Ex parte Conway , 1992 Tex. App. LEXIS 3113 ( 1992 )

MURPHY, Justice,

dissenting.

Because I would grant the writ of habeas corpus, I respectfully dissent. The majority has ignored the plain language of Rule 215 in its discussion of the trial court’s sanctions order.

Rule 215(l)(d) dictates that when a motion to compel is granted, the trial court shall require the party whose conduct necessitated the motion, or his attorney, to pay the moving party reasonable expenses incurred in obtaining the order, including attorney’s fees. The rule mandates that such order of the court shall be subject to review on appeal from final judgment. Tex.R.Civ.P. 215(l)(d).

Similarly, Rules 215(2) and 215(3) allow the trial court to impose sanctions, including attorney’s fees, on a party or his attorney for failure to comply with a discovery request or abuse of the discovery process. These rules also mandate that the sanction order is subject to review on appeal from final judgment. Tex.R.Civ.P. 215(2)(b)(8); 215(3).

The trial court should not have held relator in contempt for non payment of the attorney’s fees prior to entry of final judgment. Relator’s only remedy from the sanctions order is by appeal after final judgment because mandamus is not proper unless the sanctions have the effect of precluding a decision on the merits. See Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 920 (Tex.1991); Braden v. Downey, 811 S.W.2d 922, 929 (Tex.1991); Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802 (Tex.1986) (per curiam).

I would hold that the trial court abused its discretion in ordering relator to pay sanctions before he could appeal that order. Therefore, I would find the contempt and commitment orders by the trial court void and grant relator’s writ of habeas corpus.