author: GARDNER, Justice.

text:
    In re ACCEPTANCE INSURANCE COMPANY, Relator.
    No. 2-00-292-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 22, 2000.

      Bourland, Kirkman, Seidler & Evans, L.L.P., David L. Evans, Thomas M. Michel, Fort Worth, for Appellant.
    Noteboom and Gray, Charles Noteboom, Jay Gray, J. Mark Sudderth, Fort Worth, for Appellee.
    Before DAY, LIVINGSTON, and GARDNER, JJ.
   OPINION

GARDNER, Justice.

Relator, Acceptance Insurance Company, seeks mandamus relief against the Honorable Paul Enlow, Judge of the 141st Judicial District Court of Tarrant County. Relator complains of Judge Enlow’s rulings in sua sponte scheduling and conducting a hearing to investigate whether to impose sanctions against relator for possible violations of court orders for mediation. Specifically, relator complains of Judge Enlow’s overruling of its objections to lack of any notice or pleadings advising it of the nature of the charges as well as his scheduling of a second hearing, over relator’s continued objections, for further investigation of relator’s possible lack of compliance with the court’s mediation orders. We conditionally grant the petition for writ of mandamus.

FACTUAL BACKGROUND

Rodrigo Martinez filed suit in the 141st District Court against Linbeck Construction Company (Linbeck) as the result of injuries received while working on a construction project. Linbeck was named as an additional insured on relator’s policy of insurance issued to a subcontractor. During the litigation, insurance coverage disputes arose. The parties to those disputes, including relator, initially were joined in the lawsuit and were later severed by the trial court into a separate suit. The main lawsuit was set for trial for July 31, 2000.

On July 26, 2000, the trial court ordered the parties in the main lawsuit to mediation before trial. The order specified that all parties, specifically including relator, “participate by a representative or representatives, in addition to counsel, who shall have unlimited settlement authority, and who shall participate in person, not by telephone or other remote means.” Further, the order required that, if a party had liability insurance as to a claim being asserted in the litigation, “a representative of each insurance company providing such coverage who has full authority to offer to pay policy limits in settlement shall be present at, and participate in, the settlement conference in person, not by telephone or other remote means.” The order also provided that the parties “are to make a good faith effort to settle.”

Mediation took place pursuant to the trial court’s order on July 28, 2000. Relator appeared at the mediation by counsel and by corporate representative, senior claims specialist Chereyne Mehalko. Mediation was unsuccessful, and the case proceeded to trial on July 31.

During trial, the trial court issued a second order of referral to mediation, this time in both the main lawsuit and the insurance coverage lawsuit. On August 7, the parties attended the second court-ordered mediation. Again, relator participated by its counsel and Ms. Mehalko. The second mediation was likewise unsuccessful. The trial resumed and resulted in a verdict on August 11, in favor of real party in interest apparently in excess of all potentially available policy limits.

At 3:00 p.m. on Friday, August 11, relator’s counsel received a telephone call from the court coordinator for the 141st District Court advising that the trial court intended to conduct a sanctions hearing at 9:00 a.m. on Monday, August 14. Relator received no written motion for sanctions or for contempt nor any other document advising it of the nature of the improper conduct charged against it. Upon receiving the call from the court coordinator, relator’s counsel traveled to the courthouse and, with opposing counsel present, was informed by the trial court that the basis for the hearing would be that relator had violated the mediation order.

On the morning of August 14, relator filed objections to the hearing, asserting that no motion had been filed, that no notice had been provided, and that the proposed hearing violated section 154 of the Texas Civil Practice and Remedies Code relating to mediation confidentiality. Overruling those objections, the trial court proceeded with the hearing with counsel for relator continuing to object to the hearing, re-urging lack of notice and lack of pleadings, as well as re-urging violation of the confidentiality provisions relating to mediation.

The trial court orally ordered relator’s corporate representative, Ms. Mehalko, to attend the hearing. She was called to the stand by counsel for real party in interest and was repeatedly questioned, over relator’s strenuous objections, regarding whether she possessed full policy-limit authority, her personal knowledge of matters in the company file, her knowledge of the case and preparation for the mediations, and communications with her supervisor by telephone and with counsel for real party in interest during the mediation.

At the conclusion of that hearing, unsatisfied with Ms. Mehalko’s answers, the trial court set another hearing for August 25. The trial court stated: “All right. The Court will note that the adjustor’s knowledge as to the facts and potential damages of this case are so woeful as to constitute a sham of following my order.” Allowing the attorneys for real party in interest, at their “pleasure,” to name the additional representative of relator they wished to question at the next hearing, the trial court ordered that a senior vice president for relator, Robert Haney, personally appear at the next scheduled hearing. Relator reasserted its previous objections as to lack of notice, pleadings, and violation of mediation confidentiality to no avail.

THESE PROCEEDINGS

On August 23, 2000, relator filed its petition for writ of mandamus in this court, together with an emergency request for a stay. On August 24, we requested a response and ordered that Judge Enlow’s oral order of August 14 (setting a hearing for August 25) “and all other proceedings in [the case] concerning the conduct of the parties at mediation,” be stayed until further notice by this court. On September 11, notwithstanding our issuance of that stay order, attorneys for real party in interest filed a written motion for sanctions in the trial court against relator and others.

Relying upon testimony obtained at the first sanctions hearing over relator’s objections, the newly-filed motion explicitly sought sanctions for relator’s alleged failure to send a representative to mediation “with authority,” failing to participate in mediation in “good faith,” and failure to make a good faith effort to adhere to the trial court’s mediation orders. As sanctions, real party in interest sought attorney’s fees of $250,000. Judge Enlow set the motion for hearing on October 6. Upon being advised of the motion and setting in direct violation of this court’s stay order of August 24, we issued a second stay order, struck the motion for sanctions, set aside and vacated the setting for the hearing of October 6, reiterated the provisions of our previous stay order, and further ordered that any further violations of either stay order would result in contempt proceedings.

RELATOR’S CONTENTIONS

Relator first contends mandamus should be granted to require Judge Enlow to declare void his oral order setting the hearing of August 14, set aside his orders overruling relator’s objections to the hearing, and set aside the proceedings of that date. Relator characterizes the hearing as a constructive contempt matter relating to alleged violations of court-ordered mediation. As such, relator urges, the hearing and all rulings connected with it were void because it was denied due process by the lack of notice of the charges against it.

Further, relator contends the requirement contained in the mediation orders mandating that relator negotiate in “good faith” is void and, hence, the trial court’s rulings allowing interrogation of its corporate representative on any issues relating to mediation in “good faith” are likewise void. Additionally, relator urges that the inquiries of real party in interest as to the authority of relator’s corporate representative regarding her conduct and communications at the mediations violated the confidentiality provisions of the Texas ADR Act as well as the work-product and attorney-client privileges.

Finally, relator contends any further hearings inquiring into the authority of its representative, including the questioning of its vice-president of claims originally scheduled for August 25, would necessarily be based on information improperly obtained at the first hearing and would further violate the confidentiality requirements of the ADR Act. Accordingly, relator requests issuance of the writ of mandamus compelling Judge Enlow to set aside and vacate the proceedings of August 14, 2000 and seal the record of that hearing, and to set aside and vacate any orders scheduling further hearings concerning the conduct of the parties at mediation.

STANDARD OF REVIEW

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). This standard is satisfied where the trial court “effectively deprive[s] [the relator] of its fundamental due process right to notice....” In re L.A.M. & Assocs., 975 S.W.2d 80, 83 (Tex.App.—San Antonio 1998, orig. proceeding) (quoting from Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex.1990)).

Mandamus relief may also be afforded where the trial court’s order is void. E.g., Hansen v. Sullivan, 886 S.W.2d 467, 469 (Tex.App.—Houston [1st Dist.] 1994, orig. proceeding); Decker v. Lindsay, 824 S.W.2d 247, 249 (Tex.App.—Houston [1st Dist.] 1992, orig. proceeding). Additionally, mandamus is available to prevent improper disclosure of privileged matters. Walker, 827 S.W.2d at 843. Where the contemnor is not restrained, mandamus is proper to collaterally attack a contempt order. In re Long, 984 S.W.2d 623, 625 (Tex.1999). Finally, mandamus may issue to correct an abuse of discretion in imposing sanctions without notice or meaningful hearing in violation of due process. See In re Bennett, 960 S.W.2d 35, 40 (Tex.1997) (holding court of appeals abused its discretion by issuing writ of mandamus directing trial court to vacate sanctions order where sanctioned counsel were afforded due process by being given notice of trial court’s intent to consider sanctions and an opportunity to respond), cert. denied, In re Hilliard, 525 U.S. 823, 119 S.Ct. 66, 142 L.Ed.2d 52 (1998). The relator bears the burden of establishing his entitlement to mandamus relief. Hansen, 886 S.W.2d at 469; Decker, 824 S.W.2d at 249.

DUE PROCESS RIGHT TO NOTICE

Due process requires that full and unambiguous notice of an accusation of contempt be served on the alleged con-temnor in a motion for contempt, show cause order, or equivalent legal process stating how, when, and by what means the party has been guilty of the alleged contempt. Cadle Co. v. Lobingier, 34 S.W.3d 598, 605-06 (Tex.App.—Fort Worth 2000, no pet. h.); Ex parte Chambers, 898 S.W.2d 257, 262 (Tex.1995). Absent such notification, a contempt order is a nullity. Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex.1987).

A violation of a court’s order is an issue of contempt. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). In response to relator’s vigorous objections to the lack of notice of the hearing, real party in interest has urged that Judge Enlow had inherent power on his own motion to punish relator by contempt for violations of court orders without prior notice. Such inherent power to punish without prior notice and meaningful hearing exists only with respect to “direct” contempt. A direct contempt is one that occurs within the court’s presence, whereas a constructive contempt is one that occurs outside the court’s presence. Id.; Ex parte Werblud, 536 S.W.2d 542, 546 (Tex.1976). The asserted violations of the mediation orders would necessarily have been for constructive contempt, not direct contempt, because any violation occurred outside the court’s presence.

The distinction between direct and constructive contempt is also significant because cases involving constructive contempt are afforded more procedural protections. Ex parte Gordon, 584 S.W.2d at 688; Ex parte Werblud, 536 S.W.2d at 546. Notice of the charges and an opportunity to defend against them are an alleged contemnor’s most fundamental due process right. Ex parte Jackman, 663 S.W.2d 520, 523 (Tex.App. — Dallas 1983, orig. proceeding). The notice must conform to any relevant procedural requirements and be actually delivered to the contemnor in a timely fashion. Ex paite Gordon, 584 S.W.2d at 689, 690. Notice must be personally served on the contem-nor; notice that does not reach the con-temnor is inadequate even if delivered to his attorney. Ex parte Herring, 438 S.W.2d 801, 803 (Tex.1969). Notice must also be given a reasonable time before the hearing to comply with due process. Hayes v. Hayes, 920 S.W.2d 344, 346-47 (Tex.App.—Texarkana 1996, writ denied). At a minimum, an application for an order and notice of any hearing not presented to the court during a trial or other proceeding must be served on all parties not less than three days before the time set for the hearing, unless the time is shortened by the court. Tex.R.Civ P. 21.

Real party in interest does not dispute that relator received no written notice of the hearing of August 14 or. of that subsequently scheduled for August 25. Real party in interest’s answer is simply that there was no “motion” as that term is used in rule 21, to which the three-day notice requirement could apply because the trial court set the hearing apparently based on an oral request by real party in interest. Lack of a written motion is no excuse. We decline to engage in such circular reasoning that would permit a party to evade the requirement of timely notice of a motion by simply not filing any motion at all.

Further, real party in interest postulates that there has been no lack of timely notice before a hearing because there has been no “hearing.” According to this theory, the trial judge merely exercised his inherent authority to investigate into whether his mediation orders were obeyed. At oral argument in this court, counsel for real party in interest suggested that the proceeding scheduled to take place on August 25, had it not been stayed by this court, would likewise not have been a hearing but a “deposition” before the trial court.

In support of its interesting proposition that the trial court may conduct investigatory non-hearings into possible contempt by parties, real party in interest relies upon the exercise of the court’s “inherent powers.” A court has “all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders.... ” Tex.Gov’t Code Ann. § 21.001(a) (Vernon Supp.2000). A court does not, however, have power to violate a party’s due process rights by investigating possible contempt on sanctionable conduct — by hearing or by non-hearing — without notice. Real party in interest cites no authority to support the proposition that the trial court had the power to do so.

To support its argument that the proceedings were within the inherent authority of the trial court to investigate possible violations of its mediation orders, real party in interest relies upon Sutphin v. Tom Arnold Drilling Contractor, Inc., 17 S.W.3d 765 (Tex.App.—Austin 2000, no pet.). Sutphin, however, does not address inherent power to issue sua sponte orders to haul parties before a court for an investigation into contempt charges with no notice, pleadings, or show cause order as to the nature of the charges against them.

In Sutphin, the issue was whether the court lost jurisdiction over the suit upon expiration of its plenary power and lacked jurisdiction for that reason to exercise its inherent power regarding a contempt citation. 17 S.W.3d at 773. The court of appeals did not hold that the trial court had any inherent power to undertake an investigation without prior notice or motion. Indeed, in contrast to this case, the plaintiff in Sutphin filed a motion, pursuant to which the court issued a show cause order as to why the defendant should not be held in contempt for fifing perjurious affidavits in support of its special appearance. Id. at 767. The Austin Court of Appeals held that, despite the expiration of the trial court’s plenary power, it retained inherent power to investigate the veracity of affidavits upon which it had relied in determining its jurisdiction. Id. at 770. Nothing in Sutphin suggests that a court may “investigate” possible constructive contempt without the proper notice required by due process.

That the trial court was, indeed, conducting a hearing regarding suspected or asserted violation of its orders of mediation by relator is clear from the reporter’s record of the hearing, which has been made a part of the record in this court. Judge Enlow, himself, characterized the hearing as being for “sanctions.” Moreover, counsel for real party in interest revealed the real purpose of requesting the hearing toward the end of his questioning of Ms. Mehalko as follows: “The purpose of this hearing, Judge, is to show that [relator] had a blatant disregard for Texas law with respect to how a mediation ought to be conducted.”

Relator views the hearing of August 14 as a constructive contempt proceeding, while the trial court and real party in interest characterize it as one to inquire as to whether “sanctions” should be imposed for violation of the pre-trial mediation orders. The difference, however, is without a distinction. The power to sanction, like contempt, exists to allow a court to enforce its orders by imposing a penalty for their violation. Hayes, 920 S.W.2d at 346. Under the rules of civil and appellate procedure, sanctions may include penalties such as dismissal or striking of pleadings. Id. Contempt proceedings, in contrast, are by definition limited to monetary fines or incarceration. See TexGov’t Code Ann. § 21.002 (Vernon. 1988 and Supp.2000). Additionally, monetary fines for contempt are not payable to the opposing party as are monetary sanctions. See Cadle Co., 34 S.W.3d at 607.

Like contempt proceedings, proceedings for sanctions must comport with due process, affording a party an adequate opportunity to be heard. In re Bennett, 960 S.W.2d at 40 (holding power to sanction is limited by due process clause of United States Constitution); Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-400 (Tex.1979); Worldwide Anesthesia Assocs. v. Bryan Anesthesia, Inc., 765 S.W.2d 445, 447 (Tex.App.—Houston [14th Dist.] 1988, no writ). Thus, the traditional due process protections of notice and hearing required for contempt are also necessary before imposition of sanctions. See Tex.R.Civ.P. 215.1; Hayes, 920 S.W.2d at 346-47; see also Sears, Roebuck & Co. v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639, 642 (1956).

Additionally, the imposition of severe sanctions requires notice “reasonably calculated, under the circumstances, to appraise interested parties of the pendency of the action and to afford them the opportunity to present their objections.” In re L.A.M., 975 S.W.2d at 83 (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988)); see, e.g., Tex.R.Civ.P. 13, 21b; Tex.R.App.P. 45; Tex.Civ.Prac. & Rem.Code ÁNN. §§ 9.012(a), 10.003 (Vernon Supp.2000).

By the written motion for sanctions set for hearing and set for October 6 filed by counsel for real party in interest, it is revealed that they seek neither fines nor incarceration but that they are seeking further investigation into, and asking for $250,000 in attorney’s fees as a sanction for, relator’s alleged failure to mediate in accordance with the court’s mediation orders. We believe it is more accurate to view both the original hearing on August 14 and the additional hearing sought by the real party in interest as sanction proceedings rather than contempt proceedings. See Hayes, 920 S.W.2d at 346.

Regardless of whether the proceedings are treated as for contempt or sanctions, it is undisputed that the only notice afforded to relator was oral notice as to both the hearing of August 14 and the scheduled hearing of August 23, which was stayed by this court. Oral notice was insufficient, as a matter of law. In re L.A.M., 975 S.W.2d at 83; see also Ex parte Vetterick, 744 S.W.2d 598, 599 (Tex.1988) (orig.proceeding); In re Smith, 981 S.W.2d 909, 911 (Tex.App.—Houston [1st Dist.] 1998, orig. proceeding). The trial court clearly abused its discretion in scheduling the hearing of August 14 without written notice, and in overruling relator’s objections to the denial of the fundamental right of meaningful notice of the hearing or the allegations against relator. In re L.A.M., 975 S.W.2d at 83; Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852 (Tex.App.—Houston [14th Dist.] 1997, no writ) (holding that spontaneous imposition of sanctions without notice or hearing violated due process).

INVESTIGATING THE MEDIATION PROCEEDINGS

Mediation in “Good Faith”

Over relator’s objections, the trial court allowed real party in interest to inquire about whether relator mediated in “good faith.” The trial court had no authority to investigate this issue or to enforce its order requiring “good faith” negotiation. The policy underlying mediation pursuant to chapter 154 of the Alternative Dispute Resolution Act is set forth in Tex CrvPRAC. & Rem.Code Ann. § 154.002 (Vernon 1997), providing: “It is the policy of this state to encourage the peaceable resolution of disputes ... and the early settlement of pending litigation through voluntary settlement procedures.” (emphasis added). It is the responsibility of the courts to carry out this policy. See id. § 154.003.

This policy is consistent with the legislative scheme of the Act by which a court may compel parties to participate in alternative dispute resolution, including mediation, but it cannot compel them to negotiate in good faith or to settle their dispute. See, e.g., Texas Parks & Wildlife Dep’t v. Davis, 988 S.W.2d 370, 375 (Tex.App.—Austin 1999, no pet.) (op. on reh’g); Hansen, 886 S.W.2d at 469 (holding court cannot force parties to peaceably negotiate or settle their differences).

An order requiring “good faith” negotiation does not comport with the voluntary nature of the mediation process and has been held void. Decker, 824 S.W.2d at 252 (noting dominant legislative intent is to compel referral, not resolution). A trial court has power to enforce its “lawful” orders. See Tex.Gov’t.Code Ann. § 21.001(a). But because the portion of the trial court’s mediation orders directing the parties to “make a good faith effort to settle” is void, the trial court had no authority to investigate whether relator complied with that portion of the orders.

Real party in interest protests that the court is not attempting to punish relator for failing to negotiate in “good faith,” but was merely allowing inquiry into whether relator’s representative, Ms. Mehalko, had “authority” to settle for the full amount of policy limits as the orders required. Many of the questions directed to Ms. Mehalko at the August 14 hearing — how long she had been in charge of the file, how much she knew about the alleged past and future lost earnings and other damages, whether she knew the identity of eyewitnesses and experts, what knowledge she had of Texas law and how much familiarity she had with the file— were irrelevant to her settlement authority. These questions were directed toward eliciting information as to how much she had prepared for the mediation. The issue of preparedness relates to whether a party mediated in good faith, not to whether the party attended or participated in the mediation.

That real party in interest was seeking information regarding whether relator mediated in “good faith” is confirmed by his written motion for sanctions filed after this court’s stay order was issued and alleging that relator “failed to send a representative [to mediation] with authority, failed to participate in good faith, and failed to make a good faith effort to adhere to the Court’s orders.” (Emphasis added). The trial court overruled relator’s repeated objections to the questions directed to the issue of whether relator mediated in good faith. Allowing this line of inquiry into whether relator complied with a void portion of the order was a clear abuse of discretion.

Mediation Confidentiality

Overruling relator’s repeated objections, the trial court also improperly allowed inquiry into matters that were confidential under the ADR Act. Specifically, real party in interest was permitted to inquire as to whether Ms. Mehalko had possession of her cell phone at the media-tions, whether and how many times she telephoned her supervisor, and what they discussed. Real party in interest argues that this information was relevant to show that Ms. Mehalko lacked the requisite “full authority” to settle for relator’s policy limits as specified by the court’s mediation orders. Real party in interest insists that the trial court is entitled to investigate whether relator’s representative actually had “full authority” as required by the mediation orders, “to offer to pay policy limits in settlement....”

Under section 154.073(a) of the Texas Civil Practice and Remedies Code, communications made by a participant to mediation relating to the subject matter of the dispute are “confidential, [are] not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.” Tex. CivPRAC. & Rem.Code Ann. § 154.073 (Vernon Supp.2000). Moreover, participants may not be required to testify in any proceedings relating to or arising out of the mediation or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute. Id. § 154.073(b). Accordingly, the manner in which participants negotiate should not be disclosed to the trial court. Davis, 988 S.W.2d at 375; see also Williams v. State, 770 S.W.2d 948, 949 (Tex.App.—Houston [1st Dist.] 1989, no pet.) (holding appellate court could not consider evidence from ADR proceeding because disclosures made during dispute resolution are confidential under ADR Act).

The exceptions to confidentiality are communications or written materials that are admissible or discoverable independently of the ADR proceedings; final written ADR agreements to which a governmental body is a signatory; and information may be submitted in camera to the trial court for a determination as to whether it is subject to disclosure if section 154.073 conflicts with other legal disclosure requirements. See Tex.Civ.PRAC. & Rem.Code Ann. § 154.073(c), (d) and (e). The trial court here refused relator’s offers to submit the requested information at the August 14 hearing for in camera determination as to its confidentiality.

Ms. Mehalko testified unequivocally that, if she had deemed it appropriate, she had full authority to settle for the policy limits without consulting her supervisor or the vice president of claims at the time she attended both mediations. This evidence was uncontradicted and satisfied relator’s obligation pursuant to the court’s mediation orders to have a representative present to negotiate in person, “not by telephone or other remote means” on the occasion of both mediations with full authority to settle for policy limits.

Ms. Mehalko was present as a representative of relator at both mediations and had the requisite full, policy limit authority. Therefore, whether she spoke by telephone with other corporate representatives or officers of relator and what they discussed was absolutely irrelevant to any appropriate inquiry regarding relator’s compliance with the mediation orders and could only have been calculated to acquire confidential information as a fishing expedition for other undisclosed reasons. Because section 154.073 of the ADR Act requires that the manner in which the participants negotiate should not be disclosed to the trial court, the trial court clearly abused its discretion in overruling relator’s objections to this line of questioning. See Davis, 988 S.W.2d at 375.

Real party in interest also pursued a line of questioning in an effort to establish that Ms. Mehalko did not have authority to pay “policy limits in settlement” because she did not have authority to pay prejudgment interest in addition to policy limits, did not know the amount of prejudgment interest accumulated at the time of the first mediation (prior to trial) or the second (during trial and before judgment), and did not know whether relator would have coverage for prejudgment interest under the policy. The motive for inquiring as to Ms. Mehalko’s knowledge of prejudgment interest is puzzling, at best, because the mediation orders only specifically required relator to have present a representative with authority to offer “policy limits” in settlement. Real party in interest has cited no authority that prejudgment interest would be included in policy limits in a settlement either before or after judgment. Therefore, we conclude that Ms. Mehalko’s knowledge, or lack thereof, as to coverage for prejudgment interest was likewise irrelevant to any issue regarding compliance with the mediation order.

In addition, real party in interest contends that Ms. Mehalko’s calls to her supervisor during the mediation raise a question as to whether she actually had full authority to settle, but there is no record support for such an inference. Real party in interest also alleges that her credibility is in question because she lied about being a licensed Texas adjuster, but this allegation is completely unsubstantiated. Ms. Mehalko’s authority and participation, as well as the fact that substantial offers were made to settle at the mediations, were established by her testimony, which was both uncontradicted and corroborated by affidavits from relator’s counsel. Relator was thus shown to have participated in the mediations in compliance with the trial court’s orders.

Under these circumstances, any order of sanctions would be void. Compare Hansen, 886 S.W.2d at 468 (holding order of sanctions for failure to negotiate in good faith held void where affidavits established defendant and its attorney participated in mediation for several hours until impasse was declared by mediator), and Davis, 988 S.W.2d at 375 (ordering assessment of attorney’s fees as sanction set aside where party attended mediation and made offer), with Texas Dep’t of Transp. v. Pirtle, 977 S.W.2d 657, 658 (Tex.App.—Fort Worth 1998, no pet.) (upholding costs and attorney’s fees against Department where it admittedly refused to mediate), and Luxenberg v. Marshall, 835 S.W.2d 136, 141 (Tex.App.—Dallas, 1992, no writ) (upholding striking of pleadings as sanctions for violation of pre-trial orders including failure to attend mediation). Real party in interest has not explained why further investigation is necessary, or what information is relevant to any issue and not protected by the mediation confidentiality requirements. Because any order of sanctions would be void, any further hearing to further investigate “a possible basis for sanctions” is unnecessary and would be contrary to the confidentiality provisions of the ADR Act.

CONCLUSION

By orally ordering relator and Ms. Me-halko to appear and give testimony at the August 14 hearing based on no pleading, motion, or show cause order, the trial court clearly abused its discretion by violating relator’s rule 21 right to three days’ notice of the hearing and its due process right to adequate notice of the charges being investigated against it for sanctions. The trial court further abused its discretion by violating the confidentiality provisions of the ADR Act in requiring relator’s representative to testify about the manner in which she negotiated and her communications with other participants and with other representatives of relator during the mediations.

The testimony of Ms. Mehalko established that relator fully complied with the mediation orders by her personal presence and participation in the mediations with full authority to offer policy limits in settlement. By permitting further inquiry into her knowledge of the facts, evidence, and potential damages of the underlying case and her knowledge of the coverage status of prejudgment interest, the trial court’s investigation exceeded the scope of the mediation orders, and was not relevant to the issue of relator’s participation in mediation. The trial court abused its discretion in permitting inquiry as to whether relator negotiated in good faith because its own order was void to the extent that it included that requirement. Finally, the trial court abused its discretion in concluding from irrelevant and impermissible information elicited from relator’s representative that additional investigation should be conducted from still another representative of relator as to the scope of Ms. Mehalko’s authority.

We conditionally grant the writ of mandamus and order that the August 14 hearing is void. We order Judge Enlow to (1) strike the record from the August 14 hearing and order that it not be disseminated or used for any purpose in any proceeding, other than information necessary to establish that relator participated in the media-tions and made substantial settlement offers and (2) order all parties and their attorneys and representatives in cause numbers 141-181263-99 and 141-170634-97 to disregard and not to testify regarding the testimony at the hearing of August 14, 2000. The writ will issue only if Judge Enlow fails do either (1) or (2). We note that, because the motion for sanctions has been struck by this court and the trial court previously ordered to set aside the hearing previously scheduled for August 25, 2000, as well as the hearing on that motion set for October 6, 2000, it is unnecessary to issue further direction or order to Judge Enlow regarding any future hearings concerning the mediations. We are confident that the trial court will conduct further proceedings, if any, in accordance with this opinion.

      . Contempt may also be civil or criminal. See Cadle Co., 34 S.W.3d at 601. The classification of contempt as civil or criminal is determined by the nature and purpose of the punishment. Id. It has nothing to do with the nature of the underlying proceedings. Id. In a civil contempt order the court attempts to persuade the contemnor to perform or obey a previous order, usually through a conditional penalty. Id; see also Ex parte Busby, 921 S.W.2d 389, 391 (Tex.App.—Austin 1996, pet. ref'd) (noting contemnor is said to "carr[y] the keys of imprisonment in his own pocket”). Sanctions for both criminal and civil contempt may be imposed by the same order. Cadle Co., 34 S.W.3d at 602. Criminal contempt punishment, by fine or incarceration, is for improper past acts and no subsequent voluntary compliance can avoid the punishment. Id.

      . See Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 416 (Tex.2000) (discussing, in dicta, General Casualty Bulletin No.- 644, issued in 1984 by the State Board of Insurance, requiring certain insurance, including general liability policies, to include coverage for prejudgment interest under Supplementary Payments, apparently in addition to policy limits).


source: Caselaw Access Project

author: MICHAEL SCHNEIDER, Chief Justice.

license: Public Domain

text:
    Kevin Lee GREATHOUSE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-98-00808-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 22, 2000.

      Annette M. Henry, Houston, for Appellant.
    Julie Klibert, John B. Holmes, Houston, for State.
    Panel consists of Chief Justice SCHNEIDER and Justices WILSON and ANDELL.
   OPINION

MICHAEL SCHNEIDER, Chief Justice.

A jury convicted appellant, Kevin Lee Greathouse, of two counts of theft. The jury assessed punishment at confinement for 10 years, but as recommended by the jury, appellant’s sentence was probated and he was placed on community supervision for 10 years. The State filed a motion to revoke community supervision. The trial court revoked the appellant’s community supervision and sentenced appellant to ten years in prison. We reverse.

Factual Background

Appellant’s wife, Gail Greathouse, worked as an office manager/secretary at Trend Energy. Appellant and his wife embezzled money from the business. American Express credit cards were obtained without the owner’s permission and numerous unauthorized purchases were charged to the corporate credit card, including a trip to Paris. In addition, fraudulent wire transfers were used to steal money, and forged checks with the owner’s signature were used for personal purchases, including a new Jeep Grand Cherokee. In all, appellant and his wife stole approximately $375,000 from Trend Energy-

The jury recommended probation. As a condition of probation, the court ordered appellant to pay restitution of $179,587, approximately half the amount stolen, starting in November 1997. The court set restitution at the rate of $11,600 a month. For the first five months of his community supervision, appellant paid between $100 and $120 dollars each month towards his restitution, but never paid the full monthly amount of $11,600. In April 1998, the State brought a motion to revoke community supervision. The court found that appellant did not have the ability to pay $10,000 a month in restitution for the first count of theft and that it would be unreasonable to expect him to do so. The trial court revoked probation in that count of theft and sentenced the appellant to 10 years in prison. The trial court changed the restitution amount in the other count of theft from $1,600 to $500 a month, which was to be abated during the time appellant was incarcerated. The trial court’s reasoning was explained on the record:

Obviously, if a person has restitution so great that there’s no way that they [sic] could pay that amount, do they [sic] then have the right to say, “Since it’s impossible for me to make these payments, I shouldn’t be punished or have my probation revoked for not making these payments?” Well, of course the problem with that is then that one is excused for one’s crime if the restitution amount is so great that a person can’t pay it, and that doesn’t seem just.
Now, should a person be obliged to pay as much as they [sic] can? My reasoning is that, yes, they should be obliged to pay as much as they can. Now, the problem here is who is going to decide that? Well, ultimately, the Judge; and this would give, one might argue, the Judge the ability to squeeze this person and to keep them [sic] in a state, of poverty for all the years of their probation.
While this is possible, one would hope that the Judge would not do that, but that the Judge would be reasonable in asking that restitution be paid so that at least in some measure the injured — injured parties can be made whole.
Now if Mr. Greathouse had been paying to the best of his ability, the extent of his ability, as judged by me, then I would say, “Yes, even though you haven’t made the full payments — uh—I will excuse you because you are doing your best.” Obviously, it would be unreasonable to ask you or any normal person to pay amounts in excess of $10,000 per month, but, it is not unreasonable for you to pay as much as you can toward those amounts.

(emphasis added).

Legal Analysis

In his first point of error, appellant argues the trial court abused its discretion by revoking appellant’s probation when appellant did not have the ability to pay $10,000 a month. In appellant’s second point of error, appellant urges that the trial court abused its discretion by imposing vague and indefinite conditions of probation, challenging the implied order that appellant pay “as much restitution as possible.” Finally, appellant argues that the trial court abused its discretion by imposing a condition of probation that was unreasonable on its face. We reverse the judgment and order the motion to revoke to be dismissed.

1. Appellant’s Ability to Pay Restitution

In his first point of error, appellant argues it was error for the trial court to revoke probation when appellant did not have the ability to pay $10,000 a month. We review the order revoking probation under an abuse of discretion standard. See Hendley v. State, 783 S.W.2d 750, 752 (Tex.App.—Houston [1st Dist.] 1990, no pet.). In making this determination, we examine the evidence in the light most favorable to the trial court’s order. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981).

If the State can prove a violation of a condition of probation by a preponderance of the evidence, the order of revocation will be supported. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980). If the State fails to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke probation. See Reid v. State, 834 S.W.2d 125, 126 (Tex.App.—Houston [1st Dist.] 1992, no pet.).

The State argues that appellant may not complain about a condition of probation for the first time on appeal, citing Speth v. State, 6 S.W.3d 530, 535 (Tex.Crim.App. 1999). But the State’s reliance upon Speth is erroneous. Appellant is not complaining about the initial conditions of probation. Appellant argues that, when the trial court affirmatively found he did not have ability to pay $10,000 a month in restitution, it was error for the court to sua sponte impose new and vague conditions of probation instead of denying the motion to revoke probation. We agree.

At a community supervision revocation hearing, the inability to pay restitution is an affirmative defense for a defendant to prove. See Tex.Code Crim. P. Ann. art. 42.12 § 21(c) (Vernon 2000); Stanfield v. State, 718 S.W.2d 734, 738 (Tex.Crim.App.1986); Friedl v. State, 773 S.W.2d 72, 73 (Tex.App.—Houston [1st Dist.] 1989, no pet.). Once the issue of inability to pay is raised, the burden of proof shifts to the State to prove that appellant’s failure to pay was intentional. See id. Appellant paid, on average, $108 a month in restitution from November 1997 through March 1998, before the State filed its motion to revoke. During this time period, his total income was $6,215.94. The record is unclear as to what appellant’s monthly expenses were, but testimony indicates that his living expenses ranged from $800 to $900 a month, and that appellant was also paying back a bank loan. Appellant testified that he told his probation officer “I’m paying what I can pay” and his probation officer did not indicate that this would be a problem. Appellant met his burden in raising the inability to pay as a defense.

The burden then shifted to the State to prove the failure to pay was intentional. The State presented evidence that appellant had the financial means to pay more than he did. The State suggests that, even after subtracting rent, utilities, health insurance and appellant’s other necessary bills, there was approximately $500 to $600 in disposable income available to the appellant. The State points out that appellant used this money for various personal luxuries instead of paying his restitution. For example, appellant was able to maintain a gym membership, give small cash gifts to his family at Christmas, pay more than the minimum amount due on his personal loan and credit card bills, take trips to Houston, and have satellite TV ordered at his home with this money.

However, an appellate court must examine whether the appellant was able to pay the restitution as initially imposed. See Friedl, 773 S.W.2d at 74. The trial court found that appellant could not pay $10,000 a month, and the State offers no evidence to the contrary. The State suggests an inference of intentional nonpayment can be made if one has the ability to pay but does not. See Stanfield, 718 S.W.2d at 738. But appellant never had the ability to pay the foil amount of restitution initially imposed. Thus, no inference of intentional non-payment can be made, and the State failed to meet its burden in establishing appellant’s failure to repay the $10,000 was intentional. When evidence that the probationer is unable to pay is not refuted by the State, and the trial court revokes probation, it is an abuse of discretion. See Basaldua v. State, 558 S.W.2d 2, 7 (Tex.Crim.App.1977); Pool v. State, 471 S.W.2d 863, 863 (Tex.Crim.App.1971). The trial judge should have denied the motion to revoke probation. Instead, the trial judge sua sponte amended the conditions of probation. We find this to be an abuse of discretion and sustain appellant’s point of error.

2. The Vague and Unreasonable Probation Condition

In point of error two, appellant argues the “implied order requiring appellant to pay as much as he could pay” is vague and indefinite, making the conditions of probation unenforceable and void. In point of error three, appellant argues the conditions of probation were unreasonable on their face. We sustain these points of error.

A trial court has broad discretion in imposing conditions of probation. However, the conditions must be reasonable, and must be designed to “protect or restore the community, protect or restore the victim, or punish, rehabilitate or reform the defendant.” See Tex.Code Crim. P. Ann. art. 42.12 § 11(a); Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App.1999). If restitution is ordered, the restitution amount set by the court must be just. See Martin v. State, 874 S.W.2d 674, 676 (Tex.Crim.App.1994). The trial judge must “consider the ability of the defendant to make payments” in ordering restitution. See Tex.Code CRIM. P. Ann., art. 42.12 § 11(b) (Vernon 2000). Furthermore, conditions of probation must be “clear, explicit, and unambiguous so that the probationer understands what is expected of him.” Todd v. State, 911 S.W.2d 807, 817 (Tex.App.—El Paso 1995, no writ). The probationer must know with certainty what he is being asked to do. See Curtis v. State, 548 S.W.2d 57, 58 (Tex.Crim.App.1977).

In this case, the condition of probation required appellant to pay $10,000 a month. Behind the condition was an implied order to “pay as much as he could” as determined by the judge. We do not find this to be a clear and unambiguous standard. The appellant did not receive notice that he would have to pay as much as he could, and he had no way to calculate such an amount. Revocation of probation for failure to pay fees and restitution when an appellant is unable to pay the total amount denies due process of law. See Bearden v. Georgia, 461 U.S. 660, 673, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983) (holding that a revocation of probation for “failure to pay a fine or restitution” when the probationer did not have the ability to pay is “contrary to the fundamental fairness required by the Fourteenth Amendment”); Friedl, 773 S.W.2d at 72 (citing Wike v. State, 725 S.W.2d 465, 470 (Tex.App.—Houston [1st Dist .] 1987, no pet.)).

In Arterberry v. State, the Tyler Court of Appeals upheld the revocation of community supervision where a trial judge felt the appellant “had the money to do more than what [he] did.” 800 S.W.2d 580, 582 (Tex.App.—Tyler 1990, no pet.). However,' we distinguish this case. In Arterber-ry, the appellant only had to pay a $405.50 fíne, plus a $35 per month supervision fee. See id. The State established that appellant had $509 a month in disposable income after expenses. See id. When an appellant has an ability to pay, it is easy to conclude his non-payment was intentional. See, e.g., Stanfield, 718 S.W.2d at 738 (explaining when inability is not raised as an affirmative defense, the State can easily show intentional failure to pay by establishing one had the ability to pay, but did not). However, in the case before us today, appellant does not have enough disposable income to pay his restitution, and so the same conclusion cannot be reached.

In Duke v. State, the San Antonio Court of Appeals did not find it to be an abuse of discretion for a trial court to revoke appellant’s probation because there was an intentional failure to pay fees. 2 S.W.3d 512, 517 (Tex.App.—San Antonio 1999, no pet.). In Duke, appellant owed court costs, administrative fees, and court-appointed attorney fees. See id. In addition, he had to perform community service or “community restitution.” See id. Appellant did not make any payments and did not perform any community service. The court upheld the revocation of probation, noting that based on the evidence introduced, appellant could have made a partial payment or could have at least made a good faith effort to attempt some payments. See id. In the present case, appellant made partial payments of his restitution amount, and his failure to pay was unintentional. Thus, Duke is distinguished.

We find the judge’s implied order to “pay as much you can” is vague and unreasonable, and we sustain appellant’s second and third points of error.

Conclusion

We sustain points of error one, two, and three. We reverse the judgment and order the motion to revoke be dismissed.

      . Appellant had to pay $10,000 a month restitution on one of the theft charges and $1,600 for the other theft charge.

      . No appeal was taken from the trial court’s action on this second count.

      . Appellant presented evidence that he earned $7 an hour working for Ludco, Inc. He later resigned from Ludco, Inc. and worked on his father’s chicken farm, earning between $1000 and $1200 a month.


author: OPINION LIVINGSTON, Justice.

text:
    In re COOK CHILDREN’S MEDICAL CENTER, Relator.
    No. 2-00-376-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 1, 2000.

      Cantey & Hanger, L.L.P., Ralph H. Duggins, Ken C. Cunningham, Fort Worth, for Relator.
    Robert O. Fischel, Fort Worth, for Real Party in Interest.
    Sara Ruth Spector, Fort Worth, Ad Li-tem.
    Before DAY, LIVINGSTON, and GARDNER, JJ.
   OPINION

LIVINGSTON, Justice.

I. INTRODUCTION AND HOLDING

In this original proceeding, we are asked to decide whether a trial court’s actions in taking a case from another, assigned trial court were void. Because the assignment order had not expired, we hold that another trial court cannot unilaterally take a case back from a properly assigned trial court.

II. BACKGROUND

On April 27, 1999, Elizabeth Perez, on behalf of her minor son Blake Perez, filed suit against Cook Children’s Medical Center (the Hospital) for “negligent medical care.” The suit was randomly assigned to Judge Paul Enlow’s trial court, the 141st District Court of Tarrant County. See Fort Worth (Tex.) Civ. Dist. Ct. Loe. R. 1.03(a). Because the suit was filed as a “friendly suit” to prove up a settlement on Blake’s behalf, Judge Enlow appointed Sara Spector to serve as Blake’s guardian ad litem.

On April 11, 2000, the Hospital filed a motion to dismiss and a motion for sanctions based on the fact that Perez had not filed an expert report as required by the Medical Liability and Insurance Improvement Act. TexRev.Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp.2001). On May 11, the parties appeared in Judge Enlow’s court for a hearing on the Hospital’s motions, but because Judge Enlow was conducting a trial, Judge Tom Crum was presiding in Judge Enlow’s place. Perez filed an objection to Judge Crum. See Tex. Gov’t Code Ann. § 74.053 (Vernon 1998). The objection was presented to the Presiding Judge of the 8th Administrative Judicial Region, Judge Jeff Walker, who assigned Judge Bob McCoy, the trial judge of the 48th District Court of Tarrant County, to the 141st District Court. See id. § 74.056. The assignment was solely for May 11, but was to “continue thereafter so long as may be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new trial and all other matters growing out of any cause heard by the assigned judge during [May 11].”

Judge McCoy then heard the Hospital’s motions on May 11. Later that same day, Judge McCoy issued a letter ruling, granting the motion to dismiss in part but giving Perez time to brief the court on whether the entire suit, including any intentional torts, had to be dismissed.

On May 25, Judge McCoy signed an order dismissing the entire suit and awarding attorneys’ fees to the Hospital. The attorneys’ fees were awarded against counsel for Perez and Blake “in a manner to be determined by the Court at a hearing” to be held on June 15. The hearing was later reset to July 6. On July 6 when the parties appeared in Judge McCoy’s courtroom for the hearing, they were told by a clerk to go to Judge Enlow’s courtroom. Judge Enlow then informed the parties that he was taking the case back from Judge McCoy. On July 31, Judge Enlow signed an order (1) rescinding and withdrawing Judge McCoy’s May 25 dismissal order, (2) withdrawing Spector as Blake’s guardian ad litem, and (3) stating that the Hospital could reset its motions for hearing before Judge Enlow.

The Hospital seeks mandamus relief from Judge Enlow’s July 31 order. It argues that the order was void because Judge Enlow had not been formally reassigned and because the assignment order had not been terminated; thus, Judge En-low’s order was void or, alternatively, constituted an abuse of discretion. Thus, the primary issue we must decide is whether Judge Walker’s assignment order under section 74.056 of the government code had expired, allowing Judge Enlow to take the case back.

III. EFFECT OF ASSIGNMENT ORDER

The assignment to Judge McCoy, was made under section 74.056 of the government code, which allows the presiding judge to assign judges in the region “to try cases and dispose of accumulated business.” Tex. Gov’t Code Ann. § 74.056(a). A judge assigned under this chapter of the government code has all the powers of the judge of the court to which he or she is assigned. Taiwan Shrimp Farm Village Ass’n v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 67 (Tex.App.—Corpus Christi 1996, writ denied). Whether Judge Enlow had the power or authority to reassign the case to himself depends upon the basis of the assignment as well as the language of Judge Walker’s assignment order. See O’Connor v. Lykos, 960 S.W.2d 96, 97-99 (Tex.App.—Houston [1st Dist.] 1997, orig. proceeding) (looking to specific language of assignment order to determine whether assigned judge’s authority had terminated). Under the language of the assignment order to Judge McCoy, the assignment was specifically made under section 74.056 and was to continue after May 11 “so long as may be necessary ... to complete trial of any cause begun during such period, and to pass on ... all other matters growing out of any cause heard by [Judge McCoy] during [May 11].”

We hold this language authorized Judge McCoy to hear both the motion to dismiss and the motion for sanctions to their conclusion, which would necessarily include his plenary-power period after the dismissal order is final. See, e.g., id. at 98-99 (holding under similar assignment order, assignment continued until assigned judge granted a new trial); Ex parte Holland, 807 S.W.2d 827, 829 (Tex.App.—Dallas 1991, orig. proceeding [writ dism’d w.o.j.]) (holding, under similar language in assignment order, authority of assigned judge expired with his plenary power over final judgment); Starnes v. Chapman, 793 S.W.2d 104, 106 (Tex.App.—Dallas 1990, orig. proceeding) (holding assignment order expired with assigned judge’s plenary power); Roberts v. Ernst, 668 S.W.2d 843, 846 (Tex.App.—Houston [1st Dist.] 1984, orig. proceeding) (holding authority under assignment order expired with granting of new trial). Thus, because Judge McCoy had not completed ruling on “all other matters growing out of’ the Hospital’s motions, the assignment order had not expired. Accordingly, Judge Enlow did not have the authority to unilaterally transfer the case back to his court in the face of a continuing assignment order.

Perez argues that Judge Enlow had the authority to transfer the case back to his court and to withdraw Judge McCoy’s rulings on the Hospital’s motions under rule 330, which gives trial courts broad discretion to unilaterally transfer cases and proceedings and exchange benches or districts. Tex.R. Civ. P. 330. Further, the Texas Constitution and the government code provide that district courts may “exchange” benches “when they may deem it expedient” or “from time to time.” Tex. Const, art. V, § 11; Tex. Gov’t Code Ann. § 24.303(a). However, such a unilateral transfer has been held to be void where the transfer is attempted while the case is in the process of being tried. De Zavala v. Scanlan, 65 S.W.2d 489, 494 (Tex. Comm’n App.1933, judgm’t adopted). In other words, Judge McCoy’s jurisdiction under the assignment order was exclusive until it terminated by the terms of the assignment order. See Roberts, 668 S.W.2d at 846 (rejecting argument that two judges had concurrent authority where case was assigned by presiding judge). Accordingly, we conclude that Judge Enlow’s actions in taking the case back and withdrawing Judge McCoy’s orders were void.

IV. MANDAMUS RELIEF

We may issue mandamus relief when one court directly interferes with the jurisdiction of another. Republic Royalty Co. v. Evins, 931 S.W.2d 338, 341 (Tex.App.—Corpus Christi 1996, orig. proceeding). Mandamus relief is also appropriate when a trial court’s order is void. Gem Vending, Inc. v. Walker, 918 S.W.2d 656, 658 (Tex.App.—Fort Worth 1996, orig, proceeding); Hansen v. Sullivan, 886 S.W.2d 467, 469 (Tex.App.—Houston [1st Dist.] 1994, orig. proceeding). Because Judge Enlow did not have the authority to transfer the case back to his court, his actions were void, and mandamus relief is appropriate. Thus, we conditionally grant mandamus relief. The writ will issue only if Judge Enlow fails to vacate his July 31, 2000 order and fails to return the case to Judge McCoy until the expiration of the assignment order.

      . Because of our disposition, issues raised by Spector and Perez’s former counsel are not yet ripe; thus, we do not address them.


author: LEE DUGGAN, Jr., Justice (Assigned).

text:
    James Daniel BALLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 01-96-00851-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 7, 2000.

      Brian W. Wice, Houston, for Appellant.
    John B. Holmes, Alan Curry, Houston, for State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LEE DUGGAN, Jr., Justice (Assigned).

After the trial court denied his motion to suppress evidence, James Daniel Ballard, appellant, pled guilty to the offense of possession with intent to deliver lysergic acid diethylamide (LSD) weighing at least four grams and less than 200 grams. Pursuant to a plea bargain agreement, appellant’s punishment was assessed at 25 years confinement, to run concurrently with his sentence in the District Court of Victoria County, and appellant reserved the right to appeal the denial of his motion to suppress evidence. In three points of error, appellant asserts the trial court erred in denying his motion to suppress evidence. We affirm.

I.

FACTUAL BACKGROUND

Houston Police Officer Mark Boyle received a tip from an informant that appellant was a major LSD dealer; that he would arrive at a particular Houston residence in a certain vehicle; that he would make a delivery of LSD; and that there was an outstanding warrant for his arrest. Boyle conveyed this information to Houston Police Officers O.X. Pena and J.D. Cargill, who confirmed that the Victoria County Sheriffs Office held a “Capi-as/Warrant” for appellant, issued and outstanding for a violation of his probation for felony possession of a controlled substance, and that no bond was set.

The officers proceeded to the described Houston residence, maintained surveillance, and observed a vehicle matching the informant’s description. An individual matching the informant’s description of appellant stepped out of the vehicle, walked into the residence, returned, and left in the vehicle at a high rate of speed. The officers pursued the vehicle, caught up with it in a parking lot, surrounded it, and attempted to get the driver, appellant, out of the vehicle. Appellant resisted, and put his left hand into his left pants pocket. When he refused Officer Cargill’s repeated instructions to remove his hand from the pocket, Cargill forcibly removed appellant’s hand; several sheets of LSD fell out of the pocket. The officers searched appellant after removing him from the vehicle and found additional sheets of LSD.

In three interrelated points of error, appellant asserts his motion to suppress contraband should have been granted because his search and seizure were conducted pursuant to a capias rather than a warrant, and were, therefore, unconstitutional. He argues that (1) by statute, a warrant rather than a capias must be issued for an alleged probation violation, and (2) even if it was permissible to issue the capias, the trial court lacked probable cause to authorize his arrest.

A. Whether a capias is permissible for a probation violation.

Appellant argues that the Texas Legislature has authorized a warrant only, and not a capias, to be issued for a probationer’s arrest when the probationer is alleged to have violated a condition of probation.

First, appellant points out that chapter 28 of the Texas Code of Criminal Procedure sets out other grounds for issuing a capias, but does not specify that a capias should be issued for a violation of probation. See, e.g., Tex.Code CRim.P.AnN. arts. 28.03-28.06 (Vernon 1989 & Supp.2000) (directing that a capias “shall be issued” or “shall issue” (1) upon a felony indictment after bail has been set or denied, (2) for misdemeanor cases, (3) following a bond forfeiture, and (4) when a new bond is required in a felony case). Appellant concedes the Texas Court of Criminal Appeals has approved the use of a capias after a mandate has issued, but argues this is the only recognized common law instance in which a capias may issue. See Ex parte Bates, 538 S.W.2d 790, 793 (Tex.Crim.App.1976).

Second, appellant notes that article 42.12 of the Texas Code of Criminal Procedure, which governs community supervision, specifies in part that “[a]ny judge of a court having geographical jurisdiction where the defendant is residing or where a violation of the conditions of community supervision occurs may issue a ivarrant for his arrest.” Tex.Code Crim.P.AnN. art. 42.12, § 10(c) (Vernon Supp.2000) (emphasis added). Because article 42.12 specifies a warrant rather than a capias, appellant argues that a trial court lacks statutory authority to issue a capias for a probation violation.

Appellant cites no case law or legislative history indicating that chapter 23 contains the exclusive list of situations in which a capias may be issued. To the contrary, he concedes that a capias may be issued after a mandate, a situation not addressed in chapter 23. Although chapter 23 designates certain situations in which a capias “shall” issue (mandatory language), article 42.12 specifies that a warrant “may” issue (permissive language) for a probation violation. This language suggests that the use of a warrant exclusively is not mandated for a probation violation.

Further, Texas case law tends to treat a capias and a warrant interchangeably in probation revocation cases. See, e.g., Harris v. State, 843 S.W.2d 34, 35 & n. 1 (Tex.Crim.App.1992) (noting decisions holding that a trial court retained jurisdiction to revoke probation where, among other situations, “a capias or arrest warrant issued prior to expiration of the [probation] period”); Rodriguez v. State, 804 S.W.2d 516, 517 (Tex.Crim.App.1991) (concluding that “[a]s long as the revocation motion was filed and the capias or arrest warrant issued before the expiration of the appellant’s probationary term, the hearing conducted shortly after his arrest was proper”) (emphases added).

Finally, the Texas Court of Criminal Appeals has recently issued an opinion suggesting that a capias in particular is the proper means to bring an alleged probation violator before the court:

Two requirements must be met for a trial court to acquire jurisdiction to revoke probation. The State must file with the trial court, before the expiration of the probationary period, a motion to revoke probation that alleges the probationer violated the terms of the probation judgment. The trial court must then, before the expiration of the probationary period, issue a capias based upon this motion that orders the arrest of the probationer.

Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999) (citations omitted, emphasis added).

We conclude that a court may issue a capias for probation violations.

B. Whether the capias required probable cause for its issuance .

Appellant next argues that even if the capias is statutorily permissible, his arrest, search, and the seizure of contraband were illegal because the capias was not supported by probable cause for his arrest. He notes that probable cause must be established before a magistrate may issue a warrant, see Gordon v. State, 801 S.W.2d 899, 916 (Tex.Crim.App.1990), and argues that, if a capias is interchangeable with a warrant, a capias should equally require probable cause.

We agree that a capias should generally be treated like a warrant for Fourth Amendment purposes. See Sharp v. State, 677 S.W.2d 513, 517 (Tex.Crim.App.1984) (observing that, “for purposes of constitutional scrutiny, there is no substantive difference between an arrest warrant and a capias”). However, federal and Texas case law make clear that probable cause is not necessary for the arrest or search of parolees or probationers.

In Griffin v. Wisconsin, the United States Supreme Court held that state probation officers’ warrantless search of a probationer’s apartment was permissible after the officers obtained information that the apartment might contain guns. 483 U.S. 868, 874, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987). Analogizing the state’s operation of a probation system to its operation of institutions such as schools, government offices, or prisons, where exigencies may justify departure from the warrant and probable cause requirement, the Court observed:

To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy “the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.”

Id. (quoting from Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). See also United States v. Lewis, 71 F.3d 358, 363 (10th Cir.1995) (holding that the warrantless search of the defendant’s residence by parole agents and police acting at the agents’ request did not violate the Fourth Amendment); United States v. Cardona, 903 F.2d 60, 66 (1st Cir.1990) (determining that the arrest of a parolee for parole violations in the absence of a warrant supported by probable cause did not offend the Fourth Amendment when the arresting police officers acted at the request of the parole board).

The Texas Court of Criminal Appeals has held that “probationers and parolees do not enjoy the same level of Fourth Amendment protection accorded defendants only suspected of a crime.” Garrett v. State, 791 S.W.2d 137, 140 (Tex.Crim.App.1990). Garrett held that a capias for the arrest of an alleged parole violator did not require probable cause, but simply a factual basis to allow the trial court to determine “whether there was a reason to believe that [the defendant] had violated his parole conditions.” Id. at 140-41. This requirement of a factual basis was satisfied in Garrett by testimony from Garrett’s parole officer at his motion to suppress hearing regarding his parole violation. Id. at 141. Significantly, Garrett also noted,

We do not hold that a parole officer must testify regarding the factual basis for a warrant under Art. 42.18, § 14(a), in order to justify the arrest. We hold only that there must be evidence presented for the trial court to consider and determine whether there was a reason to believe the parolee was subject to arrest.

Garrett, 791 S.W.2d at 137, n. 2; see also Roy v. State, 892 S.W.2d 96, 101 (Tex.App.—Texarkana 1994, pet. ref'd) (stating that for the arrest of a parolee, “the warrant and ‘reason to believe’ (or some factual basis) that the parolee has violated a condition of his parole [must be shown], but no affidavit is required”). We reject appellant’s argument that probable cause — more than “reason to believe” that appellant violated conditions of his probation — was required before the court supervising his probation could issue a capias for his arrest.

Here, appellant’s supervising court in Victoria issued a capias for his arrest after his Victoria County supervision officer submitted to the court a signed but unsworn request, styled “Capias/Warrant Issuance.” The request represented to the court that “Defendant is in violation of condition(s): # 11 (FTR) # 29 (DS) # 32 (CSR).”

The trial court heard and determined the motion to suppress upon affidavits as authorized by article 28.01, Section 1(16) of the Texas Code of Criminal Procedure. See Tex.Code CRIm.P.Ann. art. 28.01, § 1(16) (Vernon 2000); Ackenback v. State, 794 S.W.2d 567, 573 (Tex.App.—Houston [1st Dist.] 1990, pet. refd). While appellant offered no affidavit evidence at the motion to suppress hearing, the State introduced (1) the capias pursuant to which appellant was arrested, (2) the non-sworn request for capias, or “Capias/Warrant Issuance,” and (3) a post-arrest affidavit prepared by his probation officer for use at the suppression hearing. In the post-arrest affidavit, the probation officer stated that she sought the capias or warrant for appellant’s arrest because he “(1) failed to report; (2) failed to pay district supervisory fees; and, (3) failed to fulfill his community service hours.”

Appellant has not complained, either at the suppression hearing or on appeal, that the numbered conditions and parenthetical acronyms in the non-sworn “Capias/War-rant Issuance,” or request for capias, were unclear to his supervising court. However, he has consistently objected to the trial court’s admission of the supervision officer’s post-arrest affidavit because it was not presented to the supervising court to establish probable cause.

We have previously determined that probable cause was not required to justify appellant’s arrest. While the basis for the capias as stated in the affidavit was conclusory, it was undisputed by appellant and constituted some evidence for the trial court to consider in determining whether there was “reason to believe” appellant was subject to arrest. See Garrett, 791 S.W.2d at 141 n. 2. The affidavit was admissible and relevant in deciding the motion to suppress because (1) it provided sworn evidence stating the alleged violations of probation conditions and (2) it clarified for the court the supervision officer’s shorthand abbreviation of the probation conditions allegedly violated. The trial court did not err in admitting the post-arrest affidavit.

We hold that the information supplied by the Victoria County supervisions officer provided the supervising court a sufficient factual basis to believe appellant violated his probation conditions, and to issue a capias for his arrest. Appellant’s arrest and the subsequent search and seizure of contraband were constitutionally permissible pursuant to the trial court’s validly issued capias. The evidence presented supports the trial court’s ruling, and the trial court did not abuse its discretion in overruling appellant’s motion to suppress the evidence of contraband.

We overrule appellant’s three points of error.

We affirm the judgment.


author: JONES, Justice.

text:
    Keeshon ROLAND and Teanna Roland, Appellants, v. DAIMLERCHRYSLER CORPORATION, and/or DaimlerChrysler Motors Corporation; and Heart of Texas Dodge, Inc., Appellees.
    No. 03-00-00118-CV.
    Court of Appeals of Texas, Austin.
    Dec. 7, 2000.
    Rehearing Overruled Jan. 19, 2001.

      Enacio B. Barretto, San Antonio, for appellant.
    Roy Spezia, Clark, Thomas & Winters, Austin, for appellee.
    Before Justices JONES, KIDD and YEAKEL.
   JONES, Justice.

Appellants, Keeshon and Teanna Roland, sued appellees, DaimlerChrysler Corporation, DaimlerChrysler Motors Corporation, and Heart of Texas Dodge, Inc. (collectively referred to as “DaimlerChrys-ler”) for personal injuries sustained by Keeshon while riding in the open bed of a pickup truck. The suit was based on theories of negligence and strict liability, abeg-ing that DaimlerChrysler failed to warn of the danger posed by riding in the open bed of a pickup truck that was manufactured and sold by DaimlerChrysler. Concluding that the danger was open and obvious, the trial court granted summary judgment for DaimlerChrysler. On appeal, the Rolands claim the trial court erred in holding as a matter of law that DaimlerChrysler had no duty to warn. We wib affirm the trial court’s grant of summary judgment.

FACTS

The facts of this case are not in dispute. Keeshon Roland, who is not a minor, was riding in the open bed of a pickup truck traveling east on FM 20 in Caldweb County. The truck was driven by a third party who was intoxicated. The driver swerved, claiming he did so to avoid an animal (that was not seen by the other passengers in the truck), and struck a guard rail. Kee-shon was ejected from the truck bed and was seriously injured. The truck was designed, manufactured, and sold by Daim-lerChrysler.

DISCUSSION

The Rolands’ only point of error asserts that the trial court erred in ruling that riding in the unprotected bed of a pickup truck is, as a matter of law, an open and obvious danger and in consequently granting summary judgment for Daimler-Chrysler. The standards for reviewing a summary judgment are web established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant wib be taken as true; and (8) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Because the propriety of the summary judgment is a question of law, this Court reviews the judgment de novo. Grocers Supply Co. v. Sharp, 978 S.W.2d 638, 642 (Tex.App.—Austin 1998, pet. denied).

In Texas, a manufacturer has no duty to warn of open and obvious dangers. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995). Whether a hazard is an open and obvious danger is a question of law, not of fact. Id. at 383. Although we have found no case in Texas directly on point, the facts in this case are simbar to the facts in Caterpillar. In Caterpillar, the supreme court held that riding in a front-end loader which was open to the air was an open and obvious danger as a matter of law, and that the manufacturer had no duty to warn of such a danger. Id. at 382-83. The front-end loader was a construction vehicle operated with no sides or top, much like the bed of a pickup truck. Id. at 381. The driver of the loader was struck from behind by another loader and injured because of the lack of a cage to protect him. Similarly, the bed of a pickup truck provides little protection to any of its occupants.

The Rolands’ evidence that the condition is not an open and obvious danger fails to convince us that the trial court erred. Keeshon’s self-serving affidavit, stating that if he had been warned he would not have ridden in the bed, combined with the testimony of the Rolands’ safety engineer, does not raise a question of material fact. The safety engineer relied on several exhibits from various associations and government agencies that detail attempts to raise public awareness of the danger posed by riding in the back of pickup trucks. One of these asserts that Texans continue to ride in the back of trucks because it is a “Texas way of life.” This, however, does not tend to show that Texans are ignorant of the risks involved. This evidence neither supports nor undermines their conclusion. People often do dangerous things for reasons we may not understand, while fully appreciating the risks involved. Its open nature and the lack of restraining devices in the bed of a pickup truck make it immediately apparent to the ordinary and reasonable observer that the potential for ejection exists for anyone riding there. We firmly believe that people have a sufficient intuitive grasp of the basic laws of physics to ensure that if one is in an open and unprotected area of a truck, the consequences of a sudden start, stop, or turn are understood and appreciated as a matter of common knowledge.

The Rolands attempt to turn a legal question into a factual one by relying on dicta from Caterpillar. Id. at 383. While supreme court dicta may be persuasive, it is not necessarily binding. See Rodriguez v. Jim Walter Homes, Inc., 638 S.W.2d 108, 110 (Tex.App.—Corpus Christi 1982, no writ). The court in Caterpillar noted that it “did not [in Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385 (Tex.1991) ], foreclose the possibility that in some situations there could be a fact question about whether consumers have common knowledge of risks associated with a product.” Caterpillar, 911 S.W.2d at 383. The Seagram case was also based on product liability (in that case, alcohol) and accusations that a manufacturer failed to warn of dangers associated with its product. Seagram & Sons, 814 S.W.2d at 385. The court in Seagram, however, was referring to situations where the particular type of harm resulting from a danger was not within the common knowledge of members of the public, such as the likelihood of developing specific diseases from drinking alcohol as opposed to the likelihood of becoming an alcoholic. Seagram, therefore, does not support the Rolands’ position.

The Rolands ask this Court to overturn the trial court’s determination that riding in the bed of a pickup truck is an open and obvious danger as a matter of law. We conclude that DaimlerChrysler has established that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

CONCLUSION

We overrule the Rolands’ point of error and affirm the trial court’s grant of summary judgment.

      . For cases outside this jurisdiction holding that riding in the bed of a pickup truck is an open and obvious danger as a matter of law, see Maneely v. General Motors Corp., 108 F.3d 1176 (9th Cir.1997), and Josue v. Isuzu Motors America, Inc., 87 Hawai'i 413, 958 P.2d 535 (1998).

      . The evidence submitted by the Rolands states that most fatalities resulting from ejection from the beds of pickup trucks are to minors. In fact, the majority of the Rolands’ evidence speaks of danger to minors. Because Mr. Roland was not a minor at the time of the accident, this evidence is not applicable. Characteristic of the Rolands’ evidence are exhibits from the North Brunswick Township police department and the Michigan PTA. While it is understandable that these organizations are concerned about the safety of the children in their communities, the exhibits themselves do not bear directly on the question at issue.


author: PER CURIAM.

text:
    Michael Thomas RUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 10-00-152-CR.
    Court of Appeals of Texas, Waco.
    Jan. 3, 2001.
    Stephen F. Fink, Bryan P. Neal, Thompson & Knight,L.L.P., Dallas, for appellant.
    Bill Hill, Dallas County Criminal Dist. Atty., Patricia Poppoff Noble, Dallas County Asst. Dist. Atty., Dallas, for appel-lee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   ORDER

PER CURIAM.

Michael Thomas Russell filed a Motion for Rehearing urging this Court to reconsider our opinion dismissing his appeal for want of jurisdiction. Russell contends that the extra notice requirements of Rule 25.2(b)(3) of the Rules of Appellate procedure apply only to appeals from plea bargained felony convictions. Russell pled guilty to a misdemeanor offense.

The State responds that our reliance on State v. Riewe was correct when we dismissed Russell’s appeal even though he pled to a misdemeanor offense because Riewe also involved a misdemeanor offense. See State v. Riewe, 13 S.W.3d 408 (Tex.Crim.App.2000). It is unclear whether the defendant in Riewe had pled to a misdemeanor offense. The opinion of the Court of Criminal Appeals only recites that the defendant was convicted of driving while intoxicated. Driving while intoxicated can be either a misdemeanor or a felony offense. See Tex.Pen.Code Ann. §§ 49.04, 49.09(b) (Vernon Supp.2001).

Nevertheless, we have already held that the extra notice requirements apply only to felony plea bargained appeals. Taylor v. State, 916 S.W.2d 680, 684 (Tex.App.—Waco 1996, pet. ref'd)(interpreting former Rule 40(b)(1)). We remain convinced that our holding in Taylor is correct and, unless the Court of Criminal Appeals holds otherwise, we will continue to adhere to it.

Therefore, Russell’s Motion for Rehearing is granted. Our opinion and judgment dated November 8, 2000, are withdrawn, and the appeal is reinstated. Russell’s Motion to Amend Notice of Appeal is denied as unnecessary.


author: COOPER, Justice. WINTERSHEIMER,

text:
    Lillian L. RENTSCHLER, Appellant, v. Timothy S. LEWIS, Appellee.
    No. 1998-SC-0987-DG.
    Supreme Court of Kentucky.
    Sept. 28, 2000.
    Robert W. Grant, Louisville, for Appellant.
    Henry A. Triplett, Bennett, Bowman, Triplett & Vittitow, Louisville, for Appel-lee.
   COOPER, Justice.

On October 4, 1994, two motor vehicles driven by Lillian L. Rentschler and Timothy S. Lewis, respectively, collided in the parking lot of the Shelbyville Road Manor shopping center in Louisville, Kentucky. Rentschler brought this action in the Jefferson Circuit Court for damages for the personal injuries which she sustained in the accident. A unanimous jury exonerated Lewis of any responsibility for causing the accident. The issue on appeal relates to the effect of KRS 186.640, which provides:

Any driver involved in any accident resulting in any damage whatever to person or to property who is ineligible to procure an operator’s license, or being eligible therefor has failed to procure a license, or whose license has been canceled, suspended or revoked prior to the time of the accident, shall be deemed prima facie negligent in causing or contributing to cause the accident.

On the date of this accident, Lewis was in possession of what he believed to be a valid operator’s license. He later learned that his license was under suspension on that date because of his failure to attend alcohol classes following a prior alcohol-related motorcycle accident in which he had sustained personal injuries. See KRS 186.570(l)(b). Rentschler attempted to introduce evidence of that fact at trial and tendered the following proposed jury instruction:

It was the duty of Defendant, Timothy S. Lewis, to procure a valid operator’s license prior to the operation of his vehicle. If you are satisfied from the evidence that Defendant, Timothy S. Lewis, operated his vehicle when his license was canceled, suspended or revoked pri- or to the time of the accident, then he shall be deemed prima facie negligent in causing or contributing to cause the accident. For the purpose of this instruction “prima facie” shall mean that a fact is presumed to be true unless disproved by some evidence to the contrary.

The trial judge held that the evidence was inadmissible and refused to give the tendered instruction to the jury. The Court of Appeals affirmed.

The statute in question was enacted in 1936 and was compiled in Carroll’s Kentucky Statutes as KS § 2739m-62. It was recompiled in the 1942 revision as KRS 186.640. Prior to its enactment, our pre-

decessor Court had held in Moore v. Hart, 171 Ky. 725, 188 S.W. 861 (1916) that evidence that a motor vehicle was unregistered and its operator unlicensed, both in violation of applicable statutes, was inadmissible “unless such violation has some causal connection with the producing of the injury.” Id., 188 S.W. at 864. Some sixteen years after the enactment of KRS 186.640, our predecessor Court held in Baber v. Merman, Ky., 249 S.W.2d 142 (1952) that “evidence that the plaintiff ... had no driver’s license was irrelevant” to the issue of contributory negligence. Id. at 144. These cases are consistent with the definition of relevancy now contained in KRE 401, viz:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

The fact of consequence in this case is whether the manner in which Lewis operated his vehicle was a substantial factor in causing the accident. His status as a licensed or unlicensed driver would not tend to prove or disprove that fact. Therefore, the trial judge correctly concluded that such evidence was irrelevant, thus inadmissible.

Rentschler argues that Lewis’s status as an unlicensed driver was relevant because he “had no legal right to be on the highway when the accident occurred.” This same argument was raised and rejected in Moore v. Hart, supra, wherein it was asserted that an unlicensed driver was a' “trespasser upon the highway” who was guilty of negligence per se and not entitled to the protections of the law. The Court described this proposition as a “cruel and almost savage doctrine,” id., 188 S.W. at 863, which it attributed to the courts of Massachusetts, citing Chase v. New York Cent. R. Co., 208 Mass. 137, 94 N.E. 377

(1911). To their credit, the courts of Massachusetts have long since abandoned this “cruel and almost savage doctrine.” In Dean v. Leonard, 323 Mass. 606, 83 N.E.2d 443, 445 (1949), the rule was held to apply only to circumstances where the violation of the law could be shown to have been a proximate cause of the accident. In Falvey v. Hamelburg, 347 Mass. 430, 198 N.E.2d 400 (1964), it was held that the illegal registration of the alleged tortfea-sor’s vehicle could not be considered as evidence of negligence because that fact had no causal relation to the accident.

Of course it might be argued that but for the violation of law the car would not have been on the road and hence would not have been involved in the accident. But that can hardly be treated as a cause in the legal sense. The accident could just as well have happened had the car been legally registered.

Id. at 403.

Only three years after the enactment of KS § 2739m-62 (now KRS 186.640), our predecessor Court had occasion to address whether the statute required the giving of a jury instruction virtually identical to the one tendered by Rentschler in this case. In Tipton v. Estill lee Co., 279 Ky. 793, 132 S.W.2d 347 (1939), it was held that the instruction was not authorized, and that:

[I]t was not competent for the Legislature to make the mere failure to secure [an] operator’s license prima facie evidence that the driver involved in an accident was negligent in causing or contributing to such accident.

Id., 132 S.W.2d at 350.

The Court went on to say that while the legislature was competent to create statutory presumptions, the right to provide for a rebuttable presumption is qualified to the extent that “the prescribed facts for creating the prima facie presumption shall have ‘a natural and rational evidentiary relation’ to, and a logical tendency to prove, the principal fact.” Id. (quoting Commonwealth v. Kroger, 276 Ky. 20, 122 S.W.2d 1006, 1007 (1938)). The Court concluded that “the mere failure ... to procure an operator’s license prior to the accident had no ‘natural and rational evi-dentiary relation to — or a logical tendency to prove the principal fact.’ ” Id.

The Court noted in Tipton that it was only addressing a fact situation where the driver had never been licensed and not one where the driver was ineligible to procure a license, or where his license had been suspended or revoked; thus, “we are not required to determine whether, if such had been shown, the court would have been authorized to give an instruction under the quoted section of the statute.” Id., 132 S.W.2d at 350. We now hold that the same result obtains in a fact situation where a driver was unlicensed because his license had been suspended. Regardless of the reason why Lewis was unlicensed, the conclusion is inescapable that such had no “natural and rational evidentiary relation to — or a logical tendency to prove” that the manner in which he was operating his vehicle when this accident occurred was a substantial factor in causing the accident. “Where the facts of an accident do not show any causal connection between the violation of a statute and the injury suffered, then such violation is irrelevant and plays no part in the determination of liability.” Ross v. Jones, Ky., 316 S.W.2d 845, 847 (1958).

Furthermore, as noted in Tipton, supra, KRS 186.640 purports only to create a rebuttable presumption; and “[i]t is ‘never proper to instruct the jury as to presumptions of law or of fact.’ ” J. Palmore, Kentucky Instructions to Juries (Civil) § 13.11g, at 16 (4th ed. Anderson 1989) (quoting Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36, 134 S.W.2d 960, 965 (1939)); see also Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 824 (1992). The existence of a presumption serves only to require the party against whom it operates to introduce evidence to rebut it. If this burden of going forward is not satisfied, the party in whose favor the presumption operates is entitled to a directed verdict. If the burden is satisfied, the presumption disappears and plays no further role in the case. Commentary to KRE 301, Evidence Rules Study Committee, Final Draft (1989). As a general rule, civil law presumptions “live and die ‘without the knowledge of the jury, and without affecting the judge’s charge in any way,” ’ primarily because juries are thought to be incapable of understanding the legal aspects of their application. R. Lawson, The Kentucky Evidence Law Handbook § 10.05, at 552, 553 (3d ed. Michie 1993) (quoting Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv. L.Rev. 59, 75 (1933)).

Thus, even if we were to accept (which we do not) Rentschler’s invitation to overrule Tipton v. Estill Ice Co., supra, the result would be the same. Lewis introduced evidence that he was not at fault in causing the accident. The presumption was thereby rebutted and disappeared; and its former existence was irrelevant to any other aspect of the case.

Accordingly, the opinion of the Court of Appeals and the judgment of the Jefferson Circuit Court are affirmed.

LAMBERT, C.J.; GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur.

WINTERSHEIMER, J., dissents by separate opinion.

WINTERSHEIMER,

Justice, dissenting.

I must respectfully dissent because I believe it was improper in an automobile negligence case to exclude evidence that Lewis operated his vehicle at the time of the accident while his drivers’ license was cancelled, suspended or revoked.

KRS 186.640 provides in pertinent part that any driver involved in any accident resulting in any damage whatsoever to person or property ... whose license has been cancelled, suspended or revoked pri- or to the time of the accident, shall be deemed prima facie negligent in causing or contributing to the accident.

The decision of this Court, known then as the Court of Appeals, in Tipton v. Estill Ice Co., 279 Ky. 793, 132 S.W.2d 347 (1939), held that the legislature could not make the mere failure to secure a drivers’ license prima facie evidence that a driver involved in an automobile accident was negligent. Tipton, supra, involved an earlier version of the statute at a time when automobile activity was far less than it is in the Year 2000. This Court should reexamine Tipton and overrule it. The duty to obtain a valid drivers’ license was in addition to the duty to exercise ordinary care in operating the vehicle. The collision could not have occurred if the suspended driver had honored his duty not to operate a vehicle on the highways without a valid license.

This case involves a driver whose license was revoked as a result of a DUI conviction involving an automobile collision. This case relates to the revocation provision of the statute and is very closely linked to the legitimate purpose of promoting safety on the highway by keeping intoxicated persons and other unsafe drivers off the road. There is no prejudice to the driver whose license was suspended because after the introduction of the suspension, the driver could have met his burden of going forward with evidence to rebut the presumption, KRE 301, and the jury could have determined the comparative negligence of both sides.

      . Remarkably, the same jury also exonerated Rentschler of any responsibility for causing the accident.

      . 1936 Ky. Acts 3d ex. sess. ch. 13 § 29 (eff. Aug. 1, 1936).