in Re Joel Cook

Opinion

Opinion issued May 12, 2003

In The

Court of Appeals

For the

First District of Texas

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NOS. 01-03-00434-CV

01-03-00449-CV

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IN RE JOEL COOK, Relator

Original Proceedings on Petitions for Writs of Mandamus and Prohibition

MEMORANDUM OPINION In cause number 01-03-00434-CV, relator Joel Cook has filed a petition for a writ of mandamus complaining that Judge Warne ⁽¹⁾ has violated Cook's Fifth Amendment right against self-incrimination by ordering him to produce federal income-tax, income, and health-insurance records relevant to a motion to modify child support. In cause number 01-03-00449-CV, Cook has a filed a petition for a writ of prohibition to prevent Judge Warne from enforcing the order until we rule on the petition for a writ of mandamus.

When a party asserts a Fifth Amendment privilege to avoid civil discovery, the trial court may determine whether the party is asserting the privilege in good faith. Ex parte DeLeon, 972 S.W.2d 23, 25 (Tex. 1998). If the trial court concludes the assertion is in good faith but is nonetheless being used offensively to avoid discovery, the court may impose reasonable sanctions. See generally Tex. Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760-63 (Tex. 1995). There is an adequate remedy by appeal to review a trial court's decision regarding the assertion of a Fifth Amendment privilege unless the trial court (1) holds the party asserting the privilege in contempt and confines the party, for which habeas-corpus relief is available, or (2) imposes death-penalty sanctions, for which mandamus review is available. See Ex parte DeLeon, 972 S.W.2d at 24-25 (habeas corpus); Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992) (mandamus).

Judge Warne has not imposed death-penalty sanctions. Accordingly, we deny the petitions for writs of mandamus and prohibition.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

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