP v.
                                                              proprio vigore. It would be naive to credit the State's
Button, 371 U.S. 415.
                                                              assertion that these blacklists are in the nature of mere
[T]he line between speech unconditionally guaranteed          legal advice when
and speech which may legitimately be regulated . . . is
                                                              Page 69
finely drawn. . . . The separation of legitimate from
illegitimate speech calls for . . . sensitive tools. . . .    they plainly serve as instruments of regulation
                                                              independent of the laws against obscenity.[9] Cf. Joint
     Speiser v. Randall, 357 U.S. 513, 525.
                                                              Anti-Fascist Refugee Committee v. McGrath , 341 U.S.
     But, is it contended, these salutary principles have     123.
no application to the activities of the Rhode Island
                                                                   Herein lies the vice of the system. The
Commission, because it does not regulate or suppress
                                                              Commission's operation is a form of effective state
obscenity, but simply exhorts booksellers and advises
                                                              regulation superimposed upon the State's criminal
them of their legal rights. This contention, premised on
                                                              regulation of obscenity and making such regulation
the Commission's want of power to apply formal legal
                                                              largely unnecessary. In thus obviating the need to employ
sanctions, is untenable. It is true that appellants books
                                                              criminal sanctions, the State
have not
                                                              Page 70
Page 67
                                                              has at the same time eliminated the safeguards of the
been seized or banned by the State, and that no one has
                                                              criminal process. Criminal sanctions may be applied only
after a determination of obscenity has been made in a         requirements of governmental regulation of obscenity.
criminal trial hedged about with the procedural               We hold that the system of informal censorship disclosed
safeguards of the criminal process. The Commission's          by this record violates the Fourteenth Amendment.
practice is in striking contrast, in that it provides no
safeguards whatever against the suppression of                      In holding that the activities disclosed on this record
nonobscene, and therefore constitutionally protected,         are constitutionally proscribed, we do not mean to
matter. It is a form of regulation that creates hazards to    suggest that private consultation between law
protected freedoms markedly greater than those that           enforcement officers and distributors prior to the
attend reliance upon the criminal law.                        institution of a judicial proceeding can never be
                                                              constitutionally permissible. We do not hold that law
      What Rhode Island has done, in fact, has been to        enforcement officers must renounce all informal contacts
subject the distribution of publications to a system of       with persons suspected of violating
prior administrative restraints, since the Commission is
not a judicial body and its decisions to list particular      Page 72
publications as objectionable do not follow judicial
determinations that such publications may lawfully be         valid laws prohibiting obscenity. Where such
banned. Any system of prior restraints of expression          consultation is genuinely undertaken with the purpose of
comes to this Court bearing a heavy presumption against       aiding the distributor to comply with such laws and avoid
its constitutional validity. See Near v. Minnesota , 283      prosecution under them, it need not retard the full
U.S. 697; Lovell v. City of Griffin , 303 U.S. 444, 451;      enjoyment of First Amendment freedoms. But that is not
Schneider v. New Jersey, 308 U.S. 147, 164; Cantwell v.       this case. The appellees are not law enforcement officers;
Connecticut, 310 U.S. 296, 306; Niemotko v. Maryland ,        they do not pretend that they are qualified to give or that
340 U.S. 268, 273; Kunz v. New York, 340 U.S. 290, 293;       they attempt to give distributors only fair legal advice.
Staub v. City of Baxley , 355 U.S. 313, 321. We have          Their conduct as disclosed by this record shows plainly
tolerated such a system only where it operated under          that they went for beyond advising the distributors of
judicial superintendence and assured an almost                their legal rights and liabilities. Their operation was in
immediate judicial determination of the validity of the       fact a scheme of state censorship effectuated by
restraint.[10] Kingsley                                       extra-legal sanctions; they acted as an agency not to
                                                              advise but to suppress.
Page 71
                                                                   Reversed and remanded.
Books, Inc. v. Brown, 354 U.S. 436. The system at bar
includes no such saving features. On the contrary, its             MR. JUSTICE BLACK concurs in the result.
capacity for suppression of constitutionally protected
                                                                   DOUGLAS, J., concurring
[83 S.Ct. 640] publications is far in excess of that of the
                                                                   MR. JUSTICE DOUGLAS, concurring.
typical licensing scheme held constitutionally invalid by
this Court. There is no provision whatever for judicial            While I join the opinion of the Court, I adhere to the
superintendence before notices issue or even for judicial     views I expressed in Roth v. United States, 354 U.S. 476,
review of the Commission's determinations of                  508-514, respecting the very narrow scope of
objectionableness. The publisher or distributor is not even   governmental authority to suppress publications on the
entitled to notice and hearing before his publications are    grounds of obscenity. Yet as my Brother BRENNAN
listed by the Commission as objectionable. Moreover, the      makes clear, the vice of Rhode Island's system is apparent
Commission's statutory mandate is vague and                   whatever one's view of the constitutional status of
uninformative, and the Commission has done nothing to         "obscene" literature. This is censorship in the raw; and, in
make it more precise. Publications are listed as              my view, the censor and First Amendment rights are
"objectionable," without further elucidation. The             incompatible. If a valid law has been violated, authors
distributor is left to speculate whether the Commission       and publishers and vendors can be made to account. But
considers this publication obscene or simply harmful to       they would then have on their side all the procedural
juvenile morality. For the Commission's domain is the         safeguards of the Bill of Rights, including trial by jury.
whole of youthful morals. Finally, we not that although       From the viewpoint of the State, that is a more
the Commission's supposed concern is limited to youthful      cumbersome procedure, action on the majority vote of the
readers, the "cooperation" it seeks from distributors         censors being far easier. But the Bill of Rights was
invariably entails the complete suppression of the listed     designed to fence in the Government
publications; adult readers are equally deprived of the
opportunity to purchase the publications in the State. Cf.    Page 73
Butler v. Michigan, 352 U.S. 380.
                                                              and make its intrusions on liberty difficult and its
     The procedures of the Commission are radically           interference with freedom of expression well-nigh
deficient. They fall far short of the constitutional
impossible.                                                  and widely circulated magazines in the empire.

    All nations have tried censorship, and only a few             Thus, under the Czars, an all-powerful elite
have rejected it. Its abuses                                 condemned to the Siberia of that day an author whom a
                                                             minority applauded. Administrative fiat is as dangerous
[83 S.Ct. 641] mount high. Today Iran censors news           today as it was then.
stories in such a way as to make false or misleading some
reports of reputable news agencies. For the Iranian who           CLARK, J., concurring
writes the stories and lives in Teheran goes to jail if he
tells the truth. Thus censorship in Teheran has as                MR. JUSTICE CLARK, concurring in the result.
powerful extra-legal sanctions as censorship in
Providence.                                                        As I read the opinion of the Court, it does much fine
                                                             talking about freedom of expression and much
     The Providence regime is productive of capricious       condemning of the Commission's overzealous efforts to
action. A five-to-four vote makes a book "obscene." The      implement the State's obscenity laws for the protection of
wrong is compounded when the issue, though closely           Rhode Island's youth, but, as if shearing a hog, comes up
balanced in the minds of sophisticated men, is resolved      with little wool. In short, it creates the proverbial tempest
against freedom of expression and on the side of             in a teapot over a number of notices sent out by the
censorship. Judges, to be sure, often disagree as to the     Commission asking the cooperation of magazine
definition of obscenity. But an established administrative   distributors in preventing the sale of obscene literature to
system that bans book after book, even though they           juveniles.
muster four votes out of nine, makes freedom of
expression much more precarious than it would be if          Page 75
unanimity were required. This underlines my Brother
                                                             The storm was brewed from certain inept phrases in the
BRENNAN's observation that the Providence regime
                                                             notices wherein the Commission assumed the prerogative
"provides no safeguards whatever against the suppression
                                                             of issuing an "order" to the police that certain
of nonobscene, and therefore constitutionally protected,
                                                             publications which it deemed obscene are "not to be sold,
matter." Doubts are resolved against, rather than for,
                                                             distributed or displayed to youths under eighteen years of
freedom of expression.
                                                             age" and stated that "[t]he Attorney General will act for
      The evils of unreviewable administrative action of     us in case of non-compliance." But, after all this
this character are as ancient as dictators. George Kennan,   expostulation, the
Siberia and the Exile System (U. of Chi.1958) p. 60,
                                                             [83 S.Ct. 642] Court, being unable to strike down Rhode
gives insight into it:
                                                             Island's statute, see Alberts v. California , 354 U.S. 476
Mr. Borodin, another Russian author and a well known         (1957), drops a demolition bomb on "the Commission's
contributor to the Russian magazine Annals of the            practice" without clearly indicating what might be
Fatherland, was banished to the territory of Yakutsk on      salvaged from the wreckage. The Court, in condemning
account of the alleged "dangerous" and "pernicious"          the Commission's practice, owes Rhode Island the duty of
character of a certain manuscript found in his house by      articulating the standards which must be met, lest the
the police during a search. This                             Rhode Island Supreme Court be left at sea as to the
                                                             appropriate disposition on remand.
Page 74
                                                                   In my view, the Court should simply direct the
 manuscript was a spare copy of an article upon the          Commission to abandon its delusions of grandeur and
economic condition of the province of Viatka, which Mr.      leave the issuance of "orders" to enforcement officials
Borodin had written and sent to the above-named              and "the State's criminal regulation of obscenity" to the
magazine, but which, up to that time, had not been           prosecutors, who can substitute prosecution for "thinly
published. The author went to Eastern Siberia in a           veiled threats" in appropriate cases. See Alberts v.
convict's gray overcoat with a yellow ace of diamonds on     California, supra. As I read the opinion, this is the extent
his back, and three or four months after his arrival in      of the limitations contemplated by the Court, leaving the
Yakutsk he had the pleasure of reading in the Annals of      Commission free, as my Brother HARLAN indicates, to
the Fatherland the very same article for which he had        publicize its findings as to the obscene character of any
been exiled. The Minister of the Interior had sent him to    publication; to solicit the support of the public in
Siberia merely for having in his possession what the         preventing obscene publications from reaching juveniles;
police called a "dangerous" and "pernicious" manuscript,     to furnish its findings to publishers, distributors and
and then the St. Petersburg committee of censorship had      retailers of such publications and to law enforcement
certified that another copy of that same manuscript was      officials; and, finally, to seek the aid of such officials in
perfectly harmless, and had allowed it to be published,      prosecuting offenders of the State's obscenity laws. This
without the change of a line, in one of the most popular     Court has long recognized that "the primary requirements
                                                             of decency may be enforced against obscene
publications." Near v. Minnesota , 283 U.S. 697, 716          range of choice in dealing with such problems, Alberts v.
(1931); see Kingsley Books, Inc.                              California, decided with Roth v. United States, 354 U.S.
                                                              476 (separate opinion of the writer, at 500-502), and this
Page 76                                                       Court should not interfere with state legislative
                                                              judgments on them except upon the clearest showing of
v. Brown, 354 U.S. 436 (1957). Certainly, in the face of      unconstitutionality.
rising juvenile crime and lowering youth morality, the
State is empowered consistent with the Constitution to             I can find nothing in this record that justifies the
use the above procedures in attempting to dispel the          view that Rhode Island has attempted to deal with this
defilement of its youth by obscene publications. With this    problem in an irresponsible way. I agree with the Court
understanding of the Court's holding, I join in its           that the tenor of some of the Commission's letters and
judgment, believing that the limitations as outlined would    reports is subject to serious criticism, carrying as they do
have little bearing on the efficacy of Rhode Island's law.    an air of authority which that body does not possess and
                                                              conveying an impression of consequences which by no
     HARLAN, J., dissenting                                   means may follow from noncooperation with the
                                                              Commission. But these are things which could surely be
     MR. JUSTICE HARLAN, dissenting.
                                                              cured by a word to the wise. They furnish no occasion for
     The Court's opinion fails to give due consideration      today's opaque pronouncements which leave the
to what I regard as the central issue in this case -- the     Commission in the dark as to the permissible
accommodation that must be made between Rhode                 constitutional scope of its future activities.
Island's concern with the problem of juvenile delinquency
                                                                    Given the validity of state obscenity laws, Alberts v.
and the right of freedom of expression assured by the
                                                              California, supra, I think the Commission is
Fourteenth Amendment.
                                                              constitutionally entitled (1) to express its views on the
     Three reasons, as I understand the Court's opinion,      character of any published reading or other material; (2)
are given for holding the particular procedures adopted       to endeavor to enlist the support of law enforcement
by the Rhode Island Commission under this statute,            authorities, or the cooperation of publishers and
though not the statute itself, unconstitutional: (1) the      distributors, with respect to any material the Commission
Commission's activities, carried on under color of state      deems obscene; and (3) to notify publishers, distributors,
law, amount to a scheme of governmental censorship; (2)       and members of the public
its procedures lack adequate safeguards to protect
                                                              Page 78
nonobscene material against suppression; and (3) the
group's operations in the field of youth morality may         with respect to its activities in these regards; but that it
entail depriving the adult public of access to                must take care to refrain from the kind of overbearing
constitutionally protected material.                          utterances already referred to and others that might tend
                                                              to give any person an erroneous impression as to either
     In my opinion, none of these reasons is of overriding
                                                              the extent of the Commission's authority or the
weight in the context of what is obviously not an effort
                                                              consequences of a failure to heed its warnings. Since the
by the State to obstruct free expression, but an attempt to
                                                              decision of the Court does not require reinstatement of
cope with a most baffling social problem.
                                                              the broad injunction issued by the trial court,[1] and since
     I                                                        the majority's opinion rests on the invalidity of the
                                                              particular procedures the Commission has pursued, I find
     This Rhode Island Commission was formed for the          nothing in that opinion denying the Commission the right
laudable purpose of combatting juvenile delinquency.          to conduct the activities, just enumerated, which I believe
While there is as yet no consensus of scientific opinion      it is constitutionally entitled to carry on.
on the
                                                                   II
Page 77
                                                                    It is said that the Rhode Island procedures lack
causal relationship between youthful reading or viewing       adequate safeguards against the suppression of the
of "the obscene" and delinquent behavior, see Green,          nonobscene, in that the Commission may pronounce
Obscenity, Censorship, and Juvenile Delinquency, 14 U.        publications obscene without any prior judicial
of Toronto L.J. 229 (1962), Rhode Island's approach to        determination or review. But the Commission's
the problem is not without respectable support, see           pronouncement in any given instance is not
S.Rep.No.2381, 84th Cong., 2d Sess. (1956); Kefauver,         self-executing. Any affected distributor or publisher
Obscene and Pornographic Literature                           wishing to stand his ground on a particular publication
                                                              may test the Commission's views by way of a declaratory
[83 S.Ct. 643] and Juvenile Delinquency, 24 Fed.Prob.         judgment action[2] or suit for injunctive relief or by
No. 4, p. 3 (Dec. 1960). The States should have a wide        simply refusing to accept the Commission's
Page 79                                                        no opportunity for discriminating deliberation, which
                                                               publications should be seized as obscene. Since "there
opinion and awaiting criminal prosecution in respect of        was no step in the procedure before seizure designed to
the questioned work.                                           focus searchingly on the question of obscenity," 367 U.S.
                                                               at 732, it was to be expected that much of the material
     That the Constitution requires no more is shown by        seized under these procedures would turn out not to be
this Court's decision in Times Film Corp. v. Chicago, 365      obscene, as indeed was later found by the state court in
U.S. 43. There, the petitioner refused to comply               that very case.

[83 S.Ct. 644] with a Chicago ordinance requiring that all          No such hazards to free expression exist in the
motion pictures be examined and licensed by a city             procedures I regard as permissible in the present case. Of
official prior to exhibition. It was contended that            cardinal importance, dissemination of a challenged
regardless of the obscenity vel non of any particular          publication is not physically or legally impeded in any
picture and the licensing standards employed, this             way. Furthermore, the advisory condemnations
requirement in itself amounted to an unconstitutional          complained of are the product not of hit-or-miss police
prior restraint on free expression. Stating that there is no   action, but of a deliberative body whose judgments are
"absolute freedom to exhibit, at least once, any and every     limited by standards
kind of motion picture," 365 U.S. at 46, this Court
rejected that contention and remitted the petitioner to a      Page 81
challenge of an application of the city ordinance to
specific films. The Court thus refused to countenance a        embraced in the State's general obscenity statute, the
"broadside attack" on a system of regulation designed to       constitutionality of which is not questioned in this case.
prevent the dissemination of obscene matter.
                                                                   The validity of the foregoing considerations is not, in
     Certainly, with respect to a sophisticated publisher      my opinion, affected by the state court findings that one
or distributor,[3] and shorn of embellishing mandatory         of appellants distributors was led to withdraw
language, this Commission's advisory condemnation of           publications, thought obscene by the Commission,
particular publications does not create as great a danger      because of fear of criminal prosecution. For this record
of restraint on expression as that involved in Times Film,     lacks an element without which those findings
where exhibition of a film without a license was made a
crime.[4] Nor can such danger be regarded as greater than      [83 S.Ct. 645] are not of controlling constitutional
that involved in the pre-adjudication impact of the            significance in the context of the competing state and
sequestration procedures sustained by this Court in            individual interests here at stake: there is no showing that
Kingsley Books, Inc. v. Brown, 354 U.S. 436. For               Rhode Island has put any roadblocks in the way of any
                                                               distributor's or publisher's recourse to the courts to test
Page 80                                                        the validity of the Commission's determination respecting
                                                               any publication, or that the purpose of these procedures
here, the Commission's action is attended by no legal          was to stifle freedom of expression.
sanctions, and leaves distribution of the questioned
material entirely undisturbed.                                        It could not well be suggested, as I think the Court
                                                               concedes, that a prosecutor's announcement that he
     This case bears no resemblance to what the Court          intended to enforce strictly the obscenity laws or that he
refused to sanction in Marcus v. Search Warrant , 367          would proceed against a particular publication unless
U.S. 717. There, police officers, pursuant to Missouri         withdrawn from circulation amounted to an
procedures, seized in a one-day foray under search             unconstitutional restraint upon freedom of expression,
warrants some 11,000 copies of 280 publications found at       still less that such a restraint would occur from the mere
the appellants various places of business and believed by      existence of a criminal obscenity statute. Conceding that
the officers to be obscene. The state court later found that   the restrictive effect of the Commission's procedures on
only 100 out of the 280 publications actually were             publishers, and a fortiori on independent distributors,
obscene. In holding                                            may be greater than in either of those situations, I do not
                                                               believe that the differences are of constitutional import in
that Missouri's procedures, as applied . . . , lacked the      the absence of either of the two factors indicated in the
safeguards which due process demands to assure                 preceding paragraph. The circumstance that places the
nonobscene material the constitutional protection to           Commission's permissible procedures on the same
which it is entitled,                                          constitutional level as the illustrations just given is the
                                                               fact that in each instance the courts are open to the person
      367 U.S. at 731, the Court emphasized the historical
                                                               affected, and that any material, however questionable,
connection between the search and seizure power and the
                                                               may be freely sponsored, circulated, read, or viewed until
stifling of liberty of expression. The Missouri warrants
                                                               judicially condemned.
gave the broadest discretion to each executing officer,
and left to his ad hoc judgment on the spot, with little or
Page 82                                                           a "commission to encourage morality in youth," to be
                                                                  composed of nine members appointed by the Governor of
     In essence, what the Court holds is that these               the State. The members were to serve for staggered,
publishers or their distributors need not, with respect to        five-year terms. They were to receive no compensation,
any material challenged by the Commission, vindicate              but their expenses, as well as the expenses incurred in the
their right to its protection in order to bring the               operation of the Commission generally, were to be
Constitution to their aid. The effect of this holding is to       defrayed out of annual appropriations. The original
cut into this effort of the State to get at the juvenile          mandate of the Commission was superseded in part by
delinquency problem, without this Court or any other              Resolution No. 95 S. 444 R.I.Acts and Resolves, January
ever having concretely focused on whether any of the              Session 1959, 880, which reads as follows:
specific material called in question by the Commission is
or is not entitled to protection under constitutional             It shall be the duty of said commission to educate the
standards established by our decisions.[5]                        public concerning any book, picture, pamphlet, ballad,
                                                                  printed paper or other thing containing obscene, indecent
      This seems to me to weight the accommodation                or impure language, as defined in chapter 11-31 of the
which should be made between the competing interests              general laws, entitled "Obscene and objectionable
that this case presents entirely against the legitimate           publications and shows," and to investigate and
interests of the State. I believe that the correct course is to   recommend the prosecution of all violations of said
refuse to countenance this "broadside attack" on these            sections, and it shall be the further duty of said
state procedures and, with an appropriate caveat as to the        commission to combat juvenile delinquency and
character of some of the Commission's past utterances, to         encourage morality in youth by (a) investigating
remit the appellants to their remedies respecting                 situations which may cause, be responsible for or give
particular publications challenged by the Commission, as          rise to undesirable behavior of juveniles, (b) educate the
was done in the Times Film case. Putting these publishers         public as to these causes and (c) recommend legislation,
and their distributors to the pain of vindicating challenged      prosecution and/or treatment which would ameliorate or
materials is not to place them under unusual hardship,            eliminate said causes.
for, as this Court has said in another context, "Bearing the
discomfiture and cost" even of "a prosecution for crime           The Commission's activities are not limited to the
[though] by an innocent person is one of the painful              circulation of lists of objectionable publications. For
obligations of citizenship." Cobbledick v. United States ,        example, the annual report of the Commission issued in
309 U.S. 323, 325.                                                January 1960, recites in part:

      III                                                         In September, 1959, because of the many complaints
                                                                  from outraged parents at the type of films being shown at
     The Court's final point -- that the Commission's             the Rhode Island Drive-Ins and also the lack of teen-age
activities may result in keeping from the adult public            supervision while parked, this Commission initiated and
protected material, even though suppressible so far as            completed a survey on the Drive-In Theatres in the State.
youth is concerned                                                High points of the survey note that there are II (2)
                                                                  Drive-in theatres in Rhode Island which operate through
Page 83                                                           summer months and remain open until November and
                                                                  then for week-ends during the winter, providing car
-- requires little additional comment. It is enough to say
                                                                  heaters.
that such a determination should not be made at large, as
has been done here. It should await a case when                   ****
circumspect judgment can be brought to bear upon
particular judicially suppressed publications.                    Acting on its power to investigate causes of delinquency,
                                                                  the Commission has met with several state officials for a
    Believing that the Commission, once advised of the            discussion of juvenile drinking, the myriad and complex
permissible constitutional                                        causes of delinquency, and legal aspects of the
                                                                  Commission's operations. It also held a special meeting
[83 S.Ct. 646] scope of its activities, can be counted on to
                                                                  with Rhode Island police and legal officials in
conduct itself accordingly, I would affirm the judgment
                                                                  September, 1959, for a discussion on the extent of
of the Rhode Island Supreme Court. Cf. United States v.
                                                                  delinquency in Rhode Island and the possible formation
Haley, 371 U.S. 18.
                                                                  of statewide organization to combat it.
---------
                                                                  [2] The action was brought pursuant to Title 9, c. 30,
Notes:                                                            Gen.Laws R.I., 1956 ed., as amended (Uniform
                                                                  Declaratory Judgments Act).
[1] Resolution No. 73 H 1000, R.I.Acts and Resolves,
January Session 1956, 1102-1103. The resolution created           [3] Our appellate jurisdiction is properly invoked, since
                                                                  the state court judgment sought to be reviewed upheld a
state statute against the contention that, on its face and     An undated "News Letter" sent to Silverstein by the
applied, the statute violated the Federal Constitution. 28     Commission reads in part:
U.S.C. § 1257(2). Dahnke-Walker Milling Co. v.
Bondurant, 257 U.S. 282.                                       The lists (of objectionable publications) have been sent to
                                                               distributors and police departments. To the present,
[4] Peyton Place, by Grace Metalious, published (in            cooperation has been gratifying.
paperback edition) by appellant Dell Publishing Co., Inc.;
The Bramble Bush, by Charles Mergendahl, published (in         [6] Appellants standing has not been, nor could it be,
paperback edition) by appellant Bantam Books, Inc. Most        successfully questioned. The appellants have in fact
of the other 106 publications which, as of January, 1960,      suffered a palpable injury as a result of the acts alleged to
had been listed as objectionable by the Commission were        violate federal law, and at the same time their injury has
issues of such magazines as "Playboy," "Rogue,"                been a legal injury. See Joint Anti-Fascist Refugee
"Frolic," and so forth. The Attorney General of Rhode          Committee v. McGrath, 341 U.S. 123, 151-152
Island described some of the 106 publications as "horror"      (concurring opinion). The finding that the Commission's
comics which he said were not obscene as this Court has        notices impaired sales of the listed publications, which
defined the term.                                              include two books published by appellants, establishes
                                                               that appellants suffered injury. It was a legal injury,
[5] The first notice received by Silverstein reads, in part,   although more needs be said to demonstrate this. The
as follows:                                                    Commission's notices were circulated only to distributors
                                                               and not, so far as appears, to publishers. The Commission
This agency was established by legislative order in 1956       purports only to regulate distribution; it has made no
with the immediate charge to prevent the sale,                 claim to having jurisdiction of out-of-state publishers.
distribution or display of indecent and obscene                However, if this were a private action, it would present a
publications to youths and [sic] eighteen years of age.        claim, plainly justiciable, of unlawful interference in
                                                               advantageous business relations. American Mercury, Inc.,
The Commissions (sic) have reviewed the following              v. Chase, 13 F.2d 224 (D.C.D.Mass.1926). Cf. 1 Harper
publications, and by majority vote have declared they are      and James, Torts (1956), §§ 6.11-6.12. See also Pocket
completely objectionable for sale, distribution or display     Books,     Inc.     v.   Walsh,     204      F.Supp.     297
for youths under eighteen years of age.                        (D.C.D.Conn.1962). It makes no difference, so far as
                                                               appellants' standing is concerned, that the allegedly
The Chiefs of Police have been given the names of the
                                                               unlawful interference here is the product of state action.
aforementioned magazines with the order that they are
                                                               See Pierce v. Society of Sisters , 268 U.S. 510; Truax v.
not to be sold, distributed or displayed to youths and [sic]
                                                               Raich, 239 U.S. 33; Terrace v. Thompson, 263 U.S. 197,
eighteen years of age.
                                                               214-216; Columbia Broadcasting System v. United
The Attorney General will act for us in case of                States, 316 U.S. 407, 422-423. Furthermore, appellants
noncompliance.                                                 are not in the position of mere proxies arguing another's
                                                               constitutional rights. The constitutional guarantee of
The Commissioners trust that you will cooperate with this      freedom of the press embraces the circulation of books,
agency in their work. . . .                                    as well as their publication, Lovell v. City of Griffin, 303
                                                               U.S. 444, 452, and the direct and obviously intended
Another list will follow shortly.                              result of the Commission's activities was to curtail the
                                                               circulation in Rhode Island of books published by
Thanking you for your anticipated cooperation, I am,           appellants. Finally, pragmatic considerations argue
                                                               strongly for the standing of publishers in cases such as
Sincerely yours                                                the present one. The distributor who is prevented from
                                                               selling a few titles is not likely to sustain sufficient
Albert J. McAloon
                                                               economic injury to induce him to seek judicial
                                                               vindication of his rights. The publisher has the greater
Executive Secretary
                                                               economic stake, because suppression of a particular book
Another notice received by Silverstein reads in part:          prevents him from recouping his investment in publishing
                                                               it. Unless he is permitted to sue, infringements of
This list should be used as a guide in judging other           freedom of the press may too often go unremedied. Cf.
similar publications not named.                                NAACP v. State of Alabama ex rel. Patterson , 357 U.S.
                                                               449, 459.
Your cooperation in removing the listed and other
objectionable publications from your newstands [sic] will      [7] For discussions of the problem of "informal
be appreciated. Cooperative action will eliminate the          censorship," see Lockhart and McClure, Censorship of
necessity of our recommending prosecution to the               Obscenity: The Developing Constitutional Standards, 45
Attorney General's department.                                 Minn.L.Rev. 5, 6-9 and n. 7-22 (1960); Note, Extra-legal
                                                               Censorship of Literature, 33 N.Y.U.L.Rev. 989 (1958);
Note, Entertainment: Public Pressures and the Law, 71         police from this office and returned to us.
Harv.L.Rev. 326, 344-347 (1957); Note, Regulation of
Comic Books, 68 Harv.L.Rev. 489, 494-499 (1955);              The minutes of another meeting read in part:
Comment, Censorship of Obscene Literature by Informal
Governmental Action, 22 Univ. of Chi.L.Rev. 216                . . . Mr. Sullivan [member of the Commission] suggested
(1954); Lockhart and McClure, Literature, the Law of          calling the Cranston Chief of Police to inquire the reason
Obscenity, and the Constitution, 38 Minn.L.Rev. 295,          Peyton Place was still being sold, distributed and
309-316 (1954).                                               displayed since the Police departments had been advised
                                                              of the Commission's vote.
[8] Threats of prosecution or of license revocation, or
listings or notifications of supposedly obscene or            Of course, it is immaterial whether, in carrying on the
objectionable publications or motion pictures, on the part    function of censor, the Commission may have been
of chiefs of police or prosecutors, have been enjoined in a   exceeding its statutory authority. Its acts would still
number of cases. See Kingsley International Pictures          constitute state action. Ex parte Young, 209 U.S. 123. The
Corp. v. Blanc, 396 Pa. 448, 153 A.2d 243 (1959); Bunis       issue of statutory authority was not raised or argued in
v. Conway, 17 A.D.2d 207, 234 N.Y.S.2d 435 (1962)             this litigation.
(dictum); Sunshine Book Co. v. McCaffrey, 4 A.D.2d 643,
                                                              Our holding that the scheme of informal censorship here
168 N.Y.S.2d 268 (1957); Random House, Inc., v.
                                                              constitutes state action is in no way inconsistent with
Detroit, No. 555684 Chancery, Cir.Ct., Wayne County,
                                                              Standard Computing Scale Co. v. Farrell, 249 U.S. 571.
Mich., March 29, 1957; HMH Publishing Co. v. Garrett,
                                                              In that case, it was held that a bulletin of specifications
151 F.Supp. 903 (D.C.N.D.Ind.1957); New American
                                                              issued by the State Superintendent of Weights and
Library of World Literature v. Allen, 114 F.Supp. 823
                                                              Measures could not be deemed state action for Fourteenth
(D.C.N.D.Ohio 1953); Bantam Books, Inc. v. Melko, 25
                                                              Amendment purposes because the bulletin was purely
N.J.Super. 292, 96 A.2d 47 (Chancery 1953), modified on
                                                              advisory; the decision turned on the fact that the bulletin
other grounds, 14 N.J. 524, 103 A.2d 256 (1954);
                                                              was not coercive in purport.
Dearborn Publishing Co. v. Fitzgerald, 271 F. 479
(D.C.N.D.Ohio 1921); Epoch Producing Corp. v. Davis,          [10] Nothing in the Court's opinion in Times Film Corp.
19 Ohio N.P. (N.S.) 465 (C.P.1917). Cf. In re Louisiana
                                                              v. Chicago, 365 U.S. 43, is inconsistent with the Court's
News Co., 187 F.Supp. 241 (D.C.E.D.La.1960); Roper v.         traditional attitude of disfavor toward prior restraints of
Winner, 244 S.W.2d 355, 357 (Tex.Civ.App.1951);               expression. The only question tendered to the Court in
American Mercury, Inc. v. Chase, 13 F.2d 224                  that case was whether a prior restraint was necessarily
(D.C.D.Mass.1926). Relief has been denied in the              unconstitutional under all circumstances. In declining to
following cases: Pocket Books, Inc. v. Walsh, 204             hold prior restraints unconstitutional per se, the Court did
F.Supp. 297 (D.C.D.Conn.1962); Dell Publishing Co. v.         not uphold the constitutionality of any specific such
Beggans, 110 N.J.Eq. 72, 158 A. 765 (Chancery 1932).          restraint. Furthermore, the holding was expressly
See also Magtab Publishing Corp. v. Howard, 169               confined to motion pictures.
F.Supp. 65 (D.C.W.D.La.1959). None of the foregoing
cases presents the precise factual situation at bar, and we   [1] The appellees were enjoined
intimate no view one way or the other as to their
correctness.                                                  from directly or indirectly notifying book and magazine
                                                              wholesale distributors and retailers that the Commission
[9] We note that the Commission itself appears to have        has found objectionable any specific book or magazine
understood its function as the proscribing of                 for sale, distribution or display; said injunction . . . (to)
objectionable publications, and not merely the giving of      apply whether such notification is given directly to said
legal advice to distributors. See the first notice received   book and magazine wholesale distributors and retailers,
by Silverstein, quoted in note 5, supra. The minutes of       or any of them, either orally or in writing, or through the
one of the Commission's meetings read in part:                publication of lists or bulletins, and irrespective of the
                                                              manner of dissemination of such lists or bulletins.
 . . . Father Flannery [a member of the Commission]
noted that he had been called about magazines proscribed      [2] Rhode Island Gen.Laws (Supp.1961), Tit. 9, c. 30
by the Commission remaining on sale after lists had been      (Uniform Declaratory Judgments Act.).
scent [sic] to distributors and police, to which Mr.
McAloon suggested that it could be that the same              [3] The publishers and distributors involved in this case
magazines were seen, but that it probably was not the         are all, so far as this record shows, substantial business
same edition proscribed by the Commission.                    concerns, presumably represented by competent counsel,
                                                              as were the appellants here.
Father Flannery questioned the statewide compliance by
the police, or anyone else, to get the proscribed             [4] It seems obvious that in a nonlicensing context the
magazines off the stands. Mr. McAloon showed the              force of Times Film is not lessened by the circumstance
Commissioners the questionnaires sent to the chiefs of        that in this case books rather than motion pictures are
involved.

[5] In their Reply Brief (p. 4), appellants acknowledge:
"We have never attempted to deal with the question of
obscenity or nonobscenity of Appellants books."

---------
Page 87                                                   the U.S. and Texas Constitutions is the maxim that prior
                                                          restraints are a heavily disfavored infringement of that
443 S.W.3d 87 (Tex. 2014)                                 right. So great is our reticence to condone prior restraints
                                                          that we refuse to allow even unprotected speech to be
57 Tex.Sup.J. 1428                                        banned if restraining such speech would also chill a
                                                          substantial amount of protected speech. This danger is
ROBERT KINNEY, PETITIONER,
                                                          before the Court today, as we are asked whether a
                                                          permanent injunction restraining future speech is a
v.
                                                          constitutionally permissible remedy for defamation
ANDREW HARRISON BARNES (A/K/A A.                          following an adjudication on the merits. On the one hand,
HARRISON BARNES, A. H. BARNES, ANDREW H.                  it is well settled that defamation is an abuse of the
BARNES, HARRISON BARNES), BCG ATTORNEY                    privilege to speak freely; our holding today does not
SEARCH, INC., EMPLOYMENT CROSSING, INC.                   disturb that. On the other, it is also well settled that prior
AND JD JOURNAL, INC., RESPONDENTS                         restraints are rarely permitted in Texas due to their
                                                          capacity to chill protected speech.
No. 13-0043
                                                                 The issue at hand is more specifically presented as
Supreme Court of Texas                                    whether a permanent injunction is an unconstitutional
                                                          prior restraint where the injunction (1) requires the
August 29, 2014                                           removal or deletion of speech that has been adjudicated
                                                          defamatory, and (2) prohibits future speech that is the
     Argued January 9, 2014                               same or similar to the speech that has been adjudicated
                                                          defamatory. We hold that, while the former does not
     Petition for certiorari filed at, 11/26/2014
                                                          enjoin future speech and thus is not a prior restraint, the
                                                          latter constitutes a prior restraint that impermissibly risks
Page 88
                                                          chilling constitutionally protected speech. Because the
     ON PETITION FOR REVIEW FROM THE                      court of appeals failed to recognize this distinction in
COURT OF APPEALS FOR THE THIRD DISTRICT                   affirming summary judgment for the defendant, we
OF TEXAS.                                                 reverse the court of appeals' judgment and remand the
                                                          case to the trial court for further proceedings.
        For Electronic Frontier Foundation, Amicus
Curiae: Marc A. Fuller, Vinson & Elkins LLP, Dallas,           I. Background
TX.
                                                                BCG Attorney Search, Inc. employed Robert
     For Texas Apartment Association, Amicus Curiae:      Kinney as a legal recruiter until 2004, when he left and
Brian J. Levy, Attorney-At-Law, Houston, TX; John         started a competing firm. Several years later, BCG's
Sepehri, Texas Apartment Assocation, Austin, TX.          President, Andrew Barnes, posted a statement on the
                                                          websites JDJournal.com and Employmentcrossing.com
     For Kinney, Robert, Petitioner: Andrew J. Sarne,     implicating Kinney in a kickback scheme during his time
Kane Russell Coleman & Logan PC, Houston, TX;             with BCG. Describing allegations in a lawsuit Barnes had
Greggory A. Teeter, Thomas J. Henry Injury Attorneys,     previously filed against Kinney in California, Barnes
Corpus Christi, TX; Martin J. Siegel, Law Offices Of      stated:
Martin J. Siegel, PC, Houston, TX; Stewart Edmond
Hoffer, Hicks Thomas LLP, Houston, TX.                    The complaint also alleges that when Kinney was an
                                                          employee of BCG Attorney Search in 2004, he devised
     For Barnes, Andrew Harrison, Respondent:             an unethical kickback scheme, attempting to pay an
Anthony T. Ricciardelli, Attorney at Law, Plano, TX;      associate under the table at Preston, Gates and Ellis (now
Dale Lynn Roberts, Eleanor Ruffner, Fritz, Byrne, Head    K& L Gates) to hire one of his candidates. Barnes says
& Harrison, PLLC, Austin, TX; Michael R. Parker,          that when he discovered this scheme, he and other BCG
Harrison Barnes PLC, Malibu, CA.                          Attorney Search recruiters immediately fired Kinney. The
                                                          complaint in the action even contains an email from
     OPINION                                              Kinney where he talks about paying the bribe to an
                                                          associate at Preston Gates in return for hiring a candidate.
Page 89
                                                               The posted statements prompted Kinney to sue
     Debra H. Lehrmann, Justice                           Barnes, BCG, and two other companies Barnes owned
                                                          (Employment Crossing, Inc. and JD Journal, Inc.) for
      A hallmark of the right to free speech under both
                                                          defamation in Travis County. Kinney did not seek
damages in his petition, requesting only a permanent           Morality of Consent 61 (1975))). As such, they " bear[] a
injunction following a trial on                                heavy presumption against [their] constitutional validity."
                                                               Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct.
Page 90                                                        631, 9 L.Ed.2d 584 (1963). This cornerstone of First
                                                               Amendment protections has been reaffirmed time and
  the merits.[1] Specifically, Kinney sought an order          again by the Supreme Court,[3] this Court,[4] Texas
requiring Barnes to (a) remove the allegedly defamatory        courts
statements from Barnes's websites, (b) contact third-party
republishers of the statements to have them remove the         Page 91
statements from their publications, and (c) conspicuously
post a copy of the permanent injunction, a retraction of         of appeals,[5] legal treatises,[6] and even popular
the statements, and a letter of apology on the home pages      culture.[7]
of Barnes's websites for six months. Kinney has since
abandoned his demand for an apology and retraction.                  Nevertheless, freedom of speech is " not an absolute
                                                               right, and the state may punish its abuse." Near v.
       Barnes filed a motion for summary judgment on the       Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed.
ground that the relief sought would constitute an              1357 (1931) (citation and internal quotation marks
impermissible prior restraint on speech under the Texas        omitted). To that end, the common law has long
Constitution. The trial court granted the motion, and the      recognized a cause of action for damages to a person's
court of appeals affirmed without addressing whether           reputation inflicted by the publication of false and
Barnes's statements were defamatory. We too will limit         defamatory statements. Neely v. Wilson, 418 S.W.3d 52,
our review to the constitutionality of Kinney's requested      60 (Tex. 2013) (citing Milkovich v. Lorain Journal Co.,
relief and assume only for purposes of that analysis that      497 U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990));
the complained-of statements are defamatory.                   see also Ex parte Tucker, 220 S.W. at 76 (" There can be
                                                               no justification for the utterance of a slander. It cannot be
     II. Discussion                                            too strongly condemned." ). The U.S. Supreme Court and
                                                               this Court have been firm in the conviction that a defamer
       " Every person shall be at liberty to speak, write or   cannot use her free-speech rights as an absolute shield
publish his opinions on any subject, being responsible for     from punishment.
the abuse of that privilege; and no law shall ever be
passed curtailing the liberty of speech or of the press."             This case asks us to examine these conflicting
Tex. Const. art. I, § 8. Enshrined in Texas law since          principles, and involves a two-part inquiry. First, we
1836,[2] this fundamental right recognizes the "               examine whether a permanent injunction against
transcendent importance of such freedom to the search          defamatory speech, following a trial on the merits, is a
for truth, the maintenance of democratic institutions, and     prior restraint. Kinney contends that such a " post-trial
the happiness of individual men." Tex. Const. art. I, § 8      remedial injunction" is not properly characterized as a
interp. commentary (West 2007). Commensurate with the          prior restraint at all, much less one that is constitutionally
respect Texas affords this right is its skepticism toward      impermissible. Barnes maintains that a permanent
restraining speech. While abuse of the right to speak          injunction against future speech, whether issued before or
subjects a speaker to proper penalties, we have long held      after the conclusion of a defamation trial, is necessarily a
that " pre-speech sanctions" are presumptively                 prior restraint. If the permanent injunction is a prior
unconstitutional. Davenport v. Garcia , 834 S.W.2d 4, 9        restraint, we must then determine whether it overcomes
(Tex. 1992); see also Ex parte Tucker, 110 Tex. 335, 220       the heavy presumption against its constitutionality.
S.W. 75, 76 (Tex. 1920).                                       Kinney argues that defamatory speech is not protected
                                                               and that enjoining its continuation is therefore
       The First Amendment of the U.S. Constitution is         permissible. Barnes responds that the presumption cannot
similarly suspicious of prior restraints, which include        be overcome because such injunctions pose too great a
judicial orders " forbidding certain communications" that      risk to free speech.
are " issued in advance of the time that such
communications are to occur." Alexander v. United                    We first acknowledge the parties' arguments
States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d         regarding whether Article I, Section 8 of the Texas
441 (1993) (citation and internal quotation marks              Constitution affords greater free-speech protection than
omitted). The U.S. Supreme Court has long recognized           the First Amendment of the U.S. Constitution. Compare
that " prior restraints on speech and publication are the      Tex. Const. art. I, § 8 ( " Every person shall be at liberty
most serious and the least tolerable infringement on First     to speak, write or publish his opinions on any subject,
Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S.        being responsible for the abuse of that privilege; and no
539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); see also       law shall ever be passed curtailing the liberty of speech or
id. (" If it can be said that a threat of criminal or civil    of the press." ), with U.S. Const. Amend. 1 ( " Congress
sanctions after publication 'chills' speech, prior restraint   shall make no law . . . abridging the freedom of speech,
'freezes' it at least for the time." (quoting A. Bickel, the   or of the press . . . ." ). Barnes argues that we have
consistently interpreted Texas's constitutional recognition       violation of the Texas Constitution. Id. at 255.
of free-speech rights more broadly                                Accordingly, we overturned the lower courts' decisions
                                                                  granting the injunction.
Page 92
                                                                          Our decision in Hajek rested on the well-settled
 than its federal counterpart. See Davenport, 834 S.W.2d          legal principles laid out in Ex parte Tucker. In that case,
at 8-9 (" [O]ur free speech provision is broader than the         the trial court enjoined the members of a worker's union
First Amendment." ). In Operation Rescue--National v.             from " vilifying, abusing, or using . . . epithets" against
Planned Parenthood of Houston and Southeast Texas,                their employer. 110 Tex. 335, 220 S.W. 75, 75 (Tex.
Inc., however, we clarified that " Article I, Section 8 may       1920). In overturning the injunction, we relied on the
be more protective of speech in some instances than the           dichotomy between the Texas Constitution's affirmative
First Amendment, but if it is, it must be because of the          grant of the liberty to speak without fear of curtailment
text, history, and purpose of the provision, not just simply      and the commensurate responsibility inherent in that
because." 975 S.W.2d 546, 559 (Tex. 1998) (first                  right. Id. at 76. We stated that " the abuse of the privilege
emphasis added) (internal citation omitted). We further           . . . is not to be remedied by denial of the right to speak,
concluded: " We know of nothing to suggest that                   but only by appropriate penalties for what is wrongfully
injunctions restricting speech should be judged by a              spoken." Id. Accordingly, we held that the injunction was
different standard under the state constitution than the          beyond the power of the trial court to issue. Id.
First Amendment." Id.
                                                                  Page 93
      We need not determine whether the Texas
Constitution provides greater protection than the First                  Kinney contends that Hajek and Tucker classify as
Amendment on the specific issue presented to us, as the           prior restraints only temporary injunctions against speech
U.S. Supreme Court has not definitively addressed it.             that is alleged, but not proven, to be defamatory, and that
Rather, we reiterate the unremarkable proposition that in         these cases therefore do not apply to a post-adjudication
interpreting our own constitution, we " should borrow             permanent injunction. But our holding that the
from well-reasoned and persuasive federal procedural and          injunctions were prior restraints did not rest on their
substantive precedent when this is deemed helpful, but            pretrial issuance. Rather, we took issue with the trial
should never feel compelled to parrot the federal                 courts' decision to remedy the defendants' abuse of their
judiciary." Davenport, 834 S.W.2d at 20. We look to               liberty to speak by preventing their future exercise of that
federal cases for guidance, not as binding authority. Id.         liberty. Id.; Hajek, 647 S.W.2d at 255.

     A. Classification of a Post-Adjudication                           In this case, Kinney's request for injunctive relief
Permanent Injunction Against Defamatory Speech as                 may be broken down into two categories. First, as
a Prior Restraint                                                 reflected in the pleadings, Kinney would have the trial
                                                                  court order Barnes to remove the statements at issue from
      The first issue we must dispose of is whether a             his websites (and request that third-party republishers of
permanent injunction prohibiting future speech related to         the statements do the same) upon a final adjudication that
statements that have been adjudicated defamatory is a             the statements are defamatory. Such an injunction does
prior restraint. If it is not, then our constitutional concerns   not prohibit future speech, but instead effectively requires
regarding the use of prior restraints are inapplicable. This      the erasure of past speech that has already been found to
question highlights the distinction Kinney emphasizes             be unprotected in the context in which it was made. As
between permanent injunctions on speech adjudicated               such, it is accurately characterized as a remedy for one's
defamatory and pretrial temporary injunctions on                  abuse of the liberty to speak and is not a prior restraint.
allegedly defamatory speech. Kinney argues that this              See Hajek, 647 S.W.2d at 255.[8]
distinction is meaningful. We disagree--as to the question
presented, it is a distinction without a difference.                    As Kinney confirmed at oral argument, however,
                                                                  his request is not so limited. Kinney would also have the
      We have squarely held that a temporary injunction           trial court permanently enjoin Barnes from making
prohibiting allegedly defamatory speech is an                     similar statements (in any form) in the future. That is the
unconstitutional prior restraint, but we have not                 essence of prior restraint and conflates the issue of
specifically addressed the propriety of a post-adjudication       whether an injunction is a prior restraint with whether it
permanent injunction in a defamation case. See Hajek v.           is constitutional. As Professor Chemerinsky has aptly
Bill Mowbray Motors, Inc ., 647 S.W.2d 253, 255 (Tex.             explained:
1983) (per curiam). In Hajek, the plaintiff sought and
obtained a temporary injunction restraining the defendant           Courts that have held that injunctions are not prior
from driving his car around the community with a                  restraints if they follow a trial, or if they are directed to
message painted on all four sides that Bill Mowbray               unprotected speech, are confusing the question of
Motors sold him a " lemon." Id. at 254. We reversed,              whether the injunction is a prior restraint with the issue of
holding that the injunction was a prior restraint in              whether the injunction should be allowed. Injunctions are
inherently prior restraints because they prevent future        itself is not a " self-wielding sword," but a demand for
speech.                                                        individual analyses of how prior restraints will operate.
                                                               Kingsley Books , 354 U.S. at 441-42. In examining the
Erwin Chemerinsky, Injunctions in Defamation Cases, 57         propriety of injunctive relief, then, we bear in mind the
Syracuse L. Rev. 157, 165 (2007); see also Oakley, Inc.        category of speech sought to be enjoined and the effect of
v. McWilliams , 879 F.Supp.2d 1087, 1089 (C.D. Cal.            such relief on a person's liberty to speak freely.[11]
2012) (" Injunctions against any speech, even libel,
constitute prior restraints: they prevent[] speech before it       1. Texas Law Comports with the Traditional
occurs, by requiring court permission before that speech       Rule That Injunctive Relief Is Not Available in
can be repeated." (citation and internal quotation marks       Defamation Actions
omitted)). Even in the few cases in which the Supreme
Court has upheld a content-based injunction against            Page 95
speech, it has not been because the injunction was not a
prior restraint, but because under the circumstances the               " The traditional rule of Anglo-American law is
restraint was deemed constitutionally permissible. See         that equity has no jurisdiction to enjoin defamation."
Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-42, 77        Chemerinsky, 57 Syracuse L. Rev. at 167 (explaining that
S.Ct. 1325, 1 L.Ed.2d 1469 (1957) (beginning its analysis      the rule dates back to eighteenth-century England and
with the notion that " 'the protection even as to previous     was adopted " with remarkable uniformity" by
restraint is not absolutely unlimited,'" while recognizing     nineteenth- and twentieth-century American courts); see
that " the limitation [on such protection] is the exception"   also, e.g., Kramer v. Thompson , 947 F.2d 666, 677 (3d
(quoting Near, 283 U.S. at 716)). Accordingly, we hold         Cir. 1991) (" [T]he maxim that equity will not enjoin a
that an injunction against future speech based on an           libel has enjoyed nearly two centuries of widespread
adjudication that the same or                                  acceptance at common law." ). Our treatment of the
                                                               temporary injunctions in Ex parte Tucker and Hajek, and
Page 94                                                        more recent decisions on prior restraints, leave no doubt
                                                               that the current state of Texas law is in accordance with
 similar statements have been adjudicated defamatory is a      this traditional rule with regard to future speech.
prior restraint.[9]
                                                                     We have indicated that a prior restraint may be
      However, " [l]abeling respondents' action a prior        permissible " only when essential to the avoidance of an
restraint does not end the inquiry." Se. Promotions, Ltd.      impending danger," Davenport, 834 S.W.2d at 9, and
v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d        only when it is the least restrictive means of preventing
448 (1975). Notably, the U.S. Supreme Court has never          that harm, Ex parte Tucci, 859 S.W.2d 1, 6 (Tex. 1993);
approved a prior restraint in a defamation case.               see also Hajek, 647 S.W.2d at 255; Ex parte Tucker, 220
Chemerinsky, 57 Syracuse L. Rev. at 167; see, e.g., Near,      S.W. at 76.[12] We explained in Tucker the significant
283 U.S. at 706 (invalidating statute allowing courts to       distinction between curtailing a person's liberty of
enjoin publication of future issues of newspaper because       speech, which the Texas Constitution forbids, and
previous editions were found to be " 'chiefly devoted to       penalizing a person's abuse of that liberty, which the
malicious, scandalous and defamatory articles'" ).             Constitution allows:
However, the Court has not decided whether the First
Amendment prohibits the type of injunction at issue in          The purpose of [Article I, Section 8] is to preserve what
this case, leaving that question unsettled.[10] Turning to     we call 'liberty of speech' and 'the freedom of the press,'
the issue of whether the injunction against future speech      and at the same time hold all persons accountable to the
sought by Kinney, though a prior restraint, is nevertheless    law for the misuse of that liberty or freedom.
permissible under the Texas Constitution, we hold that it      Responsibility for the abuse of the privilege is as fully
is not.                                                        emphasized by its language as that the privilege itself
                                                               shall be free from all species of restraint. But the abuse of
     B. Prior Restraints on Future Speech Related to           the privilege, the provision commands, shall be dealt with
Statements That Have Been Adjudicated Defamatory               in no other way. It is not to be remedied by denial of the
Violate the Texas Constitution                                 right to speak, but only by appropriate penalties for what
                                                               is wrongfully spoken. Punishment for the abuse of the
      Again, prior restraints bear a heavy presumption         right, not prevention of its exercise, is what the provision
against their constitutionality. Davenport v. Garcia , 834     contemplates. There can be no liberty in the individual to
S.W.2d 4, 9 (Tex. 1992); Bantam Books, Inc. v. Sullivan,       speak, without the unhindered right to speak. It cannot
372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The       co-exist with a power to compel his silence or fashion the
proponent of such restraints thus " carries a heavy burden     form of his speech. Responsibility for the abuse of the
of showing justification for the imposition of such a          right, in its nature pre-supposes freedom in the exercise
restraint." Org. for a Better Austin v. Keefe, 402 U.S. 415,   of the right. It is a denial of the authority, anywhere, to
419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). While prior           prevent its exercise.
restraints are plainly disfavored, however, the phrase
220 S.W. at 76. Citing Tucker, we plainly stated in Hajek      damages are an adequate and appropriate remedy and that
that " [d]efamation alone is not a sufficient justification    injunctive relief is not available." ); New Era Publ'ns Int'l
for restraining an individual's right to speak freely." 647    v. Henry Holt & Co., 695 F.Supp. 1493, 1525 (S.D.N.Y.
S.W.2d at 255. Our courts of appeals have continued to         1988) (" [W]e accept as black letter that an injunction is
recognize that the appropriate remedy for defamation is        not available to suppress defamatory speech." ); Demby v.
damages, not injunctive relief. See, e.g., Cullum v. White,    English, 667 So.2d 350, 355 (Fla. Ct. App. 1995) (per
399 S.W.3d 173, 189 (Tex.App.--San Antonio 2011, no            curiam) (noting that the claim for injunctive relief was "
pet.); Brammer v. KB Home Lone Star, LP, 114 S.W.3d            frivolous" in light of the " well-established rule that
101, 108 (Tex.App.--Austin 2003, no pet.) (" Although          equity will not enjoin either an actual or a threatened
the specific damages sustained from defamation and             defamation" (citation and internal quotation marks
business disparagement-related activity is often difficult     omitted)); Willing v. Mazzocone , 482 Pa. 377, 393 A.2d
to measure, it is nonetheless well established that this       1155, 1157-58 (Pa. 1978) (holding that a permanent
type of harm does not rise to the level necessary for the      injunction against defamatory speech violated a provision
prior restraint to withstand constitutional scrutiny." ).      of the Pennsylvania Constitution that is substantially
                                                               similar to Article I, Section 8 of the Texas Constitution).
     2. Injunctions Cannot Effectively Remedy the              By contrast, a small number of states have cited the
Harm Caused by Defamation Without Chilling                     Supreme Court cases referenced above in holding that
Protected Speech                                               narrowly drawn, post-trial injunctions against defamatory
                                                               speech are constitutional. See Hill v. Petrotech Res.
Page 96                                                        Corp., 325 S.W.3d 302 (Ky. 2010); St. James Healthcare
                                                               v. Cole, 2008 MT 44, 341 Mont. 368, 178 P.3d 696
        Contending that Hajek " ignored decades of
                                                               (Mont. 2008); Balboa Island Vill. Inn, Inc. v. Lemen, 40
intervening precedent from the U.S. Supreme Court,"
                                                               Cal.4th 1141, 57 Cal.Rptr.3d 320, 156 P.3d 339 (Cal.
Kinney relies on Supreme Court case law upholding
                                                               2007); Retail Credit Co. v. Russell , 234 Ga. 765, 218
injunctions in the context of obscenity and commercial
                                                               S.E.2d 54 (Ga. 1975); O'Brien v. Univ. Cmty. Tenants
speech to argue that post-trial injunctions against
                                                               Union, Inc ., 42 Ohio St. 2d 242, 327 N.E.2d 753 (Ohio
defamatory speech are consistent with the First
                                                               1975); see also Lothschuetz v. Carpenter, 898 F.2d 1200
Amendment. In Kingsley Books, for example, the
                                                               (6th Cir. 1990).
Supreme Court considered a New York statute that
allowed municipalities to bar the continued sale of                  In Balboa, for example, the trial court found that
written and printed materials adjudicated obscene. 354         Lemen had made defamatory statements about the Balboa
U.S. at 437. The Supreme Court upheld the statute,             Village Inn and issued a permanent injunction prohibiting
holding that it " studiously withholds restraint upon          her from engaging in numerous acts, including repeating
matters not already published and not yet found                those statements. 156 P.3d at 342. The California
offensive." Id. at 445. By contrast, the Court held, the       Supreme Court described
statute struck down in Near v. Minnesota had empowered
the courts " to enjoin the dissemination of future issues of   Page 97
a publication because its past issues had been found
offensive." Id.                                                Kingsley Books and Pittsburgh Press as holding that " an
                                                               injunctive order prohibiting the repetition of expression
      And in Pittsburgh Press Co. v. Pittsburgh                that had been judicially determined to be unlawful did not
Commission on Human Relations , the Supreme Court              constitute a prohibited prior restraint of speech." Id. at
upheld an administrative order prohibiting a newspaper         346-47. The court concluded that, while the particular
from continuing to run gender-specific help-wanted ads         injunction at issue in Balboa was overbroad, a court may
pursuant to the enforcement of a local anti-discrimination     issue an injunction prohibiting a person from repeating
law. 413 U.S. 376, 379, 93 S.Ct. 2553, 37 L.Ed.2d 669          statements that have been adjudicated defamatory
(1973). The Court concluded that the speech at issue           following a trial on the merits. Id. at 349-50.
constituted illegal commercial speech, holding that the
injunction " d[id] not endanger arguably protected                   We do not read Kingsley Books and Pittsburgh
speech" and was therefore permissible. Id. at 390.             Press so broadly and decline to extend their holdings to
                                                               the defamation context. To that end, we agree with the
       Even after these decisions, several courts addressing   district court in Oakley that injunctions against
the issue presented here have continued to adhere to the       defamation are impermissible because they are
traditional rule that defamation alone will not justify an     necessarily " ineffective, overbroad, or both." 879
injunction against future speech. See Metro. Opera Ass'n       F.Supp.2d at 1090. That is, " [a]ny effective injunction
v. Local 100, 239 F.3d 172, 177 (2d Cir. 2001); Oakley,        will be overbroad, and any limited injunction will be
Inc. v. McWilliams, 879 F.Supp.2d 1087, 1090 (C.D. Cal.        ineffective." Chemerinsky, 57 Syracuse L. Rev. at 171.
2012); Tilton v. Capital Cities/ABC Inc., 827 F.Supp.
674, 681 (N.D. Okla. 1993) (" The fundamental law of               On the one hand, for any injunction to have
libel in both Oklahoma and Texas is that monetary              meaning it must be effective in its purpose. See Neb.
Press Ass'n v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791,      unprivileged statements may later become privileged.
49 L.Ed.2d 683 (1976) (assessing " the probable efficacy
of prior restraint on publication as a workable method" of          Kinney dismisses this concern, arguing that in such
accomplishing its purpose); N.Y. Times Co. v. United          a scenario the defamer " could speak confident in the
States, 403 U.S. 713, 744, 91 S.Ct. 2140, 29 L.Ed.2d 822      knowledge that [the enjoined statement is] no longer
(1971) (Marshall, J., concurring) (" It is a traditional      defamatory." But how confident could such a speaker be
axiom of equity that a court of equity will not do a          when he is bound by an injunction not to speak? The
useless thing . . . ." ). The narrowest of injunctions in a   California Supreme Court suggested in Balboa that " [i]f
defamation case would enjoin the defamer from repeating       such a change in circumstances occurs, [the] defendant
the exact statement adjudicated defamatory. Such an           may move the court to modify or dissolve the injunction."
order would only invite the defamer to engage in              156 P.3d at 353. We think it is no answer that a person
wordplay, tampering with the statement just enough to         must request the trial court's permission to speak
deliver the offensive message while nonetheless adhering      truthfully in order to avoid being held in contempt. See
to the letter of the injunction. Kinney admitted as much at   Pittsburgh Press, 413 U.S. at 390 (" The special vice of a
oral argument, agreeing that the injunction he is seeking     prior restraint is that communication will be suppressed,
would extend to speech that was " substantially the same"     either directly or by inducing excessive caution in the
or made " non-substantive changes" to the statement that      speaker, before an adequate determination that it is
has been adjudicated defamatory.                              unprotected by the First Amendment." ); see also Balboa,
                                                              156 P.3d at 357 (Kennard, J., dissenting) (" Requiring a
      But expanding the reach of an injunction in this way    citizen to obtain government permission before speaking
triggers the problem of overbreadth. Overbroad                truthfully is 'the essence of censorship' directly at odds
restrictions on speech are unconstitutional because of        with the 'chief purpose' of the constitutional guarantee of
their potential to chill protected speech. See Comm'n for     free speech to prevent prior restraints." (quoting Near,
Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex.        283 U.S. at 713, and Kingsley Books, 354 U.S. at 445)).
1998) (" An overbroad statute sweeps within its scope a
wide range of both protected and non-protected                      These concerns apply even more forcefully to an
expressive activity." (citation and internal quotation        injunction that goes beyond restraining verbatim
marks omitted)); Ashcroft v. Free Speech Coal., 535 U.S.      recitations of defamatory statements and encompasses
234, 237, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (" The       statements that are " substantially similar." Subtle
overbreadth doctrine prohibits the Government from            differences in speech will obscure the lines of such an
banning unprotected speech if a substantial amount of         injunction and make it exceedingly difficult to determine
protected speech is prohibited or chilled in the process."    whether a statement falls within its parameters. Balboa,
). In the defamation context, the concern is that in          156 P.3d at 356 (Kennard, J., dissenting in part); Oakley,
prohibiting speech found to be defamatory, the injunction     879 F.Supp.2d at 1091 (noting that " a 'similar statement'
unreasonably risks prohibiting nondefamatory speech as        standard would require a court enforcing the injunction to
well. See Lawson v. Murray , 515 U.S. 1110, 1114, 115         continuously decide whether new statements by a
S.Ct. 2264, 132 L.Ed.2d 269 (1995) (Scalia, J.,               persistent defendant were sufficiently similar" ). For
concurring in denial of writ of certiorari) (" The danger     example, let us imagine a trial court enjoins a defendant
that speech-restricting injunctions may serve as a            from repeating the defamatory statement " John Smith
powerful means to suppress disfavored views is obvious        sells handguns to minors," as well as similar statements.
enough even when they are based on a completed or             Can the defamer state more generally that Smith is
impending violation of law." ).                               engaged in the business of illegal gun sales or that
                                                              Smith's business contributes to the nationwide problems
        The particular difficulty in crafting a proper        with school shootings? Can the word " handgun" be
injunction against defamatory speech is rooted in the         changed to " shotgun" ?[13]
contextual nature of the tort. In evaluating whether a
statement is defamatory, the court construes it " as a              These uncertainties highlight the inapplicability of
whole in light of surrounding circumstances based upon        the Supreme Court's obscenity cases. A permanent
how a person of ordinary intelligence would perceive the      injunction restraining a theater owner from screening a
entire statement." Musser v. Smith Protective Servs., Inc.,   film adjudicated to be obscene clearly applies only to that
                                                              film, and others may be shown without the fear of
Page 98                                                       contempt sanctions. See Paris Adult Theatre I v. Slaton ,
                                                              413 U.S. 49, 55-56, 93 S.Ct. 2628, 37
 723 S.W.2d 653, 655 (Tex. 1987). Given the inherently
contextual nature of defamatory speech, even the most         Page 99
narrowly crafted of injunctions risks enjoining protected
speech because the same statement made at a different          L.Ed.2d 446 (1973) (upholding statute allowing civil
time and in a different context may no longer be              injunction restraining exhibition of two films following
actionable. Untrue statements may later become true;          adjudication that the films were obscene). Pittsburgh
                                                              Press, while it involved commercial speech rather than
obscenity, is similarly distinguishable. In that case, as     deter the serial defamer, either because she lacks the
noted above, the Supreme Court upheld an administrative       funds to pay the damages or because she has so much
order prohibiting a newspaper from continuing a practice      money that paying a series of fines is immaterial to her. It
of running gender-specific help-wanted ads pursuant to        is also easy to imagine a scenario in which an award of
the enforcement of a local anti-discrimination law. 413       damages, even if collectible, will not provide complete
U.S. at 389-90. The Court stressed, however, that the         relief to the defamed plaintiff. Imagine a statement
order upheld could not be punished with contempt              falsely accusing a person of pedophilia, for example.
proceedings and " d[id] not endanger arguably protected       Presumably, an order prohibiting the statement from
speech" because it did not require speculation as to the      being repeated would be of paramount importance to the
effect of publication. Id. at 390 & n.14. As discussed        plaintiff. This scenario was discussed at length in
above, this certainty does not translate to the defamation
context, in which the task of crafting an effective           Page 100
injunction against future speech risks enjoining
constitutionally protected speech to an unacceptable          Balboa, the logic of which does not escape us. 156 P.3d
degree.                                                       at 351 (" Thus, a judgment for money damages will not
                                                              always give the plaintiff effective relief from a continuing
       By contrast, no such concerns arise when courts        pattern of defamation." ). However, the constitutional
issue speech-related injunctions that are not prior           protections afforded Texas citizens are not tied to their
restraints, such as ordering the deletion of defamatory       financial status. See, e.g., id. at 358 (Kennard, J.,
statements posted on a website. There is a legally cogent     concurring) (" [N]either this nor any other court has ever
division between mandatory injunctions calling for the        held that a defendant's wealth can justify a prior restraint
removal of speech that has been adjudicated defamatory        on the constitutional right to free speech." ). As the
and prohibitive injunctions disallowing its repetition. The   Pennsylvania Supreme Court concluded in Willing, "
latter impermissibly chills protected speech; the former      [w]e cannot accept . . . that the exercise of the
does not. The distinction thus arms trial courts with an      constitutional right to freely express one's opinion should
additional tool to protect defamed parties while ensuring     be conditioned upon the economic status of the individual
the State does not infringe upon the fundamental right to     asserting that right." 393 A.2d at 1158. Yet, conditioning
free speech guaranteed by Article I, Section 8.               the allowance of prior restraints on a defendant's inability
                                                              to pay a damage award would do just that.
      Accordingly, we hold that the Texas Constitution
does not permit injunctions against future speech                   Moreover, the concern that damages will not
following an adjudication of defamation. Trial courts are     provide an effective remedy in defamation cases is not a
simply not equipped to comport with the constitutional        new one, but we have never deemed it sufficient to justify
requirement not to chill protected speech in an attempt to    a prior restraint. For example, in defamation per se cases,
effectively enjoin defamation. Instead, as discussed          nominal damages, not injunctive relief, are awarded when
below, damages serve as the constitutionally permitted        actual damages are difficult to prove or are not claimed
deterrent in defamation actions.                              because " 'the action is brought for the purpose of
                                                              vindicating the plaintiff's character by a verdict of a jury
     C. Damages Are Generally the Proper Remedy               that establishes the falsity of the defamatory matter.'"
for Defamation                                                Hancock, 400 S.W.3d at 65 (quoting Restatement
                                                              (Second) of Torts § 620 cmt. a (1977)). And the Supreme
       In keeping with Texas's longstanding refusal to        Court has expressly recognized that the potential
allow injunctions in defamation cases, the well-settled       inadequacy of damages as a remedy for defamation does
remedy for defamation in Texas is an award of damages.        not open the door to additional relief, stating: " The
Ex parte Tucker, 220 S.W. at 75-76; Cullum, 399 S.W.3d        destruction that defamatory falsehood can bring is, to be
at 189; Brammer, 114 S.W.3d at 108. This can include          sure, often beyond the capacity of the law to redeem. Yet,
economic damages like lost income, noneconomic                imperfect though it is, an action for damages is the only
damages like loss of reputation and mental anguish, and       hope for vindication or redress the law gives to a man
even punitive damages upon a finding of actual malice.        whose reputation has been falsely dishonored." Milkovich
Hancock v. Variyam, 400 S.W.3d 59, 65-66 (Tex. 2013).         v. Lorain Journal Co., 497 U.S. 1, 22-23, 110 S.Ct. 2695,
And imposition of damages has long been held to be an         111 L.Ed.2d 1 (1990) (citation and internal quotation
effective tool against defamers. See N.Y. Times Co. v.        marks omitted). Applying the same reasoning, we too
Sullivan, 376 U.S. 254, 277, 84 S.Ct. 710, 11 L.Ed.2d         decline to open the door to prior restraints in this context.
686 (1964) (" The fear of damage awards . . . may be
markedly more inhibiting than the fear of prosecution              D. The Advent of the Internet
under a criminal statute." ).
                                                                    Finally, we address Kinney's argument that the
     Kinney raises the concern that a victim of               Internet is a game-changer with respect to the issue
defamatory speech by a judgment-proof, serial defamer         presented because it " enables someone to defame his
can obtain no remedy in damages. Damages may not              target to a vast audience in a matter of seconds." The
same characteristics that have cemented the Internet's           courts " must give the benefit of any doubt to protecting
status as the world's greatest platform for the free             rather than stifling speech." Fed. Election Comm'n v. Wis.
exchange of ideas, Reno v. Am. Civil Liberties Union ,           Right to Life, Inc., 551 U.S. 449, 469, 127 S.Ct. 2652,
521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874               168 L.Ed.2d 329 (2007). We hold that, while a permanent
(1997)--the ease and speed by which any person can take          injunction requiring the removal of posted speech that has
on the role of the town crier or pamphleteer--have also          been adjudicated defamatory is not a prior restraint, an
ignited the calls for its receiving lesser protection. See,      injunction prohibiting future speech based on that
e.g., Lyrissa Barnett Lidsky, Silencing John Doe:                adjudication impermissibly threatens to sweep protected
Defamation and Discourse in Cyberspace , 49 Duke L.J.            speech into its prohibition and is an unconstitutional
855, 863-64 (Feb. 2000).                                         infringement on Texans' free-speech rights under Article
                                                                 I, Section 8 of the Texas Constitution. Because the trial
      However, the Supreme Court has steadfastly                 court concluded that no injunction of any kind would be
refused to make free speech protections a moving target,         permissible, the court erred in granting summary
holding that " [w]e must decline to draw, and then               judgment to the extent Kinney's requested injunction did
redraw, constitutional lines based on the particular media       not constitute a prior restraint. We therefore reverse the
or technology used to disseminate political speech from a        court of appeals' judgment and remand the case to the
particular speaker." Citizens United v. Fed. Election            trial court for further proceedings consistent with this
Comm'n, 558 U.S. 310, 326, 130 S.Ct. 876, 175 L.Ed.2d            opinion.
753 (2010). And, with respect to the advent of the
Internet, the Court has gone further in championing its          ---------
role as an equalizer of speech and a gateway to amplified
political discourse, holding in Reno that there is " no          Notes:
basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium." 521 U.S.        [1]According to Barnes, Kinney previously filed and
at 870. In this way,                                             nonsuited a defamation suit against the same defendants
                                                                 seeking monetary damages but no injunctive relief.
Page 101
                                                                 [2]The provision as currently worded dates back to 1876,
  the Supreme Court has taken a definitive stance                but a similar provision was part of the 1836 Texas
guaranteeing equal First Amendment protection for                Independence Constitution. Davenport v. Garcia, 834
speech over the Internet. The Court has also recognized          S.W.2d 4, 7-8 (Tex. 1992).
that damages, while " imperfect," are the remedy the law
gives to defamation victims. Milkovich, 497 U.S. at 22-23        [3] See, e.g., Stuart , 427 U.S. at 561 (" [I]t is . . . clear
(citation and internal quotation marks omitted). We are          that the barriers to prior restraint remain high unless we
not persuaded that the policy concerns that Kinney raises        are to abandon what the Court has said for nearly a
justify enjoining defamatory speech in a manner that             quarter of our national existence and implied throughout
substantially risks chilling constitutionally protected          all of it." ); N.Y. Times Co. v. United States , 403 U.S.
speech.                                                          713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per
                                                                 curiam).
      One final note is warranted in response to Kinney's
assertion that the case for injunctive relief is made more       [4] Davenport, 834 S.W.2d at 9; Hajek v. Bill Mowbray
compelling by the need to address the phenomena of               Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983) (per
cyber-bullying and online hate speech. It is enough to say       curiam); Ex parte Price, 741 S.W.2d 366, 369 (Tex.
that neither of those is at issue here. Today we simply          1987) (Gonzalez, J., concurring) (" Prior restraints . . . are
continue to hold that " [d]efamation alone is not a              subject to judicial scrutiny with a heavy presumption
sufficient justification for restraining an individual's right   against their constitutional validity." ).
to speak freely." Hajek, 647 S.W.2d at 255 (emphasis
                                                                 [5] Tex. Mut. Ins. Co. v. Sur. Bank, N.A., 156 S.W.3d
added). But as discussed above, we have never held that
                                                                 125, 128 (Tex.App.--Fort Worth 2005, no pet.) (" [P]rior
all injunctions against future speech are per se
                                                                 restraints on speech are presumptively unconstitutional."
unconstitutional, recognizing that they may be warranted
                                                                 ); San Antonio Express--News v. Roman, 861 S.W.2d
to restrain speech that poses a threat of danger. Id. We
                                                                 265, 267 (Tex.App.--San Antonio 1993, orig. proceeding)
need not and do not address the propriety of a requested
                                                                 (per curiam).
injunction against speech that is not at issue, nor should
we without analyzing the facts and circumstances                 [6] See Erwin Chemerinsky, Injunctions in Defamation
underlying such a request.
                                                                 Cases, 57 Syracuse L. Rev. 157, 173 (2007) (" [N]ever in
                                                                 the 216 year history of the First Amendment has the
      III. Conclusion
                                                                 Supreme Court found it necessary to uphold a prior
        In evaluating whether state action exceeds               restraint in a defamation case . . . ." ); A. Siegel,
constitutional bounds governing freedom of speech,               Injunctions for Defamation, Juries, and the Clarifying
Lens of 1868, 56 Buff. L. Rev. 655, 656 (2008).                [12]Applying that concept in the context of reviewing a
                                                               gag order, we held in Davenport that such an order " will
[7]The Big Lebowski (PolyGram Filmed Entertainment             withstand constitutional scrutiny only where there are
& Working Title Films 1998) (" For your information,           specific findings supported by evidence that (1) an
the Supreme Court has roundly rejected prior restraint." ).    imminent and irreparable harm to the judicial process will
                                                               deprive litigants of a just resolution of their dispute, and
[8]Of course, the requirements for injunctive relief still     (2) the judicial action represents the least restrictive
must be met. A plaintiff must show that damages are            means to prevent that harm." 834 S.W.2d at 10.
inadequate or cannot otherwise be measured by any
pecuniary standard. Town of Palm Valley v. Johnson, 87         [13]The Oakley court proposed the following conundrum:
S.W.3d 110, 111 (Tex. 2001) (per curiam). And aside
from constitutional free-speech considerations, we also        If a court enjoined the word " thief," would related words
express no opinion on the propriety of an injunction that      like pilferer, looter, pillager, plunderer, poacher, and
would order Barnes to seek removal of the statements           rustler also support the finding of willfulness necessary to
from websites over which he has no control. We hold            hold the speaker in contempt? How about bandit? Pirate?
only that the constitutional concerns applicable to prior      What about phrases, e.g., " she was in the habit of
restraints are not present when the injunction is limited to   converting other people's property to her own property?"
requiring removal of a published statement that has been       Or further into abstraction, " she may take liberties with
adjudicated defamatory.                                        your property" or " count your silverware after she leaves
                                                               your home?"
[9]The lack of a dispositive distinction between
temporary and permanent injunctions as to the second           879 F.Supp.2d at 1091.
category of injunctive relief requested is highlighted by
the requirements that must be satisfied to obtain a            ---------
temporary injunction. An applicant must " plead and
prove," among other things, " a probable right to the
relief sought." Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002). Absent a showing of a likelihood
of success on the merits, a temporary injunction may not
issue. In re Newton , 146 S.W.3d 648, 652 (Tex. 2004).
While the standard to prevail at trial is certainly higher,
the effect of the permanent injunction is the same: speech
is restrained before it occurs.

[10]The issue was presented to the Supreme Court in
Tory v. Cochran . 544 U.S. 734, 125 S.Ct. 2108, 161
L.Ed.2d 1042 (2005). In that case, noted attorney Johnnie
Cochran sued Ulysses Tory, a former client, after Tory
began engaging in activities such as picketing Cochran's
office and sending the attorney threatening letters due to
Tory's dissatisfaction with Cochran's services. Id. at 735.
Tory indicated that he would continue his activities
barring a court order, and the trial court issued a
permanent injunction against Tory's defamatory speech.
Id. Tory appealed, presenting to the Supreme Court the
very issue before us today. Id. at 737-38. However,
Cochran died shortly after oral argument, and the Court
sidestepped the question, holding that Cochran's death
resulted in the injunction's " los[ing] its underlying
rationale" of protecting Cochran from defamation. Id. at
738.

[11]The parties dispute whether Kinney waived his
argument that defamatory speech is not " protected"
speech under the Texas and U.S. Constitutions. We
resolve this dispute by stating only that we cannot
divorce the type and quality of speech at issue--in this
case, defamatory speech--from the constitutionality of
restraining it.
Page 253                                                      court of appeals. The two exceptions are: (1) where there
                                                              is a dissent upon a question of law material to the
647 S.W.2d 253 (Tex. 1983)                                    decision, and (2) where the court of appeals' holding on a
                                                              material question of law conflicts with a prior decision of
James HAJEK, Petitioner,                                      another court of appeals or this Court. International
                                                              Harvester Co. v. Stedman, 159 Tex. 593, 324 S.W.2d
v.
                                                              543, 545-46 (1959); State v. Wynn, 157 Tex. 200, 301
                                                              S.W.2d 76, 78-79 (1957). This general
BILL MOWBRAY MOTORS, INC., Respondent.

No. C-1806.                                                   Page 255

                                                              rule now applies to temporary injunctions, since the
Supreme Court of Texas.
                                                              legislature no longer designates them a special type of
March 16, 1983                                                interlocutory order appealable to this Court. Southwest
                                                              Weather Research, Inc. v. Jones, supra, 327 S.W.2d at
Page 254                                                      418.

   Costilla & Stapleton, Edward A. Stapleton, III,                Hajek urges this Court has jurisdiction because the
Brownsville, for petitioner.                                  court of appeals' decision conflicts with Stansbury v.
                                                              Beckstrom, 491 S.W.2d 947 (Tex.Civ.App.--Eastland
   O'Leary, Sanchez & Benton, Robert A. Whittington,          1973, no writ). See Article 1728(2). We agree that we
Brownsville, for respondent.                                  have jurisdiction because of this conflict.

     PER CURIAM.                                                  The temporary injunction granted by the trial court
                                                              constitutes a prior restraint on free speech. Our
     Bill Mowbray Motors, Inc. sued James Hajek for           Constitution provides, in part:
libel and sought a temporary injunction to prevent Hajek
from driving his vehicle in the community with a                  Every person shall be at liberty to speak, write or
defamatory message painted on all four sides that             publish his opinions on any subject, being responsible for
Mowbray Motors sold him a "lemon." The trial court            the abuse of that privilege; and no law shall ever be
granted the temporary injunction and the court of appeals     passed curtailing the liberty of speech or of the press.
affirmed. 645 S.W.2d 827. We reverse the judgments of         Tex. Const. art. I, § 8.
the courts below and dissolve the temporary injunction.
                                                                   The language enjoined here evoked no threat of
     We must address a preliminary question of this           danger to anyone and, therefore, may not be subject to
Court's jurisdiction. Prior to 1981, the temporary            the prior restraint of a temporary injunction. Defamation
injunction appeal statute specifically provided, "Such        alone is not a sufficient justification for restraining an
case may be heard in the Court of Civil Appeals or            individual's right to speak freely. Ex parte Tucker, 110
Supreme Court ...," and included other references             Tex. 335, 220 S.W. 75, 76 (1920).
implying the availability of Supreme Court review. See
Tex.Rev.Civ.Stat.Ann. art. 4662 (1925). We construed              Because the decision of the court below conflicts
these provisions as granting jurisdiction to this Court to    with article I, section 8 of the Texas Constitution and Ex
review orders granting or denying a temporary injunction      parte Tucker, supra, we grant the application for writ of
where the main case out of which the application for          error and, without oral argument, reverse the judgment of
injunction grew was a case over which we had                  the court of appeals and dissolve the temporary
jurisdiction. See Southwest Weather Research, Inc. v.         injunction. Rule 483.
Jones, 160 Tex. 104, 327 S.W.2d 417, 418-19 (1959);
Weaver v. Board of Trustees of Wilson Independent             ---------
School Dist., 143 Tex. 152, 183 S.W.2d 443 (1944).
                                                              Notes:
     In 1981 the legislature amended article 4662 [1] to
state that a party only "may appeal from such order or        [1] Statutory references by article numbers alone are to
judgment to the Court of Appeals." This amendment             the current Texas Revised Civil Statutes Annotated.
limits our jurisdiction over appeals from the granting or     References to rules are to the Texas Rules of Civil
denying of a temporary injunction.                            Procedure.

    Absent a special statute granting jurisdiction, article   ---------
1821 makes final in the court of appeals decisions
reviewing interlocutory orders made appealable to the
Page 110                                                        Page 111

87 S.W.3d 110 (Tex. 2001)                                       the 1879 Revised Statutes of Texas. [3] In 1897, we said
                                                                in Sumner v. Crawford, in dicta, that the statute (then
44 Tex. S.Ct. J. 1186                                           article 2989 of the 1895 Revised Statutes of Texas)
                                                                permitted injunctive relief absent the showing required in
TOWN OF PALM VALLEY, Texas,                                     equity that no adequate legal remedy existed. [4] Years
                                                                later, however, in Powers v. Temple Trust Co., we
v.
                                                                recanted this view of the statute (which had become
                                                                article 4642 of the 1925 Texas Revised Civil Statutes),
Paul JOHNSON and The Johnson Company d/b/a J
                                                                reasoning that if injunctive relief could be granted when
Properties, Respondents.
                                                                legal relief was available, the two would simply be
No. 00-0650.                                                    alternative remedies at a litigant's option in every case.
                                                                [5] We concluded:
Supreme Court of Texas
                                                                We do not think it was the intention of the Legislature in
September 20, 2001                                              the enactment of the injunction statute[ ] ... to simply
                                                                provide a choice of remedies for litigants, but that the
     Robert C. Sheline, Gibbon, Gibbon & Sheline,               intention was to provide a remedy to cover those injuries
Harlingen, for petitioner.                                      for which there was not clear, full, and adequate relief at
                                                                law.
     Richard D. Schell, Fleuriet Schell Law Firm,
Harlingen, for respondent.                                            Thus, although the statute, now section 65.011(1),
                                                                does not expressly make the lack of an adequate legal
     PER CURIAM.                                                remedy a prerequisite for injunctive relief, this
                                                                requirement of equity continues.
      A subdivision in the Town of Palm Valley has a
street, Lemon Drive, that ends at the subdivision                     For the same reasons we explained in Powers, the
boundary line, which is also the town's boundary line.          statute does not permit injunctive relief without the
The adjacent property, which is in the City of Harlingen,       showing of irreparable harm otherwise required by
is owned by Paul Johnson. Johnson proposed a                    equity. If it did, the statutory remedy would simply
subdivision of his property with a street connecting to         replace the equitable one, which requires the additional
Lemon Drive. In response, Palm Valley built a fence on          showing. Given our conclusion that the 1879 Legislature
Lemon Drive one or two feet short of the property line          intended no such substitution of injunctive remedies, it
and declared the end of the street to be a cul-de-sac.          follows that the statute did not abolish the requirement of
Johnson sued Palm Valley and obtained a permanent               a showing of irreparable injury. We disapprove the
injunction prohibiting any barricade or closure of Lemon        statements in the court of appeals' opinion that conflict
Drive to the town boundary. A divided court of appeals          with this construction of section 65.011(1).
affirmed. [1]
                                                                      We conclude, however, that any error in the court of
      The court of appeals' opinion indicates that an           appeals' opinion did not result in an error in its judgment
injunction may be granted under section 65.011(1), TEX.         that should be corrected. Accordingly, Palm Valley's
CIV. PRAC. & REM.CODE, without a showing of                     petition for review is denied.
irreparable harm. [2] That statute provides:
                                                                ---------
 A writ of injunction may be granted if (1) the applicant is
entitled to the relief demanded and all or part of the relief   Notes:
requires the restraint of some act prejudicial to the
applicant....                                                   [1] 17 S.W.3d 281.

       Were the court correct, the statute could be applied     [2] Id. at 286 (citing Hale County v. Davis, 572 S.W.2d
in every case to abolish altogether the need to show            63, 66 (Tex.Civ.App.--Amarillo 1978, writ ref'd n.r.e.)).
irreparable harm as a prerequisite to obtaining injunctive
relief.                                                         [3] "Judges of the district and county courts may, either
                                                                in term time or vacation, grant writs of injunction,
     Section 65.011(1) derives, with nonsubstantive             returnable to said courts, in the following cases: 1. Where
changes, from article 2873(1) of                                it shall appear that the party applying for such writ is
                                                                entitled to the relief demanded, and such relief or any part
                                                                thereof requires the restraint of some act prejudicial to the
applicant...."

[4] 91 Tex. 129, 41 S.W. 994, 996 (Tex.1897).

[5] 124 Tex. 440, 78 S.W.2d 951, 953-954 (Tex. Comm'n
App.1935, opinion adopted) (per curiam) (citing Hill v.
Brown, 237 S.W. 252, 254 (Tex. Comm'n App.1922,
judgm't adopted)).

---------
Page 704                                                     were co-trustees of a trust known as the Eva Spero Trust
                                                             which terminated on her death of August 27, 1975, and
640 S.W.2d 704 (Tex.App. —Houston [14 Dist.] 1982)           are also Independent Co-Executors of the Estate of Eva
                                                             Spero, deceased.
Lillian Taylor SOBEL, et al., Appellant,
                                                             Page 706
v.
                                                                   Appellants were sued for alleged breaches of
Dr. Irving TAYLOR, Appellee.                                 fiduciary duties owed to appellee while appellants were
                                                             in control of finances and property of their mother during
No. A2967.
                                                             her lifetime under a Power of Attorney and Trust
                                                             Instrument. Appellee claims appellants were guilty of
Court of Appeals of Texas, Fourteenth District,
                                                             fraud, breaches of fiduciary duties and self-dealing while
Houston
                                                             acting in their capacities as attorneys in fact and trustees
July 29, 1982                                                for Eva Spero during her lifetime. Appellee seeks an
                                                             accounting and asks for actual and exemplary damages,
Page 705                                                     and also seeks rescission of a June 30, 1975, Equalization
                                                             Agreement between the parties executed during the
   Jonathan B. Shoebotham, Woodard, Hall & Primm,            lifetime of Eva Spero. Appellee additionally alleges
Abe Dunn, Houston, for appellant.                            breach of fiduciary duties by appellants as Independent
                                                             Co-Executors and asks for actual and exemplary damages
    Joe G. Roady, Sheinfeld, Maley & Kay, Margaret G.        for these actions as well as an accounting. He does not
Mirabal, Lukats & Mirabal, Celia Nathan, Houston, for        seek removal of appellants as Independent Co-Executors.
appellee.
                                                                 Appellants contend the portions of the order appealed
     Before BROWN, C.J., and JUNELL and PRICE, JJ.           from constitute a temporary injunction and was granted in
                                                             response to the appellee's filing of a Motion For The
     PRICE, Justice.
                                                             Protection Of Documents and Motion for Order Directing
                                                             Non-Payment Of Funds Out Of The Estate. The
     Appellants Lillian Taylor Sobel and Saul Taylor
                                                             documents referred to in the appellee's protective motion
appeal from a pre-trial protective order by the District
                                                             and the trial court's order are various documents formerly
Court regulating control of certain documents pursuant to
                                                             in the custody and control of appellants which were
a motion for Protection of Documents. They also appeal
                                                             produced pursuant to an order of the trial court for the
the provision of that same order which enjoined the
                                                             purpose of inspection and copying by appellee for a
payment by appellants during the pendency of trial of
                                                             period of 45 days.
attorney fees exceeding $25,000.00 in connection with
the defense of the case from the assets of the Eva Spero
                                                                  Hearing was held on September 21, 1981, on
Estate. Appellants contend that both provisions of the
                                                             Defendant's (Appellant's) Motion To Require Return Of
order constitute a temporary injunction that was
                                                             Documents, Plaintiff's (Appellee's) Motion For Protection
improperly granted for failure to comply with the Texas
                                                             of Documents and Motion For Order Directing
Rules of Civil Procedure for injunctions. We hold that the
                                                             NonPayment Of Funds Out Of Estate as well as
order relating to the protection of documents is not an
                                                             appellant's responses to appellee's motions. The portions
appealable temporary injunction, but rather is a
                                                             of the order from which appeal has been perfected read as
nonappealable pre-trial protective discovery order. We
                                                             follows:
further hold the trial court erroneously granted a
temporary injunction for nonpayment of attorney's fees       ***
without compliance with Tex.R.Civ.P. 682, 683 and 684.
We dissolve that temporary injunction.                       ***

     This suit was filed in District Court by appellee Dr.   2. Defendants Lillian Taylor Sobel and Saul Taylor are
Irving Taylor against appellants Lillian Taylor Sobel and    hereby enjoined, pending trial on the merits or further
Saul Taylor, individually, and as co-trustees of the Eva     orders of this Court, from disturbing the present order of
Spero Trust and as Independent Co-Executors of the Eva       such documents and are further directed to make such
Spero Estate. Appellee also sued attorney Abe Dunn and       documents available to the attorney for the Plaintiff upon
Freda Beier, neither of whom is involved in this appeal.     reasonable notice. The attorneys for the Defendants are
Appellee Irving Taylor, appellants Lillian Taylor Sobel      directed to maintain the documents in question in their
and Saul Taylor and Freda Beier are the children of Eva      offices in their present order, and to maintain a log
Spero, deceased. Lillian Taylor Sobel and Saul Taylor        reflecting the removal of any documents from the file, the
identity of the person removing same, the identity of the       rescission of an equalization agreement signed prior to
documents so removed and the dates the same are                 the death of Eva Spero, for actual and exemplary
removed from and returned to the file.                          damages against appellants, individually, and as
                                                                co-trustees and for an accounting from them. Appellants
3. Defendants Lillian Taylor [sic] and Saul Taylor are          were also later Independent Co-Executors and there are
further enjoined, pending trial on the merits or further        some allegations seeking an accounting from them while
orders of this Court, from paying attorney's fees incurred      acting as Independent Co-Executors. This is not the
by them in connection with the defense of this case from        major thrust of appellee's lawsuit, however, and it is not
the assets of the estate should such attorney's fees in the     of such nature and magnitude as to vest exclusive
aggregate exceed $25,000.                                       jurisdiction of the suit and the order complained of in the
                                                                Probate Court.
     In his ninth point of error, appellants assert the trial
court did not have jurisdiction to issue the order                  Appellants primarily rely on Thomas v. Tollon, 609
complained of because the order related to matters              S.W.2d 859 (Tex.Civ.App.--Houston [14th Dist.] 1980,
incident to the Estate of Eva Spero. Appellants contend         writ ref'd n.r.e.) and Lucik v. Taylor, 596 S.W.2d 514
that under Tex.Prob.Code Ann. § 5(c) and (d) (Vernon            (Tex.1980). We believe these cases and the others cited
1980) the issuance of such order was within the exclusive       by appellant are distinguishable and not controlling here.
jurisdiction of Probate Court Number 3 of Harris County         Tollon was an appeal from a Plea to the Jurisdiction of
in which the administration of the Estate of Eva Spero is       the District Court to hear a suit to determine heirship
still pending. This point is first raised on appeal by          where there was a pending probate proceeding in the
appellant as fundamental error. Tex.Prob.Code Ann. §            Probate Court. Lucik was an injunction by a temporary
5(c) and (d) (Vernon 1980) provide in pertinent part:           administrator ordering an individual to deliver assets to
                                                                him and to enjoin him from disposing of such assets
(c) In those counties where there is a statutory probate        pending the probate proceeding. We overrule appellant's
court, county court at law, or other statutory court            ninth point of error.
exercising the jurisdiction of a probate court, all
applications, petitions and motions regarding probate,               Appellant's first through eighth points of error
administrations, guardianships, and mental illness matters      complain of the court's action in granting a temporary
shall be filed and heard in such courts and the                 injunction without compliance with Tex.R.Civ.P. 682,
constitutional county court, rather than in the district        683 and 684 relating to necessary pleadings, the evidence
courts, unless otherwise provided by the legislature, and       required, setting of bond and required contents of the
the judges of such courts may hear any such matters             order for temporary injunction. We believe the order is
sitting for the judge of any of such courts... (emphasis        severable and that the portion of the order relating to
added)                                                          control of the documents is not a temporary injunction,
                                                                but rather is a nonappealable interlocutory pre-trial
(d) All courts exercising original probate jurisdiction         protective discovery order. That part of the order
shall have the power to hear                                    enjoining payment of attorney's fees does amount to a
                                                                temporary injunction and must be dissolved for
Page 707
                                                                noncompliance with the Texas Rules of Civil Procedure
all matters incident to an estate... (emphasis added).          for pleadings, evidence, bond and contents of the order.

     In addition, appellant contends that Tex.Prob.Code              With respect to the document control, we hold that a
Ann. § 5A(b) (Vernon 1980) lends further support for the        portion of the court's order is a nonappealable
argument that statutory probate courts have the same            interlocutory pre-trial protective discovery order and not
powers over independent executors that are exercisable          an appealable temporary injunction order despite the use
by the district courts and that where the jurisdiction of a     of the word "enjoined" in the order. As above noted, the
statutory probate court is concurrent with that of a district   order complained of was made in response to the motion
court, "any cause of action appertaining to estates or          for Return of Documents filed by appellants and a
incident to an estate shall be brought in a statutory           Motion for Protection of Documents filed by appellee.
probate court rather than in the district court."               Appellants, apparently as a result of a previous court
                                                                order dated December, 1980, were ordered to produce
     We disagree with appellant's contention. We do not         documents and they were produced and delivered to
believe the suit here is primarily a suit appertaining to or    appellee in a variety of containers and a state of general
incident to an estate under Section 5 of the Probate Code,      disarray. They were to be returned in 45 days. When they
and we hold that the District Court has original                were not returned, appellants filed a motion to order
jurisdiction of this case. The allegations primarily involve    return of the documents, and made no contention the
alleged acts, misdeeds and misrepresentations which             court did not have jurisdiction to hear it. In its motion for
pre-date the death of Eva Spero and allegedly occurred          Protection of Documents, appellee contended that its
while appellants were acting as attorneys in fact and           original Motion for Production was filed as a result of the
trustees for Eva Spero. The relief sought primarily is for      failure of appellants to comply with a subpoena duces
tecum, that the documents produced                               injunction granted by the trial court enjoining Lillian
                                                                 Taylor and Saul Taylor "from paying attorneys fees
Page 708                                                         incurred by them in defense of this case from the assets
                                                                 of the estate should such attorneys fees in the aggregate
under order were voluminous and that appellee had spent          exceed $25,000.00" is dissolved.
weeks in arranging them chronologically and by subject
matter, in such a manner as to be efficiently utilized in
the presentation of evidence at trial. While appellee
desired and requested that the documents to be held in a
disinterested accounting firm office, the trial court
ordered a return to the possession of appellants, but
placed certain controls and restrictions to insure the order
and present identity of all such documents during the
pendency of the trial. We believe the trial court had the
authority to make this protective order under
Tex.R.Civ.P. 167 and Rule 186b.

     We do not believe the word "enjoined" requires it to
be deemed a "temporary injunction." The nature of a suit
is determined by the court, as a matter of law, solely from
the facts alleged in the petition, the rights asserted, and
the relief sought. Scott v. Whitaker Pipeline Construction,
Inc., 517 S.W.2d 406, 409 (Tex.Civ.App.--Austin 1974,
no writ). We disagree with appellant's contention that
Rule 167 and Rule 186b motions must be restricted to
protection from discovery.

     On the other hand, with respect to that portion of the
trial court's order enjoining payment of attorney's fees
from the estate, we hold that it was an order for
temporary injunction and must be dissolved. The order
was issued on the basis of appellee's Motion for Order
Directing Non-Payment of Funds Out of Estate. Appellee
concedes this portion of the order is a temporary
injunction order. It is not shown to be a sworn motion nor
or any affidavits attached. We agree with appellants that
appellee failed to follow the proper procedures for
injunction in that appellee failed to (1) execute and file a
bond prior to issuance of the temporary injunction, (2)
present affidavits and a petition containing a plain and
intelligible statement of the grounds for such relief, (3)
present evidence showing his probable right on final trial
to the relief sought, and (4) present evidence showing the
probability of injury in the interim, all in violation of
Tex.R.Civ.P. 680, 682 and 684. In addition, the trial court
failed to fix the amount of security or bond to be given by
appellee in its order. We further agree that the trial court
erred in failing to set forth in its order the reasons for the
granting of the temporary injunction in violation of
Tex.R.Civ.P. 683. We have considered all of the
authorities cited by appellee including Jeffries v. Evans
Division--Royal Industries, 510 S.W.2d 579 (Tex.1974).
There, the court held the injunction could be remanded to
the trial court for determination of a bond, with the
injunction otherwise upheld. In Jeffries, however, the
only requirement not satisfied for the temporary
injunction was the lack of a bond. There, an evidentiary
hearing was held, pleadings were proper and an otherwise
proper order was issued. Jeffries v. Evans
Division--Royal Industries, supra at 579. The temporary
Page 160                                                       challenged by point of error and is therefore binding on
                                                               appeal. Wade v. Anderson, 602 S.W.2d 347, 349
759 S.W.2d 160 (Tex.App. —Houston [1 Dist.] 1988)              (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.). The
                                                               court ordered the production of "all of Lou W. Burton's
Lou W. BURTON and Galleria Diplomat Association,               records and files in any way related to his representation"
Inc., Appellants,                                              of the Association.

v.                                                                  In their first of three points of error, appellants
                                                               contend that the trial court erred in ordering the
Jeffrey M. CRAVEY, et al., Appellees.
                                                               production of Burton's records because the application
                                                               and proof fail to establish a cause of action or a probable
No. 01-88-00270-CV.
                                                               right and a probable injury.
Court of Appeals of Texas, First District, Houston
                                                                    Appellants mischaracterize the nature of the trial
August 18, 1988                                                court proceedings. For example, they argue that appellees
                                                               have other adequate remedies under Tex.R.Civ.P. 167,
     Rehearing Denied Sept. 8, 1988.                           168 and 737 to pursue inspection. This assertion ignores
                                                               the fact that a writ of mandamus is the proper remedy to
     Wade B. Reese, Houston, for appellants.                   enforce the right of inspection. See 20 R. Hamilton,
                                                               Texas Business Organizations § 801 (1973). Appellees
     Lou W. Burton, Houston, pro se.                           did not have to establish an independent cause of action;
                                                               they merely had to establish their statutory right to
     John K. Grubb, Houston, for appellees.
                                                               inspect.
     Before SAM BASS, DUGGAN and LEVY, JJ.
                                                                   Tex.Prop.Code Ann. § 81.209 (Vernon 1984)
                                                               provides the following for condominium records:
     OPINION
                                                               (a) The administrator or board of administration of a
     DUGGAN, Justice.
                                                               condominium regime or a person appointed by the
    This appeal involves the right to inspect records and      bylaws of the regime shall keep a detailed written
books of a condominium association. Appellees, a group         account of the receipts and expenditures related to the
of dissident owners, filed a petition for writs of             building and its administration that specifies the expenses
mandamus and injunction because of the appellant               incurred by the regime.
Galleria Diplomat Association's board of directors'
                                                               (b) The accounts and supporting vouchers of a
refusal to allow the inspection of records. In a corrected
                                                               condominium regime shall be made available to the
order dated March 2, 1988, the trial court granted the writ
                                                               apartment owners for examination on working days at
of
                                                               convenient, established, and publicly announced hours.
Page 161
                                                               (c) The books and records of a condominium regime must
mandamus, ordering the Association to maintain its             comply with good accounting procedures and must be
books and records at its offices and make these records        audited at least once each year by an auditor who is not
available for inspection and copying. The trial court also     associated with the condominium regime.
enjoined appellants from interfering with appellees' right
                                                                   (Emphasis added.)
to inspect these books and records. The court further
ordered the delay of the annual election by the
                                                                   The      Texas     Non-Profit Corporation  Act,
Association's members.
                                                               Tex.Rev.Civ.Stat.Ann. art. 1396-2.23 (Vernon 1980),
                                                               additionally provides:
      All of the points of error attack the ordered
production of records in the possession of appellant
                                                               A. Each corporation shall keep correct and complete
Burton, the attorney for the appellant Association. The
                                                               books and records of account and shall keep minutes of
trial court entered a finding of fact that the Association's
                                                               the proceedings of its members, board of directors, and
Board of Directors hired Burton "to handle numerous
                                                               committees having any authority of the board of directors
matters for the Association and that records of Lou W.
                                                               and shall keep at its registered office or principal office in
Burton relating to Association matters are part of the
                                                               this State a record of the names and addresses of its
books and records of the Galleria Diplomat Townhomes
                                                               members entitled to vote.
Homeowner's Association, Inc. a/k/a the Galleria
Diplomat Association, Inc." This finding of fact is not        B. All books and records of a corporation may be
inspected by any member, or his agent or attorney, for        the Law of Private Corporations § 2253.1 (1987). The
any proper purpose at any reasonable time.                    trial court, however, sustained appellees' objections to
                                                              appellants' attempted inquiries about ulterior or vindictive
    (Emphasis added.)                                         motives for the inspection of records. Appellants do not
                                                              complain about the exclusion of this testimony.
    In their application for writ of mandamus, appellees
were attempting to enforce their statutory rights as              Appellants' second point of error is overruled.
condominium apartment owners to inspect the "accounts
and supporting vouchers of a condominium regime"                  Appellants contend in their third point of error that
under Property Code § 81.209, and as corporation              the trial court erred in granting the production order
members to inspect "all books and records" of a               because it requires the inspection of privileged
non-profit corporation under article 1396-2.23. The trial     documents.
court did not err in ordering the production of Burton's
records.                                                          Again, we note that appellants are attempting to
                                                              engraft notions borrowed from Texas discovery practice
    Appellants' first point of error is overruled.            onto a statutory right to inspect. Article 1396-2.23
                                                              contains no limitations on the member's right to inspect
Page 162                                                      as long as the books and records are those of the
                                                              non-profit corporation and the inspection is for "any
     Appellants contend in their second point of error that   proper purpose." The trial court found that Burton's
the trial court erred in ordering production of the records   records and files relating to the Association were part of
and files of the attorney for the condominium association     the Association's books and records, and appellants have
because the order is overly broad, unduly burdensome,         not contended that the intended inspection is for an
and requires the production of irrelevant information.        improper purpose. The only limitation under article
                                                              1396-2.23 is "proper purpose." Appellants have failed to
     Appellees sought the production of records that they
                                                              prove that the purpose of the inspection was improper.
were statutorily entitled to inspect. Appellants'
complaints about the order appear to be an attempt to              Moreover, if the attorney-client privilege did apply,
engraft discovery notions upon the appellees' statutory       we would hold that the trial court did not abuse its
right of inspection, which is independent of any right of     discretion in ordering the inspection of Burton's records.
discovery in litigation. See San Antonio Models, Inc. v.      The attorney-client privilege is not absolute; appellants'
Peeples, 686 S.W.2d 666 (Tex.App.--San Antonio 1985,          interest in the nondisclosure of communications protected
orig. proceeding). The right to inspect under article         by the privilege would have to be balanced against the
1396-2.23 encompasses "all books and records." The trial      inspection rights of the members of the non-profit
court found that Burton's files and records relating to the   corporation. See In re LTV Securities Litigation, 89
Association were the "books and records" of the               F.R.D. 595, 609-611 (N.D.Tex.1981). Under the facts of
Association. This finding is not challenged on appeal.        this case, the trial court did not abuse its discretion in
This right of condominium owners to inspect the books         ordering the inspection of Burton's records.
and records, like the comparable right to inspect granted
shareholders in corporations, is limited by the                   Appellants' third point of error is overruled.
requirement that the inspection be for any "proper
purpose." See R. Hamilton, Texas Business                         The judgment is affirmed.
Organizations § 804 (1973); see also Annotation, What
Corporate Documents Are Subject to Shareholder's Right
to Inspection 88 A.L.R.3d 663 (1978).

    Once the trial court found that Burton's files and
records relating to the Association were part of the books
and records of the Association, appellees were entitled to
inspect them for any "proper purpose." Appellants,
however, do not contend that the intended inspection is
for an improper purpose. There was testimony by
appellees that they were concerned about the
"substantial" and "inordinate" fees paid to Burton by the
Association. Although the parties have presented no cases
squarely on point, it would appear that it was the
appellant Association's burden of proof to establish the
absence of proper purpose. Uvalde Rock Asphalt Co. v.
Loughridge, 425 S.W.2d 818 (Tex.1968); Moore v. Rock
Creek Oil Corp., 59 S.W.2d 815 (Tex.Comm'n App.1933,
holding approved); see also, 5A Fletcher, Cyclopedia of
Page 666                                                        3. Defendant would be issued 1,000 shares of stock in the
                                                                corporation in consideration for:
686 S.W.2d 666 (Tex.App. —San Antonio 1985)
                                                                A. Defendant working for the corporation as she was
SAN ANTONIO MODELS, INC., Relator,                              needed; and

v.                                                              B. Defendant giving her line of custom clothing (Carrie
                                                                Harrell Designs for San Antonio Models, Inc.) to the
  Honorable      David    PEEPLES,       District      Judge,   corporation to be sold through the corporation along with
Respondent.                                                     the corporation's cosmetic line and modeling school and
                                                                agency services.
No. 04-84-00549-CV.
                                                                     Plaintiff states in her petition that she signed, on
Court of Appeals of Texas, Fourth District, San
                                                                April 27, 1984, a "Deed of Gift" and a "To Whom It May
Antonio
                                                                Concern" letter to the corporation evidencing the transfer
                                                                of 1,000 shares of stock from San Antonio Models,
January 30, 1985
                                                                Incorporated, to the defendant. Plaintiff alleges that
     Rehearing Denied Feb. 25, 1985.                            defendant stopped reporting for work and never provided
                                                                her custom line of clothing to the corporation. Plaintiff
Page 667                                                        seeks a rescission of the agreement and cancellation of
                                                                the transfer of stock based on fraud, misrepresentation,
     Stewart J. Alexander, San Antonio, for relator.            and failure of consideration. Defendant filed a general
                                                                denial on October 26, 1984.
   K. Key Hoffman, Jr., San Antonio, Andrew Cline,
Bayne, Snell & Krause, San Antonio, for respondent.                  Attached to the petition for writ of mandamus is a
                                                                letter, dated November 5, 1984, written by Karen L.
     Before CANTU, REEVES and TIJERINA, JJ.                     Harrell, defendant, to the president of San Antonio
                                                                Models, Incorporated, demanding inspection of the
ON RELATOR'S           PETITION       FOR     WRIT        OF
                                                                corporation's books pursuant to article 2.44 of the Texas
MANDAMUS
                                                                Business Corporation Act. Also attached to the petition is
                                                                a letter to defendant from the corporation's attorney,
     CANTU, Justice.
                                                                dated November 13, 1984, refusing the demand for
    Relator brings this action for a writ of mandamus           inspection based on a failure of good faith and a proper
against Honorable David Peeples, District Judge, and            and legitimate purpose.
Karen L. Harrell, as respondents, to vacate an order
                                                                    On November 14, 1984, plaintiff filed a notice duces
entered by Judge Peeples in a discovery proceeding
                                                                tecum of intention to take the
pending in his court.
                                                                Page 668
     K. Dianne Carnes instituted suit against Karen L.
Harrell, on September 10, 1984, seeking rescission of an
                                                                oral deposition of Richard D. Harrell [1] and Karen L.
agreement between the two and cancellation of a transfer
                                                                Harrell on November 29, 1984. The defendant filed, on
of 1,000 shares of stock to Harrell. Plaintiff's original
                                                                November 26, 1984, her notice of intention to take the
petition alleged that prior to April 27, 1984, plaintiff was
                                                                oral deposition of plaintiff on November 27, 1984. The
the sole owner and shareholder of San Antonio Models,
                                                                notice was directed to K. Dianne Carnes, plaintiff and
Incorporated. Being desirous of bringing other people
                                                                president of San Antonio Models, Incorporated. Attached
into the corporation, plaintiff met and had discussions
                                                                to the notice was a subpoena duces tecum requesting,
with the defendant and Norma G. Klomann in April of
                                                                among other things, the production of the following
1984. The petition alleged the following agreement
                                                                items:
between the three women:
                                                                     Bank account statements, check register, cancelled
1. Plaintiff would sell 1,000 shares of her stock in the
                                                                checks, check stubs, deposit and withdrawal slips and
corporation to the corporation for the payment of
                                                                transfer orders of San Antonio Models, Inc. including but
$1,000.00 to plaintiff.
                                                                not limited to the same records for San Antonio Models
                                                                School, San Antonio Models Agency, San Antonio
2. Norma G. Klomann would be issued 1,000 shares of
                                                                Models Cosmetics and any and all enterprises which are a
stock in the corporation for the payment of $10,000.00 to
                                                                part of San Antonio Models, Inc. from and after March 1,
the corporation.
                                                                1984 to and through the present.
    All books of account from and including March 1,          Page 669
1984 to and through the present of San Antonio Models,
Inc. as well as of any of the enterprises owned or                 Subsequently, on December 7, 1984, K. Dianne
operated thereby including but not limited to San Antonio     Carnes, as plaintiff, filed a motion for protective orders
Models School, San Antonio Models Agency, and San             complaining of the above set out items, alleging them to
Antonio Models Cosmetics.                                     be the business and financial records of a corporation not
                                                              a party to the lawsuit and that such items were not
     All books of account as well as all records of every     relevant to the subject matter of the case in that they did
kind and character, including memoranda, pertaining and       not relate to any claims or defenses that were involved in
relating to funds of San Antonio Models, Inc. including       the case, and the items were not reasonably calculated to
any of its enterprises utilized or spent by K. Dianne         lead to the discovery of evidence that would be
Carnes for her own personal use.                              admissible in the case.

     All correspondence, notes, memoranda and any and              An order signed and entered on December 14, 1984,
all other documents of any kind and character pertaining      by Judge Carolyn Spears, recites that evidence and
and relating to revenues received by San Antonio              arguments were heard on December 10, 1984, on
Models, Inc. including but not limited to the same records    defendant's motion to compel and plaintiff's motion for
for San Antonio Models School, San Antonio Models             protective orders. The motion for protective orders was
Agency, San Antonio Models Cosmetics and any and all          denied and the motion to compel was granted requiring
enterprises which are a part of San Antonio Models, Inc.      plaintiff to appear and be deposed on December 18, 1984,
and including but not limited to the notebook kept            and to bring with her and produce the matters previously
pertaining to San Antonio Models School from and              designated for production.
including March 1, 1984 to the present.
                                                                   On December 13, 1984, another motion for
     All correspondence, notes, memoranda and any and         protective orders was filed, but this time by San Antonio
all other documents of any kind and character pertaining      Models, Incorporated, through Norma G. Klomann, an
and relating to time, monies and other assets expended or     officer and director of the corporation. This motion
contributed by Karen L. Harrell, K. Dianne Carnes and         complained of the same items previously complained of
Norma G. Klomann for or to San Antonio Models, Inc.           and for the same reasons except that this motion included
including the same records for San Antonio Models             the charge that the production of these items would be an
School, San Antonio Models Agency, San Antonio                unreasonable invasion of the corporation's personal,
Models Cosmetics and any and all enterprises which are a      constitutional and property rights. This motion was set
part of San Antonio Models, Inc. from and including           for hearing by Judge Spears for December 17, 1984. [2]
March 1, 1984 to and through the present.
                                                                  An order signed by Judge David Peeples on
     All correspondence, notes, memoranda and any and         December 18, 1984, recites that a hearing was held on
all other documents of any kind and character pertaining      December 17, 1984, on the corporation's motion for
and relating to disbursements in money or assets of every     protective orders and that evidence and arguments were
kind and character made by San Antonio Models, Inc. to        heard and that matters of record including pleadings were
Karen L. Harrell, K. Dianne Carnes and Norma G.               considered. The court entered the following order:
Klomann including but not limited to the same records
for San Antonio Models School, San Antonio Models             Movant's motion for protective orders should be denied
Agency, San Antonio Models Cosmetics and any and all          provided, however, that the production of the documents
enterprises which are a part of San Antonio Models, Inc.      therein objected to should be limited to documents
from and including March 1, 1984 to and through the           relating to events on and after March 1, 1984 and it
present.                                                      further appearing to the Court and the Court finds that the
                                                              Order heretofore entered herein [3] compelling K. Dianne
     Plaintiff filed a motion to quash defendant's            Carnes to appear and be deposed should be superseded as
deposition notice for failure to give timely notice and a     to date and time of her appearance at such deposition as
hearing was set for December 3, 1984. Defendant               hereinafter set forth and it further appearing to the Court
delivered a response to the motion to quash, along with a     and the Court finds that insofar as said corporation is
motion for attorney's fees, costs and expenses and to         concerned, inspection and copying should be as
compel appearance. An order filed in this case recites that   hereinafter set forth.
a hearing was held on these motions on December 3,
1984, where evidence and arguments were presented.                 It was thereafter ordered that the motion for
Plaintiff's motion to quash and defendant's motion for        protective orders filed herein by San Antonio Models,
fees, costs and expenses were denied. The motion to           Incorporated be and is hereby denied provided, however,
compel appearance was continued until December 10,            that such documents as are therein objected to, shall be
1984.                                                         produced only insofar as they relate to events occurring
                                                              on and after March 1, 1984 and it is further ORDERED
that the prior Order entered herein pursuant to                 matters in dispute between the parties as shown in the
Defendant's, Karen L. Harrell, Motion to compel be and          pleadings.
is hereby superseded insofar as the time and date of such
deposition....                                                       The Court held that the trial judge abused his
                                                                discretion in ordering relators to produce for respondent's
    The order then goes on to set the time and date of the      inspection and copying their entire income tax returns for
deposition.                                                     the years in question, without separation of the relevant
                                                                and material parts from the irrelevant and immaterial
    San Antonio Models, Incorporated seeks, through its         parts thereof. The Court did recognize that a writ of
application for writ of mandamus, to have Judge Peeples'        mandamus cannot be used to supervise the exercise of
order vacated based on two arguments:                           discretion by a trial judge in his rulings on the relevancy
                                                                and materiality of information contained in income tax
1) The private business and financial records are               returns. Extraordinary relief can be afforded, however, in
immaterial and irrelevant to the dispute between the two        the situation where no discretion has been exercised, i.e.,
shareholders, and it was a clear abuse of discretion for        when the order of the trial judge does not separate for
respondent to order that the records are discoverable, and      protection against discovery those portions of income tax
                                                                returns plainly irrelevant and immaterial to the matters in
2) Because of the fact that relator has previously resisted
                                                                controversy.
the one shareholder's attempt to inspect its books and
records of account on the basis of lack of proper purpose,           Unlike Maresca, the trial judge in the instant case did
relator will be denied its right to a jury trial on the issue   not examine the documents complained of in the motion
of proper                                                       for protective orders. Both relator and respondent
                                                                admitted that the corporation did not tender to the court,
Page 670
                                                                either for in camera inspection or otherwise, the
purpose if relator's books and records of account can be        documents sought to be protected. We believe that the
"discovered" by the shareholder at this time.                   instant case falls more closely in line with the case of
                                                                Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959). In
     In support of it's first argument, relator cites to the    Crane, the trial judge's order demanding production of the
case of Maresca v. Marks, 362 S.W.2d 299 (Tex.1962).            relator's tax return was vacated by writ of mandamus
In that case, the issue was whether the order of the trial      because he had clearly abused his discretion by ordering
judge requiring disclosure and exposure of information          production of the return without first inspecting it to
contained in income tax returns which is immaterial and         determine what portions were relevant and material to the
irrelevant to the cause in which discovery is sought is a       suit. Accordingly, the Supreme Court ordered the judge
clear abuse of discretion for correction of which the writ      to inspect the tax returns and make the necessary
of mandamus may issue. Respondent brought suit against          determination of its relevancy before issuing any further
relators for monies owed under an employment contract           orders concerning the documents.
and for exemplary damages for fraud and deceit. He
thereafter sought an order of the trial court requiring             Before a non-party to a suit may be ordered to
relators to produce copies of the personal federal income       produce in accordance with Rule 167 of Texas Rules of
tax returns of the relators for the years 1960 and 1961.        Civil Procedure a motion must be filed setting forth with
After a hearing on the motion the trial judge ordered the       specific particularity the request and necessity therefor.
entire income tax returns of all relators submitted to          TEX.R.CIV.P. 167(4). Once such a motion is filed it is
respondent for inspection and copying. The order recites        incumbent upon the trial judge to hold a hearing to
that the trial judge "examined" all the returns                 determine its relevancy and materiality to the main cause.
                                                                See Narro Warehouse, Inc. v. Kelly, 530 S.W.2d 146, 150
in order to determine what part of such returns, if any,        (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.).
were material and relevant to this cause ... and thereupon      Without a personal inspection of the items sought to be
concluded that, pursuant to the motion and pleadings, and       discovered, we fail to see how a trial judge can make a
matters of record before this court, the entire income tax      meaningful and just determination of relevancy and
returns in question constitute material evidence relative to    materiality,
the matters alleged and raised in this cause.
                                                                Page 671
***
                                                                and whether, for protection of privacy, certain portions
***                                                             which are plainly irrelevant and immaterial to the matters
                                                                in controversy ought to be separated.
     Mandamus proceedings were initiated and copies of
the tax returns in question were included in the petition.          We hold that the failure of the trial judge to make an
The Supreme Court found, after examination of these             in camera examination of the items complained of
returns, that certain portions were irrelevant to the           through the motion for protective orders prior to issuing
an order directing the delivery of such items amounts to
arbitrary action and a clear abuse of discretion for which
the remedy of mandamus will lie. See Maresca v. Marks,
supra; Crane v. Tunks, supra; Narro Warehouse, Inc. v.
Kelly, supra.

      Relator's second argument on this writ of mandamus
is without merit. Relator argues that because relator
previously resisted the shareholder's attempt to inspect its
books and records of account on the basis of lack of a
proper purpose, relator will be denied its right to a jury
trial on the issue of proper purpose if relator's books and
records of account can be "discovered" by the
shareholder at this time. This is not an action under art.
2.44 of the Texas Business Corporation Act but a
discovery action under the Texas Rules of Civil
Procedure. Respondent has a right to seek discovery of
any information which is relevant and material to the
cause of action.

     We are certain the trial judge will proceed in
accordance with the law as we have set it out herein. No
writ of mandamus will issue at this time, but in the event
the trial judge should fail to so proceed the clerk will
issue the necessary writ to insure that this opinion is
effective.

---------

Notes:

[1] Richard D. Harrell was attorney for the corporation
who prepared the necessary paperwork for the issuance of
stock to Karen L. Harrell. The notice duces tecum
requested all information regarding the agreement for the
issuance of stock by the corporation.

[2] The certified copy of the motion sent up with this
application for writ of mandamus reveals that a stamped
signature of Judge Spears was used on this motion.

[3] This order is referring back to the order entered by
Judge Spears on December 14, 1984, compelling plaintiff
to appear and be deposed and produce the items
requested.

---------
Page 788                                                       Code; we accordingly hold that the trial court did not err
                                                               in instructing the jury in accordance with the statute or in
363 S.W.3d 788 (Tex.App.-Houston [14 Dist.] 2012)              failing to characterize a larger portion of the lump-sum
                                                               distribution as Bob's separate property.
R.M. SPRAGUE, Appellant,
                                                                     On the other hand, we agree that the trial court
v.                                                             abused its discretion in excluding all evidence that any
                                                               portion of the amounts payable to Bob under his
D.L. SPRAGUE, Appellee.
                                                               employer's " Cash Deferral Program" was Bob's separate
                                                               property.
No. 14-08-00700-CV.
                                                                      Bob also appeals a post-judgment sanctions order
Court of Appeals of Texas, Fourteenth District,
                                                               and temporary orders pending appeal. We agree that the
Houston.
                                                               trial court abused its discretion in sanctioning Bob for a
February 14, 2012                                              claimed delay in transferring certain funds to Deborah
                                                               and in awarding Deborah attorneys' fees.
     Rehearing Overruled March 21, 2012.
                                                                     We accordingly reverse the property-division
Page 789                                                       portion of the divorce decree, as well as the
                                                               post-judgment sanctions order and the associated
[Copyrighted Material Omitted]                                 temporary order pending the appeal of the sanctions
                                                               order, and we remand the case for (a) a determination of
Page 790                                                       the community- and separate-property interests in the
                                                               amounts that have been or will be paid to Bob as a result
     Pamela E. George, Houston, Richard R. Orsinger,
                                                               of his participation in his former employer's Cash
San Antonio, for appellant.
                                                               Deferral Program, and (b) a just and right division of all
                                                               of the community property.
     Sallee S. Smyth, Richmond, J. Lindsey Short, Jr.,
Houston, for appellee.
                                                                  I.  FACTUAL                AND        PROCEDURAL
       Panel consists of Chief Justice HEDGES and              BACKGROUND
Justices FROST and CHRISTOPHER.
                                                                     Bob began working for Shell Oil in July 1967. On
                                                               January 1, 1984, he was promoted to a position on the "
     OPINION
                                                               Senior Staff" of the company, and in 1985, Shell merged
      TRACY CHRISTOPHER, Justice.                              with Royal Dutch Shell Group. After working for Shell
                                                               for eighteen years, Bob married Deborah on July 6, 1985;
      In this divorce appeal, appellant Robert (" Bob" )       eighteen years later, he retired on June 30, 2003.[1] He
Sprague challenges the jury's findings and the trial court's   receives retirement benefits from Shell through three
property division and post-judgment sanctions, while           different plans: the basic pension plan, the Benefit
appellee Deborah Sprague moves that we dismiss                 Restoration Plan, and the Senior Staff Plan. Under the
                                                               basic pension plan, Bob receives monthly payments of
Page 791                                                       $8,755.[2] Bob's benefits under the Benefit Restoration
                                                               Plan and the Senior Staff Plan were paid in one lump sum
 the appeal, arguing that Bob accepted the benefits of the     of $7,230,035 in the form of a credit to Bob's account in
divorce judgment and is estopped from appealing it.            the Senior Staff Savings Fund.

     Finding no estoppel, we deny Deborah's motion.                  Upon reaching the age of 65 in 2010, Bob also
                                                               received the first of ten equal annual payments through
      In his appeal of the property-division portion of the
                                                               Shell's Cash Deferral Program. The payments are equal to
divorce decree, Bob contends that the trial court
                                                               certain bonuses Bob was awarded in 1985, 1986, and
misapplied the law, submitted an erroneous jury charge,
                                                               1987, together with compound interest of 17% on the
improperly disregarded jury findings, and abused its
                                                               deferred bonus payments.
discretion in excluding evidence. He argues that as a
result of these alleged errors, the trial court divested him        A. Course of Proceedings through Trial
of his separate property. We conclude that the
characterization of a lump-sum distribution received                 Bob filed for divorce on July 29, 2005, and on
during the marriage under two defined-benefit plans is         September 13, 2007, the trial court issued an agreed
governed by former section 3.007(a) of the Texas Family        docket-control order scheduling the case for trial on
January 22, 2008 and setting a number of discovery             court accordingly ordered Bob to pay Deborah interest of
                                                               $34,323.70 and to pay her attorney $15,100.00 for the
Page 792                                                       attorneys' fees she incurred in the trial court in obtaining
                                                               the order. In an associated temporary order pending
 deadlines. In accordance with the docket-control order,       appeal, the trial court ordered Bob to pay an additional
Bob amended his petition to allege that he owned               $15,000.00 for attorneys' fees in the event that he
separate property. He produced the initial and first           unsuccessfully appealed the sanctions order.
supplemental report of his forensic-accounting expert,
Patrice Ferguson, in accordance with the order, but                 C. Post-Judgment Events
produced her second supplemental report after the
deadlines governing expert reports had passed. He served             The trial court signed the final decree of divorce on
supplemental discovery responses on December 21, 2007,         June 16, 2008 and evenly divided the community
which was the deadline specified in the docket-control         property, which it found included all of the marital estate
order.                                                         with the exception of the property that the parties had
                                                               stipulated was separate property, and the $1,807,509
     At the January trial setting, the trial court granted     portion of the lump-sum retirement benefits that the jury
Deborah's motion to exclude the second supplemental            found was Bob's separate property.
expert report and continued the trial until March 2008.
On the second day of the jury trial in March 2008,                   Both parties moved for temporary orders pending
Deborah successfully moved to exclude all evidence that        appeal. Although Bob did not appeal the portion of the
any portion of the amounts payable to Bob under Shell's        property
Cash Deferral Program is his separate property.
                                                               Page 793
      The jury found that the value of Bob's
separate-property interest in the lump-sum distribution of      division as it pertained to certain stock and stock options,
benefits due under Shell's Benefit Restoration Plan and        the trial court ordered Bob to post a $2,675,236 bond or
Senior Staff Plan was $1,807,509, an amount that is equal      cash equivalent as security for the stock options and stock
to 25% of the lump-sum distribution. Other findings of         appreciation rights awarded to Deborah. In addition, the
the jury are not challenged on appeal. Because the trial       trial court conditionally awarded Deborah $150,000 in
court excluded all evidence that any portion of the            attorneys' fees in the event that Bob's appeal of the
payments he would receive through the Cash Deferral            property division was unsuccessful. While the appeal was
Program is his separate property, the jury was not asked       pending, Deborah served Bob with discovery to gather
to determine the value of any such separate-property           evidence in support of a motion to dismiss the appeal.
interest.                                                      The trial court ordered Bob to comply.

     B. Rendition and Sanctions                                     II. MOTION TO DISMISS

      After receiving the jury's verdict, the trial court            We first address Deborah's motion to dismiss this
issued a letter of rendition on March 31, 2008. Among          appeal on the ground that Bob has accepted the benefits
other things, the trial court ordered that the Shell Senior    awarded to him in the divorce decree. See Carle v. Carle,
Staff Savings fund " shall be sufficiently liquidated" to      149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950)
net Deborah $4,561,575 as " expeditiously as possible."        (explaining that a party who accepts the benefits of a
On May 2, 2008, Bob's attorney told the court that they        judgment is estopped from appealing it); Waite v. Waite,
had not yet started the liquidation process because they       150 S.W.3d 797, 803 (Tex.App.-Houston [14th Dist.]
were afraid that the liquidation could be a violation of the   2004,      pet.     denied)     (same).      Under       the
temporary injunction in effect. The trial court signed an      acceptance-of-benefits doctrine, " [a] litigant cannot treat
order authorizing Bob to liquidate an unspecified portion      a judgment as both right and wrong, and if he has
of the funds in the account sufficient to net the amount       voluntarily accepted the benefits of a judgment, he cannot
due to Deborah. The same day that the trial court signed       afterward prosecute an appeal therefrom." Carle, 149
the order, Bob instructed Shell to liquidate $8.2 million      Tex. at 472, 234 S.W.2d at 1004. The burden is on the
from the account. This produced net proceeds of                appellee to establish that the appellant has accepted the
$5,379,200, but due to mail delays, Bob did not receive a      benefits of a judgment. Waite, 150 S.W.3d at 803. If the
check for the funds for nearly a month. The day he             appellee meets this burden, then the burden shifts to the
received the check, however, he ordered the funds              appellant to show that one of the exceptions to the
deposited and Deborah's share wire-transferred to her. As      doctrine applies. Id. at 803-04. The doctrine does not
a sanction for Bob's alleged delay in complying with the       apply when the appellant accepted the benefit of the
trial court's letter of rendition, Deborah asked the trial     judgment due to economic necessity, id. at 803, or when
court to award her an amount equal to the interest she         the appeal affects only the appellant's right to further
might otherwise have earned on the funds if they had           recovery. Carle, 149 Tex. at 472, 234 S.W.2d at 1004.
been transferred to her on the date of rendition. The trial    The doctrine also does not apply if the " benefit accepted"
                                                               was cash, the use of which would not prejudice the
appellee. Demler v. Demler, 836 S.W.2d 696, 698                 Texas Constitution and the Texas Family Code, a person
(Tex.App.-Dallas 1992, no writ), disapproved on other           has a separate-property interest in all property that the
grounds, Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958             person " owned or claimed" before the marriage or
S.W.2d 382, 386 (Tex.1997).                                     acquired during the marriage by gift, devise, or descent.
                                                                TEX. CONST. art. XVI, § 15; TEX. FAM.CODE ANN.
      Deborah contends that Bob accepted the benefits of        § 3.001. Community property, on the other hand, consists
the judgment by liquidating an excessive portion of his         of all of the property, other than separate property,
Senior Staff Savings Fund and retaining the net proceeds.       acquired by either spouse during marriage, and all
According to Deborah, this conduct began after the trial        property possessed by either spouse during the marriage
court issued its rendition letter on March 31, 2008             or at its dissolution is presumed to be community
requiring Bob to liquidate a portion of the fund sufficient     property. TEX. FAM.CODE ANN. §§ 3.002, 3.003(a). A
to net $4,561,575 to be transferred to Deborah. Of the          litigant can overcome this presumption by tracing
approximately $24.5 million in the account at the time of       property and presenting clear and convincing evidence
the divorce, Bob ordered $8.2 million liquidated, which         that it is one spouse's separate property. Pearson v.
resulted in an additional $817,625 being transferred to         Fillingim, 332 S.W.3d 361, 363 (Tex.2011). " ' Clear and
him. Between that time and the date of Deborah's motion         convincing evidence' means the measure or degree of
to dismiss in this court, Bob liquidated an additional $8.2     proof that will produce in the mind of the trier of fact a
million from the account, placing the net proceeds of           firm belief or conviction as to the truth of the allegations
$5,330,000 into his checking account.                           sought to be established." TEX. FAM.CODE ANN. §
                                                                101.007 (West 2008); In re J.F.C., 96 S.W.3d 256, 264
      Deborah also argues that Bob has accepted the             (Tex.2002).
benefits of the judgment by retaining one-half of the
automatic annual payments that he began receiving at age               We will not disturb the property division on appeal
65 under the Cash Deferral Program. These payments had          unless the appellant demonstrates that the trial court
been characterized as community property, half of which         clearly abused its discretion by a division or an order that
was awarded to Bob and half of which was to be paid to          is manifestly unjust and unfair. See Stavinoha v.
Deborah. Bob did not transfer half of the funds to              Stavinoha, 126 S.W.3d 604, 607 (Tex.App.-Houston
Deborah, but paid that portion into the registry of the trial   [14th Dist.] 2004, no pet.). Under this standard, neither
court. He retained the remaining half of this payment.          legal nor factual insufficiency of the evidence is an
                                                                independent ground of error, but each instead is a
      We conclude, however, that given the facts and            relevant factor in assessing whether the trial court abused
procedural      posture     of     this    case,    the         its discretion. Id. at 608. When we review the legal
acceptance-of-benefits doctrine does not require us to          sufficiency of a separate-property finding, we consider all
dismiss the appeal. First, Bob superseded the judgment.         of the evidence in the light most favorable to the finding
Raymond v. Raymond, 190 S.W.3d 77, 80                           and determine whether a reasonable jury could have
(Tex.App.-Houston [1st Dist.] 2005, no pet.) (when an           formed a firm belief or conviction that its finding was
appealing party posts a                                         true. Id. We resolve all conflicts in the evidence in favor
                                                                of the finding if a reasonable juror could do so, and
Page 794
                                                                disregard all contrary evidence unless a reasonable juror
 supersedeas bond [3] to suspend judgment, there is no "        could not. Id. When we review the factual sufficiency of
acceptance of benefits" ). Second, the temporary orders         a separate-property finding, we will uphold the finding
pending appeal in this case allow the parties to pay            unless, " in light of the entire record, the disputed
attorneys' fees, to use money in their possession for           evidence that a reasonable fact finder could not have
reasonable and necessary living expenses, to manage and         credited in favor of the finding is so significant that a fact
invest the financial assets to preserve capital, and to         finder could not reasonably have formed [the] firm belief
transfer financial assets from one financial account to         or conviction" reflected in the finding. Id.
another. When such temporary orders are in place, the
                                                                Page 795
acceptance of benefits doctrine does not apply. McAlister
v. McAlister, 75 S.W.3d 481, 483-84 (Tex.App.-San                     A. Characterization of Lump-Sum Distribution
Antonio 2002, pet. denied); Waite, 150 S.W.3d at 807, n.
13. We accordingly deny Deborah's motion to dismiss.                  The jury found that the value of Bob's
                                                                separate-property interest in the lump-sum distribution of
     III. DIVISION OF PROPERTY                                  benefits due under the Benefit Restoration Pension and
                                                                the Senior Staff Pension Plan was $1,807,509, an amount
       In a divorce decree, the trial court must divide the
                                                                that is equal to 25% of the lump-sum distribution of
community property " in a manner that the court deems
                                                                $7,230,035. Bob presents three issues challenging the
just and right, having due regard for the rights of each
                                                                jury's finding. First, he asserts that half of the lump-sum
party and any children of the marriage." TEX.
                                                                distribution (i.e., $3,615,018) is his separate property
FAM.CODE. ANN. § 7.001 (West 2006). Among these
                                                                because, as a matter of law, the community-property
rights is the right to separate property. Under both the
interest in this benefit must be determined by applying        L.REV. 107, 136 (1985) (footnote and italics omitted).
the time-allocation rule established in Taggart v. Taggart,
552 S.W.2d 422 (Tex.1977). Second, he contends that the             3. Texas Family Code Section 3.007
trial court erred in instructing the jury using language
based on the language of former provisions of Texas                  In 2005, the Texas legislature passed House Bill
Family Code section 3.007 rather than language drawn           410, codified as sections 3.007 and 3.008 in the Texas
from Taggart. And third, he argues that the repealed           Family Code. See Act of May 24, 2005, 79th Leg., R.S.,
subsections of section 3.007 were applied in a manner          ch.
that unconstitutionally divested him of his separate
                                                               Page 796
property. We address these issues together.
                                                                490, § 1, 2005 Tex. Gen. Laws 1353, 1353. Subsections
     1. Taggart v. Taggart
                                                               (a) of section 3.007 provided as follows:
      Under      Taggart,     courts   calculated      the
                                                               (a) A spouse who is a participant in a defined benefit
community-property interest in retirement benefits by
                                                               retirement plan has a separate property interest in the
dividing the number of months during which marriage
                                                               monthly accrued benefit the spouse had a right to receive
and employment coincided by the number of months of
                                                               on normal retirement age, as defined by the plan, as of
employment. Id. at 424. Bob and Deborah were married
                                                               the date of marriage, regardless of whether the benefit
during half of the time that Bob worked for Shell; thus, if
                                                               had vested.
the division of his retirement benefits is governed by
Taggart, then half of the lump-sum distribution is             Id. Although this subsection was repealed in 2009,[4] it
community property and half is Bob's separate property.        applies to suits for divorce that were pending at any time
                                                               between September 1, 2005 and August 31, 2009.[5]
     2. Berry v. Berry
                                                                    Because Bob petitioned for divorce in 2005 and the
      This approach changed when the Texas Supreme
                                                               case was pending before these provisions were repealed,
Court decided Berry v. Berry, 647 S.W.2d 945
                                                               the characterization of benefits under the two
(Tex.1983). There, the court stated that Taggart
                                                               defined-benefit plans at issue is governed by section
addressed the extent of the community interest in
                                                               3.007(a).
retirement benefits, but not the value of the
community-property interest. Id. at 946. The court                     Bob's arguments to avoid the statute's application
explained that when determining the community-property         can be disposed of quickly. He correctly notes that
interest, the value of retirement benefits is calculated as    section 3.007(a) defines the separate-property interest of
of the date of divorce. Id. (citing Herring v. Blakeley, 385   a " participant" in a defined-benefit plan. Reasoning that
S.W.2d 843, 845 (Tex.1965)).                                   this subsection is inapplicable if he was not a "
                                                               participant" in the plan at the time of his divorce, Bob
       The Berry court dealt with a concern not addressed
                                                               selectively quotes language from various Shell benefit
in Taggart, namely, the effect of pay increases in the later
                                                               plans in an attempt to show that Shell used the word "
years of employment on defined-benefits that are
                                                               participant" to refer only to current employees, and not to
calculated based not only on length of service, but also on
                                                               retirees. According to Bob, only those who are " eligible"
compensation. Retirement benefits calculated this way do
                                                               can participate in these retirement plans, and only "
not accrue equally across the span of employment if
                                                               employees" are eligible. He then reasons that one who is
compensation changes; in Berry, for example, the value
                                                               no longer an employee is not eligible to participate and
of the payments available under such a defined-benefit
                                                               therefore cannot be a " participant." Not only would this
plan more than quadrupled in the last third of the
                                                               be an absurd construction of section 3.007(a), but Bob's
employed spouse's career. Id. In recognition of this effect,
                                                               premises are factually incorrect. Both the Benefit
and in an effort to better safeguard the working spouse's
                                                               Restoration Plan and the Senior Staff Plan refer to " any
separate-property interests, the Berry court limited the
                                                               participant, including one who is retired." Moreover, his
community's interest to the benefits that accrued during
                                                               own expert stated that Bob is a " participant." Bob also
the marriage. To do so, the court calculated the payments
                                                               asserts that, as applied to him, 3.007(a) violates the state
that hypothetically would have been due if, on the date
                                                               constitution and common-law precedent because it
that the employed spouse's marital status changed, the
                                                               divests him of a portion of his separate property. This
benefits were vested and matured and he retired. Id. In
                                                               argument begs the question of whether a portion of the
other words, the Berry court " avoided the difficulties of
                                                               lump-sum distribution characterized as community
computing a present value by employing a fiction to
                                                               property actually is his separate property. He additionally
retire the employee spouse under the plan provisions on
                                                               states that the way in which 3.007(a) was applied in this
the date of divorce." Steven R. Brown, Comment, An
                                                               case conflicts with the express terms of the
Interdisciplinary Analysis of the Division of Pension
                                                               defined-benefit plans, but he refers us to no language
Benefits in Divorce and Post-Judgment Partition Actions:
                                                               from either plan that purports to mandate the way in
Cures for the Inequities in Berry v. Berry, 37 BAYLOR
                                                               which the lump-sum distribution of a defined benefit is
characterized years after it was paid. Bob also argues that    which marriage precedes employment. In both, the value
the statute as applied would be preempted by ERISA             of an interest is the amount of the benefits that
because it would cause a plan administrator to pay other       hypothetically would have been payable if the employed
than in accordance with plan documents, but cites no           spouse retired on the date of the marital-status change
evidence that this is the case.                                and there had been no further requirements for the
                                                               benefits to vest or mature. See Brown, 37 BAYLOR
       In an alternate argument, Bob contends that if          L.REV. at 122 (" ' Accrual of benefits' refers to the
section 3.007(a) applies, then we should it construe it as a   specific dollar amount credited or allocated to the
codification of Taggart, but the statute will not bear such    individual plan participant at a given point in time." ).
an interpretation. Under section 3.007(a), the working
spouse has a separate-property interest in the " monthly            We therefore conclude that the trial court did not
accrued benefit," which requires a determination of the        abuse its discretion by instructing the jury in accordance
monetary value of the benefit that had accrued on a            with the statute or by charging the jury to state the
particular date. Value is stated in dollars and cents. See     amount of Bob's separate-property interest in dollars and
Berry, 647 S.W.2d at 945-46. In section 3.007(a), as in        cents rather than as a percentage. We overrule Bob's
Berry, value is determined as of the date that the             second issue.
employed
                                                                    4. Application to the Lump-Sum Distribution
Page 797
                                                                     To     evaluate    Bob's     argument    that    his
  spouse's marital status changed. Compare TEX.                separate-property interest in the lump-sum distribution is
FAM.CODE 3.007(a) (value is determined " as of the             larger than the $1,807,509 found by the jury, we consider
date of marriage" ) with Berry, 647 S.W.2d at 946-47           the benefits that had accrued under the two plans
(value is determined as of the date of divorce). In            involved as of the date of his marriage. See TEX.
contrast, value is not addressed in Taggart at all. See        FAM.CODE ANN. § 3.007(a). The lump-sum
Taggart, 552 S.W.2d at 424 (reforming the judgment " to        distribution consisted of payments under the Shell Senior
adjudge the correct fractional interest" to the                Staff Plan and the Benefit Restoration Plan, both of
non-working spouse). Instead, the Taggart formula is           which are defined-benefit plans; thus, section 3.007(a)
used to determine the extent of the community-property         applies.
interest, which is expressed as a fraction. Id. The value of
retirement benefits on the date that the working spouse's            It is undisputed that the Benefit Restoration Plan
marital status changed is the central feature of section       was created after Bob and Deborah married.
3.007(a), but forms no part of the Taggart formula. See        Consequently, all of the benefits that this plan provides
id.                                                            can be presumed to be community property. See TEX.
                                                               FAM.CODE ANN. § 3.002 (all property acquired during
      Although section 3.007(a) cannot be read as a            the marriage is presumed to be community property). To
codification of Taggart, it can be read as the legislature's   overcome this presumption, Bob asserts that the Benefit
attempt to extend Berry to cases in which employment           Restoration Plan simply
predates marriage. Like Berry, section 3.007(a) requires
the court to determine the value of the benefits that had      Page 798
accrued on the date that the working spouse's marital
status changed, without regard to vesting. Both Berry and       restored benefits that were lost as a result of the 1986
section 3.007(a) are consistent with the recognition that      Tax Reform Act. This is so, he argues, because payments
larger benefit increases are more likely to occur later in     under Shell's defined-benefit plans are based in part on
the working spouse's career. The difference between the        the employee's compensation, but the Act imposed a cap
two is that in Berry, marriage preceded employment,            on the compensation that could be considered in
whereas section 3.007(a) deals with situations in which        determining the amount of the defined benefit. After the
employment preceded marriage. See House Comm. on               passage of the 1986 Tax Reform Act, Shell established
Juvenile Justice & Family Issues, Bill Analysis, Tex.          the Benefit Restoration Plan to return the total amounts
H.B. 410, 79th Leg., R.S. (2005) (stating that section         payable under its pension plans to the amount that would
3.007(a) " sets forth a mechanism for Texas courts to          have been payable without the statutory cap. Shell further
apply the Berry case in the various situations that may        made this plan retroactive to 1984. Bob contends that the
arise" ).                                                      theories of inception-of-title, replacement-for-loss,
                                                               mutation, and tracing all support his position that the
      Thus, as we understand it, the legislature's intent in   benefits he became entitled to receive under this plan
enacting this provision was to require that in those cases     after his marriage nevertheless are his separate property.
in which employment precedes marriage, courts must use
the same accrued-benefit method to calculate the value of           The problem with these arguments is that before his
the separate-property interest that they would use to          marriage, Bob's salary was already below the cap
calculate the community-property interest in cases in          imposed by the 1986 Tax Reform Act. Because the Act
                                                               did not reduce the benefits that Bob was entitled to
receive on the date of his marriage, it cannot be said that      Under the terms of the order, expert reports were due on
the Benefit Restoration Plan " restored" anything to him.       October 22, 2007 and rebuttal reports were due on
                                                                November 12, 2007. All discovery was to be
       As for the Senior Staff Plan, Bob presented no           supplemented by December 21, 2007. On December 4
evidence that that this plan existed before Bob's marriage      and 5, 2007, the parties were deposed, and Bob testified
in 1985. Shell's representative dated the plan's inception      that he did not participate in the Cash Deferral Program
to the 1990's, and the plan administrator identified 1991       until after he was married. On December 6, 2007, Bob's
as the year when Bob first began to participate in it. Thus,    expert witness Patrice Ferguson was deposed. She stated
the benefits it provides also can be presumed to be             that although she had not yet expressed it in an expert
community property.                                             report, she had a preliminary opinion that some of the
                                                                future payments under the Cash Deferral Program might
      In sum, we conclude that section 3.007(a) applies to      be Bob's separate property. Counsel for Deborah did not
the characterization of the payments under Bob's                ask for a dollar amount at the deposition because
defined-benefit plans; that the trial court correctly           Ferguson characterized her opinion as preliminary.
instructed the jury accordingly; and that the trial court did
not abuse its discretion by rejecting Bob's arguments that            On December 14, 2007, Ferguson produced a
half of the benefits ultimately paid under these plans are      second supplemental expert report identifying for the first
his separate property. Because Bob failed to establish that     time the amount of the future payments under the Cash
the value of his separate-property interest is larger than      Deferral Program that Bob claimed as his separate
the $1,807,509 found by the jury, we overrule Bob's first       property. Ferguson opined that $1,578,030 of each annual
and third issues.                                               payment is Bob's separate property. On December 21,
                                                                2007, Bob incorporated this report by reference in his
     B. Exclusion of Evidence of Separate-Property              supplemental responses to discovery concerning the legal
Interest in the Cash Deferral Program                           theories and factual bases of his claims, and he
                                                                supplemented his interrogatory answers.
      In his fourth issue, Bob challenges the trial court's
imposition of discovery sanctions excluding all evidence              After Bob served the second supplemental expert
that a portion of the payments due to him under Shell's         report and supplemental discovery responses, Deborah's
Cash Deferral Program are his separate property. As a           forensic-accounting expert James Penn produced a
result of his participation in this program, Bob will           supplemental rebuttal report on December 28, 2007. Penn
receive an annual payment of $2,424,154 for ten years,          disagreed with Ferguson's calculations, acknowledged
for a total of $24,241,540. Bob argues that the trial court     that part of the payment could be characterized as
abused its discretion in excluding all evidence of his          separate, but concluded that Bob had failed to establish
separate-property interest in these payments, including         by clear and convincing evidence what portion could be
certain Shell documents, supplemental expert reports, and       separate. At the January pretrial conference, the court
Bob's testimony on this point.                                  granted Deborah's motion for continuance, setting the
                                                                case for trial on March 10, 2008. The trial court also
       Under Texas Rule of Civil Procedure 193.6, if a
                                                                struck Ferguson's late-filed expert report, and prevented
party fails to timely make, amend, or supplement a
                                                                her from testifying on that issue.[6] Bob argued that
discovery response, the undisclosed evidence or
                                                                resetting the trial date meant that the report was now
information is subject to exclusion unless that party
                                                                timely. The court disagreed and noted on the docket
proves to the trial court that there was good cause for the
                                                                sheet, " No deadlines changed at this time." The trial
failure or that the failure would not unfairly surprise or
                                                                court also stated that although its order would preclude
unfairly prejudice the other parties. TEX.R. CIV. P.
                                                                Bob's expert from testifying that Bob had a
193.6(a), (b). We review the trial court's ruling under this
                                                                separate-property interest in the Cash Deferral Program's
rule for abuse of discretion. See Fort Brown Villas III
                                                                annual payments, the order did not apply to Bob's own
Condo. Ass'n v. Gillenwater, 285 S.W.3d 879, 881
                                                                testimony. This ruling changed on the second day of the
(Tex.2009) (per curiam) (addressing exclusion of
                                                                trial in March 2008, when the trial court sustained
testimony of expert who was first designated three days
                                                                objections to Bob's testimony on this issue. Bob made an
before the end of discovery and more than five months
                                                                offer of proof of Ferguson's testimony, his own
after the expert-designation deadline).
                                                                testimony, and the excluded documents and reports.
     1. Deadlines for Supplementing Expert Reports
                                                                     2. Exclusion of Ferguson's Supplemental Report
and Discovery Responses
                                                                and Testimony
      The trial court entered an agreed docket-control
                                                                      Bob contends that the trial court abused its
order in September 2007, setting the case for trial on
                                                                discretion in excluding Ferguson's second supplemental
January 22, 2008.
                                                                expert report and her testimony concerning the additional
                                                                opinions expressed in that report because (a) the sanction
Page 799
                                                                was not warranted by any discovery violation on his part,
(b) his failure to supplement certain discovery before the     regarding the character of the bonuses or the interest paid
discovery deadline was excusable for good cause, and (c)       on them&mdash; amounts that together totaled more than
any late production of evidence did not unfairly surprise      $24 million dollars.
or prejudice Deborah. We disagree.
                                                                     We conclude that the trial court did not abuse its
       Bob first argues that because the trial had been        discretion in excluding Ferguson's second supplemental
reset when the motion was heard, the evidence at issue         expert report and her testimony regarding the opinions
was no longer subject to automatic exclusion under Rule        expressed in that report. We therefore overrule Bob's
193.6. When the date of trial determines the date on           fourth issue as it pertains to this report and to Ferguson's
which discovery must be supplemented,                          testimony.

Page 800                                                           3. Exclusion of Bob's Testimony and
                                                               Documentary Evidence Regarding the Cash Deferral
 this would be true. See H.B. Zachry Co. v. Gonzalez, 847      Program
S.W.2d 246, 246-47 (Tex.1993) (per curiam) (orig.
proceeding) (discussing predecessor to Rule 193.6 and                 On the second day of trial, Deborah moved to
holding that party's failure to identify witnesses more        exclude any evidence of Bob's separate-property interest
than thirty days before trial as required by rule was not a    in the Cash Deferral Program on the ground that he failed
basis for excluding their testimony where the trial was        to timely supplement his discovery responses. In 2006,
reset to another date more than thirty days later). See also   Deborah sent Bob an interrogatory asking him to identify
TEX.R. CIV. P. 190.3(b)(1)(A) (all discovery must be           the percentage of any property in the entire estate that he
conducted during the discovery period which continues          claimed as his separate property. Bob answered the
until 30 days before the date set for trial in cases under     interrogatory and supplemented several times. He always
the Family Code). However, Rule 190.3 does not apply if        indicated that there might be a separate component to the
there is a written scheduling order under 190.4. See           Cash Deferral Program but never identified a percentage.
TEX.R. CIV. P. 190.3 (specifying that this rule applies
only if Rule 190.2 and Rule 190.4 do not). Under Rule                At trial, Deborah argued that Bob failed to timely
190.4, the trial court may order that discovery be             supplement discovery because he did not identify the
conducted in accordance with a discovery control plan          percentage of the payments under the Cash Deferral
tailored to the circumstances of the specific suit and may     Program that he claimed as his separate property
change any limitation on the time for or amount of
discovery otherwise set forth in the Texas Rules of Civil      Page 801
Procedure. TEX.R. CIV. P. 190.4(a), (b).
                                                                 until the December 21, 2007 deadline to supplement
      Even though the trial court continued the case, the      discovery. The trial court sustained Deborah's objections
court made clear that the deadlines in the docket-control      to Bob's offered testimony on the subject and to the two
order remained in place. Under these facts, we conclude        letters from Shell [7] on which Bob relied as support for
that the continuance did not reset the dates in the court      his testimony. The trial court further explained that the
order. In re Carpenter, No. 05-08-00083-CV, 2008 WL            ruling applied not only to Shell's letters, but also to " any
384569, at *2 (Tex.App.-Dallas Feb. 18, 2008, orig.            testimony that would suggest or support a position that
proceeding [mand. denied] ) (mem. op.) (continuance            any asset in that plan is anything other than community
does not nullify scheduling order set by court order).         property."

       Bob's failure to supplement the expert report in a            With regard to the exclusion of Bob's testimony and
timely manner also is not excusable for good cause. The        documentary evidence, we agree with Bob that Deborah
stated reason for the delay was that his trial counsel did     waived her complaint by failing to obtain a pretrial ruling
not appreciate the significance of two letters Deborah         on the discovery dispute. See Remington Arms. Co. v.
produced in 2005 until after Bob was deposed in                Caldwell, 850 S.W.2d 167, 170 (Tex.1993) (" the failure
December 2007. By that time, the deadline to supplement        to obtain a pretrial ruling on discovery disputes that exist
his expert's report had passed. Inadvertence of counsel is     before commencement of trial constitutes a waiver of any
not good cause for failure to adhere to discovery              claim for sanctions based on that conduct" ); Mandell v.
deadlines. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911,         Mandell, 214 S.W.3d 682, 691-92 (Tex.App.-Houston
915 (Tex.1992).                                                [14th Dist.] 2007, no pet.) (holding that appellant who
                                                               failed to move for the exclusion of evidence until the last
       Finally, Bob failed to show that his expert's new       business day before a summary-judgment hearing waived
opinion did not unfairly surprise or prejudice Deborah.        his complaint that the summary-judgment motion was
Ferguson did not identify the funds that Bob claimed as        based on evidence not produced in response to
his separate property until after she and Bob had been         discovery).
deposed; until that time, it had been unnecessary for
Deborah to prepare legal arguments or expert testimony               Although Deborah contends that she did obtain a
                                                               pretrial ruling, this is not supported by the record. At the
hearing on the motion in limine, Bob's attorney expressed        award of $82,500 was allocated to Bob on August 21,
concern that part of the motion applied to Bob's own             1985, and payments of $41,250 were allocated to him in
testimony. The next day, the trial court announced its           January 1986 and January 1987.[8]
ruling excluding Ferguson's second supplemental report
and her testimony as to the characterization of the                    Shell stated that the bonus with which Bob was
payments under the Cash Deferral Program and as to the           credited in August 1985 was intended to compensate him
value of Bob's separate-property interest in them. In            for work done in the preceding eighteen months, but 16.5
announcing its ruling, the trial court stated that it was "      of those months predated Bob's marriage. Thus, a
granting the Motion in Limine with regard to experts"            reasonable jury could find that the value of Bob's
and that its ruling " should not be interpreted to mean that     separate-property interest in that payment is 16.5/18 x
Mr. Sprague could not testify as appropriate, if discovery       $82,500, or $75,625. According to the same letter from
is in order, and if there are no other valid objections to his   Shell, the payment of $41,250 credited to Bob in January
testimony." Thus, the record affirmatively shows that            1986 was paid for his work in the same eighteen-month
Deborah was aware of the dispute concerning Bob's                period and for his continued employment until this
non-expert evidence, but did not obtain a pretrial ruling.       portion of the bonus was paid in January 1986. This
                                                                 portion of the bonus was credited on January 6, 1985;
        We must reverse the property division if the             thus, it covered a period of 22.5 months, and Bob was
erroneous exclusion of this evidence probably caused the         single for 16.5 of those months. Based on this evidence,
trial court to render an improper judgment. See TEX.R.           jurors could find that Bob's separate-property interest in
APP. P. 44.1(a)(1). Even in the absence of expert                that payment is 16.5/22.5 x $41,250, or $30,250. The last
testimony, a reasonable jury could have found that the           payment of $41,250 was credited on January 5, 1987, and
excluded evidence clearly and convincingly established           was paid to compensate Bob for work performed in the
that at least some of the funds payable through the Cash         eighteen-month period through August 20, 1985 and for
Deferral Program were Bob's separate property. We                his continued employment through January 5, 1987.
therefore agree that the error was harmful.                      Because Bob was single for 16.5 of those months, a jury
                                                                 could find that his separate-property interest in the
        Bob asserts that a large part of the payments due        January 1987 payment is 16.5/34.5 x $41,250, or
under the Cash Deferral Program is attributable to a             $19,728.26. Thus, if allowed to consider the excluded
bonus declared approximately six weeks after his                 evidence, a reasonable jury could have found that the
marriage. The evidence supporting Bob's claim included           evidence clearly and convincingly established that
a letter from Shell dated February 21, 1985 offering Bob         $125,603.26 of the initial $165,000 bonus is Bob's
the option to defer payment of additional compensation if        separate property. This bonus was deferred for payment
any should be awarded that year in connection with               until Bob reached age 65 and was guaranteed a 17% rate
Shell's planned merger. Such compensation would then             of return.
accrue interest at a rate of 17%, compounded annually,
with payments to be made in ten installments beginning                  While Bob argues that he has established his
when he reached the age of 65. In his offer of proof, Bob        separate property interest as a matter of law, the
testified that he made such an election. The excluded            characterization of payments under the Cash Deferral
evidence also included a letter from Shell's CEO dated           Program involves questions of fact to be decided by the
August 20, 1985, notifying Bob that he and the other             jury.[9] Because we cannot know how the jury would
Senior Staff members had been awarded bonus                      have weighed the evidence or the credibility of the
compensation. Shell's CEO stated, " This bonus will              various witnesses, we cannot determine the extent to
express our thanks to you in a tangible way for your             which the original awards ultimately will be determined
contribution to the Company especially during the                to be Bob's separate property, and thus, we do not reach
                                                                 the question of the proper characterization of the interest
Page 802                                                         on any such payments. We therefore sustain Bob's fourth
                                                                 and fifth issues as they pertain to the non-expert evidence
 uncertainties of the past 18 months. Also I hope it will        of his separate-property interest in payments under the
further encourage you to devote your maximum efforts             Cash Deferral Program, and remand for a new trial on
towards ensuring the Company's continued success...."            that issue.
Half of the bonus was payable immediately, and to
encourage Bob's continued employment, one-quarter was                 IV. POST-JUDGMENT SANCTIONS
payable in January 1986 and one-quarter payable in
January 1987, contingent only upon his continued                        Bob contends that if we reverse the property
employment on those dates. Although the amount of the            division, then we also must
bonus is not stated in the letter, Bob testified that he was
awarded $165,000. This is supported by another                   Page 803
document from Shell tracking the principal and interest
payable on deferred compensation. This document, which            reverse the trial court's order imposing sanctions for
was not excluded from evidence, shows that a deferred            Bob's alleged delay in transferring funds to Deborah after
the court issued its rendition letter. Because this is not        $4,561,575 ... as expeditiously as possible,
necessarily so, we address the substance of his challenge
to that order. He argues that the trial court's failure to file   Page 804
findings of fact and conclusions of law is presumed
harmful and requires reversal or abatement so that                  and the court invites counsel to have Shell make a
findings can be made. In the alternative, Bob contends            determination of timing on such liquidation so that
the sanction is not supported by legally or factually             specific orders may be included in the Decree of
sufficient evidence or findings.                                  Divorce." On April 3, 2008, Bob's attorney Brenda Keen
                                                                  sent an email to Shell's counsel (with a courtesy copy to
       We begin our review by identifying the legal basis         Deborah's counsel) requesting information about the
for the trial court's order. Sanctions are available under        timing and steps necessary for such liquidation. Shell's
Chapter 9 of the Civil Practice and Remedies Code in              attorney advised Keen on April 15, 2008 that in response
certain suits for damages, but this statute does not apply        to his inquiries, he had been directed to the plan
to actions in which no party asserts a tort claim or a claim      administrator's website.
for damages based upon personal injury, property
damage, or death.[10] Chapter 10 of the Civil Practice                  On April 17, 2008, the hearing on the entry of
and Remedies Code authorizes sanctions against one who            judgment was postponed until May 2, 2008. At the
signs a frivolous pleading or motion,[11] and Texas Rule          hearing, Deborah's attorney stated that the funds had not
of Civil Procedure 13 permits sanctions against one who           yet been received, and Keen explained that, in accordance
signs a groundless pleading or motion, but neither was            with the trial court's letter of March 31, 2008, she had
the basis on which sanctions were sought. Discovery               asked for information from Shell about the timing of the
abuses also can result in sanctions,[12] as can the failure       liquidation. Keen also stated that she had advised Bob not
to deliver copies of pleadings and motions to other parties       to transfer any funds yet because a temporary injunction
to an action,[13] but neither were alleged in the motion          was still in effect. The following discussion then
that was granted here. We conclude that in sanctioning            occurred:
Bob for the delays in transferring funds to Deborah, the
                                                                  The Court: Okay, why don't we do this. Why don't we
trial court must have relied on its inherent power.
                                                                  say I am instructing him to do, and I don't want to
       Trial courts have inherent power to sanction " to          handwrite an order, I want to leave the language exactly
the extent necessary to deter, alleviate, and counteract          like it is, and I can add notwithstanding any temporary
bad faith abuse of the judicial process, such as any              injunctions or whatever you need it to say. If, so that's
significant interference with the traditional core functions      clear, that his effectuating this transaction is not a
of Texas courts." McWhorter v. Sheller, 993 S.W.2d 781,           violation of the temporary injunction of this court. Does
789 (Tex.App.-Houston [14th Dist.] 1999, pet. denied)             that work?
(citing Kutch v. Del Mar Coll., 831 S.W.2d 506, 509-10
                                                                  Ms. Keen: I think we can sit and handwrite that order and
(Tex.App.-Corpus Christi 1992, no writ)). These core
                                                                  submit it to him, and then we will know that he can start
functions include " hearing evidence, deciding issues of
                                                                  that process.
fact raised by the pleadings, deciding questions of law,
entering final judgment and enforcing that judgment."             The Court: I will sign that today, and that will take care
Kutch, 831 S.W.2d at 510. For the trial court to exercise         of that....
its inherent power to sanction, there must be evidence and
factual findings of significant interference with such                  The trial court signed a handwritten " Order for
functions. McWhorter, 993 S.W.2d at 789 (citing Kutch,            Liquidation of Senior Staff Savings" stating that Bob " is
831 S.W.2d at 510). We review the trial court's                   authorized to initiate liquidation of a sufficient portion of
imposition of sanctions for abuse of discretion. Id. at 788.      the Shell Senior Staff Savings Fund to net [Deborah]
                                                                  $4,501,572.00 [16] notwithstanding any temporary orders
      Although Bob timely filed a request for findings of         or injunctions previously entered in this case." The same
fact [14] and a reminder that the sanctions findings were         day that the order was signed, Keen notified Bob of the
past due,[15] the trial court issued none&mdash; nor              authorization, and Bob telephoned Fidelity, the plan
would the evidence support a finding that Bob engaged in          administrator, and requested liquidation of $8,200,000.
bad-faith abuse of the judicial process. The record instead       This amount was removed from the Senior Staff Savings
reveals the following chronology:                                 Fund on May 2, 2008. According to Bob, a Fidelity
                                                                  representative initially told him that the funds would be
      In its March 31, 2008 rendition letter, the trial court
                                                                  transferred to his account on May 30, 2008, but on May
advised counsel for the parties of its judgment in the case
                                                                  5, 2008, a Fidelity representative advised him that it was
and scheduled a hearing to be held on April 18, 2008
                                                                  sending a check to his address of record, and it was
regarding the entry of judgment. In the letter, the trial
                                                                  expected to arrive the week of May 12, 2008. On May 7,
court ordered that " [t]he Shell Senior Staff Savings Fund
                                                                  2008, Bob completed forms to be used by his brokerage
shall be sufficiently liquidated to net [Deborah]
                                                                  to deposit the check and wire transfer funds to Deborah.
       On May 27, 2008, Deborah's attorney advised             Deferral Program, and (b) a just and right division of the
Keen that the funds still had not been received. Keen          community estate, in light of the new finding to be made
responded that Bob had not received the check, although        concerning the characterization of the payments under the
Fidelity reported that it mailed the check to him in           Cash Deferral Program, and in light of the jury's findings
London on May 7, 2008. On May 28, 2008, Bob received           on the remaining issues. Given our disposition of these
the check for $5,379,200.00, dated May 2, 2008. The            issues, we do not address Bob's remaining issues.[18]
envelope indicated the reason for the delay between the
time the check was mailed and when it was received:                  FROST, J., Concurring.
although Fidelity sent the check from an address in Ohio
to Bob's home in London, it paid only $0.41 for postage.       Page 806
[17] The same day that Bob
                                                                     KEM THOMPSON FROST, Justice, concurring.
Page 805
                                                                     This appeal presents an issue of statutory
 received the check he sent it to his brokerage in Houston     interpretation regarding subsections (a) and (b) of former
via overnight delivery with instructions to deposit it and     Texas Family Code section 3.007, which govern the
wire transfer $4,561,575 to Deborah's account. The             characterization of property interests in certain employee
brokerage confirmed on May 29, 2008 that it had                benefits. [1] Appellant Robert M. Sprague (" Bob" ) and
received the documents, deposited the check, and, after        appellee Deborah L. Sprague (" Deborah" ) urge different
allowing time for the funds to clear, would wire transfer      interpretations of this statute, and the statute's meaning is
the requested funds to Deborah on June 4, 2008. The            the principal issue in this case.
money was removed from Bob's account on June 4 and
                                                                     Under Texas law, in interpreting section 3.007, this
deposited in Deborah's account on June 5, 2008.
                                                               court should begin by examining the text of the statute to
       Based on our review of the record, we conclude that     glean the intent of the legislature as reflected in the text
Bob was not required to begin liquidating funds from the       and in an effort to give meaning to the entire statute. The
Shell Senior Staff Fund before May 2, 2008, and the            court then should determine whether the statute is
delay in transferring funds to Deborah after that date was     ambiguous based upon the statutory interpretations
not attributable to him. As the Texas Supreme Court has        proffered by the parties or suggested by the text. If the
observed, " great delay in the delivery of a letter is the     statute is unambiguous, the court must adopt the
probable result of the omission to prepay the postage."        interpretation supported by the statute's plain language,
Blake v. Hamburg-Bremen Fire Ins. Co., 67 Tex. 160,            without relying upon extratextual sources to interpret the
164, 2 S.W. 368, 370 (1886). We accordingly reverse the        statute, unless such an interpretation would lead to absurd
trial court's order of June 20, 2008 imposing sanctions.       results. If the statute is ambiguous, the court should
Our disposition of this issue renders moot the trial court's   cautiously consult extratextual aids to interpretation in an
order of August 27, 2008, conditionally awarding               effort to determine the legislature's intent and give effect
Deborah attorneys' fees in the event of an unsuccessful        to the entire statute. Because the majority does not follow
appeal of the sanctions order.                                 this procedure in interpreting section 3.007, I do not join
                                                               the part of the majority opinion dealing with the first
     V. CONCLUSION                                             three issues.

      We find no error in the jury charge or in the trial            This court should begin with the text.
court's failure to characterize as Bob's separate property a
larger portion of the lump-sum distribution from two                 Under his first three issues, Bob raises an issue as to
defined-benefit plans. Although the trial court did not        the proper interpretation of subsections (a) and (b) of
abuse its discretion in excluding evidence of the              section 3.007. In his analysis as to what part of Bob's
untimely-disclosed opinions of Bob's forensic-accounting       pension benefits is Bob's separate property and what part
expert, we conclude that the trial court reversibly erred in   is community property, Deborah's expert based his
excluding non-expert evidence that would have supported        testimony on both of these subsections. In interpreting
Bob's separate-property claim to some of the amounts           these subsections, this court must begin by examining the
payable to him under Shell's Cash Deferral Program, and        text of the statute.[2] But, the majority does not quote,
in sanctioning Bob for a post-rendition delay in               discuss, analyze, or apparently consider the text of
transferring funds to Deborah. We accordingly reverse          subsection (b) at all. [3] The majority quotes subsection
both the property-division portion of the divorce decree       (a), but does not discuss or analyze its language in
and the post-judgment sanctions order. Because we              interpreting the statute.[4] The statute at issue reads in its
conclude that the trial court did not err in characterizing    entirety as follows:
$1,807,509 of the lump-sum distribution as Bob's
                                                               (a) A spouse who is a participant in a defined benefit
separate property, we reverse and remand the case to the
                                                               retirement plan has a separate property interest in the
trial court for (a) a new trial as to the proper
                                                               monthly accrued benefit the spouse had a right to receive
characterization of the amounts payable under the Cash
                                                               on normal retirement age, as defined by the plan, as of
the date of marriage, regardless of whether the benefit       context and the various possible interpretations of the
had vested.                                                   statute, we must determine if the statute is ambiguous. [7]
                                                              If the statute is unambiguous, then we must adopt the
 (b) The community property interest in a defined benefit     interpretation supported by the statute's plain language,
plan shall be determined                                      without relying upon extratextual sources to interpret the
                                                              statute, except in the rare situation in which such an
Page 807                                                      interpretation would lead to absurd results.[8] We cannot
                                                              use extratextual sources, such as legislative history, to
 as if the spouse began to participate in the plan on the
                                                              interpret a statute in a way that contradicts the statute's
date of marriage and ended that participation on the date
                                                              unambiguous language.[9] But
of dissolution or termination of the marriage, regardless
of whether the benefit had vested. [5]                        Page 808
      Subsection (a) addresses the separate-property           if the statute's meaning is uncertain or if there is more
interest of a participant in a defined-benefit retirement     than one reasonable interpretation of the statute, then the
plan,     and      subsection    (b)    addresses     the     statute is ambiguous, and in determining the legislature's
community-property interest in such a plan.                   intent, we may proceed with caution in consulting
                                                              extratextual interpretation aids, such as legislative history
     This court should address all of the parties'
                                                              or an administrative agency's interpretation of the
proffered interpretations.
                                                              statute.[10]
      Bob worked for Shell for approximately eighteen
                                                                    The majority does not determine whether
years before he married Deborah on July 6, 1985. He
                                                              subsections (a) and (b) are ambiguous. The majority does
then worked for approximately eighteen more years
                                                              not state whether the statute's meaning is uncertain or
before retiring on June 30, 2003. Bob petitioned for
                                                              susceptible to more than one reasonable interpretation.
divorce in 2005, and the trial court granted Bob a divorce
                                                              The majority does rely upon legislative history in
in 2008. In one of Bob's arguments regarding the
                                                              interpreting the statute, but the majority does not indicate
interpretation of subsections (a) and (b), Bob asserts that
                                                              whether it has concluded that the statute is ambiguous or
subsections (a) and (b) do not apply to cases in which the
                                                              whether it is using legislative history in the interpretation
retirement-plan participant has retired before the date of
                                                              of unambiguous provisions.[11] Though the legislative
divorce. Bob notes that under subsection (b), the
                                                              history quoted by the majority may contradict Bob's
community-property interest in the retirement plan is
                                                              alternative argument that section 3.007(a) codifies the
determined as if the retirement-plan participant (Bob)
                                                              time-allocation rule of Taggart v. Taggart, 552 S.W.2d
participated in the plan through the date of divorce. Bob
                                                              422, 424 (Tex.1977), this legislative history does not
argues that because he retired and stopped accruing
                                                              address Bob's argument that subsections (a) and (b) do
pension benefits more than four years before the date of
                                                              not apply to cases in which the retirement-plan
divorce, the methodology for computing the
                                                              participant has retired before the date of divorce.[12]
separate-property and community-property interests
contained in subsections (a) and (b) cannot apply in the           This court should conclude that the statute does
case under review. The majority does not mention or           not apply.
analyze this statutory-interpretation argument.
                                                                    Using the methodology outlined above, this court
      Deborah argues against this statutory interpretation.   should conclude that subsections (a) and (b) are
Under Deborah's proffered interpretation, subsections (a)     ambiguous. This court also should adopt Bob's
and (b) need not both apply in a particular case. Deborah     interpretation that subsections (a) and (b) do not apply to
maintains that the proper interpretation of subsections (a)   the case under review because the retirement-plan
and (b) is as follows: subsection (a) applies only in cases   participant retired before the date of divorce. Under this
in which a spouse was accruing benefits in a                  statutory interpretation, the determination of Bob's
defined-benefit retirement plan when the parties married,     separate-property interest in his pension benefits would
and subsection (b) applies only in cases in which a spouse    be based upon the common law. Under a common-law
will continue to accrue benefits in a defined-benefit         analysis, this court should conclude that the Taggart
retirement plan after the date of divorce. The majority       time-allocation rule does not apply to this case. Thus, the
does not mention or analyze this statutory-interpretation     legal insufficiency, factual insufficiency, charge error,
argument.                                                     and constitutional arguments under Bob's first three
                                                              issues lack merit.
    This court should determine whether the statute is
ambiguous.                                                          Because the majority fails to conduct the statutory
                                                              analysis for subsections (a) and (b) of section 3.007, I do
      This court's role in interpreting section 3.007 is to
                                                              not join this part of its opinion. I respectfully concur in
determine and give effect to the legislature's intent.[6]
                                                              the judgment as to the first three issues and I join the
After reviewing the statute's text and considering the
remainder of the majority's opinion.                          identified in the rendition letter.

---------                                                     [17] We take judicial notice that on May 7, 2008, the
                                                              postage for a one-ounce domestic first-class letter was
Notes:                                                        $0.41 but the postage for a one-ounce letter sent to Great
                                                              Britain via first-class mail international was $0.90.
[1] Deborah retired from Shell before the marriage.           Compare New Standards for Domestic Mailing Services,
                                                              72 Fed.Reg. 15,365, 15,369 (Mar. 30, 2007) (postal rate
[2] The characterization of this benefit is not challenged
                                                              for first-class domestic mail) with International Product
on appeal.
                                                              and Price Changes, 72 Fed.Reg. 16,603, 16,607, 16,614
[3] Deborah argues that the bond is insufficient but she      (Apr. 4, 2007) (postal rate for first-class mail
has not asked the trial court or this court to increase it.   international).

[4] See Act of May 29, 2009, 81st Leg., R.S., ch. 768, §      [18] In Bob's sixth issue, he argues that the trial court
11(1), 2009 Tex. Gen. Laws 1950, 1953.                        erred in making findings of fact contrary to those made
                                                              by the jury. Specifically, the jury found that Bob was not
[5] Id. § 13(a), 2009 Tex. Gen. Laws 1950, 1953. In the       guilty of cruel treatment toward Deborah of a nature that
current version of section 3.007 of the Texas Family          rendered further living together insupportable, and found
Code, there are no subsections (a) and (b). Inasmuch as       that the tax liability that would be incurred in liquidating
there is no chance of confusion, we will refer to the         certain items would be the same regardless of whether
repealed provisions simply as section 3.007(a) and            those items were awarded to Bob or Deborah. Neither
section 3.007(b).                                             Bob nor Deborah challenged either of these findings in
                                                              the trial court or on appeal. Even if the trial court
[6] The trial court signed a written order excluding the      erroneously included contrary statements among the
report and expert testimony on February 18, 2008.             findings of fact and conclusions of law it issued in
                                                              connection with the judgment previously rendered in this
[7] It was Deborah who originally produced these letters      case, any such error is now moot, because that judgment
to Bob in 2005.                                               has been reversed. We clarify, however, that the issues
                                                              resolved by these particular findings by the jury do not
[8] There is no dispute regarding the amount of the Cash      need to be tried on remand. If the trial court again makes
Deferral Program payments that are associated with each       findings contrary to the jury verdict, that point of error
bonus; both forensic-accounting experts used the same         can be raised again, if necessary.
numbers.
                                                              [1] See Act of May 24, 2005, 79th Leg., R.S., ch. 490, §
[9] The bonus we have discussed was not the only bonus        1, 2005 Tex. Gen. Laws 1353, 1353, repealed by Act of
that Bob elected to defer. It was simply the most             May 29, 2009, 81st Leg., R.S., ch. 768, § 11(1), 2009
well-documented, and thus, the one that most readily          Tex. Gen. Laws 1950, 1953. All statutory references in
demonstrates how the erroneous exclusion of Bob's             this opinion are to the version of the Texas Family Code
separate-property evidence was harmful.                       that was in effect immediately prior to the 2009 repealer.

[10] See TEX. CIV. PRAC. & REM.CODE ANN. §                    [2] See Carreras v. Marroquin, 339 S.W.3d 68, 71
9.002 (West Supp. 2011).                                      (Tex.2011) (stating " statutory interpretation begins by
                                                              examining the text of the statute," just before quoting the
[11] Id. § 10.001 (West 2002).
                                                              text of the statute at issue); In re Smith, 333 S.W.3d 582,
                                                              586 (Tex.2011) (stating " when construing a statute, we
[12] See TEX.R. CIV. P. 215.1-5.
                                                              begin with its language" ); Fresh Coat, Inc. v. K-2, Inc.,
[13] See TEX.R. CIV. P. 21b.                                  318 S.W.3d 893, 901 (Tex.2010) (stating that " we begin
                                                              with the statute's text" and that " we examine the entire
[14] See TEX.R. CIV. P. 296 (requests for findings of         act to glean its meaning, try to give meaning to each
fact must be filed within twenty days after the judgment      word, and avoid treating statutory language as surplusage
is signed).                                                   where possible" ) (quotations omitted). See also
                                                              Consumer Product Safety Commission v. GTE Sylvania,
[15] See TEX.R. CIV. P. 297 (notice of past due findings      Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64
of fact and conclusions of law must be filed within thirty    L.Ed.2d 766 (1980) (stating that " the starting point for
days after filing the original request).                      interpreting a statute is the language of the statute itself"
                                                              ).
[16] Although there is a discrepancy of $60,003 between
the amount referred to in the trial court's order of May 2,   [3] See ante at pp. 795-98.
2008 and its rendition letter of March 31, 2008, Bob
actually transferred to Deborah the larger amount             [4] See ante at pp. 795-98.
[5] Act of May 24, 2005, 2005 Tex. Gen. Laws at 1353.

[6] See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d
525, 527 (Tex.2000).

[7] See Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815
(Tex.1983); Dob's Tire & Auto Center v. Safeway Ins.
Agency, 923 S.W.2d 715, 719 (Tex.App.-Houston [1st
Dist.] 1996, writ dism'd w.o.j.).

[8] See TGS-NOPEC Geophysical Co. v. Combs, 340
S.W.3d 432, 439 (Tex.2011); Alex Sheshunoff
Management Servs., L.P. v. Johnson, 209 S.W.3d 644,
651-52 & n. 4 (Tex.2006).

[9] See Fleming Foods of Texas, Inc. v. Rylander, 6
S.W.3d 278, 283-84 (Tex.1999) (holding that, although
Texas Government Code section 311.023 states that
courts may consider the legislative history of
unambiguous statutes, the legislative history of a statute
cannot be used to alter the unambiguous meaning of a
statute, except for the rare instance in which it is used to
show a typographical error); Ramco Oil & Gas, Ltd. v.
Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 915
(Tex.App.-Houston [14th Dist.] 2005, published Rule 24
order) (stating that courts cannot use legislative history to
interpret statute in a manner that contradicts the statute's
unambiguous language).

[10] In re Smith, 333 S.W.3d at 586, 588; Alex
Sheshunoff Management Servs., L.P., 209 S.W.3d at 652.

[11] See ante at p. 797.

[12] See id.

---------
Page 781                                                       Astrohall. Several of Sheller's firearms remained unsold,
                                                               however. Sheller contacted McWhorter about his
993 S.W.2d 781 (Tex.App. —Houston [14 Dist.] 1999)             investment. Sheller claimed that McWhorter told him
                                                               there was nothing to worry about and that Beavers and
ROBERT MCWHORTER, ET AL. , Appellant                           Provost were doing an accounting and inventory on the
                                                               firearms. However, Beavers and Provost subsequently
v.
                                                               transferred the remaining firearms to another firearms
                                                               licensee. No firearms were returned to Sheller, nor was
DAVID L. SHELLER, Appellee.
                                                               he compensated for the sale of any of the firearms.
No. 14-96-00875-CV                                             Sheller filed this action against McWhorter, Beavers, and
                                                               Provost. Beavers and Provost were dismissed from the
Court of Appeals of Texas, Fourteenth District,                suit because Sheller was unable to obtain service of
Houston                                                        process.

May 6, 1999                                                    Page 785

   On Appeal from the 189th District Court, Harris                 II. DISCUSSION[1]
County, Texas, Trial Court Cause No. 94-013776
                                                                    In his second point of error, McWhorter contends
Page 782                                                       that the trial court erred in rendering a judgment in favor
                                                               of Sheller because there was no finding by the trial court
[Copyrighted Material Omitted]                                 that McWhorter "borrowed" money from Sheller.

Page 783                                                            A trial court's findings are reviewable for legal and
                                                               factual sufficiency of the evidence by the same standards
[Copyrighted Material Omitted]                                 that are applied in reviewing evidence supporting a jury's
                                                               answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
Page 784
                                                               1994). In reviewing a "no evidence" point of error, a
                                                               reviewing court may consider only the evidence and
   Panel consists of Justices Maurice E. Amidei,
                                                               inferences that tend to support challenged findings and
Fowler, and Draughn.[*]
                                                               will disregard all evidence and inferences to the contrary.
     OPINION                                                   Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
                                                               (Tex. 1998). If there is more than a scintilla of evidence
     Joe L. Draughn, Justice (Assigned.)                       to support the findings, the "no evidence" challenge
                                                               cannot be sustained. Catalina, 881 S.W.2d at 297.
     This action was brought by David L. Sheller
("Sheller") against Robert McWhorter ("McWhorter") for              The trial court found that "BEAVERS and
negligence, misrepresentation, fraud, and civil                PROVOST and MCWHORTER through them enticed
conspiracy. Following a non-jury trial, the court entered      $65,380 from SHELLER, on MCWHORTER's behalf."
judgment against McWhorter, awarding Sheller damages           McWhorter avers that the "trial court's finding that
in the amount of $65,380.00. McWhorter assigns four            money was 'enticed' from SHELLER . . . does not support
points of error, challenging the sufficiency of the            the inference that money was borrowed, or that there was
evidence to support the trial court's judgment. McWhorter      a contractually binding obligation to repay the money."
also argues that the trial court erred in imposing sanctions   McWhorter suggests in his brief that if he merely
against his attorneys because of the lack of any evidence      "enticed" the money from Sheller, as opposed to
of bad faith conduct. We affirm in part and reverse and        "borrowing" the money, then he was not obligated to
vacate in part.                                                repay Sheller. He further contends that without a specific
                                                               finding that he "borrowed" money from Sheller, the
     I. BACKGROUND                                             judgment of the trial court cannot be upheld on a contract
                                                               theory. McWhorter asserts that even if a contract was
     McWhorter is a licensed attorney in Texas and             found to exist, that the judgment against him should be
possesses a federal firearms license. Sheller is also a        reversed because a contract with a 75% return rate, as
licensed attorney in Texas. Sheller desired to invest in the   promised to Sheller, would be "illegal and unenforceable"
firearms business. Thus, Sheller gave David Beavers and        because of its usurious interest rate. McWhorter cites no
Jeff Provost, agents of McWhorter, $65,380 to purchase         authority to support his contentions.
firearms to be sold at gun shows. Many of the firearms
purchased with Sheller's money were subsequently sold            The trial court in this case refused to find that
at a gun show in December 1993, held at the Houston            McWhorter "borrowed" the money from Sheller because
it expressly found that McWhorter, inter alia, defrauded         McWhorter's third point is overruled.
Sheller to secure his financial investment in McWhorter's
business of selling firearms. The elements of actionable              In his fourth point of error, McWhorter contends that
fraud are that: (1) a material representation was made; (2)      the trial court erred in finding that fraud or
the representation was false; (3) when the representation        misrepresentation occurred in this case because there was
was made the speaker knew it was false or made it                no evidence to show that Beavers and Provost possessed
recklessly without any knowledge of its truth and as a           apparent authority to borrow or solicit money on his
positive assertion; (4) the speaker made the                     behalf. McWhorter asserts that the evidence is legally
representation with the intent that it should be acted upon      insufficient to support such a finding. When reviewing a
by the party; (5) the party acted in reliance upon the           legal sufficiency point, this Court "must consider only the
representation; and (6) the party thereby suffered injury.       evidence and inferences tending to support the trial
Holmes v. P.K. Pipe & Tubing, Inc., 856 S.W.2d 530, 541          court's finding, disregarding all contrary evidence and
(Tex.App.-Houston [1st Dist.] 1993, no writ). The                inferences." Wal-Mart Stores, Inc., 968 S.W.2d at 936.
"measure of damages in a fraud case is the actual amount
of the plaintiff's loss that directly and proximately results         While actual authority is created by written or
from the defendant's fraudulent conduct." Tilton v.              spoken words or conduct by the principal to the agent,
Marshall, 925 S.W.2d 672, 680 (Tex. 1996); see also              apparent authority is created by written or spoken words
Holmes, 856 S.W.2d at 543. The trial court awarded               or conduct by the principal to a third party. El Estillero v.
Sheller $65,380.00, the actual amount of Sheller's loss          J.S. McManus Produce, 964 S.W.2d 332, 334
due to McWhorter's fraudulent conduct. See id.                   (Tex.App.-Corpus Christi 1998, no pet.); see also Baptist
                                                                 Memorial Hosp. System v. Sampson, 969 S.W.2d 945,
     The trial court's finding that McWhorter defrauded          949 (Tex. 1998). To establish apparent authority, one
Sheller is supported by the evidence contained in the            must show a principal either knowingly permitted an
record presented for our review. See Wal-Mart Stores,            agent to hold itself out as having authority or showed a
Inc., 968 S.W.2d at 936. It was not necessary for the trial      lack of ordinary care in order to clothe the agent with
court to find that McWhorter "borrowed" money from               indicia of authority. Id. A court may consider only the
Sheller in order to enter a judgment in Sheller's favor.         conduct of the principal leading a third party to believe
McWhorter's second point is overruled.                           the agent has authority in determining whether an agent
                                                                 has apparent authority. Id. A party seeking to charge a
Page 786                                                         principal through the apparent authority of its agent must
                                                                 establish conduct by the principal which would lead a
      In his third point of error, McWhorter contends the        reasonably prudent person to believe the agent has the
trial court erred by entering contradictory findings of fact.    authority it purports to exercise. Id.; see also Biggs v.
McWhorter complains that the trial court's findings that         United States Fire Ins. Co., 611 S.W.2d 624, 629 (Tex.
he acted both negligently and intentionally are                  1981). The principal must have affirmatively held out the
contradictory and therefore the judgment should be               agent as possessing the authority or must have knowingly
reversed. He also complains that the trial court's findings      and voluntarily permitted the agent to act in an
and conclusions do not support the trial court's judgment        unauthorized manner. Id.
that he acted both negligently and intentionally.
                                                                      Here, the record shows that McWhorter allowed
     In its findings of fact and conclusions of law, the trial   Beavers     and      Provost     to   use     McWhorter's
court expressly found that McWhorter committed fraud,            non-transferrable federal firearms license to buy and sell
engaged in a civil conspiracy to defraud Sheller, and            firearms for profit. McWhorter testified that Beavers and
made negligent representations to Sheller to secure his          Provost were his agents. McWhorter knew that Sheller
financial investment in McWhorter's firearms business.           gave $65,380.00 to Beavers and Provost to buy firearms
The trial court's written findings of fact and conclusions       for the purpose of selling them at gun shows. McWhorter
of law, while inartfully drafted, support the trial court's      never told Sheller that his agents were acting outside their
judgment. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.          agency relationship with him. When Sheller
1996); Luna v. Southern Pacific Transp. Co., 724 S.W.2d
383, 384 (Tex. 1987) (court of appeals under a duty to           Page 787
harmonize findings whenever possible). Further,
assuming arguendo that the trial court's findings are            did not receive any return on his investment, he contacted
contradictory, McWhorter fails to develop in his brief           McWhorter. McWhorter told Sheller that his agents were
how this error, if any, caused the rendition of an improper      conducting an accounting, which led Sheller to believe
judgment. "No judgment may be reversed on appeal on              that they were still operating within the scope of their
the ground that the trial court made an error of law unless      authority. McWhorter further ratified his agents' conduct
the court of appeals concludes that the error complained         by accepting Sheller's financial investment and profiting
of probably caused the rendition of an improper                  therefrom.
judgment." TEX. R. APP. P. 44.1(a)(1) (West 1999). We
are unable to reach such a conclusion in this case.                  Ratification is the affirmance by a person of a prior
act which when performed did not bind him, but which             supporting the judgment. See Maritime Overseas Corp.,
was professedly done on his account, whereby the act is          971 S.W.2d at 407.
given effect as if originally authorized by him. Disney
Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25,            An actionable civil conspiracy is a combination by
31 (Tex.App.-San Antonio 1998, no pet.) (citing                  two or more persons to accomplish an unlawful purpose
RESTATEMENT (SECOND) OF AGENCY § 82                              or to accomplish a lawful purpose by unlawful means.
(1958)). Ratification, in this context, is not a form of         Operation Rescue-National v. Planned Parenthood of
authorization, but a legal concept in agency law                 Houston, 975 S.W.2d 546, 553 (Tex. 1998). The essential
describing the relations between parties after affirmance        elements are (1) two or more persons
by a person of a transaction done or purported to be done
for him. Id. A ratification will lie when the individual for     Page 788
whom an act was done retains the benefits of the
                                                                 agreed on, (2) an object to be accomplished, (3) a
transaction after acquiring full knowledge of the
                                                                 meeting of minds on the object or course of action, (4)
transaction. Id.; see also Land Title Co. of Dallas v. F.M.
                                                                 one or more unlawful, overt acts, and (5) damages as the
Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 1980). Most case
                                                                 proximate result. Id.; Carroll v. Timmers Chevrolet, Inc.,
law interpreting the doctrine of ratification couches its
                                                                 592 S.W.2d 922, 926 (Tex. 1979). Once a civil
discussion in the context of an existing agency
                                                                 conspiracy is proven, each conspirator is responsible for
relationship where the agent exceeds the scope of her
                                                                 the acts done by any other conspirator to further the
authority and the principal later accepts the benefits of
                                                                 conspiracy. Carroll, 592 S.W.2d at 926. Further, "the
such act after acquiring full knowledge. Id.; Humble Nat'l
                                                                 common purpose from which conspiracy liability arises
Bank v. DCV, Inc., 933 S.W.2d 224, 237
                                                                 may be established by reasonable inferences." Id.
(Tex.App.--Houston [14th Dist.] 1996, writ denied).
Ratification, however, can occur outside this general                 McWhorter argues that there was no direct evidence
paradigm. Id. While most cases will fall within the              of any agreement between him and Beavers and Provost
context of an agency relationship, such a relation is not        to defraud Sheller. He contends that he authorized his
necessary to cause the ratification to be effective. Id. It is   agents to only buy and sell firearms and that he met
true, however, that because ratification is not a form of        Sheller only after Sheller gave his money to Beavers and
authorization, the ratification of an act of a stranger will     Provost. Sheller testified that Beavers and Provost took
not create an agency relationship, it will only bind the         him to McWhorter's law office before making his
ratifier to the specific transaction that is ratified. Disney    investment. The record shows that McWhorter was
Enterprises, Inc., 981 S.W.2d at 31.                             present at the gun show where the firearms were
                                                                 displayed and sold and that he conveyed to Sheller that
     The trial court's findings that McWhorter's respective
                                                                 he was aware that his agents purchased firearms with
agents possessed apparent authority and that McWhorter
                                                                 Sheller's money. McWhorter's federal firearms license
ratified their fraudulent conduct is supported by the
                                                                 was used to purchase firearms with Sheller's money and
record. See Wal-Mart Stores, Inc., 968 S.W.2d at 936.
                                                                 the license was displayed and used at the gun show. After
McWhorter's fourth point is overruled.
                                                                 the gun show, McWhorter told Sheller that his agents
     In his fifth point of error, McWhorter contends that        were conducting an accounting and that the unsold
the evidence is legally and factually insufficient to show       firearms would be stored by McWhorter until being
that he agreed to enter into a conspiracy with Beavers and       returned for credit. No firearms or money were ever
Provost to defraud Sheller. As previously noted, when            returned to Sheller. McWhorter received a profit from the
reviewing a legal sufficiency point, we consider only the        firearms purchased and sold with Sheller's money. See id.
evidence and inferences tending to support the trial
                                                                      We conclude that the evidence was legally and
court's finding and disregard all contrary evidence and
                                                                 factually sufficient to show that McWhorter entered into
inferences. Wal-Mart Stores, Inc., 968 S.W.2d at 936. On
                                                                 a conspiracy with Beavers and Provost to defraud Sheller.
the other hand, in reviewing the factual sufficiency of the
                                                                 See Maritime Overseas Corp, 971 S.W.2d at 406-07;
evidence, we consider all of the evidence in the record,
                                                                 Wal-Mart Stores, Inc., 968 S.W.2d at 936. The trial
not just the evidence which supports the judgment.
                                                                 court's conspiracy finding is not so against the
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
                                                                 overwhelming weight of the evidence as to be clearly
406-07 (Tex. 1998). We may set aside a judgment only if
                                                                 wrong and unjust. See id. McWhorter's fifth point is
it is so contrary to the overwhelming weight of the
                                                                 overruled.
evidence so as to be clearly wrong and unjust. Id. at 407.
An appellate court may not pass upon the credibility of               In his sixth point of error, McWhorter contends that
witnesses nor the weight to be accorded their testimony.         the trial court erred in imposing sanctions against his
The fact finder may accept or reject any witnesses'              attorney. He argues that the sanctions are unwarranted
testimony in whole or in part. See id.; see also Bocquet v.      because his attorney did not act in bad faith and did not
Herring, 972 S.W.2d 19, 22 (Tex. 1998) (Baker, J.,               interfere with the administration of justice.
dissenting). If the appellate court affirms the judgment, it
not necessary for the court to detail all the evidence               The trial judge initiated a telephone conference with
both parties' respective counsel to communicate her             negligence on her part, rather than an intentional act
findings of fact and conclusions of law so that an              made in bad faith. We also observe that an Ethics
appropriate order could be prepared. Unbeknownst to the         Opinion concerning an attorney's obligation to inform all
trial judge and Sheller's counsel, McWhorter's counsel          parties before tape recording a conversation was
recorded the telephone conference.[2] Upon being                published during the same month as this recording
apprised of the tape-recording by McWhorter's counsel,          occurred. See 59 TEXAS BAR JOURNAL 181 (Ethics
Sheller's counsel moved for sanctions against                   Opinion 514) (Feb. 1996). We emphasize that Ethics
McWhorter's counsel and her law firm. The trial court           Opinion 514 is a legally binding part of Rule 8.04(a)(3),
entered an order which imposed sanctions in the sum of          supra, and is applicable to all attorneys licensed in this
$500.00 against counsel, her law partner and their law          state. Accordingly, should such a recording occur in the
firm and additional $500.00 for attorney's fees.                future without informing all parties and securing the
                                                                permission of the trial judge, sanctions against the
     The decision to impose a sanction is left to the           recording attorney may be appropriate. For the reasons
discretion of the trial court and will be set aside only        previously stated, we find that the trial court abused its
upon a showing of abuse of discretion. Onwuteaka v.             discretion in imposing sanctions in this case.
Gill, 908 S.W.2d 276 (Tex.App.-Houston [1st Dist.]              McWhorter's fifth point is sustained.
1995, no writ). The test for abuse of discretion is whether
the trial court acted without reference to any guiding               We reverse and vacate the trial court's judgment
rules or principles, or whether under the circumstances of      concerning the imposition of sanctions of $500 and
the case the trial court's action was arbitrary or              attorney's fees of $500. In all other respects the trial
unreasonable. Id. Texas courts have previously held             court's judgment is affirmed.
courts have inherent power to discipline an attorney's
behavior. See, e.g., Lawrence v. Kohl, 853 S.W.2d 697,          ---------
700 (Tex. App.-Houston [1st Dist.] 1993, no writ)
(holding that trial                                             Notes:

Page 789                                                        [*]. Senior Justice Joe L. Draughn sitting by assignment.

courts have the power to sanction parties for bad faith         [1]. In McWhorter's first point of error, entitled "Issue
abuse of the judicial process not covered by rule or            Number One," he argues that his challenges to the trial
statute); Kutch v. Del Mar College, 831 S.W.2d 506,             court's findings are preserved for appellate review. We
509-10 (Tex. App.-Corpus Christi 1992, no writ).                agree and conclude that McWhorter's points of error are
                                                                preserved for appellate review. See Regan v. Lee, 879
     The trial judge did not make a finding that                S.W.2d 133, 136 (Tex.App.-Houston [14th Dist.] 1994,
McWhorter's attorney acted in bad faith in tape recording       no writ); Westech Eng. v. Clearwater Constructors, 835
her instructions. McWhorter's counsel contended that she        S.W.2d 190, 196-97 (Tex.App.-Austin 1992, no writ).
recorded the conversation so that the order to be prepared
would accurately reflect the instructions given by the          [2]. Disciplinary Rule 8.04 (a)(3) prohibits an attorney
judge. There is no evidence that McWhorter's attorney           from electronically recording a telephone conversation
acted in a manner which would interfere with the                with another party without first informing that party that
administration of justice or detract from the trial court's     the conversation is being recorded. See TEX.
dignity and integrity. Indeed, the trial judge noted that the   DISCIPLINARY R. PROF. CONDUCT 8.04(a)(3)
findings of fact and conclusions of law prepared from the       (1989).
recording tracked the telephone conference. The trial
                                                                ---------
judge also noted that the findings were specific and that
she felt comfortable adopting them.

     We note that the trial court's inherent power to
sanction exists to the extent necessary to deter, alleviate,
and counteract bad faith abuse of the judicial process,
such as any significant interference with the traditional
core functions of Texas courts. Kutch, 831 S.W.2d at
510. Accordingly, for inherent power to apply, there must
be some evidence and factual findings that the conduct
complained of significantly interfered with the court's
legitimate exercise of one of these powers. See id. In the
instant case, no such finding was made and we find no
evidence indicating bad faith by McWhorter's attorney.
The attorney's recording of the telephone conference, at
best, represents some degree of inexperience and
Page 506                                                          By appellant's first point of error she argues that the
                                                             trial court erred in sustaining appellees' special
831 S.W.2d 506 (Tex.App. —Corpus Christi 1992)               exceptions to her petition. The trial court has broad
                                                             discretion to sustain special exceptions and order more
Marilynn T. KUTCH, Appellant,                                definite pleadings as a particular case may require. See
                                                             Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820
v.
                                                             (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).
                                                             Thus, we review the trial court's actions under the abuse
DEL MAR COLLEGE, et al., Appellees.
                                                             of discretion standard of review.
No. 13-91-285-CV.
                                                                  The test for determining if the trial court abused its
Court of Appeals of Texas, Thirteenth District,              discretion is whether the trial court acted without
Corpus Chritsi                                               reference to any guiding rules or principles. Downer v.
                                                             Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
May 21, 1992                                                 (Tex.1985). If the trial court acts in an arbitrary or
                                                             unreasonable manner, it abuses its discretion. Loftin v.
Page 507                                                     Martin, 776 S.W.2d 145, 146 (Tex.1989); Downer, 701
                                                             S.W.2d at 241-42; Smithson v. Cessna Aircraft Co., 665
   Martha P. Owen, Vans Os, Deats, Rubinett &                S.W.2d 439, 443 (Tex.1984). The trial court does not
Owens, Austin, for appellant.                                necessarily abuse its discretion if under the same facts an
                                                             appellate judge would decide the matter differently, or if
     Frank E. Weathered, Dunn, Cason & Weathered, Lev
                                                             the court commits a mere error in judgment. Loftin, 776
Hunt, Hunt, Hermansen, McKibben & Barger, Shirley
                                                             S.W.2d at 146; Downer, 701 S.W.2d at 242;
Selz, Gary, Thomasson, Hall & Marks, Corpus Christi,
                                                             Southwestern Bell Tel. v. Johnson, 389 S.W.2d 645, 648
for appellees.
                                                             (Tex.1965). This court will reverse a trial court's rulings
                                                             if it abuses its discretion and the error is harmful.
   Before GILBERTO HINOJOSA, KENNEDY and
                                                             TEX.R.APP.P. 81(b)(1). See generally Landon v.
SEERDEN, JJ.
                                                             Jean-Paul Budinger, Inc., 724 S.W.2d 931, 935-36
     OPINION                                                 (Tex.App--Austin 1987, no writ) (discussing the
                                                             standard).
     GILBERTO, HINOJOSA, Justice.
                                                                  We have reviewed the pleadings and the special
     Appellant was dismissed from her job as a secretary     exceptions. Many paragraphs in the plaintiff's petition are
at Del Mar College. She filed suit alleging wrongful         overbroad and arguably do not provide reasonable notice
dismissal. Initially, her husband represented her in this    of the factual basis of the claims. The trial court did not
suit. Special exceptions were levied against the petition.   abuse its discretion in sustaining many of these special
A new petition was filed; however, many of the problems      exceptions. Appellant's first point of error is overruled.
associated with the first petition were not cured in the
second petition.                                                  Appellant's second point complains that the trial
                                                             court erred in dismissing her petition with prejudice. She
     The trial court heard arguments on the special          argues that this is not a case in which she elected to stand
exceptions and on December 19, 1990, it granted them.        on her pleadings and test the trial court's ruling on
The court set January 18, 1991, as a deadline for the new    review, or a case in which the pleadings did not state a
petition.                                                    valid cause of action. Rather, this is a case in which she
                                                             desired to replead but did not meet the court's deadline.
     The deadline was not met. A hearing was held on a       We must overrule this point and affirm if the trial court's
motion to dismiss and a motion for extension of time to      ruling is sustainable on any theory supported by the
replead. The trial court granted appellee's motion and       pleadings and the evidence. Guarantee County Mutual
dismissed the cause with prejudice. A motion for new         Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986).
trial was filed. At this motion appellee argued that the
trial court's ruling was sustainable as a sanction.               As set forth above, special exceptions were levied
Appellant challenges the trial court's                       against the first petition. Thereafter, the plaintiff filed a
                                                             FIRST SUPPLEMENTAL ORIGINAL PETITION.
Page 508                                                     Many of the defects which appeared in the plaintiff's
                                                             ORIGINAL PETITION were not cured. A hearing was
actions by three points of error. We modify the trial        held. The trial court entered an order permitting the
court's judgment, and as modified, affirm.                   plaintiff to file an amended petition by January 18, 1991.
     Prior to January 18, 1991, the plaintiff filed a motion   abusive conduct not expressly covered by federal
for extension of time to file the second amended petition.     sanctions rules. The Supreme Court of the United States
This motion was denied. The defendants filed a motion to       held that federal courts have such inherent power.
dismiss. A hearing was held, and the cause dismissed           Although ill defined, the Court recognized this power is
with prejudice.                                                quite potent, and should be used only with great restraint
                                                               and discretion. Id. at 2133.
     Generally, a trial court cannot dismiss a plaintiffs'
entire case with prejudice if the pleadings state a valid           Significantly, the Court reasoned that this power is
cause of action, but are vague, overbroad, or otherwise        derived from certain institutional aspects all courts
susceptible to valid special exceptions. The proper            possess, including the power to "impose silence, respect,
remedy is to dismiss without prejudice. See Hajdik v.          and decorum, ... and submission to their lawful
Wingate, 753 S.W.2d 199, 202 (Tex.App.--Houston [1st           mandates;" the power to "punish for contempts;" and the
Dist.] 1988) affirmed on other grounds, 795 S.W.2d 717         power to dismiss for "failure to prosecute." Id. Texas
(Tex.1990).                                                    courts, like all civilized courts of justice, have these
                                                               inherent powers. Public Util. Comm'n v. Cofer, 754
     In the instant case, a number of valid causes of action   S.W.2d 121, 124 (Tex.1988); Eichelberger v.
were pleaded, although inartfully. Remaining portions of       Eichelberger, 582 S.W.2d 395, 398-400 (Tex.1979); see
the pleadings stated valid causes of action. Thus, the trial   e.g. Worldwide Anesthesia v. Bryan Anesthesia, 765
court's ruling dismissing the cause with prejudice is not      S.W.2d 445, 447 (Tex.App.--Houston [14th Dist.] 1988,
sustainable on special exception grounds. Id; D.A.             no writ) (courts have express or implied power to dismiss
Buckner Const., Inc. v. Hobson, 793 S.W.2d 74, 75-76           or render a default judgment to ensure orderly
(Tex.App.--Houston [14th Dist.] 1990, no writ).                administration of justice). Thus, the Supreme Court's
                                                               reasoning is persuasive authority for the proposition that
    Appellees argue that dismissal with prejudice was          Texas Courts have certain other inherent powers as well,
proper as a sanction for violation of the pretrial order to    including the power to sanction for bad faith abuse of the
replead. See Koslow's                                          judicial process.

Page 509                                                          Our review of Texas case law reveals that Texas
                                                               Courts possess significant inherent powers. For example,
v. Mackie, 796 S.W.2d 700, 704 (Tex.1990) (affirming
                                                               Texas courts have the power to impose contempt. Ex
dismissal with prejudice for violation of a pretrial order).
Texas courts have a statutory and rule based power to          Page 510
sanction. See e.g. TEX.R.CIV.P. 215; TEX.GOV.CODE
ANN. § 82.061 (Vernon 1990). No case has yet                   Parte Pryor, 800 S.W.2d 511, 512 (Tex.1990). Texas
determined whether Texas courts also have an inherent,         courts have the power to appoint a master. Simpson v.
common law power to sanction similar in scope to the           Canales, 806 S.W.2d 802, 810 (Tex.1991). Texas courts
federal power. See Chambers v. NASCO, Inc., 501 U.S.           have the inherent power to compel expenditure of public
32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).                     funds for essential court functions. Mays v. Fifth Court of
                                                               Appeals, 755 S.W.2d 78, 80 (Tex.1988) (Spears,
     To determine whether the trial court's dismissal with     concurring); Vondy v. Commissioners Court of Uvalde
prejudice is sustainable as a sanction, the first issue we     County, 620 S.W.2d 104, 109-110 (Tex.1981). Texas
must address is whether the trial court has authority to       courts have the power to insure adversary proceedings
sanction this conduct. This sanction does not relate to        despite statutes providing otherwise. Cofer, 754 S.W.2d
discovery. Thus, the rules governing discovery sanctions       at 124.
do not apply. See TEX.R.CIV.P. 215. The sanction order
did not state "good cause" as required by TEX.R.CIV.P.              Significantly, in Mackie v. Koslow's, 774 S.W.2d
13, [1] and there is no allegation of groundless pleadings.    741, 743 (Tex.App.--El Paso 1989) reversed Koslow's v.
Thus, this sanction may not be justified under                 Mackie, 796 S.W.2d 700 (Tex.1990), the appellate court
TEX.R.CIV.P. 13. We have found no other statute or rule        held the trial court did not have authority under Rule 215
expressly authorizing sanctions for this violation of the      or any other rule to impose a sanction for violation of a
court's order to replead.                                      pre-trial order. The Supreme Court of Texas reversed
                                                               holding the trial court did have such authority under Rule
    The issue presented is whether the trial court had         166. Rule 166 does not provide for sanctions. However,
some other authority to assess sanctions for this type of      the Court sustained the trial court's power to sanction
conduct. We hold Texas courts have inherent power to           because "the trial court had the power implicit under Rule
sanction for bad faith conduct during litigation. See e.g.     166 to provide in his pretrial order that the refusal to
Chambers, 111 S.Ct. at 2134 (federal courts have               participate in the status conference or the failure to file a
inherent power to sanction for bad faith conduct).             timely joint status report would result ... [in] dismissal,
                                                               default, or other sanctions ..." Id. at 703.
     In Chambers, a similar issue was presented: whether
a federal district court has inherent powers to sanction
     The Supreme Court of Texas has recently reaffirmed        Page 511
the position that Texas courts have inherent powers
which are necessarily derived from the judiciary's status      See e.g. Dow Chemical Co. v. Alfaro, 786 S.W.2d 674,
as a co-equal branch of the government. See Cofer, 754         679 (Tex.1990) (the legislature has the power to abolish
S.W.2d 121, 124 (Tex.1988). The Cofer Court relied on          forum non-conveniens). [2] Most importantly, the rights
Eichelberger, wherein the Court expressly recognized           of litigants may not be infringed by the abusive exercise
that:                                                          of this power. This point merits further discussion.

     The inherent judicial power of a court is not derived         Due process limits a court's power to sanction.
from legislative grant or specific constitutional provision,   Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29
but from the very fact that the court has been created and     S.Ct. 370, 53 L.Ed. 530 (1909); Tate v. Commodore
charged by the constitution with certain duties and            County Mutual Ins. Co., 767 S.W.2d 219, 225
responsibilities. The inherent powers of a court are those     (Tex.App.--Dallas 1989, no writ). The traditional Due
which it may call upon to aid in the exercise of its           Process protections of notice and hearing are also
jurisdiction, in the administration of justice, and in the     necessary before imposition of sanctions. Sears Roebuck
preservation of its independence and integrity.                & Co. v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639,
                                                               642 (Tex.1956); TEX.R.CIV.P. 215(2)(b).
    Id. 582 S.W.2d at 398. The scope of these powers
has been unclear. We write today to clarify the scope of            In Transamerican Natural Gas v. Powell, 811
inherent powers to sanction.                                   S.W.2d 913 (Tex.1991) the Court, relying on Due
                                                               Process principles, limited imposition of death penalty [3]
     The power to compel compliance with valid orders          sanctions to circumstances in which a party has exhibited
incident to the administration of justice is fundamental,      flagrant bad faith or callous disregard for discovery rules
and closely related to the core functions of the judiciary.    or court orders raising the inference that a party's claims
We expressly recognize this power today. Consequently,         lack merit. Transamerican, 811 S.W.2d at 918; see
we hold that Texas Courts have the inherent power to           National Hockey League v. Metropolitan Hockey Club,
sanction for abuse of the judicial process which may not       Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
be covered by rule or statute. This power includes the
power to sanction appropriately for failure to comply              Additionally, the Transamerican Court wrote:
with a valid court order incident to one of the core
functions of the judiciary.                                         In our view, whether an imposition of sanctions is
                                                               just is measured by two standards. First, a direct
     Recognizing this power, we also recognize certain         relationship must exist between the offensive conduct and
limitations. Eichelberger recognized the linkage between       the sanction imposed. This means that a just sanction
the inherent power and a court's administration of justice.    must be directed against the abuse and toward remedying
The Court of Criminal Appeals has more clearly refined         the prejudice caused the innocent party. It also means that
and identified this concept by articulating the core           the sanction should be visited upon the offender. The trial
functions of the judiciary, which are: hearing evidence,       court must at least attempt to determine whether the
deciding issues of fact raised by the pleadings, deciding      offensive conduct is attributable to counsel only, or to the
questions of law, entering final judgment and enforcing        party only, or to both. This we recognize will not be an
that judgment. Armadillo Bail Bonds v. State, 802 S.W.2d       easy matter in many instances. On the one hand, a lawyer
237, 239-40 (Tex.Crim.App.1990). Inherent power to             cannot shield his client from sanctions; a party must bear
sanction exists to the extent necessary to deter, alleviate,   some responsibility for its counsel's discovery abuses
and counteract bad faith abuse of the judicial process,        when it is or should be aware of counsel's conduct and
such as any significant interference with the traditional      the violation of discovery rules. On the other hand, a
core functions of Texas courts. Accordingly, for inherent      party should not be punished for counsel's conduct in
power to apply, there must be some evidence and factual        which it is not implicated apart from having entrusted to
findings that the conduct complained of significantly          counsel its legal representation. The point is, the
interfered with the court's legitimate exercise of one of      sanctions the trial court imposes must relate directly to
these powers.                                                  the abuse found.

     In addition, other limitations exist. The amorphous           Second, just sanctions must not be excessive. The
nature of this power, and its potency, demands sparing         punishment should fit the crime. A sanction imposed for
use. The best practice is to rely upon the rules and           discovery abuse should be no more severe than necessary
statutes expressly authorizing sanctions whenever              to satisfy its legitimate purposes. It follows that courts
possible. See Chambers, 111 S.Ct. at 2135-36.                  must consider the availability of less stringent sanctions
                                                               and whether such lesser sanctions would fully promote
   We also recognize that the legislature's lawmaking          compliance.
powers may operate to limit certain exercises of inherent
power.                                                             Id. 811 S.W.2d at 917.
     Significantly, Koslow's recognized that a court's          139, 143 (Tex.App.--Houston [1st Dist.] 1990, no writ);
"implicit" power to sanction was governed by the justness       Hlavinka v. Griffin, 721 S.W.2d 521, 524
or appropriateness standard which was later developed in        (Tex.App.--Corpus Christi 1986, no writ). We will
Transamerican. Koslow's, 796 S.W.2d at 703-4 n. 1. At           reverse or modify the judgment only if the error is
least these limits constrain exercise of inherent powers,       harmful. TEX.R.APP.P. 81(b)(1).
regardless of their form.
                                                                     The evidence showed that one reason why the
     Having found that trial courts have an inherent power      pleadings were not timely amended was that a new
to sanction for certain conduct which affects the core          lawyer had not been found. The reason why a new lawyer
functions of the judiciary, we must now determine if the        was needed was because the old lawyer was the plaintiff's
conduct sanctioned was properly subject to this inherent        husband. Serious (and obvious) conflicts existed. A new
power. As described above, the inherent power is                lawyer who is representing appellant on appeal had been
strongest, and most powerful when the conduct                   contacted, but had not been retained as of the date of the
complained of interferes with one of the core functions of      hearing on the motion to dismiss. The search for new
the judiciary. Violation of a court order relating to the       counsel had taken at least five months. An additional
court's management and administration of                        reason for the failure to replead was appellant's
                                                                husband/lawyer was tied up in court immediately prior to
Page 512                                                        the January 18 deadline. Cross examination revealed,
                                                                however, that the conflict problem was clear at the
a particular legal claim generally will be a significant        inception of this suit. It also showed that appellant's
interference with one or more of the judiciary's functions.     husband/lawyer was well informed about the factual
In the instant case, appellant's failure to replead after       allegations in the suit. This raised the inference that he
being given a chance to do so inhibited the court's and the     could have repleaded.
other litigant's abilities to determine what evidence and
legal issues are relevant to this suit. This is a significant        Although the evidence supports the trial court's
interference with the administration of justice. We hold        ruling that appellant's reasons for the delay were
the evidence supported the trial court's assessment of          unsatisfactory, we must determine whether "death
some sanction for this conduct based on its inherent            penalty" sanctions are appropriate under the standards set
power.                                                          forth in Transamerican. If the evidence does not support
                                                                "death penalty" sanctions under Transamerican, we must
    The next issue is whether the trial court's dismissal of    conclude that the trial court abused its discretion in
appellee's lawsuit with prejudice exceeded its limited          assessing such sanctions in this case.
inherent power to sanction for abuse of the judicial
process. Initially, we must determine what standard of               Our first inquiry under Transamerican is whether a
review to apply.                                                direct relationship between the abuse and the sanction
                                                                exists. Dismissal of appellant's petition with prejudice for
     Two standards of review could apply to this issue,         failure to replead is a sanction directly related to the
the de novo standard or the abuse of discretion standard.       violation of the court's order to replead. However, the
Koslow's applied the abuse of discretion standard. In           sanction most strongly effects the client, and not the
Home Owners Funding Corp. v. Scheppler, 815 S.W.2d              offending party, her attorney.
884, 889 (Tex.App.--Corpus Christi 1991, no writ), this
Court carefully considered and decided that the abuse of             The second inquiry is whether the sanctions were
discretion standard of review applied to TEX.R.CIV.P.           excessive. The legitimate purposes of sanctions must be
13 sanction orders. HOFCA, in turn relied in part upon          furthered by the sanction order, but not excessively.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110              These purposes are to secure compliance,
S.Ct. 2447, 110 L.Ed.2d 359 (1990), which applied the
abuse of discretion standard of review to FED.R.CIV.P.          Page 513
11 sanction orders. Chambers applied the abuse of
discretion standard in reviewing sanction orders under the      deter future violations, and punish violators. Bodnow v.
federal court's inherent powers. In accordance with this        City of Hondo, 721 S.W.2d 839, 840 (Tex.1986). We first
line of authority we hold the abuse of discretion standard      look to see if lesser sanctions were imposed or considered
of review applies in determining whether the trial court        by the trial court in order to secure compliance.
properly exercised its inherent powers to sanction.
                                                                     Except for the court's order granting the defendant's
     Properly applying the abuse of discretion standard         special exceptions and permitting appellant to replead, no
for sanction orders requires us to review the entire record.    lesser sanctions were assessed by the trial court to
We review the conflicting evidence in the light most            encourage compliance. [4]
favorable to the trial court's ruling, and draw all
reasonable inferences therefrom which sustain the                    An additional factor supporting severe sanctions is a
judgment. Vaughn v. Texas Emp. Comm'n, 792 S.W.2d               finding of callous disregard for the rules or flagrant bad
                                                                faith. Transamerican, 811 S.W.2d at 918. We find no
evidence in the record that the failure to replead was           the extension, modification, or reversal of existing law. A
motivated by flagrant bad faith or callous disregard for         general denial does not constitute a violation of this rule.
the trial court's order. Although appellant failed to timely     The amount requested for damages does not constitute a
replead, a motion for extension of time to replead was           violation of this rule.
filed, and supported by evidence adduced at the hearing.
A new petition was tendered at the motion for new trial.         TEX.R.CIV.P. 13.
The old petition alleged facts supporting a valid cause of
action; thus the presumption that appellant's claims lack        [2] Of course the legislature's power to limit exercises of
merit is absent. Under these circumstances, the dismissal        inherent powers cannot impair the traditional ability of a
with prejudice violated appellant's due process rights.          Texas courts to function as courts. Armadillo v. State,
Transamerican, 811 S.W.2d at 918. The punishment for             802 S.W.2d 237, 239-40 (Tex.Crim.App.1990)
this "crime" was excessive.                                      (separation of powers doctrine limits the legislature's
                                                                 ability to restrict core functions of the judiciary).
     We hold that the trial court abused its discretion in
striking appellant's pleadings and dismissing the cause          [3] The death penalty refers to a sanction which
with prejudice.                                                  terminates the litigation either by striking pleadings,
                                                                 rendering a default judgment, or both.
     The final issue we must address is whether the error
is harmful. [5] TEX.R.APP.P. 81(b)(1). We have                   [4] Lesser sanctions such as an order assessing a fine or
reviewed the pleadings on file. Even after the special           attorney's fees might have resulted in compliance with the
exceptions are taken into account, they allege sufficient        court's order to replead. Appellant's counsel appeared at
facts to sustain a valid cause of action for wrongful            the motion for new trial and requested leave to file an
dismissal. No motion for summary judgment with                   amended pleading which she stated cured all the
supporting evidence has been filed to controvert the facts       problems associated with the earlier pleading. Counsel
alleged in the pleadings. Thus, we find the error harmful.       was not permitted to file this pleading.
Id. Appellant's second point of error is sustained.
                                                                 [5] Dismissal with prejudice is not necessarily harmful
    We modify the trial court's ruling to delete the words       error. For example, if the pleadings did not state a valid
"with prejudice," and as modified, affirm.                       cause of action the dismissal could have been harmless.

---------                                                        ---------

Notes:

[1] Rule 13 provides:

The signatures of attorneys or parties constitute a
certificate by them that they have read the pleading,
motion, or other paper; that to the best of their
knowledge, information, and belief formed after
reasonable inquiry the instrument is not groundless and
brought in bad faith or groundless and brought for the
purpose of harassment. Attorneys or parties who shall
bring a fictitious suit as an experiment to get an opinion
of the court, or who shall file any fictitious pleading in a
cause for such a purpose, or shall make statements in
pleading which they know to be groundless and false, for
the purpose of securing a delay of the trial of the cause,
shall be held guilty of a contempt. If a pleading, motion
or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, after notice and
hearing, shall impose an appropriate sanction available
under Rule 215-2b, upon the person who signed it, a
represented party, or both.

Courts shall presume that pleadings, motions, and other
papers are filed in good faith. No sanctions under this
rule may be imposed except for good cause, the
particulars of which must be stated in the sanction order.
"Groundless" for purposes of this rule means no basis in
law or fact and not warranted by good faith argument for
Page 257                                                     director and 100% stockholder.

898 S.W.2d 257 (Tex. 1995)                                        In mid 1992, believing that IBS and Chambers were
                                                             unlawfully competing with it in violation of the
Ex parte Franklin D. CHAMBERS                                nondisclosure and noncompetition agreements, IBEC
                                                             sued IBS, Chambers, and the other former IBEC
No. 94-0495.                                                 employees. Among the remedies sought by IBEC and
                                                             granted by the trial court was an injunction to restrain the
Supreme Court of Texas.
                                                             defendants from using or disclosing IBEC's trade secrets
                                                             and confidential information. The injunctions granted by
March 30, 1995
                                                             the trial court were subsequently and repeatedly violated.
    Argued Nov. 11, 1994.
                                                                  On February 2, 1993, IBS and the individual
    Rehearing Overruled June 15, 1995.                       defendants were found to be in contempt of court for
                                                             violating the injunctions through customer contacts which
Page 258                                                     occurred in July and August of 1992. Fines were ordered
                                                             and were paid. During March of 1993, Chambers
    Robert K. Frisch, Dallas.                                proceeded to shut down IBS and open a sole
                                                             proprietorship called Investor Brokerage Service
    Ray N. Donley, Jane M.N. Webre, Austin.                  (hereinafter "IBS II"). The assets of IBS were transferred
                                                             to IBS II, which used the same location, the same phone
     HIGHTOWER, Justice, delivered the opinion of the
                                                             number, and engaged in the same business as IBS. On
Court, in which PHILLIPS, Chief Justice, and HECHT,
                                                             June 24, 1993, the defendants were again found to be in
CORNYN, GAMMAGE, SPECTOR and OWEN,
                                                             violation of the trial court's injunctions stemming from
Justices, join.
                                                             customer contacts in September, November and
                                                             December of 1992. On this occasion, however, only IBS
     In this case we must decide whether a judgment of
                                                             was held in contempt. For these multiple acts of
contempt was properly rendered against a corporate
                                                             contempt, IBS, of which Chambers was the sole officer,
officer, director and shareholder for his personal failure
                                                             director and shareholder, was ordered to pay a $3000 fine
to cause the corporation to pay a contempt fine
                                                             within seven days.
previously adjudged against it. Although we find that the
order was sufficiently specific to give rise to a personal
                                                                  One hundred fifteen days later, the fine from the
duty on Chambers' part to obey it, we grant his petition
                                                             second contempt judgment against IBS remained unpaid
for writ of habeas corpus because we find that he has
                                                             and Chambers was ordered to show cause why he should
conclusively proven that the corporation was unable to
                                                             not be held in contempt for the failure of IBS to pay the
comply with the order.
                                                             fine. At the show cause hearing, Chambers contended
                                                             that IBS was unable to pay the fine. Chambers and IBS
    In early 1992, Franklin Delano Chambers was an
                                                             were both found to be in contempt of court. Chambers,
employee of International Business Exchange
                                                             individually, was ordered to pay a total fine of $6000 and
Corporation (hereinafter "IBEC"), a corporation whose
                                                             was sentenced to jail for a period of 7 days and for so
business consisted primarily of bringing together buyers
                                                             long thereafter as the $6000 fine remained unpaid.
and sellers of businesses through listings, mail outs and
advertising. In connection with his employment,
                                                                 Chambers sought a writ of habeas corpus from the
Chambers entered into an agreement in which he
                                                             Third Court of Appeals, which writ was ultimately denied
promised not to use IBEC's marketing tools and trade
                                                             by that court. --- S.W.2d ----. We initially granted
secrets in competition with IBEC. In April 1992,
                                                             Chambers' release on bond while his application was
Chambers founded International Business Search, Inc.
                                                             pending, and we now grant the writ of habeas corpus
(hereinafter "IBS"). IBS employed Chambers and several
                                                             because Chambers has established the corporation was
other former IBEC employees to provide essentially the
                                                             unable to pay the court ordered fine.
same business listing services which they had offered as
employees of IBEC. Chambers, along with Donna                I.
Nicholls and Allan Millen, made up IBS's initial board of
directors; however, Nicholls and Millen were removed              We must first decide whether Chambers, a corporate
from the board only two months after IBS                     officer and director, can be held in contempt of court
                                                             when the violated order is directed only to the
Page 259                                                     corporation. Contempt of court is broadly defined as
                                                             disobedience to or disrespect of a court by acting in
was formed. This left Chambers as the sole officer,
                                                             opposition to its authority. Ex parte Norton, 144 Tex.
445, 191 S.W.2d 713, 714 (1946). See also William W.           684 S.W.2d 124 (Tex.App.--Houston [14th Dist.] 1984,
Kilgarlin & Scott A. Ozmun, Contempt of Court in               orig. proceeding) (holding an obligor in contempt who
Texas--What You Shouldn't Say to the Judge, 38 Baylor          knew with certainty he was to pay one of two amounts of
L.Rev. 291, 292 (1986). Within this definition, there are      child support but ignored the order altogether). The order
two basic types of contempt: direct contempt and               need not be full of superfluous terms and specifications
constructive contempt. Direct contempt is that type of         adequate to counter any flight of fancy a contemnor may
disobedience or disrespect which occurs within the             imagine in order to declare it vague. Ex parte Johns, 807
presence of the court, while constructive contempt occurs      S.W.2d 768, 774 (Tex.App.--Dallas, 1991).
outside the court's presence. Ex Parte Gordon, 584
S.W.2d 686, 688 (Tex.1979). The contempt alleged in                There is no question in this case which corporation
this case, violation of a written court order, outside the     was responsible for paying the court ordered fine.
presence of the court, is constructive contempt. A             Further, there is no ambiguity concerning the amount of
criminal contempt conviction for disobedience to a court       the fine ordered or when it was due. The only issue is
order requires proof beyond a reasonable doubt of: (1) a       whether it was reasonable to conclude that IBS was
reasonably specific order; (2) a violation of the order; and   required to pay the fine, but that it would do so without
(3) the willful intent to violate the order. See In the        human intervention. The absurdity of the question
Matter of Hipp, Inc., 5 F.3d 109, 112 (5th Cir.1993)           provides its own answer.
(citing Cooper v. Texaco, Inc., 961 F.2d 71, 72 n. 3 (5th
Cir.1992); United States v. Burstyn, 878 F.2d 1322 (11th           Although a corporation is a legally distinct and
Cir.1989)). [1] In reviewing the record, we are without        cognizable entity, it is only able to act through its agents.
jurisdiction to weigh the proof and determine whether it       San Antonio Bar Ass'n v. Guardian Abstract & Title Co.,
preponderates for or against the relator; rather, we           156 Tex. 7, 291 S.W.2d 697, 699 (1956). Since a
determine only if the judgment is void because, for            corporation is capable of violating a court order only if its
example, the relator has been confined without a hearing       agents act or refrain from acting, it follows that an order
or with no evidence                                            directed at a corporation is binding on agents authorized
                                                               to act on its behalf, whether specifically named in the
Page 260                                                       order or not. See, e.g., Wilson v. United States, 221 U.S.
                                                               361, 31 S.Ct. 538, 55 L.Ed. 771 (1911) (order directed at
of contempt to support his confinement. Ex parte Barnett,      corporation only but president held in contempt); United
600 S.W.2d 252 (Tex.1980); Ex parte Helms, 152 Tex.            States v. Laurins, 857 F.2d 529 (9th Cir.1988), cert.
480, 259 S.W.2d 184 (1953). See also Ex parte Howell,          denied, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 565
843 S.W.2d 241, 245 (Tex.App.--Houston [1st Dist.]             (1989) (order directed at corporation and vice-president
1992, orig. proceeding).                                       but managing director held in contempt). See also
                                                               Charles R.P. Keating, Fletcher Cyclopedia of
A.                                                             Corporations § 5073 (Perm. ed. 1986). There can be no
                                                               doubt that a command to the corporation is in effect a
     We first consider whether the order Chambers is           command to those who are officially responsible for the
accused of violating is sufficiently specific to support a     conduct of its affairs. Wilson, 221 U.S. at 376, 31 S.Ct. at
judgment of contempt. The order which Chambers is              542-43. Were this not true, entities could delegate their
charged with violating is an order directing IBS to pay a      disobedience to physical actors who, since they would be
$3000 fine, but it does not designate any particular person    beyond judicial power, would have no reason to
to carry out its terms. In order to support a judgment of      recognize or obey it. [2]
contempt, Texas law requires that the underlying decree
set forth the terms of compliance in clear, specific and       Page 261
unambiguous terms so that the person charged with
obeying the decree will readily know exactly what duties            Simply because a corporation has failed to comply
and obligations are imposed upon him. Ex parte                 with a court order, it does not necessarily follow that all
MacCallum, 807 S.W.2d 729, 730 (Tex.1991); Ex parte            corporate agents or officers are in contempt because of
Hodges, 625 S.W.2d 304, 306 (Tex.1981); Ex parte               their agent status. There must be evidence in the record
Slavin, 412 S.W.2d 43, 44 (Tex.1967). Chambers argues          that the corporate agent charged with contempt was
that nonpayment by the corporation cannot result in his        somehow personally connected with defying the
own contempt because the court did not clearly and             authority of the court or disobeying its lawful decrees.
unambiguously order him to pay the fine. We disagree.          See, e.g., Deramus v. Thornton, 160 Tex. 494, 333
                                                               S.W.2d 824 (1960). We have previously refused to
    A court order is insufficient to support a judgment of     uphold a judgment of contempt against a corporate
contempt only if its interpretation requires inferences or     president because of the absence of any evidence that the
conclusions about which reasonable persons might differ.       president had either encouraged or participated in the
MacCallum, 807 S.W.2d at 730. Only the existence of            violations of injunctions carried out by other employees.
reasonable alternative constructions will prevent              Id. at 828-30. However, when an agent of the
enforcement of the order. See, e.g., Ex parte Crawford,        corporation, having knowledge of an order directed at the
corporation, participates in or encourages the violation of     276 S.W.2d at 254. Again, we do not weigh the evidence,
that order, that agent may be individually held in              but
contempt of court. [3]
                                                                Page 262
      The record indicates that Chambers was IBS's only
officer, its only director, and indeed, its only shareholder.   only determine if there is no evidence to legitimize the
It is also undisputed that Chambers was present when the        relator's confinement. Ex parte Barnett, 600 S.W.2d 252
trial court ordered IBS to pay the initial contempt fine.       (Tex.1980); Ex parte Helms, 152 Tex. 480, 259 S.W.2d
Since Chambers was the only person capable of                   184 (1953). See also Ex parte Howell, 843 S.W.2d 241,
compelling IBS to pay the court ordered fine, it is clear       245 (Tex.App.--Houston [1st Dist.] 1992, orig.
that IBS's disobedience is due to Chambers' personal            proceeding). Thus, the issue in habeas corpus review is
refusal to act. Thus, since the order to IBS is binding on      whether the relator has conclusively established that IBS
Chambers, and since the trial court heard evidence that         was involuntarily unable to pay. Chambers argues that he
Chambers personally participated in its violation with          has conclusively established this defense, and we agree.
notice of the order, the judgment of contempt is not void
on these grounds.                                                   It is undisputed that IBS did not have sufficient
                                                                assets to pay the fine at any point subsequent to the date
B.                                                              on which the fine was ordered. In point of fact, IBS had
                                                                ceased doing business altogether. IBS could not have
    We now consider whether Chambers willfully                  paid the fine even if Chambers had acted.
violated the court's order. Chambers argues that there is
no evidence that he violated the court's order knowingly             One month after the first series of fines, IBS ceased
and intentionally. Although at times not clearly                doing business and Chambers continued providing the
enunciated in Texas case law, the requirement of willful        same services in the form of a sole proprietorship, IBS II.
disobedience is a necessary consequence of the                  The assets of IBS were transferred to IBS II, which took
accumulated contempt jurisprudence. As explained                up residence in the same office space and used the same
above, to support a judgment of contempt, the underlying        telephone number as IBS. IBEC points to this evidence
order must be clear and unambiguous. MacCallum, 807             and argues that Chambers has not conclusively proven
S.W.2d at 730. In addition, one must have knowledge or          IBS was involuntarily unable to pay the fine, but that
notice of an order which one is charged with violating          IBS's inability to pay was purposefully achieved. We
before a judgment of contempt will obtain. See, e.g., Ex        must disagree.
parte Conway, 419 S.W.2d 827, 828 (Tex.1967).
Noncompliance with an unambiguous order of which one                 The shifting of assets from IBS to IBS II occurred
has notice will ordinarily raise an inference that the          prior to the imposition of the court-ordered fine. A
noncompliance was willful.                                      contemnor cannot be held in constructive contempt of
                                                                court for actions taken prior to the time that the court's
     It is uncontested in this case that Chambers was           order is reduced to writing. See Ex Parte Price, 741
present when the trial court ordered IBS to pay the             S.W.2d 366 (Tex.1987). Chambers had no duty to
contempt fine. It is also clear that Chambers and               preserve IBS assets for the payment of fines to be ordered
Chambers alone is responsible for IBS' disobedience.            in the future; therefore, his actions, taken alone, prior to
Although Chambers argues that he did not willfully              the issuance of the fine, do not raise any inference that he
violate the order because he acted on the advice of his         was seeking to avoid the contempt powers of the trial
attorney, this argument is unavailing. While reliance           court.
upon the advice of counsel may be considered in
mitigation of contempt, it does not constitute a defense.            IBEC further argues that the assets of IBS II ought to
Edrington v. Pridham, 65 Tex. 612, 617 (1886). See also         be included in determining whether IBS, which it
S.E.C. v. First Financial Group, Inc., 659 F.2d 660 (5th        considers to be Chambers' alter ego, was capable of
Cir.1981).                                                      paying the fine when ordered. We need not determine
                                                                whether Chambers' personal assets ought to be included
    The analysis above does not end our inquiry                 in determining IBS's ability to comply because this was
concerning Chamber's alleged willfulness. The                   not the basis of the motion for contempt below. IBEC, in
involuntary inability to comply with an order is a valid        its motion for contempt, sought only to hold Chambers
defense to criminal contempt, for one's noncompliance           accountable for his own failure to make IBS act.
cannot have been willful if the failure to comply was           Nowhere did IBEC allege that IBS was Chambers' alter
involuntary. See Ex parte Rohleder, 424 S.W.2d 891, 892         ego. Full and unambiguous notice of the accusation of
(Tex.1967); Ex parte Kollenborn, 154 Tex. 223, 276              contempt must be served on the alleged contemnor. Ex
S.W.2d 251, 253-54 (1955). Although the inability to            Parte Adell, 769 S.W.2d 521 (Tex.1989). We cannot
comply defense technically rebuts the willfulness element       justify Chambers' imprisonment on a basis which is not
of contempt liability, the relator bears the burden of          alleged in the respondent's sworn motion for contempt,
proving his inability to comply. See, e.g., Kollenborn,         but rather is raised for the first time when Chambers
seeks his freedom through writ of habeas corpus.                inequitable result." Id. In that situation, the corporation is
                                                                considered the alter ego of the individual, and the two are
     The dissent makes much of the fact that the only           treated as one. Second, we ignore the corporate form
reason IBS lacked sufficient assets to pay its fine is          when we hold corporate representatives personally liable
because, before the fine issued, Chambers transferred           for the consequences of their own wrongful acts, even
them out of the corporation and into his own pocket. The        when those acts are performed in the corporation's name
effect of this position is to require IBS to stay in business   and within the scope of their authority. This exception
solely to pay fines which hypothetically would be levied        exists in negligence and criminal law. Leyendecker &
in the future. We believe that meaningful review of the         Assoc., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex.1984);
"inability to comply" defense is more readily                   TEX.PENAL CODE § 7.23. In that situation, the
accomplished by limiting the contemnor's burden to              penalties for the wrongful deeds can be imposed on the
proving that the corporation lacked sufficient assets (or       corporation, the individual, or both.
access to assets) to pay the fine at all times after the fine
was entered. If the opposition wishes to prove that                  By determining that the June 24, 1993 judgment of
pre-fine transfers were fraudulent or that the corporate        contempt unambiguously ordered Chambers to comply
form was being used as a sham to perpetrate a fraud, it         with its terms, the Court has in effect determined that the
should be their burden to so allege and so prove.               corporation was Chambers' alter ego or that he committed
                                                                a tortious or criminal act. To allow this Court or the trial
     Since we find that Chambers has established IBS's          court to make that determination for the first time in a
inability to comply defense, it is unnecessary to address       contempt hearing raises serious questions of whether
his remaining points. We therefore grant Chambers'              Chambers was given proper notice of the charges against
petition for writ of habeas corpus and order that he be         him before he was subjected to incarceration and a fine.
discharged from custody.
                                                                It is an accepted rule of law that for a person to be held in
    ENOCH, Justice, concurring.                                 contempt for disobeying a court decree, the decree must
                                                                spell out the details of compliance in clear, specific and
     I agree that the petition for writ of habeas corpus        unambiguous terms so that such person will readily know
should be granted in this matter, but for reasons other         exactly what duties or obligations are imposed upon him.
than those expressed by the Court. Specifically, I
disagree with the Court that a corporate agent may be                Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967). In
held in contempt of court for the corporation's violation       this case, the trial court failed to issue an order of
of an order directed only against the corporation. Because      sufficient scope to sustain its contempt judgment against
the order did not specifically name Chambers or direct          Chambers; it failed to order Chambers to do or not do
him to take any action on behalf of the corporation,            anything at all. The initial judgment of contempt, issued
                                                                in January 1993, rightfully imposed fines on both the
Page 263                                                        corporation and the individual defendants. The June 1993
                                                                judgment of contempt, however, was limited to the
the order lacks specificity and cannot support a contempt
                                                                corporation alone. More than anything else, this omission
judgment against Chambers. As the contempt judgment
                                                                is responsible for whatever miscarriage of justice would
against Chambers is void, I concur in the Court's
                                                                occur by relieving Chambers of the contempt penalties
judgment granting the petition for writ of habeas corpus.
                                                                here. We should not distort the substantive law of
    In this case, the June 24, 1993 judgment of contempt        contempt to remedy such an oversight.
(and the order incorporated therein) unambiguously
                                                                     Because I would hold the contempt judgment against
directed that the corporation pay $3,000 to the clerk of
                                                                Chambers void, I concur in the judgment granting the
the court during the period from June 24th to July 1st.
                                                                petition for writ of habeas corpus.
The order did not require the corporation to generate the
funds necessary to pay the fine or restrict the transfer of         GONZALEZ, Justice, dissenting.
any assets or operations. The order did not include any
direction to Chambers or any of the other individual                 I will not join an opinion that allows Chambers to
defendants, as had previous orders in the case. The trial       continue brazenly flouting the orders of the trial court,
court could have directed the actions of the corporation        thus making a mockery of the judicial system. Chambers
and the individual defendants, but it did not.                  has repeatedly ignored the trial court's injunctions. It was
                                                                only after the trial court held him in contempt for the
     A corporation is a separate legal entity, and "[t]he       second time that it assessed the penalty (seven days in jail
corporate form normally insulates shareholders, officers,       and a $6,000 fine) that he presently challenges. Because
and directors from liability for corporate obligations."        Chambers willfully failed to comply with the trial court's
Castleberry v. Branscum, 721 S.W.2d 270, 271                    order and voluntarily rendered himself unable to comply
(Tex.1987). We disregard the corporate form in only two         with the order, I would deny his writ of habeas corpus.
situations. First, when "the corporate form has been used
as part of a basically unfair device to achieve an                  This case arises out of a lawsuit to protect the
International Business Exchange Corporation's (IBEC's)       paid the fine. October 25, 1993 Third judgment of
customer and buyer lists from misuse by ex-employees.        contempt and order of commitment. The trial court held
When IBEC hired Chambers, he agreed not to use any           IBS and Chambers, as its sole officer, director, and
                                                             shareholder, in contempt. It ordered the sheriff to take
Page 264                                                     custody of Chambers and to place him in the county jail
                                                             for seven days' imprisonment. The trial court also fined
information and methods learned at IBEC to compete           Chambers individually $6,000.
with IBEC for one year following the termination of his
employment. When Chambers left IBEC and set up a             ----------
competing business, International Business Search (IBS),
he immediately began using IBEC's information and            Page 265
customer lists for his own company's benefit. IBEC
commenced judicial proceedings to enforce its                     Three days later, Chambers petitioned the court of
non-compete agreement with Chambers.                         appeals for a writ of habeas corpus. The court of appeals
                                                             held the contempt judgment to be both civil and criminal
     A brief summary of the events that followed shows       in nature because it punished Chambers for failing to see
the utter contempt Chambers displayed toward the trial       that IBS's fine was timely paid, and coerced him to pay
court:                                                       his own fine by incarcerating him until such time as it
                                                             was paid. --- S.W.2d ----, ----. It further determined that
 April 9, 1992 Chambers incorporated IBS to compete          the orders directing IBS to pay fines had the legal effect
with IBEC. June 1992 After removing former IBEC              of commanding payment by the company's officers, in
employees from the IBS board, Chambers became the            this case, Chambers alone. Id. at ----. Also, the court of
sole officer, director, and shareholder of IBS. July 15,     appeals held that the trial court did not err in fining
1992 First restraining order. The trial court issued a       Chambers $6000 individually and in refusing to credit jail
temporary restraining order (TRO) ordering Chambers          time toward satisfaction of the fine. Lastly, it ruled that
and IBS not to use IBEC's customer leads, not to mail        the "purging provision" in the commitment order
letters "very similar to" IBEC's customer solicitation       removed it from the statutory six-month limit for
letters, and not to use or disclose any of IBEC's            incarceration under order of contempt in Section 21.002
confidential information. August 19, 1992 Amended            of the Texas Government Code.
restraining order. After notice and an evidentiary hearing
which Chambers and his attorney attended, the trial court         We initially granted Chambers' release on bond
concluded that Chambers and IBS intended to use IBEC's       while his application for writ of habeas corpus was
customer information and marketing tools to compete          pending. This Court today grants relief and issues the
with IBEC in violation of the agreement not to compete.      writ. However, I would overrule the application for writ
It amended the TRO to clarify that the order prohibited      of habeas corpus and remand Chambers to the custody of
these activities. January 4, 1993 Second TRO. The trial      the Sheriff of Williamson County, to be confined until he
court found that IBS was contacting former and current       serves his time and pays his fine.
IBEC customers and making defamatory statements
about IBEC and "fomenting spurious litigation." The          I.
court enjoined IBS from contacting IBEC's customers.
January 15, 1993 The trial court made the January 4,              In the trial court's second contempt order of June 24,
1993 TRO into a permanent restraining order. February 2,     1993, the court enumerated six specific instances in
1993 First contempt judgment. The trial court held           which Chambers and IBS violated the court's prior
Chambers and IBS in contempt of court for violating the      restraining order. The trial court ordered IBS to pay a
amended TRO, after finding numerous instances in which       $3000 fine within seven days. Chambers argues that the
Chambers had contacted IBEC's customers. It fined            order failed to set out the details of compliance in "clear,
Chambers $350 and IBS $700. March 1993 Chambers              specific, and unambiguous terms" so that he would know
began doing business as Investors Brokerage Service          that he was "obligated to pay or cause the corporation to
(IBS"2) as a sole proprietorship. IBS"2 occupied the         pay the $3000 fine." He further claims that because no
same office space as IBS, retained the same phone            individual defendants other than IBS were found in
number, and continued IBS's lease payments on                contempt, punished by fine, or ordered to take affirmative
Chambers' car. Chambers drained cash reserves from the       steps for paying the fine or causing it to be paid, he was
first company, IBS, leaving it with cash reserves of only    not aware that he might be held accountable for IBS's
$11,488. June 8, 1993 The day before the hearing on          failure to pay the fine. I disagree.
IBEC's second motion for contempt, Chambers withdrew
                                                                 The decree underlying a judgment of contempt must
the last $209.22 from the IBS bank account. June 24,
                                                             set forth clear, specific, and unambiguous terms of
1993 Second contempt order. The trial court held IBS in
                                                             compliance so that the person charged with obeying the
contempt for six violations of prior restraining orders,
                                                             decree will readily know exactly what duties and
and fined it $3,000. It ordered the sanction paid within
                                                             obligations it imposes. Ex parte MacCallum, 807 S.W.2d
seven days of the judgment. Neither IBS nor Chambers
                                                             729, 730 (Tex.1991). An order is insufficient if its
interpretation requires inferences or conclusions about       involuntarily unable to pay the trial court's fine. At one
which reasonable minds could differ. Id. We should not        time, IBS had sufficient assets to pay the $3,000 fine.
review the order in this case in a vacuum. The issue is       Chambers caused IBS's alleged subsequent inability to
whether a reasonable person in Chambers' position would       pay the fine. He did so by ceasing IBS business
have concluded that the court's order imposed no duty         operations, withdrawing all its cash reserves, and creating
upon him. Once apprised of an order directed to the           IBS-2, a twin business entity with identical operations.
corporation, if an agent responsible for the conduct of
corporate affairs prevents compliance or fails to take             Only an involuntary inability to comply with a
appropriate action within his power and in fulfillment of     court's order is a valid defense to contempt. Ex parte
his corporate duty, the agent, no less than the corporation   Sanchez, 703 S.W.2d 955, 959 (Tex.1986). In this case, I
itself, is guilty of disobedience and may be punished for     would hardly call IBS's inability to pay involuntary.
contempt. Wilson v. United States, 221 U.S. 361, 376, 31      Chambers, the sole corporate officer who was responsible
S.Ct. 538, 542-43, 55 L.Ed. 771 (1911).                       for the company's obedience to a court order, transferred
                                                              assets from the company to his own pockets or to another
    Admittedly, the trial court's third contempt order of     company. He shut down IBS's operations to start a new,
October 25, 1993 most clearly holds Chambers in               yet nearly indistinguishable company, solely to escape
contempt for failing to require IBS to pay the fine.          court sanction and to create an impoverished contemnor.
However, the second contempt order of June 24, 1993           There is no evidence Chambers cannot undo the situation
would have indicated to a reasonable corporate officer in     he created. I remain convinced that he can be held in
Chambers' place that not merely IBS alone was                 contempt under the record in this case.
responsible for the fine. Chambers was IBS's sole officer,
director, and shareholder. Chambers alone managed the         III.
day-to-day affairs of the company. For all intents and
purposes, Chambers was IBS. He cannot claim he was                I next consider whether the trial court exceeded its
surprised that the trial court would hold him accountable     authority in ordering that Chambers pay a $6000 fine and
for IBS's failure to obey its contempt orders. Thus,          that he be confined for seven days and for so long
Chambers willfully failed to comply with the trial court's    thereafter as the fine remains unpaid. Resolution of this
orders. Because                                               issue turns on the distinction between civil contempt and
                                                              criminal contempt.
Page 266
                                                                   The distinction does not depend on whether the
he is responsible, he may properly be held in criminal        underlying litigation is civil or criminal, but rather on the
contempt.                                                     nature and purpose of the court's punishment. See
                                                              generally Ex parte Werblud, 536 S.W.2d 542, 545-46
II.                                                           (Tex.1976). The object of civil contempt is to coerce the
                                                              contemnor to comply with some order of the court. Id.
     Chambers argues that contempt is improper in this        The court possesses the power to jail or to fine a
case because he established that IBS was unable to pay        contemnor. Imprisonment under a civil contempt order
the court-imposed fines. Again, I disagree. He attempts to    coerces compliance through the use of a "purging"
invoke an "involuntary inability" of the company to pay       provision. A contemnor "carries the keys of [his] prison
the $3,000 fine to excuse his own violations of the trial     in [his] own pocket," since he will be released upon
court's orders.                                               obedience to the court's order. Id. at 545 (quoting
                                                              Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct.
      The movant for a contempt order has the burden of       1531, 1534, 16 L.Ed.2d 622 (1966)); see Kilgarlin &
proving that the other party has willfully disobeyed the      Ozmun, Contempt of Court in Texas--What You
court's command. The "involuntary inability" defense          Shouldn't Say to the Judge, 38 BAYLOR L.REV. 291,
technically rebuts the "willfulness" element on which the     297 (1986).
opposing party bears the burden of proof. Thus, the
relator bears the burden of proving his inability to comply        Criminal contempt differs from civil contempt in
with a court order. See Ex parte Kollenborn, 154 Tex.         both purpose and scope. A criminal contempt order
223, 276 S.W.2d 251, 254 (1955); accord S.E.C. v. AMX,        vindicates the authority of the court. The court imprisons
Int'l, Inc., 7 F.3d 71, 73 (5th Cir.1993). Upon review of     the contemnor to punish him for a completed act which
an order of contempt, we do not weigh the evidence but        affronted the dignity and authority of the court. Werblud,
only examine it to determine if there is any evidence to      536 S.W.2d at 545. In cases of criminal contempt, in
legitimize the relator's confinement. Ex parte Helms, 152     which courts punish contemnors' past actions rather than
Tex. 480, 259 S.W.2d 184, 186 (1953). Therefore, the          coerce future compliance, the Legislature has limited the
issue in habeas corpus review is whether the relator has      severity of the punishment. See TEX. GOV'T CODE §
conclusively established that he was involuntarily unable     21.002. However, these limitations do not circumscribe
to pay a fine because there is no evidence to the contrary.   the court's authority to coerce future obedience to its
                                                              lawful decrees through civil contempt. See Ex parte
      Chambers has not established that IBS was
Klugsberg, 126 Tex. 225, 87 S.W.2d 465, 468 (1935).              contempt with imprisonment. See Thompson v. State, 557
                                                                 S.W.2d 521, 524-25 (Tex.Crim.App.1977); Dixon v.
A.                                                               State, 2 Tex. 481, 483 (1847). In 1847 this Court stated:

    Chambers argues that the proceedings in this case                 The words "imprisonment for debt" have a well
were solely civil in nature, yet the                             defined and well known meaning, and have never been
                                                                 understood or held to apply to criminal proceedings. It is
Page 267                                                         not to be supposed, and it will scarcely be contended, that
                                                                 it ever entered into the minds of the framers of the
trial court ordered only criminal punishment. This
                                                                 Constitution that they were to be understood as having
argument is without merit.
                                                                 any application to the administration of the criminal laws;
      The trial court's order of commitment fined                or that they were to have the effect to prevent the
Chambers for his past disobedience and committed him             punishment of crimes.
to jail for an absolute period of seven days. This was an
                                                                    Dixon, 2 Tex. at 482-83 (citations omitted and
order of criminal contempt. Its duration is well within the
                                                                 emphasis added).
six-month limit on incarceration set by the Legislature.
See TEX. GOV'T CODE § 21.002. No subsequent                           Second, Chambers was not fined and imprisoned for
obedience on Chambers' part permitted him to avoid               an act or omission of IBS or any other corporate agent.
serving seven days in jail or paying the fine. Werblud,          The trial court held him in contempt for his own willful
536 S.W.2d at 545. Once the seven days is served, the            refusal to obey its orders. In the underlying lawsuit,
trial court's order directed that Chambers be jailed for so      International Business Exchange Corp. v. International
long as his fine remained unpaid. At this point, Chambers        Business Search, Inc., No. 92-207-C368, the trial court
will hold the keys to his own prison: he can purge himself       held IBS in contempt for repeated disobedience of the
of contempt by paying the court-ordered fine. Therefore,         restraining orders prohibiting breaches of the agreement
the latter component of the court's order was an order of        not to compete with IBEC. The court first ordered IBS to
civil contempt. Id. The trial court may combine both civil       pay a $700 fine, and upon further non-compliance, a
and criminal contempt in one order. Sanchez, 703 S.W.2d          $3,000 fine. Chambers, the only person who could have
at 957.                                                          caused IBS to comply with these orders, willfully refused
                                                                 to do so. As a general rule, a person who willfully
B.
                                                                 disobeys a valid court order is guilty of contempt. Ex
    Chambers also argues that the trial court                    parte Hall, 854 S.W.2d 656, 658 (Tex.1993). It requires
impermissibly "pierced the corporate veil" by jailing an         no "veil piercing" to hold the sole corporate officer,
individual officer for the company's failure to pay a            director, and shareholder responsible for his own,
corporate debt. I disagree with Chambers on two grounds.         knowingly wrongful conduct. See Kinkler v. Jurica, 84
                                                                 Tex. 116, 19 S.W. 359, 360 (1892) (holding directors
     First, although Chambers' imprisonment arose in part        personally liable for their misconduct, and not as agents
from IBS's failure to pay the $3,000 fine, he was not            of the corporation). Thus, the corporate veil need not be
"imprisoned for debt." TEX. CONST. art. I, § 18. When            pierced to find Chambers subject to contempt for his
neither IBS nor its sole officer, director, and shareholder      willful
paid the fine, the trial court held Chambers in criminal
contempt. The $6,000 fine, like the seven days'                  Page 268
imprisonment, is a penalty owed to the sovereign
                                                                 refusal to comply with the court order directed at IBS.
authority for violation of the criminal law. It is not a debt,
a monetary obligation owed to another party. See                 C.
BLACK'S LAW DICTIONARY 363 (5th ed. 1974)
(defining "debt").                                                    Chambers next argues that the trial court's order of
                                                                 commitment was defective because it did not credit or
    The power to hold parties in contempt and to                 off-set time he served in jail against the $6,000 fine. I
sanction non-compliance is an essential element of               disagree.
judicial independence and authority. Ex parte Browne,
543 S.W.2d 82, 86 (Tex.1976). Without this power,                    With regard to the criminal contempt portion of the
courts are merely boards of arbitration, whose judgments         order mandating an absolute seven days' imprisonment,
and decrees would be only advisory. Kilgarlin & Ozmun,           Section 21.002 of the Texas Government Code contains
supra, at 292-93 (citing Gompers v. Bucks Stove & Range          the only statutory limitation on the trial court's power to
Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501-02, 55 L.Ed.           punish for contempt. As stated, seven days' confinement
797 (1911). The framers of our state's constitutional            is well within the power Section 21.002 grants to the trial
prohibition on imprisonment for debt did not intend to           court. With regard to the civil contempt portion of the
prevent     courts     from   coercing     payment    of         order mandating confinement until the criminal fine is
lawfully-imposed monetary penalties for criminal                 paid, Chambers carries the keys to his own jail cell. He is
entitled to release from jail upon payment of $6,000.         at least seven calls to IBEC customers who, within a
Once a person is lawfully confined for civil contempt,        week, called IBEC threatening to sue IBEC based on
only the contemnor's stubborn willingness to remain in        Chambers' misrepresentations about IBEC's practices.
jail lengthens his confinement. Chambers has cited to no      Some of the customers who called were Chambers'
authority, and I am aware of none, which would require        former clients from when Chambers worked for IBEC. In
the trial court to give Chambers two sets of keys: one set    response, IBEC moved for a new TRO, which the trial
which releases him upon payment, and another which            court granted against IBS on January 15, 1993.
releases him once he is confined for a time equivalent in
value to the amount of the fine. In fact, this Court has           IBEC later learned that IBS and Chambers had made
stated that the statute authorizing good time credit "does    additional contacts with IBEC's customers in violation of
not apply to coercive civil contempt orders." Ex parte        the trial court's amended restraining order of August
Acly, 711 S.W.2d 627, 628 (Tex.1986) (discussing
TEX.REV.CIV.STAT. art. 5118a (repealed) (codified at          Page 269
TEX.CODE CRIM.P. art. 42.032)). Chambers' proposed
                                                              19, 1992. IBEC responded by moving a second time that
"time served" credit would dilute the coercive power of
                                                              they be held in contempt. The trial court granted the
civil contempt. See Ex parte Harrison, 741 S.W.2d 607,
                                                              motion on June 24, 1993. In the second order of
609 (Tex.App.--Austin 1987, no writ).
                                                              contempt, the trial court noted that IBS made six separate
D.                                                            phone calls to different IBEC customers. Consequently,
                                                              the trial court fined IBS $500 for each call and ordered
     Finally, Chambers argues that the $6000 fine exceeds     the $3,000 fine paid within seven days.
the $500 limit placed upon trial court by Section 21.002
of the Texas Government Code. I disagree once more.                 Chambers' refusal to pay IBS's fine constituted a
                                                              separate act of contempt. The fine went unpaid 115 days
     Courts have inherent power to find parties before        before IBEC moved to have IBS and Chambers held in
them in contempt. Ex parte Pryor, 800 S.W.2d 511, 512         contempt of court a third time on October 25, 1993.
(Tex.1990); see TEX. GOV'T CODE ANN. § 21.001                 Chambers refused to pay the fine because IBS lacked
(stating that courts have all necessary power to enforce      sufficient funds and, during the 115-day period,
lawful orders and to control proceedings). Moreover,          Chambers filed for bankruptcy and disbanded IBS as a
courts have the power to fine a party for each of multiple    business. (However, Chambers found the financing and
infractions of a court's order. Ex parte Genecov, 143 Tex.    initiative during the same period to launch IBS-2, a mere
476, 186 S.W.2d 225, 226-27 (1945). Because a                 shadow and clone of IBS.) At the contempt hearing, the
contemnor is entitled to know what acts or failures on his    trial court had to instruct Chambers several times to be
part subject him to punishment, Ex parte Parr, 505            more responsive and less sarcastic on cross-examination.
S.W.2d 242, 245 (Tex.1974), punishment for more than          Clearly, Chambers took the third contempt action against
one act within one proceeding is permissible only if the      him and IBS no more seriously than he had taken the trial
motion for contempt specifically sets out distinct and        court's authority over him throughout the underlying suit.
separate violations. Ex parte Oliver, 736 S.W.2d 277, 278
(Tex.App.--Fort Worth 1987, no writ).                              The trial court found Chambers in contempt of court
                                                              for each of the 115 days. It fined him $6000. Chambers
      In this case, the trial court issued the first TRO on   displayed an utter lack of respect for the trial court
July 15, 1992, and amended it on August 19, 1992. The         throughout the proceedings. Given his multiple violations
trial court prohibited IBS and Chambers from using            and flagrant disregard for the trial court's orders, I would
IBEC's customer lists, customer leads, buyer and seller       hold the full $6,000 fine proper. The record of the case
lists, and other confidential information. In the month       shows numerous instances of Chambers' disdain for the
between the initial TRO and the amended restraining           trial court. This fine was well within the trial court's
order, Chambers and IBS representatives violated the trial    inherent authority to fine a party for contempt of court.
court's order at least six times by calling IBEC's            See Pryor, 800 S.W.2d at 512. Chambers "knew that if he
customers and signing two of IBEC's customers to              violated this order he would be held accountable for his
contracts with IBS. The trial court held IBS and              actions; and still, he wilfully affronted the dignity and
Chambers in contempt of court and fined them for these        authority of the court by engaging in prohibited sales."
violations in the first contempt order on February 2,         Ex parte Griffin, 682 S.W.2d 261, 264 (Tex.1984)
1993.                                                         (Gonzalez, J., dissenting). I would therefore affirm the
                                                              trial court's third judgment of contempt and order of
    Chambers thereafter continued to defy the court. On       confinement, and remand Chambers to the custody of the
December 22, 1992, Chambers faxed a letter to IBEC's          Sheriff of Williamson County to serve his seven-day
president and counsel threatening to contact IBEC             sentence and to remain there for so long thereafter as his
customers and expose IBEC's "fraudulent" practices. He        fine remains unpaid.
claimed that "we are starting to work with anyone who
ever listed a business with IBEC." Chambers then made         ---------
Notes:

[1] The federal authority cited more clearly sets out the
elements of proof for a criminal contempt case than some
of our state jurisprudence; however, as will be
demonstrated in the following paragraphs, the
requirements under Texas law are functionally the same.

[2] Similar concerns are present in the aider and abettor
context. A court's order has no power at all if it may be
flaunted by a proxy acting in contempt of the court's
authority. Therefore:

[A] decree of injunction not only binds the parties
defendant but also those identified with them in interest,
in "privity" with them, represented by them or subject to
their control. In essence ... defendants may not nullify a
decree by carrying out prohibited acts through aiders and
abettors, although they were not parties to the original
proceeding.

Waffenschmidt v. Mackay, 763 F.2d 711 (5th Cir.1985),
cert. denied, 474 U.S. 1056, 106 S.Ct. 794, 88 L.Ed.2d
771 (1986) (quoting Regal Knitwear Co. v. Nat'l Labor
Relations Board, 324 U.S. 9, 14, 65 S.Ct. 478, 481, 89
L.Ed. 661 (1945)).

[3] See, e.g., State ex rel. Grimsley v. West Lake
Development, Inc., 71 N.C.App. 779, 323 S.E.2d 448
(1984), review denied, 313 N.C. 514, 329 S.E.2d 401
(1985) (upholding contempt judgment against general
manager where court order concerning sedimentation and
erosion control was directed solely at the corporation and
it was stipulated that the general manager had notice of
the order and was responsible for sedimentation and
erosion control); Department of Revenue v. Carpet
Warehouse, Inc., 296 Or. 400, 676 P.2d 299 (1984)
(upholding contempt judgment against corporate
president for failure of corporation to file tax return as
ordered). See also 10A Charles R.P. Keating, Fletcher
Cyclopedia of the law of Private Corporations § 5073
(Perm. ed. 1986).

---------
Page 366                                                      from the bench that it was granting a 30 day "permanent
                                                              injunction," to expire of its own terms without further
741 S.W.2d 366 (Tex. 1987)                                    order of the court, and that it was continuing the terms of
                                                              the temporary restraining order "as a permanent
Ex parte John Wiley PRICE, Relator.                           injunction."

No. C-5372.                                                        The permanent injunction was not reduced to writing
                                                              and signed until May 9, 1986. In the meantime, on May
Supreme Court of Texas.
                                                              6, Ragsdale filed a motion for contempt based on the
                                                              May 2nd oral order. Since the permanent injunction had
December 2, 1987
                                                              not yet been reduced to writing, this motion depended
    David L. Botsford, Maloney, Gotcher & Yeager,             heavily on the original temporary restraining order in
Austin, Emmett Colvin, Bruner, McColl, McColloch &            alleging that the Progressive Voter's League and Price
McCurley, Dallas, for petitioner.                             had engaged in contemptuous conduct on election day,
                                                              May 3, by distributing or causing to be distributed certain
    Jerry L. Hughes, Bliss & Hughes, John E. Collins,         "Voters' Guides"--slate cards recommending certain
Dallas, for respondent.                                       candidates. After a hearing on May 23, the court held
                                                              Price in contempt of the May 2nd oral order in that he
Page 367                                                      gave to "some young person" green slate cards bearing
                                                              the legend "Progressive Voters League Official Voters'
OPINION                                                       Guide." The court assessed a punitive sentence of 96
                                                              hours in jail.
    RAY, Justice.
                                                                   In this court, Price alleges various violations of his
     This original habeas corpus proceeding arises out of
                                                              rights of freedom of speech, press and political
a judgment holding John Wiley Price in violation of a
                                                              association, as well as his rights to equal protection and
permanent injunction orally rendered on May 2, 1986.
                                                              due process of law, under both the Texas and Federal
The permanent injunction, however, was not reduced to
                                                              constitutions. Among other things, he asserts that the
writing and signed until May 9, 1986, after the allegedly
                                                              May 2nd oral "permanent injunction" is overbroad and
contemptuous conduct occurred on May 3, 1986 and after
                                                              vague in violation of both his First Amendment rights,
a motion for contempt was filed on May 6, 1986. We
                                                              and of his due process rights under Ex Parte Slavin, 412
hold that the judgment of contempt is void insofar as it is
                                                              S.W.2d 43 (Tex.1967).
based upon the May 2, 1986 oral order purporting to
render a permanent injunction, and order relator Price             In order for a party to be held in contempt for
discharged. In view of this holding, it is unnecessary to     disobeying a court decree, the decree must spell out the
address the remainder of Price's statutory and                terms of compliance in clear, specific and unambiguous
constitutional arguments.                                     terms so that such person will readily know what duties
                                                              and obligations are imposed on him. Ex Parte Slavin, 412
     On April 30, 1986, Paul Ragsdale, a candidate for
                                                              S.W.2d 43, 44 (Tex.1967). A corollary to this rule is that
reelection as state representative, filed an action seeking
                                                              a party who is committed to jail for constructive civil
temporary and permanent injunctive relief and damages
                                                              contempt should be able to find somewhere in the record
against the Progressive Voter's League, John Wiley Price,
                                                              the written order which meets Slavin's requirements. It is
and other individuals, based on alleged violations of
                                                              this written order, signed by the court and entered upon
Chapter 251 of the Texas Election Code. The petition
                                                              the minutes, which evidences a parties' rights and duties.
alleged that the League was a "political committee"
                                                              "Oral
within the meaning of § 251.001(15) of the Code and was
therefore required to designate a campaign treasurer          Page 368
before it could conduct any political activities. [1] An ex
parte temporary restraining order was signed the same         orders are poor substitutes for the requirement of one
day, which, inter alia, enjoined the League and Price         final judgment." Ex Parte Padron, 565 S.W.2d 921, 924
from:                                                         (Tex.1978). See also Ex Parte Wilkins, 665 S.W.2d 760
                                                              (Tex.1984). Here, the permanent injunction was not
Issuing, mailing or in any way distributing political slate   reduced to writing until after the allegedly contemptuous
cards, announcements, recommendations or campaign             election day conduct occurred, and after a motion for
materials of any kind in support for or in opposition to      contempt had been filed based on the May 2nd oral order
candidates for public office ...                              and the prior temporary restraining order. Thus, Price had
                                                              no operative written order to consult concerning what
    At a hearing on May 2, 1986, the court announced
                                                              were his obligations and duties on election day, and
moreover, no way to test the validity of that order before    creation of this "window" period allows parties to violate
it became moot.                                               otherwise valid court orders with impunity. As I stated in
                                                              Ex Parte Wilkins, 665 S.W.2d at 761 (Spears, J.,
     In addressing another aspect of constructive             concurring), this "window" can have disastrous
contempt, we have held that due process requires both a       consequences, particularly in family law proceedings.
written judgment of contempt and a written order of
commitment, although the trial court may cause a                   I would hold that oral orders must be reduced to
contemnor to be detained for a short reasonable time          writing within a reasonable time under Ex Parte Padron,
while the judgment of contempt and an order of                and must satisfy the notice and specificity requirements
commitment are prepared for the court's signature. Ex         of Ex Parte Slavin. I would further hold that when an
Parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). We are         unambiguous, specific oral order is preserved in the
unwilling to extend that "grace period" to the instant        record, and the party charged with contempt had actual
situation, however, or to hold as a matter of law that the    notice of the order, the court can enforce it by contempt
delay here was reasonable. There is nothing in the record     proceedings for a reasonable time until a written order
to indicate that the delay in reducing the permanent          can be signed. Ex Parte Wilkins, 665 S.W.2d at 762
injunction to writing was necessary, and its                  (Spears, J., concurring).
reasonableness should not be presumed. Nor can the
contempt judgment be alternatively based on the               Page 369
temporary restraining order. See Ex Parte Gordon, 584
S.W.2d 686 (Tex.1979). For the reasons set out above,             Price had actual notice of the terms of the permanent
we hold that Price could not be held in contempt of the       injunction during the "window" period because the trial
oral order dated May 2, 1986. Accordingly, relator is         court merely continued the provisions of a prior written
ordered discharged.                                           temporary restraining order. Additionally, seven days
                                                              was not an unreasonable time to elapse before reducing
    SPEARS, J., concurs with opinion.                         an oral permanent injunction to writing in this case.

   GONZALEZ, J., concurs with opinion joined by                    I concur in the result of this cause because the
KILGARLIN, J.                                                 permanent injunction does not satisfy the notice and
                                                              specificity requirements of Ex Parte Slavin, 412 S.W.2d
    MAUZY, J., concurs with opinion.                          at 44. The court order upon which an order of contempt is
                                                              based must spell out the details of compliance in clear,
    SPEARS, Justice, concurring.                              specific and unambiguous terms so that a person will
                                                              readily know exactly what duties or obligations are
     I concur for the same reason I concurred in Ex Parte     imposed on him. Id. A violation of a vague and uncertain
Wilkins, 665 S.W.2d 760, 761 (Tex.1984) (Spears, J.,          court order cannot be punished by contempt. Ex Parte
concurring). I disagree with the majority's holding that an   Reese, 701 S.W.2d 840, 842 (Tex.1986).
oral order which is reduced to writing within a reasonable
time can never satisfy the requirements of Ex Parte                The section of the permanent injunction which was
Slavin, 412 S.W.2d 43, 44 (Tex.1967).                         allegedly violated by Price provided that Price, the
                                                              Progressive Voters League, and a number of other
    Ex Parte Padron, 565 S.W.2d 921, 924 (Tex.1978)           individuals would desist and refrain from:
established that one who is committed to jail for civil
contempt should be able to find somewhere in the record       2. Issuing, mailing, or in any way distributing political
the written order. That requirement was met in this case      slate cards, announcements, recommendations or
because the trial court's oral permanent injunction was       campaign materials of any kind in support for or in
eventually reduced to writing. The relator was held in        opposition to candidates for public office until such time
contempt for his actions during the "window" period           as the Progressive Voters League and Jesse Jones, John
between the time the oral order was handed down and           Wiley Price, James Whitlow, Jean Swindell, Bill Forest
reduced to writing.                                           and Frances Dirks shall fully comply with all the filing,
                                                              reporting and disclosure provisions of Chapter 251, Sec.
     The majority adds an inflexible requirement to Ex        251.001-251.019 of the Texas Election Code.
Parte Slavin by holding that conduct which occurs during
this "window" period can never be punished with                    This provision is impermissibly vague and uncertain.
contempt. This added requirement is unrealistic. In the       It does not specify whether Price was enjoined in his
busy courtrooms of this state, direct, explicit orders are    capacity as a member of the Progressive Voters League,
frequently announced from the bench, with the formal          as a Dallas County commissioner, or as a private citizen.
written orders to be prepared by the attorneys or the court   Moreover, this provision does not specifically limit the
shortly thereafter. Oral orders, which are specific enough    impermissible conduct to the dissemination materials
to give proper notice under Ex Parte Slavin, 412 S.W.2d       relating to the Progressive Voters League. Accordingly, I
at 44, should be obeyed by the parties and must be            would hold that the judgment of contempt is void for
enforceable by contempt proceedings. The majority's
vagueness.                                                          Ex Parte Tucker, 220 S.W. 75, 76 (Tex.1920). See
                                                                New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84
    GONZALEZ, Justice, concurring.                              S.Ct. 710, 720, 11 L.Ed.2d 686 (1964).

     I concur in the judgment of the court. However, there          The constitutional right to express one's ideas has
is an additional basis for holding the injunction void. The     long been extended to the communication of ideas by
injunction violates state and federal guarantees of             handbills and literature, as well as by the spoken word.
freedom of speech.                                              See Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669,
                                                                671, 87 L.Ed. 869 (1943); Hague v. C.I.O., 307 U.S. 496,
     The trial court's May 2 oral injunction, insofar as it     514-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939);
incorporated by reference the original temporary                Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666,
restraining order, was neither limited to "unlawful             669, 82 L.Ed. 949 (1938); De Jonge v. Oregon, 299 U.S.
contributions" or "expenditures," nor punished Price for        353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937);
making "unlawful expenditures" or using "unlawful               Grosjean v. American Press Co., 297 U.S. 233, 245-46,
contributions." The judgment of contempt was based              56 S.Ct. 444, 447, 80 L.Ed. 660 (1936); Near v.
solely on Price's distribution of political slate cards.        Minnesota, 283 U.S. 697, 713-16, 51 S.Ct. 625, 630-31,
                                                                75 L.Ed. 1357 (1931).
     Prior restraints upon constitutionally protected
speech, whether legislatively or judicially fashioned, are           The trial court's injunction is not authorized by
subject to judicial scrutiny with a heavy presumption           Chapter 251 of the Election Code. Chapter 251 regulates
against their constitutional validity. Iranian Muslim Org.      political funds and campaigns. The other means to
v. City of San Antonio, 615 S.W.2d 202, 205 (Tex.1981).         enforce the provisions of the Election Code for failure to
See Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253          designate a campaign treasurer provided in section
(Tex.1983).                                                     251.008 (civil remedy); section 250.009 (criminal
                                                                penalty); section 251.014 (civil penalty for late filing);
     Freedom of expression has long been one of the most
                                                                and 251.017 (regulation of illegal acts & the duties of the
basic American freedoms. In Gitlow v. New York, 268
                                                                Secretary of State), are more than adequate to enforce the
U.S. 652, 45 S.Ct. 625, 69 L.Ed.2d 1138 (1925), the
                                                                act without stifling free speech.
United States Supreme Court decided that the First
Amendment guarantees of free expression were part of                 For the reason set out above, I would hold that the
the fundamental liberties protected against state action by     oral injunction, in addition to violating the requirements
the Fourteenth Amendment. Texas, however, had already           of Ex Parte Slavin, 412 S.W.2d 43 (Tex.1967), also
decided the issue. In 1920, officers of a labor union were      violated state and federal guarantees of free speech, and
enjoined from "vilifying, abusing or using opprobrious          was therefore not punishable by contempt.
epithets to or concerning" certain persons. In rejecting
this assertion of judicial power, Chief Justice Phillips             KILGARLIN, J., joins in this concurring opinion.
wrote:
                                                                     MAUZY, Justice, concurring.
Punishment for the abuse of the right [of free expression],
not prevention of its exercise, is what the provision                 I concur in the result reached by the majority but
contemplates. There can be no liberty in the individual to      would simply add that the fatal error in the trial court was
speak, without the unhindered right to speak. It cannot         not the issuance of the oral order, nor the time taken to
co-exist with a power to compel his silence or fashion the      reduce it to writing. The major flaw committed by the
form of his speech....                                          trial judge was the issuance of an ambiguous and vague
                                                                written order. Relator's conduct appears from the record
     The theory of the provision [Tex. Const. Art. 1, § 8]      to be a clear violation of the court's oral mandate and
is that no man or set of men are to be found, so infallible     should not be condoned. However, by handing down a
in mind and character as to be clothed with an absolute         written order that failed to satisfy the terms outlined in Ex
authority of determining                                        Parte Slavin, 412 S.W.2d 43 (Tex.1967), this court has no
                                                                choice but to reverse the contempt order.
Page 370
                                                                ---------
what other men may think, speak, write or publish; that
freedom of speech is essential to the nature of a free state;   Notes:
that the ills suffered from its abuse are less than would be
imposed by its suppression; and, therefore, that every          [1] Section 251.002(f)(1), (2) of the Code provides that it
person shall be left at liberty to speak his mind on all        is unlawful for a political committee to make a
subjects, and for the abuse of the privilege to be              contribution or expenditure in support for or in opposition
responsible in civil damages and subject to the penalties       to a candidate, unless the committee's designation of a
of the criminal law.                                            campaign treasurer was filed thirty days before the
                                                                election. Contributions and expenditures are defined at §
251.001(4) and (5).

---------
                          THE TEXAS CONSTITUTION

                          ARTICLE 1. BILL OF RIGHTS

Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at
liberty to speak, write or publish his opinions on any subject, being responsible for
the abuse of that privilege; and no law shall ever be passed curtailing the liberty of
speech or of the press. In prosecutions for the publication of papers, investigating
the conduct of officers, or men in public capacity, or when the matter published is
proper for public information, the truth thereof may be given in evidence. And in
all indictments for libels, the jury shall have the right to determine the law and the
facts, under the direction of the court, as in other cases.


The Interpretative Commentary to section 8 explains the nature of this
constitutional guaranty:

Ever since the Constitution of the Republic, Texas has explicitly guaranteed the
freedom of the people of the state to write, to publish, and to speak, the present
Section 8 being a result of combining Sections 5 and 6 of Article I of former
constitutions of the state. Thus, the fundamental law since 1836 has recognized the
transcendent importance of such freedom to the search for truth, the maintenance
of democratic institutions, and the happiness of individual men.
                                PROPERTY CODE

                           TITLE 7. CONDOMINIUMS

    CHAPTER 81. CONDOMINIUMS CREATED BEFORE ADOPTION OF
                  UNIFORM CONDOMINIUM ACT

Sec. 81.209. CONDOMINIUM RECORDS. (a) The administrator or board of
administration of a condominium regime or a person appointed by the bylaws of
the regime shall keep a detailed written account of the receipts and expenditures
related to the building and its administration that specifies the expenses incurred by
the regime.

     (b) The accounts and supporting vouchers of a condominium regime shall
be made available to the apartment owners for examination on working days at
convenient, established, and publicly announced hours.

      (c) The books and records of a condominium regime must comply with
good accounting procedures and must be audited at least once each year by an
auditor who is not associated with the condominium regime.

Acts 1983, 68th Leg., p. 3625, ch. 576, Sec. 1, eff. Jan. 1, 1984.
                                 PROPERTY CODE

                            TITLE 7. CONDOMINIUMS

                CHAPTER 82. UNIFORM CONDOMINIUM ACT

Sec. 82.114. ASSOCIATION RECORDS. (a) The association shall keep:

            (1) detailed financial records that comply with generally accepted
      accounting principles and that are sufficiently detailed to enable the
      association to prepare a resale certificate under Section 82.157;

            (2) the plans and specifications used to construct the condominium
      except for buildings originally constructed before January 1, 1994;

            (3) the condominium information statement prepared under Section
      82.152 and any amendments;

             (4) the name and mailing address of each unit owner;

           (5)   voting records, proxies, and correspondence relating to
      amendments to the declaration; and

             (6) minutes of meetings of the association and board.

       (b) All financial and other records of the association shall be reasonably
available at its registered office or its principal office in this state for examination
by a unit owner and the owner's agents. An attorney's files and records relating to
the association are not records of the association and are not subject to inspection
by unit owners or production in a legal proceeding.

      (c) The association shall, as a common expense, annually obtain an
independent audit of the records. Copies of the audit must be made available to the
unit owners. An audit required by this subsection shall be performed by a certified
public accountant if required by the bylaws or a vote of the board of directors or a
majority vote of the members of the association voting at a meeting of the
association.

      (d) A declarant shall furnish copies to the association of the information
required by Subsection (a) on the date the first unit is sold.
       (e) Not later than the 30th day after the date of acquiring an interest in a
unit, the unit owner shall provide the association with:

             (1) the unit owner's mailing address, telephone number, and driver's
      license number, if any;

            (2) the name and address of the holder of any lien against the unit,
      and any loan number;

             (3) the name and telephone number of any person occupying the unit
      other than the unit owner; and

            (4) the name, address, and telephone number of any person managing
      the unit as agent of the unit owner.

      (f) A unit owner shall notify the association not later than the 30th day after
the date the owner has notice of a change in any information required by
Subsection (e), and shall provide the information on request by the association
from time to time.

Added by Acts 1993, 73rd Leg., ch. 244, Sec. 1, eff. Jan. 1, 1994.
                      BUSINESS ORGANIZATIONS CODE

                            TITLE 2. CORPORATIONS

                 CHAPTER 22. NONPROFIT CORPORATIONS

                 SUBCHAPTER H. RECORDS AND REPORTS

Sec. 22.351. MEMBER'S RIGHT TO INSPECT BOOKS AND RECORDS. A
member of a corporation, on written demand stating the purpose of the demand, is
entitled to examine and copy at the member's expense, in person or by agent,
accountant, or attorney, at any reasonable time and for a proper purpose, the books
and records of the corporation relevant to that purpose.

Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
                      BUSINESS ORGANIZATIONS CODE

                            TITLE 6. ASSOCIATIONS

     CHAPTER 252. UNINCORPORATED NONPROFIT ASSOCIATIONS

Sec. 252.010. BOOKS AND RECORDS. (a) A nonprofit association shall keep
correct and complete books and records of account for at least three years after the
end of each fiscal year and shall make the books and records available on request
to members of the association for inspection and copying.

      (b) The attorney general may inspect, examine, and make copies of the
books, records, and other documents the attorney general considers necessary and
may investigate the association to determine if a violation of any law of this state
has occurred.

Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
RULE 4. COMPUTATION OF TIME

In computing any period of time prescribed or allowed by these rules, by order of
court, or by any applicable statute, the day of the act, event, or default after which
the designated period of time begins to run is not to be included. The last day of
the period so computed is to be included, unless it is a Saturday, Sunday, or legal
holiday, in which event the period runs until the end of the next day which is not a
Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall
not be counted for any purpose in any time period of five days or less in these
rules, except that Saturdays, Sundays, and legal holidays shall be counted for
purpose of the three-day periods in Rules 21 and 21a, extending other periods by
three days when service is made by mail.

Notes and Comments:

Comment to 1990 change: Amended to omit counting Saturdays, Sundays and
legal holidays in all periods of less than five days with certain exceptions.
RULE 21. FILING AND SERVING PLEADINGS AND MOTIONS
(a) Filing and Service Required. Every pleading, plea, motion, or application to the
court for an order, whether in the form of a motion, plea, or other form of request,
unless presented during a hearing or trial, must be filed with the clerk of the court
in writing, must state the grounds therefor, must set forth the relief or order sought,
and at the same time a true copy must be served on all other parties, and must be
noted on the docket.

(b) Service of Notice of Hearing. An application to the court for an order and
notice of any hearing thereon, not presented during a hearing or trial, must be
served upon all other parties not less than three days before the time specified for
the hearing, unless otherwise provided by these rules or shortened by the court.

(c) Multiple Parties. If there is more than one other party represented by different
attorneys, one copy of each pleading must be served on each attorney in charge.

(d) Certificate of Service. The party or attorney of record, must certify to the court
compliance with this rule in writing over signature on the filed pleading, plea,
motion, or application.

(e) Additional Copies. After one copy is served on a party, that party may obtain
another copy of the same pleading upon tendering reasonable payment for copying
and delivering.

(f) Electronic Filing.

      (1) Requirement. Except in juvenile cases under Title 3 of the Family Code,
      attorneys must electronically file documents in courts where electronic filing
      has been mandated. Attorneys practicing in courts where electronic filing is
      available but not mandated and unrepresented parties may electronically file
      documents, but it is not required.

      (2) Email Address. The email address of an attorney or unrepresented party
      who electronically files a document must be included on the document.

      (3) Mechanism. Electronic filing must be done through the electronic filing
      manager established by the Office of Court Administration and an electronic
      filing service provider certified by the Office of Court Administration.

      (4) Exceptions.
      (A) Wills are not required to be filed electronically.
      (B) The following documents must not be filed electronically:
            (i) documents filed under seal or presented to the court in
            camera; and
            (ii) documents to which access is otherwise restricted by law or
            court order.
      (C) For good cause, a court may permit a party to file other documents
      in paper form in a particular case.

(5) Timely Filing. Unless a document must be filed by a certain time of day,
a document is considered timely filed if it is electronically filed at any time
before midnight (in the court's time zone) on the filing deadline. An
electronically filed document is deemed filed when transmitted to the filing
party's electronic filing service provider, except:

      (A) if a document is transmitted on a Saturday, Sunday, or legal
      holiday, it is deemed filed on the next day that is not a Saturday,
      Sunday, or legal holiday; and
      (B) if a document requires a motion and an order allowing its filing,
      the document is deemed filed on the date that the motion is granted.

(6) Technical Failure. If a document is untimely due to a technical failure or
a system outage, the filing party may seek appropriate relief from the court.
If the missed deadline is one imposed by these rules, the filing party must be
given a reasonable extension of time to complete the filing.

(7) Electronic Signatures. A document that is electronically served, filed, or
issued by a court or clerk is considered signed if the document includes:

      (A) a "/s/" and name typed in the space where the signature would
      otherwise appear, unless the document is notarized or sworn; or
      (B) an electronic image or scanned image of the signature.

(8) Format. An electronically filed document must:

      (A) be in text-searchable portable document format (PDF);
      (B) be directly converted to PDF rather than scanned, if possible;
      (C) not be locked; and
            (D) otherwise comply with the Technology Standards set by the
            Judicial Committee on Information Technology and approved by the
            Supreme Court.

      (9) Paper Copies. Unless required by local rule, a party need not file a paper
      copy of an electronically filed document.
      (10) Electronic Notices From the Court. The clerk may send notices, orders,
      or other communications about the case to the party electronically. A court
      seal may be electronic.

      (11) Non-Conforming Documents. The clerk may not refuse to file a
      document that fails to conform with this rule. But the clerk may identify the
      error to be corrected and state a deadline for the party to resubmit the
      document in a conforming format.

      (12) Original Wills. When a party electronically files an application to
      probate a document as an original will, the original will must be filed with
      the clerk within three business days after the application is filed.

      (13) Official Record. The clerk may designate an electronically filed
      document or a scanned paper document as the official court record. The
      clerk is not required to keep both paper and electronic versions of the same
      document unless otherwise required by local rule. But the clerk must retain
      an original will filed for probate in a numbered file folder.

Comment to 2013 Change: Rule 21 is revised to incorporate rules for electronic
filing, in accordance with the Supreme Court's order - Misc. Docket No. 12-9206,
amended by Misc. Docket Nos. 13-9092 and 13-9164 - mandating electronic filing
in civil cases beginning on January 1, 2014. The mandate will be implemented
according to the schedule in the order and will be completed by July 1, 2016. The
revisions reflect the fact that the mandate will only apply to a subset of Texas
courts until that date.
RULE 682. SWORN PETITION

No writ of injunction shall be granted unless the applicant therefor shall present his
petition to the judge verified by his affidavit and containing a plain and intelligible
statement of the grounds for such relief.
RULE 683. FORM AND SCOPE OF INJUNCTION OR RESTRAINING
ORDER

Every order granting an injunction and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe in reasonable
detail and not by reference to the complaint or other document, the act or acts
sought to be restrained; and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those persons in
active concert or participation with them who receive actual notice of the order by
personal service or otherwise. Every order granting a temporary injunction shall
include an order setting the cause for trial on the merits with respect to the ultimate
relief sought. The appeal of a temporary injunction shall constitute no cause for
delay of the trial.
RULE 684. APPLICANT'S BOND

In the order granting any temporary restraining order or temporary injunction, the
court shall fix the amount of security to be given by the applicant. Before the
issuance of the temporary restraining order or temporary injunction the applicant
shall execute and file with the clerk a bond to the adverse party, with two or more
good and sufficient sureties, to be approved by the clerk, in the sum fixed by the
judge, conditioned that the applicant will abide the decision which may be made in
the cause, and that he will pay all sums of money and costs that may be adjudged
against him if the restraining order or temporary injunction shall be dissolved in
whole or in part.

Where the temporary restraining order or temporary injunction is against the State,
a municipality, a State agency, or a subdivision of the State in its governmental
capacity, and is such that the State, municipality, State agency, or subdivision of
the State in its governmental capacity, has no pecuniary interest in the suit and no
monetary damages can be shown, the bond shall be allowed in the sum fixed by the
judge, and the liability of the applicant shall be for its face amount if the
restraining order or temporary injunction shall be dissolved in whole or in part.
The discretion of the trial court in fixing the amount of the bond shall be subject to
review. Provided that under equitable circumstances and for good cause shown by
affidavit or otherwise the court rendering judgment on the bond may allow
recovery for less than its full face amount, the action of the court to be subject to
review.
