in Re Robert Charles Kramer

• Court: Court of Appeals of Texas
• Decided: January 19, 2017
• Docket: 09-16-00475-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-16-00475-CV _________________

IN RE ROBERT CHARLES KRAMER

________________________________________________________________________

Original Proceeding 317th District Court of Jefferson County, Texas Trial Cause No. F-225,237 ________________________________________________________________________

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

1 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

2 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

3 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.