in Re Robert Charles Kramer

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00475-CV
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IN RE ROBERT CHARLES KRAMER
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Original Proceeding
317th District Court of Jefferson County, Texas
Trial Cause No. F-225,237
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MEMORANDUM OPINION
In this mandamus proceeding arising out of discovery disputes in an ongoing
suit for divorce, Robert Charles Kramer (1) seeks to compel the trial court to vacate
an order directing him to respond to requests for admission in a criminal contempt
proceeding, and (2) seeks to compel the trial court to allow an inspection to occur of
his wife’s computer so that he can refute her claim that he remotely accessed her
computer. The day after Robert filed his mandamus petition, the trial court granted
Nancy’s motion to withdraw the requests for admission. Based on Nancy’s motion
withdrawing the requests, the trial court set aside the order that it rendered, in which
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Robert had been compelled to respond to the requests even though he had objected
to responding on Fifth Amendment grounds.
We note that the requests that are at issue in this appeal were to be used in
connection with a hearing seeking to hold Robert in contempt of court for
communicating with Nancy through text messages in violation of the trial court’s
restraining order. In connection with the hearings the trial court conducted on
Nancy’s motion for contempt, Nancy propounded the requests, and when Robert
objected to answering them, she filed a motion asking the trial court to hold Robert
in criminal contempt and asked that he be jailed.
Generally, the Fifth Amendment is available in all proceedings, including
civil proceedings, when the evidence being sought will entail self-incrimination. See
Maness v. Meyers, 419 U.S. 449, 464 (1975). While a party’s responses to requests
for admissions cannot generally be used in other proceedings, in this case, the
requests were designed to be used in a contempt proceeding in which Nancy sought
to have Robert placed in jail. See Tex. R. Civ. P. 198.3(a); see also Katin v. City of
Lubbock, 655 S.W.2d 360, 363 (Tex. App.—Amarillo 1983, writ ref’d n.r.e).
Importantly, “[m]any constitutional rights are accorded criminal contemnors,
including the privilege against self-incrimination.” Ex parte Werblud, 536 S.W.2d
542, 547 (Tex. 1976). Consequently, a criminal contemnor cannot be compelled to
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testify in the contempt proceeding. Id. Where the proceeding is for criminal
contempt, the contemnor’s attorney may assert his client’s privilege against self-
incrimination. Id. at 548.
After Robert filed his petition for mandamus, Nancy withdrew her requests
for admission. Subsequently, the trial court set aside its order compelling Robert to
answer the requests. As a result, this Court no longer needs to consider granting
relief on the complaints Robert raised in his petition seeking mandamus relief
regarding answering Nancy’s requests for admission, as the requests were formally
withdrawn and the trial court vacated its order compelling his response. See In re
County of El Paso, 104 S.W.3d 741, 742 (Tex. App.—El Paso 2003, orig.
proceeding). We hold that Robert’s first issue, which asserts the trial court abused
its discretion in compelling answers to Nancy’s requested admissions, is moot.
In this proceeding, Robert also complains the trial court abused its discretion
by refusing to grant his motion to compel Nancy to allow her computer to be
inspected by a forensic expert. According to Robert’s petition, he needed the
inspection to refute Nancy’s claim that he had remotely accessed her electronic
devices. With respect to the trial court’s ruling on Robert’s request to have Nancy’s
computer inspected by an expert, the requested discovery does not go to the heart of
the contested issues in the divorce action, which concerns a just and right division
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of the parties’ marital estate. Generally, appellate review of a court’s collateral
discovery rulings provides the parties with a remedy that is adequate for discovery
complaints that concern matters that are collateral to the issues lying at the heart of
the case. See Able Supply Co. v. Moye, 898 S.W.2d 766, 771 (Tex. 1995). We are
not persuaded that the dispute over whether Robert remotely accessed Nancy’s
computer will prove relevant to the division the trial court will ultimately make of
the parties’ marital estate. We hold that Robert has an adequate appellate remedy
regarding the inspection he requested concerning Nancy’s computer. Accordingly,
we deny Robert’s petition as well as all pending motions before us in this original
proceeding.
PETITION DENIED.
PER CURIAM
Submitted on January 6, 2017
Opinion Delivered January 19, 2017
Before Kreger, Horton, and Johnson, JJ.
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