In re Brittingham-Sada, No. 04-09-00489-CV.

CourtCourt of Appeals of Texas
Writing for the CourtMARIALYN BARNARD, Justice
Citation304 SW 3d 507
PartiesIn re Maria Cristina BRITTINGHAM-SADA, Daniel Milmo Brittingham, and Maria Cristina Lobeira-Brittingham.
Docket NumberNo. 04-09-00489-CV.
Decision Date14 October 2009
304 S.W.3d 507

In re Maria Cristina BRITTINGHAM-SADA, Daniel Milmo Brittingham, and Maria Cristina Lobeira-Brittingham.

No. 04-09-00489-CV.

Court of Appeals of Texas, San Antonio.

October 14, 2009.

304 SW 3d 508

Robert L. Soza, Karen A. Monsen, Elena P. Villasenor, Steve A. Ramon, Jackson Walker L.L.P., Carlos I. Uresti, Uresti Law Firm, P.C., San Antonio, TX, Adriana Benavides Maddox, The Law Office of Adriana Benavides Maddox, Adan A. Gonzalez, III, Jones, Gonzalez & Maddox, P.C., Laredo, TX, William G. Whitehill, Joe B. Harrison, Gardere Wynne Sewell L.L.P., Dallas, TX, for Appellant.

Bruce J. Werstak, III, Sames & Werstak, Donato D. Ramos, Law Offices of Donato D. Ramos, PLLC, Ricardo De Anda, Laura L. Gomez, De Anda Law Firm, P.C., Rogelio G. Rios, Jr., Attorney at Law, Adan A. Gonzalez, III, Jones, Gonzalez & Maddox, P.C., Laredo, TX, Dan Pozza, Law Offices of Dan Pozza, San Antonio, TX, Peter M. Kelly Law Office of Peter M. Kelly, P.C. Houston, TX for Appellee.



Opinion by: MARIALYN BARNARD, Justice.

The sole issue presented in this original proceeding is whether the trial court abused its discretion in granting a motion to compel the deposition of a legislator when the purpose of the deposition was to inquire into facts relating to a motion for a legislative continuance. Because we conclude that the taking of such a deposition is contrary to the intent of the Texas Legislature expressed in the statute governing legislative continuances, we conditionally grant the writ.


This original proceeding arises out of an application for the ancillary probate of an estate which was filed in 2000. On March 31, 2009, the parties received notice that the cause had been set for a final pretrial hearing on May 5, 2009, and for jury selection on May 18, 2009.

On May 4, 2009, this court denied a motion for emergency stay of the cause that had been filed by relators on April 23, 2009. On May 7, 2009, the relators filed a motion for legislative continuance. The motion was supported by the affidavit of Carlos Uresti, a state senator. The affidavit stated that Senator Uresti had been retained on March 27, 2009, and the affidavit complied with the requirements of

304 SW 3d 509

§ 30.003 of the Texas Civil Practice and Remedies Code ("Code") which governs legislative continuances.

Real party in interest, Kevin Michael Mackie, Successor Administrator of the Estate of Juan Roberto Brittingham-McLean, immediately filed a motion for sanctions for late filed legislative continuance. The motion for sanctions asserted that Senator Uresti had been hired 46 days before the motion for continuance had been filed but had never appeared in the case. The motion noted that Mackie continued to prepare for trial from March 31, 2009, to the present time without being advised of the retention of Senator Uresti by the relators. The motion further noted that the trial court had inherent power to sanction for abuse of the judicial process even if the conduct at issue did not violate a specific rule or statute. Finally, the motion asserted that Mackie should recover all of his attorney's fees and expenses incurred after March 28, 2009, because the relators failed to disclose their retention of Senator Uresti and their intention to seek a legislative continuance.

In addition to filing the motion for sanctions, Mackie filed an emergency notice of intention to take Senator Uresti's deposition on May 8, 2009 at 9:00 a.m. The notice stated that the deposition was necessary to respond to the motion for continuance and to seek sanctions. The deposition notice required the production of the following documents: (1) any and all documents and contracts which establish the date when the attorney-client relationship was established between the Uresti Law Firm and the relators; (2) any and all records that support Carlos Uresti's intention to participate and participation in the preparation and presentation of this case; (3) any and all records which support his contention that he was not employed for the purpose of obtaining a legislative continuance; and (4) any and all records and pleadings regarding the trial settings in this case.

On May 8, 2009, the relators filed a motion to quash Senator Uresti's deposition. Sometime after Senator Uresti failed to appear for the deposition, Mackie filed a motion to compel Senator Uresti to appear at deposition and for sanctions.2 The motion asserted, "In determining the issue of a legislative continuance, the Court is permitted to go behind Mr. Uresti's affidavit to ascertain facts and act upon its findings in the exercise of its discretion. DeVries v. Taylor, 505 S.W.2d 780 (Tex. 1973)." The motion requested the court to compel Senator Uresti "to appear for a deposition so that he can be interrogated about matters stated in the affidavit attached to his motion for legislative continuance and related to his retention by defendants." The motion requested the trial court to impose the expenses of obtaining an order compelling the relief as sanctions, but further stated, "This Court has inherent power to sanction for abuse of the judicial process, even if the conduct at issue does not violate a specific rule or statute. Broesche v. Jacobson, 218 S.W.3d 267 (Tex.App.-Houston 14th Dist. 2007)."

On May 12, 2009, the trial court signed an order denying the motion for legislative continuance. On July 29, 2009, the trial court granted the motion to compel Senator Uresti's deposition.3 The trial court ordered Senator Uresti to make himself available for a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT