William A. Brewer Iii v. Lennox Hearth Products, LLC Turner & Witt Plumbing, Inc. Strong Custom Builders, LLC Thermo Dynamic Insulation, LLC State Farm Lloyds Insurance Company Ken and Becky Teel Ross and Meg Rushing ( 2020 )

IN THE SUPREME COURT OF TEXAS
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No. 18-0426
444444444444
WILLIAM A. BREWER III, PETITIONER,
V.
LENNOX HEARTH PRODUCTS, LLC; TURNER & WITT PLUMBING, INC.; STRONG
CUSTOM BUILDERS, LLC; THERMO DYNAMIC INSULATION, LLC; STATE FARM
LLOYDS INSURANCE COMPANY; KEN AND BECKY TEEL; ROSS AND MEG RUSHING,
RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SEVENTH DISTRICT
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Argued October 10, 2019
JUSTICE GUZMAN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE GREEN, JUSTICE LEHRMANN, JUSTICE DEVINE, JUSTICE BLACKLOCK, and JUSTICE BUSBY
joined.
JUSTICE BOYD filed an opinion concurring in part and dissenting in part.
JUSTICE BLAND did not participate in the decision.
Lawyers are under a professional obligation to act with commitment and dedication to their
clients’ interests, but they are neither duty-bound nor permitted to press for every possible advantage
under the imprimatur of zealous advocacy.1 The discretion to determine the trial tactics and
1
Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 367 (Tex. 2014).
litigation strategies to employ, while considerable, is cabined by ethical standards memorialized in
sundry rules and statutes and is subject to the inherent authority of courts to preserve the integrity
of our judicial system.2
In this products-liability and wrongful-death suit, the trial court sanctioned an attorney for
commissioning a pretrial survey that commenced in the county of suit shortly before trial. No rule,
statute, or applicable court order categorically prohibited or specifically constrained the use of a
pretrial survey in this case or otherwise, and as far as we can discern, this is the only reported case
imposing sanctions on a lawyer for conducting such a survey. We hold that the sanctions order,
issued under the court’s inherent authority, cannot stand because evidence of bad faith is lacking.
Inherent authority has been likened to an“imperial”3 power with intrinsic “potency” that necessitates
“restraint,” “discretion,” and “great caution”;4 accordingly, sanctions issued pursuant to a court’s
inherent powers are permissible only to the extent necessary to deter, alleviate, and counteract
bad-faith abuse of the judicial process.5 Certain attributes of the pretrial survey may have been
2
See TEX. CIV. PRAC. & REM. CODE §§ 9.001–.014; 10.001–.006 (sanctions for frivolous pleadings and
motions); TEX. GOV’T CODE § 21.002 (statutory contempt power); In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (“Courts
possess inherent power to discipline an attorney’s behavior.”); Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167,
172 (Tex. 1993) (observing courts have inherent and statutory contempt power); TEX. R. CIV. P. 13 (sanctions for
groundless and bad faith or harassing court filings), 18a(h) (sanctions for groundless and bad faith or harassing recusal
motion), 215 (sanctions for discovery abuses); TEX. DISCIPLINARY RULES PROF’L CONDUCT, reprinted in TEX. GOV’T
CODE, tit. 2, subtit. G, app. A [TEX. DISCIPLINARY RULES PROF’L CONDUCT]; TEX. CODE JUD. CONDUCT, CANON 3(d)(2),
reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. B (disciplinary responsibilities of judges).
3
NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir. 1990) (observing that inherent
power “is not a broad reservoir of power, ready at an imperial hand, but a limited source; an implied power squeezed
from the need to make the court function”).
4
Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991).
5
See, e.g., Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ) (“A trial
court has inherent power to sanction bad faith conduct during the course of litigation that interferes with administration
of justice or the preservation of the court’s dignity and integrity.”); see also Chambers, 501 U.S. at 48-49 (attorney’s
fees awarded as a sanction under the court’s inherent authority must be causally connected to bad faith conduct).
2
reasonably disconcerting to the trial court, but the record bears no evidence of bad faith in the
attorney’s choice to conduct a pretrial survey or in the manner and means of its execution. We
therefore vacate the sanctions order.
I. Background
The underlying products-liability and wrongful-death suit settled on the eve of trial amid a
host of pending motions seeking sanctions against the product manufacturer’s trial counsel, William
H. Brewer III and his law firm, Bickel & Brewer (collectively, Brewer).6 The sanctions motions
complained that Brewer and his firm had improperly commissioned a telephone survey to be
conducted in the county of suit mere weeks before the scheduled jury trial without ensuring
witnesses, represented parties, judges, and court personnel were excluded from the survey database
and without voluntarily disclosing the survey to the trial court or the litigants. The movants
characterized the survey as a “push poll” that was designed to influence or change public opinion
and taint the jury pool rather than a legitimate effort to conduct community-attitude research.7 In
6
While the sanctions motions were pending, the law firm changed its name to Brewer, Attorneys & Counselors.
7
The parties have not identified a universal or generally accepted definition of a “push poll” other than
describing it as a method of polling that seeks to influence or persuade rather than to legitimately conduct research. In
1995, the National Council on Public Polls issued a warning about push polls, describing them as a telephone campaign
“used to canvass vast numbers of potential voters, feeding them false and damaging ‘information’ . . . under the guise
of taking a poll to see how this ‘information’ effects [sic] voter preferences” without a genuine “intent to conduct
research.” A Press WARNING from the National Council on Public Polls, NATIONAL COUNCIL ON PUBLIC POLLS (May
22, 1995), http://www ncpp.org/drupal57/files/Push%20Polls.pdf. In 2007, the American Association for Public Opinion
Research (AAPOR) published a clarification defining a “push poll” as telephone “calls disguised as research that are
designed to persuade large numbers of voters—not to measure opinion.” AAPOR Provides Clarification on “Push Poll”
Issue, AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH, (Nov. 16, 2007),
https://www.aapor.org/Publications-Media/Press-Releases/Archived-Press-Releases/AAPOR-Provides-Clarification-
on-Push-Poll-Issue.aspx. According to AAPOR’s guidance, push polls usually employ few questions that are either
uniformly negative or uniformly positive, large numbers of people are contacted, and the identity of the organization
conducting the poll is either undisclosed or fraudulent. Id.
3
addition to compensatory sanctions, the movants requested total forfeiture of all fees the
manufacturer had paid to Bickel & Brewer for the litigation.
The tragic facts and allegations in the underlying lawsuit set the context for the telephone
survey and the trial court’s sanction order. Suit was filed shortly after a residential home in the City
of Lubbock caught fire during a lightning storm in August 2012. The fire ignited gas seeping from
pipes that had been perforated by lightning-induced electrical arcs. The ensuing explosion resulted
in the death of a house guest by thermal insult and significant personal-injury and property losses
to the homeowners. The following month, the City of Lubbock issued a moratorium on the use of
yellow-jacketed corrugated stainless steel tubing (CSST), the type of gas plumbing pipe used in the
home’s construction.
Within weeks, the homeowners and the decedent’s parents sued the CSST manufacturer, the
pipe supply company, and the pipe installer. Among other allegations, the plaintiffs asserted the
CSST product used in the home’s construction was defectively designed because it was too thin to
withstand the effects of a lightning strike; the plumbing company was negligent in selecting and
installing a defective product, but had installed the CSST in accordance with the manufacturer’s
instructions; and the pipe supplier was negligent in selling a product known in the industry to be
prone to failure in lightning events.
After answering with a general denial, the pipe manufacturer, Titeflex Corporation, filed
third-party claims against (1) the installer of the spray-foam insulation in the attic, (2) the home
builder, and (3) the manufacturer of the fireplace that had been installed in the home. Titeflex’s
litigation position was that CSST is safe when properly installed and that other conditions, including
improper installation, caused or contributed to the explosion. To that end, Titeflex disputed a
4
determination by the City’s fire marshal and chief building inspector that the CSST piping in the
homeowner’s residence had been installed properly even though it was in contact with electrical
wires.
Trial was eventually scheduled to commence in June 2014, and the subject telephone survey
was conducted on Titeflex’s behalf in late May of that year. Several noteworthy events occurred
in advance of the survey.
In December 2013, the City extended the moratorium to include a CSST product not
involved in this litigation (black-jacketed CSST); the media covered both the initial and expanded
moratoriums; and one of the plaintiffs’ attorneys provided a responsive comment in at least one
televised news story. Plaintiffs’ counsel also:
• set up a website touting the dangers of CSST piping;8
• conducted a telephone poll to gauge the community’s familiarity with CSST products
and whether those products were used in the survey respondents’ homes;9 and
• hosted Lubbock’s assistant fire marshal, Bob Bailey, and chief building official,
Steve O’Neal, on a trip to Massachusetts to view a demonstration involving CSST
lightning impacts, which the Lightning Institute conducted shortly before the City
announced the expanded moratorium.10
Titeflex viewed these events as detrimental to its business and as negatively impacting its litigation
strategy.
8
The plaintiffs’ website included pretrial discovery; unauthenticated statements, pictures, and videos; and
references to other litigation involving Titeflex. Plaintiff’s counsel publicized this website to several regulatory bodies,
including the National Fire Protection Association and the Texas House of Representatives, in connection with efforts
seeking further bans on use of CSST.
9
The plaintiffs disclosed the existence of that poll to the other parties and the trial court no later than two
months before trial.
10
During the same time period, the City of Lubbock’s municipal board had invited Titeflex to submit its own
testing results, but Titeflex evidently declined to do so because of confidentiality concerns.
5
A few months before the December 2013 moratorium expansion, Brewer and his law firm
joined Titeflex’s litigation team. According to Brewer, the moratoriums, extensive press coverage,
and plaintiffs’ counsel’s media activities impelled the law firm to commission a pretrial survey to
gauge community attitudes toward Titeflex’s legal position and defensive theories. Travis Carter,
Bickel & Brewer’s director of community and media relations, spearheaded the survey project for
the law firm. Carter selected Public Opinion Strategies, a nationally recognized public opinion
research firm, to develop and conduct “a random independent poll in regard to certain attitudes and
opinions that would likely be prevalent among homeowners in Lubbock, Texas.” According to
Brewer and his staff, the scope of the poll was to include community attitudes and opinions about
CSST, the moratoriums, and potential litigation themes.
Public Opinion Strategies was tasked with drafting the survey questions, and to assist with
that endeavor, Carter gave the survey company a background sheet on CSST that he had prepared
along with links to state and national media coverage and newspaper articles reporting on the
explosion and moratoriums. After receiving a draft of the survey from Public Opinion Strategies,
Carter edited the survey to add questions adverse to Titeflex’s litigation position “to balance the
poll” and ensure “there were statements in there that were both favorable toward and opposed to the
view of the Defendants.” Brewer reviewed the revised draft, suggested some tweaks, and gave the
go-ahead to move forward. The final version of the survey, which is attached as Appendix A, was
composed of 42 questions, more than a third of which were introductory and demographic questions.
Some questions presented information in a static order while others were randomized to prevent
order bias. The second half of the survey specifically referenced this lawsuit in connection with
questions testing litigation themes.
6
Public Opinion Strategies recommended producing either 300 or 500 completed surveys, and
Brewer and Carter chose the lesser. The only client-selected parameters for the survey respondents
was that all participants be Lubbock County residents over the age of 18. To ensure the completion
of 300 surveys, Public Opinion Strategies procured a database of contact information for 20,000
individuals meeting that criteria from a third-party vendor, i360. Public Opinion Strategies then
provided the survey questions to another third-party vendor, Survey Sampling International (SSI),
to conduct the survey using the database i360 had compiled. SSI, a consumer research firm,
conducted the approved survey on May 21 and 22 using computer-assisted telephone interviewing
(CATI). CATI is a telephone surveying technique in which the interviewer follows a script guided
by a software application that randomly selects respondents from the survey database.
Brewer did not inform the court or the other parties about the survey before, during, or after
the May 21 and 22 survey period, but no discovery request, rule, statute, or court order required him
to do so. The plaintiffs’ attorneys nonetheless caught wind of the survey efforts and, several days
after it was completed, began making inquiries to the other parties to determine the source. When
asked about a telephone poll being conducted by a company called SSI, Brewer disclaimed
knowledge. Other Titeflex legal representatives did the same. Days later, Brewer informed counsel
for all parties that he had commissioned the telephone survey. At that time, and depending on which
side is recounting the events, Brewer either confessed or made the connection between Public
Opinion Strategies (which he had hired) and SSI (which he had not).
The plaintiffs immediately requested a protective order and sought sanctions against Titeflex,
Brewer, and Brewer’s law firm. The other parties followed suit. The movants alleged the pretrial
survey was sanctionable because (1) the content of the poll was designed to intimidate witnesses and
7
tamper with the jury pool and (2) the survey violated disciplinary rules constraining pretrial publicity
and contact with represented parties and jury pool members.11 The sanctions motions described the
survey as an “overt attempt to convince [survey respondents] who [was] to blame for CSST failures
in homes, in and around Lubbock, Texas.”
With the trial date looming, the trial court initially heard evidence and argument related to
the sanctions motions over the course of three days in early June. Titeflex produced evidence that
it was in the dark about the survey, which created a conflict of interest with Brewer’s continued
representation. Titeflex discharged Brewer days before the trial setting, and the case settled the
weekend before trial. A jury venire was never empaneled.
A four-day sanctions hearing was later scheduled to take place in September. Brewer was
informally notified about the hearing about a month prior. Shortly thereafter, the parties filed
amended sanctions motions focusing on Brewer and his law firm and dropping complaints about
Titeflex. Brewer requested a continuance, citing lack of proper notice, the necessity of obtaining
discovery from Public Opinion Strategies and its third-party vendors, and the recently filed amended
motions. The trial court denied Brewer’s motion.
All told, the trial court heard argument and evidence about the telephone survey over the
course of seven days in June, September, and October 2014, including one full day when Brewer
was in the hot seat under questioning from lawyers for five adverse parties. Uncontroverted
testimony at the sanctions hearings established that no one at Brewer’s firm had contact with or prior
11
See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.06 (“Maintaining Integrity of Jury System”), 3.07
(“Trial Publicity”), 4.02 (“Communication with One Represented by Counsel”); see also TEX. PENAL CODE
§ 36.06(a)(l)(A) (intentionally or knowingly harming or threatening to harm another by an unlawful act in retaliation for
or on account of the service or status of another as a public servant, witness, or prospective witness is a criminal offense).
8
knowledge of i360’s or SSI’s involvement in the survey. Moreover, no one at Bickel & Brewer had
any input in selecting any name or phone number included in the survey database. Nor did anyone
provide a list to Public Opinion Strategies or the third-party vendors identifying people to exclude
from the database due to their association with or participation in the ongoing litigation.
According to the hearing testimony, Public Opinion Strategies took the laboring oar in
drafting the survey questions. Carter materially contributed to the survey’s contents, but his edits
added questions unfavorable to Titeflex’s position to help ensure the survey “was not in any way
biased against one party or the other.” Brewer’s actual participation in developing the survey was
described as minimal, and those knowledgeable about the survey’s procurement repeatedly stressed
that it was randomly administered by third-party professionals and intentionally balanced to both
favor and disfavor Titeflex so opinions and attitudes about CSST and Titeflex’s legal messages
could be tested.
Expert testimony was a mixed bag. An attorney offered as an expert on ethical standards
testified the survey was inconsistent with the Texas Disciplinary Rules of Professional Conduct
because the survey might influence a person who could potentially end up in the venire and be
seated on a jury if the survey’s existence was undisclosed and the juror’s participation in it was not
elicited in voir dire questioning. Disciplinary Rule 3.06(a) prohibits attorneys from “seek[ing] to
influence a venireman or juror concerning the merits of a pending matter by means prohibited by
law or applicable rules of practice or procedure.”12 That prohibition extends to relatives of jurors
12
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.06(a)(2) (emphasis added).
9
and members of the venire.13 The expert did not identify any rule or law that prohibits a pretrial
survey or contact with community members merely because they could conceivably end up in the
venire.
However, the expert opined that Brewer inadequately supervised the independent contractors
conducting the survey by not ensuring witnesses and represented parties connected with the
litigation were excluded from the survey database. Disciplinary Rule 4.02 prohibits lawyers from
communicating with a represented party about the subject of the litigation without the consent of
the represented party’s counsel, except as authorized by law.14 And a lawyer having direct
supervisory authority over a nonlawyer has a duty to make “reasonable efforts to ensure that the
person’s conduct is compatible with the professional obligations of the lawyer.”15 A supervisory
lawyer may be subject to discipline by the State Bar if “the lawyer orders, encourages, or permits
the conduct involved” or “with knowledge of such misconduct” “knowingly” fails to take reasonable
remedial or mitigating measures.16
Brewer’s and Carter’s testimony that they had no hand in assembling the survey database
was unrefuted, and Brewer took the position that securing a third-party professional to design and
implement the survey was a reasonable effort to ensure it was conducted appropriately. He
acknowledged, however, that not taking a more active role in providing limiting parameters was a
lapse of judgment.
13
Id. R. 3.06(e).
14
Id. R. 4.02(a).
15
Id. R. 5.03(a).
16
Id. R. 5.03(b).
10
An expert on surveys testified about the manner and means of executing the survey. He
described the survey as attempting to persuade (a “push poll”) in certain respects and relatively
balanced message testing in others.
Collectively, the two experts expressed generalized concerns about:
• a litigant conducting a pretrial poll in the county of suit, from which the jury
would be drawn;
• the failure to ensure persons connected with the case were not excluded from
the survey database;
• the lack of randomization of some questions that painted adverse parties in
a negative light;
• the relative strength of statements adverse to Titeflex compared to the
negative statements about other potentially responsible parties;
• whether some statements were false and misleading or merely relied on
disputed facts to be litigated, for example, whether the CSST pipe had been
installed improperly;
• the survey’s efforts to compare the respondents’ initial impressions about
legal responsibility with the respondents’ impressions after hearing variously
formulated “statements”; and
• the inclusion of specific references to the underlying lawsuit without
identifying the survey’s sponsor in any manner.
A third expert also testified about professional ethics. He opined that (1) pretrial surveys are
not specifically prohibited by any governing authority, (2) neither the survey nor Brewer violated
any disciplinary rule, and (3) Brewer reasonably relied on an independent third-party professional
to design and execute the survey.
11
All 20,000 names included in the survey database were produced,17 but the record includes
no evidence or testimony about how many of those individuals were contacted to secure
300 completed survey responses. Nor were the identities of those who completed the survey
disclosed. However, review of the survey database revealed that several city employees and
government officials associated with the lawsuit or moratoriums had been included as potential
contacts, leading the City Attorney to conclude the poll was “targeting” particular government
servants. Sitting judges, city council members, other government officials, and members of the trial
judge’s staff and family were also on the list. Brewer testified these “unfortunate” and “horrible
coincidence[s]” were the by-product of random selection and confessed that he had not thought to
provide guidance to Public Opinion Strategies about exclusions from a randomly generated survey
sample.
The trial court also heard evidence that, in conducting the survey, SSI had in fact spoken
with immediate family members of three previously deposed witnesses, two of whom were
government employees ostensibly represented by the City Attorney. During the survey window, SSI
called (1) mobile and landline numbers assigned to Chris Beeson, co-owner of Fireplaces Unlimited,
which Titeflex had designated as a potentially responsible third party; (2) the home number for Steve
O’Neal, the City of Lubbock’s Chief Building Official; and (3) a mobile number associated with
Tommy Jeter, a city building inspector and subordinate of Steve O’Neal. The spouse of each of
these witnesses answered one or more of SSI’s calls. Two spouses participated in the survey long
enough to determine the calls were about this lawsuit, but none of them completed the survey.
17
Lubbock County has a population of nearly 300,000 and a jury pool of a little more than half its population.
12
Notably, the record bears no evidence that a survey participant could not be contacted
multiple times or through multiple telephone numbers in a randomly conducted survey using CATI
software. And no expert testified that anyone connected with the case was more likely than not
“targeted.” Indeed no expert witness impugned—statistically or even anecdotally—the randomness
of either the survey database or the selections from the database. At most, the survey expert testified
the 20,000 name survey database was not “completely” random because it resulted from at least
some defined parameters (in this case, Lubbock County residents over age 18) and was “likely”
drawn from public records, which would include registered voters who might be called to serve on
a jury; he acknowledged, however, that CATI software would have randomly selected respondents
from the survey database.
Finally, the court heard evidence that the week after the survey concluded, Brewer filed an
ethics complaint against Steve O’Neal and the assistant fire marshal, calling on the City to
investigate whether their “free trip” to Massachusetts for the product-testing demonstration violated
the city charter. The complaint was hand-delivered to the Lubbock City Council and
contemporaneously released to the media. The sanctions movants characterized this as a
witness-intimidation tactic.18
At the conclusion of the sanctions hearing, the trial court took the matter under advisement.
The court expressed uncertainty about whether the requested sanctions were warranted but stated
that “what was done . . . was [not] right.” The court requested supplemental briefing from the
18
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 4.04(b) (“A lawyer shall not present, participate in
presenting, or threaten to present: (1) criminal or disciplinary charges solely to gain an advantage in a civil matter . . . .”).
13
parties addressed to whether sanctions were justified as a legal matter and affidavits to support the
attorneys’ fees requested as sanctions.
Fifteen months later, the trial court issued a lengthy letter ruling imposing sanctions against
Brewer individually but not the law firm. The court ordered Brewer to complete ten hours of
legal-ethics education and pay the movants a total of $133,415.27 in attorneys fees and expenses,
plus $43,590 in contingent fees and expenses.19 The letter ruling generally addressed the content
and execution of the survey, Brewer’s errors and omissions in undertaking the pretrial survey, and
Brewer’s demeanor at the sanctions hearing. The court did not find that Brewer violated any
disciplinary rules or other applicable authority, but instead concluded that Brewer’s conduct “taken
19
The breakdown of fees and expenses awarded is as follows:
To third-party defendant Lennox Hearth Products, LLC:
• Attorney’s Fees: $29,500.00
• Expenses: $3,500.00
• Contingent Attorney’s Fees and Expenses: $17,300
To co-defendant Turner & Witt Plumbing:
• Attorney’s Fees: $11,032.00
• Expenses: $1,919.76
• Contingent Attorney’s Fees & Expenses: $7,190
To third-party defendant Strong Custom Builders, LLC:
• Attorney’s Fees: $8,170.00
• Expenses: $554.83
• Contingent Attorney’s Fees: $3,000.00
To third-party defendant Thermo Dynamic Insulation, LLC:
• Attorney’s Fees: $16,038.00
• Expenses: $3,738.68
• Contingent Attorney’s Fees: $6,600
To the subrogee insurance company, State Farm Lloyds Insurance Company:
• Attorney’s Fees: $27,312.00
• Contingent Attorney’s Fees: $5,000.00
To plaintiffs Ken Teel, Becky Teel, Ross Rushing, and Meg Rushing:
• Attorney’s Fees: $31,650.00
• Contingent Attorney’s Fees: $4,500.00
14
in its entirety,” including actions of his agents and subordinates, was “an abusive litigation practice
that harms the integrity of the justice system and the jury trial process” and was “intentional[,] in
bad faith[,] and abusive of the legal system and the judicial process specifically.”
With regard to the survey’s execution, the court disbelieved testimony that the polling efforts
were random and coincidental and found Brewer was “grossly negligent” in failing to provide a
no-contact list of parties and witnesses to the third-party vendor. In support of these findings, the
court noted that (1) the pollster had actually made contact with represented and unrepresented parties
and witnesses and (2) the survey database included members of the trial judge’s family and staff,
several government employees and officials, designated third parties, and spouses of the foregoing
without regard to whether they were represented by counsel.
As to the survey’s contents, the trial court determined it was “designed to improperly
influence a jury pool” by disseminating information “without regard to it[s] truthfulness or
accuracy” and by including “several questions . . . designed to influence or alter the opinion or
attitude of the person being polled . . . .” Rejecting Brewer’s argument that “he bears clean hands
because the poll was a blind study conducted by a third party vendor,” the court cited Brewer’s
testimony that he (1) bore supervisory responsibility for his employees and consultants, (2) reviewed
and approved the poll questions, and (3) “instruct[ed] and guid[ed] the pollster on the purpose and
composition of the poll.”
The letter ruling does not identify the portions of the survey’s contents that were
objectionable, improper, or inaccurate. However, the court noted that four federal district courts in
Texas have standing orders regulating the manner of conducting community attitude studies (mock
trials, focus groups, and the like) when the survey is conducted in the division where the case is
15
pending, noting one of the orders “discourages” the practice and the orders collectively “serve as
an excellent blueprint for the manner by which a proper survey/poll should be conducted.” Though
no similar order was in place for the underlying litigation, the trial court faulted Brewer for failing
to adhere to similar parameters.
Finally, the court found Brewer’s attitude in response to the sanctions motion “concerning”
due to his (1) “nonchalant and uncaring” demeanor and (2) “repeatedly evasive” responses to
questioning, which during a day of questioning, had prompted the court to sustain a total of four
objections to responsiveness and twice instruct Brewer to answer the question asked.
Brewer appealed the sanctions order and denial of his motion for continuance. The court of
appeals affirmed, holding the trial court had authority to sanction Brewer’s conduct, the sanctions
award was appropriate and not excessive, and any error in denying Brewer’s request for a
continuance was harmless.20 As to the propriety of sanctions, the court found no abuse of discretion
because the record supported the trial court’s “perce[ption] [that] Brewer’s ‘intentional and bad
faith’ conduct in connection with the telephone survey” imperiled the court’s core judicial functions
of “empanel[ing] an impartial jury and try[ing] a case with unintimidated witnesses.”21
Brewer’s petition for review to this Court argues the sanctions award must be vacated
because the record does not support the trial court’s finding that he acted in bad faith or significantly
interfered with a core judicial function in commissioning a public opinion poll or otherwise. He
contends both findings are necessary prerequisites to the exercise of a court’s inherent power to
sanction. In the alternative, he urges the Court to remand for a new sanctions hearing because he
20
546 S.W.3d 866, 885-86 (Tex. App.—Amarillo Mar. 2018).
21
Id. at 881.
16
was not properly notified about the hearing and had inadequate time to conduct discovery and
prepare an appropriate defense.
II. Discussion
The decision to impose sanctions involves two distinct determinations: (1) whether conduct
is sanctionable and (2) what sanction to impose.22 Both decisions are subject to appellate review,
but Brewer challenges only the former in this case. The dispositive issue on appeal is whether the
trial court properly exercised its inherent authority to sanction Brewer based on the manner in which
a pretrial survey was conducted on his client’s behalf in connection with complex, high-profile
litigation. No litigant claims the trial court acted pursuant to a rule or statute authorizing sanctions
in this instance. Nor does any litigant contend that a rule, statute, order, or any other authority
proscribed or conscribed the use of a pretrial survey in the underlying litigation. The dispute is
whether the latter circumstance necessarily precludes the court from imposing sanctions under its
inherent authority or whether sanctions were permitted—with or without evidence of bad
faith—because the trial court could have concluded that certain aspects of the survey crossed ethical
lines and threatened the integrity of the jury system.
We agree with the court of appeals that (1) bad faith is required to support sanctions imposed
under a court’s inherent authority;23 (2) bad faith can exist without explicitly violating a rule, statute,
or ethical code of conduct;24 (3) direct evidence of bad faith is not required;25 (4) an attorney acting
22
See In re Bennett, 960 S.W.2d 35, 39 (Tex. 1997) (sanctioning counsel requires the court to determine
whether the attorney has abused the judicial process and what sanction is appropriate).
23
546 S.W.3d at 878-79.
24
Id. at 880.
25
Id. at 879-80.
17
in bad faith can be sanctioned for conducting a pretrial attitudinal survey even when no authority
specifically prohibits or constrains the use of such a survey;26 and (5) neither the absence of actual
interference with the jury venire nor the potential for rectifying any harm through voir dire negates
the existence of bad faith.27 However, mere violation of a rule, statute, or ethical standard does not
ipso facto constitute bad faith. An error, without more, is no evidence of improper motive,28 unless
the conduct could not have occurred without conscious wrongdoing.29
26
Id. at 876-78.
27
Id.; cf. Primrose Operating Co. Inc. v. Jones, 102 S.W.3d 188, 192 (Tex. App.—Amarillo 2003, pet. denied)
(observing that the effect of a pretrial community attitude study—a mock trial—had been thoroughly explored during
jury voir dire examination and a mistrial was therefore unwarranted even though plaintiffs’ counsel declined to furnish
a list of mock-trial participants).
28
The cases of McWhorter v. Sheller, 993 S.W.2d 781 (Tex. App.—Houston [14th Dist.] 1999, pet. denied),
and Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ), are ready examples. In
McWhorter, an attorney failed to alert the court and opposing counsel that she was recording a telephonic conference
for the purpose of preparing a draft order reflecting the court’s findings. Even though the order “tracked the telephone
conference,” “the findings were specific and [the court] felt comfortable adopting them,” and counsel was not acting in
bad faith, the court sanctioned the attorney. The court of appeals reversed, noting the record reflected “at best, some
degree of inexperience and negligence on [the attorney’s] part, rather than an intentional act made in bad faith.” In
Onwuteaka, the trial court struck an attorney’s plea in intervention seeking to recover a contingency fee, because he was
not present when his case was called. 908 S.W.2d at 280. Although the attorney timely arrived at the courthouse, he
was told his case was set for “standby” and the clerk would call him when the case was assigned, that day or maybe the
next. Id. Counsel returned to the courthouse as soon as he got the call, while his assistant called the court clerk to advise
her that he was on his way. Id. at 280-81. He arrived too late, but the record bore no evidence that, before trial began,
counsel knew the case had taken off “standby” status. Id. at 281. The court of appeals vacated the sanctions order for
two independent reasons: (1) counsel’s conduct was merely negligent, not in bad faith as required to impose sanctions
under a court’s inherent authority, and (2) the record did not bear evidence of flagrant bad faith as required for the
particular sanction imposed. Id. at 280-81.
29
For example, under no circumstance could a litigant or counsel be acting innocently or in good faith while
directing an obscene gesture to the court or a trial participant.
18
Pretrial surveys are not uncommon and are neither categorically permissible nor inherently
suspect.30 And while the absence of authoritative guidance is not a license to act with impunity,31
bad faith is required to impose sanctions under the court’s inherent authority.32 We hold the
sanctions order in this case cannot stand because evidence of bad faith is lacking. Even if the survey
Brewer commissioned was not flawlessly designed or executed, the record bears no evidence that
Brewer, individually or through his agents, developed or employed the survey for an improper
purpose. Accordingly, we need not consider whether “substantial interference with the court’s
legitimate exercise of one of its traditional core functions” is an additional requirement, as Brewer
asserts.33
30
See U.S. v. Collins, 972 F.2d 1385, 1399-1400 (5th Cir. 1992) (pretrial telephone survey in the district from
which the jury pool was drawn did not compromise the integrity of the jury system even though it was not disclosed by
the prosecution, offered the prosecution’s version of the evidence, and inquired as to opinions about the defendants’ guilt
or innocence based on the evidence as presented).
31
See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (counsel knowingly undertook conduct designed to
circumvent local rules ensuring random assignment of cases).
32
Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980) (holding “the trial court did not make a specific
finding as to whether counsel’s conduct constituted or was tantamount to bad faith, a finding that would have to precede
any sanction under the court’s inherent powers.”).
33
See Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.—Austin 2002, pet. denied) (“A court cannot invoke
its inherent power to sanction without some evidence and factual findings that the conduct complained of significantly
interfered with the court’s legitimate exercise of one of its traditional core functions.”).
19
A. Standard of Review
We review a trial court’s sanctions order for abuse of discretion.34 A trial court abuses its
discretion if it acts without reference to guiding rules and principles such that the ruling is arbitrary
or unreasonable.35 Although we view conflicting evidence favorably to the court’s decision,36 we
are not bound by a trial court’s fact findings or conclusions of law and must, instead, review the
entire record independently to determine whether the trial court abused its discretion.37 A decision
lacking factual support is arbitrary and unreasonable and must be set aside.38
B. Inherent Power to Sanction
Various rules and statutes imbue courts with authority to sanction attorneys for professional
lapses of one kind or another with or without bad faith.39 Courts also possess inherent powers that
aid the exercise of their jurisdiction, facilitate the administration of justice, and preserve the
independence and integrity of the judicial system.40 A court’s inherent authority includes the “power
to discipline an attorney’s behavior.”41
34
Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
35
Id.
36
In re Barber, 982 S.W.2d 364, 366 (Tex. 1998).
37
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006).
38
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
39
See supra n.2.
40
Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex. 1979).
41
See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997).
20
Inherent authority emanates “from the very fact that the court has been created and charged
by the constitution with certain duties and responsibilities.”42 Indeed, courts “‘are universally
acknowledged to be vested, by their very creation, with power to impose silence, respect, and
decorum, in their presence, and submission to their lawful mandates.’”43 Courts are accordingly
empowered to punish an attorney’s behavior even when the offensive conduct is not explicitly
prohibited by statute, rule, or other authority.44
That power is not boundless, however. The inherent authority to sanction is limited by due
process, so sanctions must be just and not excessive.45 Moreover, “[b]ecause inherent powers are
shielded from direct democratic controls,”46 and “[b]ecause of their very potency, inherent powers
must be exercised with restraint[,] discretion,”47 and “great caution.”48 To that end, invocation of
the court’s inherent power to sanction necessitates a finding of bad faith.49
With the understanding that inherent powers must be used sparingly, our appellate courts
have consistently held that a court’s inherent power to sanction “exists to the extent necessary to
42
Eichelberger, 582 S.W.2d at 398.
43
Chambers v. NASCO, Inc. 501 U.S. 32, 43 (1991) (quoting Anderson v. Dunn, 19 U.S. 204, 227 (1821)).
44
Bennett, 960 S.W.2d at 40.
45
Id.; TransAmerican Nat’l Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).
46
Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980).
47
Chambers, 501 U.S. at 44; accord Roadway Exp., 447 U.S. at 764.
48
Chambers, 501 U.S. at 43 (quoting Ex Parte Burr,6 L. Ed. 152 (1824)).
49
Roadway Exp., 447 U.S. at 767 (imposition of “any sanction under the court’s inherent authority” requires
a finding of bad-faith conduct); see Chambers, 501 U.S. at 49-50 (1991) (“[A] federal court is [not] forbidden to sanction
bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute
or the Rules. A court must, of course, exercise caution in invoking its inherent power and it must comply with mandates
of due process, both in determining that the requisite bad faith exists and in assessing fees.”).
21
deter, alleviate, and counteract bad faith abuse of the judicial process . . . .”50 Bad faith is not just
intentional conduct but intent to engage in conduct for an impermissible reason, willful
noncompliance, or willful ignorance of the facts.51 “Bad faith” includes “conscious doing of a
wrong for a dishonest, discriminatory, or malicious purpose.”52 Errors in judgment, lack of
diligence, unreasonableness, negligence, or even gross negligence—without more—do not equate
50
Houtex Ready Mix Concrete & Materials v. Eagle Const. & Envtl. Servs., L.P., 226 S.W.3d 514, 524 (Tex.
App.—Houston [1st Dist.] 2006, no pet.); accord, e.g., Darnell v. Broberg, 565 S.W.3d 450 (Tex. App.—El Paso 2018,
no pet.); Liles v. Contreras, 547 S.W.3d 280 (Tex. App.—San Antonio 2018, pet. denied); Guerra v. L&F Distribs., 521
S.W.3d 878, 890 (Tex. App.—San Antonio 2017, no pet.); Fast Invs., LLC v. Prosper Bank, No. 02-13-00026-CV, 2014
WL 888438 (Tex. App.—Fort Worth Mar. 6, 2014, no pet.) (mem. op.); McDonald v. State, 401 S.W.3d 360 (Tex.
App.—Amarillo 2013, pet. ref’d); Union Carbide Corp. v. Martin, 349 S.W.3d 137 (Tex. App.—Dallas 2011, no pet.);
Ezeoke v. Tracy, 349 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Dike v. Peltier Chevrolet, Inc., 343
S.W.3d 179 (Tex. App.—Texarkana 2011, no pet.); Wythe II Corp. v. Stone, 342 S.W.3d 96, 113 (Tex. App.—Beaumont
2011, pet. denied); Davis v. Rupe, 307 S.W.3d 528, 531 (Tex. App.—Dallas 2010, no. pet.); Finlan v. Peavy, 205 S.W.3d
647 (Tex. App.—Waco 2006, no pet.); Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 446-47 (Tex.
App.—Austin 2004, pet. denied); McWhorter v. Sheller, 993 S.W.2d 781 (Tex. App.—Houston [14th Dist.] 1999, pet.
denied); Keithly v. P.G.D., Inc., No. 08-99-00278-CV, 2000 WL 1681066 (Tex. App.—El Paso Nov. 9, 2000, no pet.)
(mem. op.); Williams v. Azko Nobel Chems. Inc., 999 S.W.2d 836, 843 (Tex. App.—Tyler 1999, no pet.); Onwuteaka
v. Gill, 908 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1995, no writ); Kutch v. Del Mar Coll., 831 S.W.2d 506,
510 (Tex. App.—Corpus Christi 1992, no writ); see also Clark v. Bres, 217 S.W.3d 501, 512 (Tex. App.—Houston [14th
Dist.] 2006, pets. denied) (“Even in the absence of an applicable rule or statute, courts have the authority to sanction
parties for bad faith abuses if it finds that to do so will aid in the exercise of its jurisdiction, in the administration of
justice, and the preservation of its independence and integrity.”).
Some courts have further articulated, as an additional requirement, that “the conduct complained of significantly
interfered with the court’s legitimate exercise of one of its traditional core functions.” Kennedy v. Kennedy, 125 S.W.3d
14, 19 (Tex. App.—Austin 2002, pet. denied) (party’s actions subjected her to contempt of court but not sanctions under
a statute or rule, or even under the court’s inherent power to sanction for abuse of the judicial process, which requires
evidence and findings of significant interference with core judicial functions (citing Kutch, 831 S.W.2d 506, 510 (Tex.
App.—Corpus Christi 1992, no writ), which articulates bad faith as a predicate to inherent-authority sanctions)). But
see In re J.V.G., No. 09-06-015CV, 2007 WL 2011019, at *5 (Tex. App.—Beaumont July 12, 2007, no pet.) (mem. op.)
(upholding sanctions because counsel’s pattern of conduct “significantly interfered” with core judicial functions and
stating “bad faith” is “one basis for imposing inherent authority sanctions” but “broader considerations are involved when
reviewing the propriety of sanctions imposed”).
51
Cf. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285 (Tex. 1998) (explaining in the surety
context that “‘bad faith’ means more than merely negligent or unreasonable conduct; it requires proof of an improper
motive or wilful ignorance of the facts”); Citizens Bridge Co. v. Guerra, 258 S.W.2d 64, 69-70 (Tex. 1953) (willful
ignorance is the equivalent of bad faith).
52
Pearson v. Stewart, 314 S.W.3d 242, 248 (Tex. App.—Fort Worth 2010, no pet.); Zuehl Land Dev., LLC v.
Zuehl Airport Flying Cmty. Owners Ass’n, Inc., 510 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.] 2015, no pet.);
Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied); Elkins v. Stotts-Brown, 103 S.W.3d
664, 669 (Tex. App.—Dallas 2003, no pet.).
22
to bad faith.53 Improper motive,54 not perfection,55 is the touchstone. Bad faith can be established
with direct or circumstantial evidence, but absent direct evidence, the record must reasonably give
rise to an inference of intent or willfulness.56
An illustrative case involving the use of inherent authority to sanction attorney misconduct
is In re Bennett, which involved an attorney’s plan to deliberately circumvent rules implementing
random assignment of cases in the district courts.57 The attorney sequentially filed seventeen
lawsuits with the same factual allegations and the same legal claims against the same defendants,
but with different plaintiff groups.58 Each case was randomly assigned, but plaintiffs’ counsel
instructed the clerk of the court not to prepare service of citation for the first sixteen filings.59 Mere
hours after securing assignment to a particular judge for the seventeenth lawsuit, plaintiffs’ counsel
amended the petition in that case to add approximately seven hundred plaintiffs.60 Soon after,
counsel attempted to nonsuit the sixteen previously filed lawsuits.61 The trial judge assigned to the
53
See Assoc. Indem., 964 S.W.2d at 285 (discussing bad faith in the surety context); Gomer v. Davis, 419
S.W.3d 470, 478 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Elkins, 203 S.W.3d at 664.
54
Zuehl, 510 S.W.3d at 54; Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 194 (Tex. App.—Texarkana 2011,
no pet.); Robson, 267 S.W.3d at 407.
55
See Dike, 343 S.W.3d at 191; cf. Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex. 1989) (good-faith
defense to a legal malpractice action is governed by an objective inquiry: “An attorney who makes a reasonable decision
in the handling of a case may not be held liable if the decision later proves to be imperfect.”).
56
Zuehl, 510 S.W.3d at 54; Dike, 343 S.W.3d at 194.
57
960 S.W.2d 35, 36-37 (Tex. 1997).
58
Id. at 36.
59
Id.
60
Id. at 36-37.
61
Id. at 37.
23
first-filed case sanctioned plaintiffs’ counsel for knowingly and intentionally violating rules
providing for random assignment.62 Plaintiffs’ counsel admittedly gamed the system to ensure
assignment to a particular court, but such activities were not expressly prohibited.63 We nevertheless
upheld the sanctions order.64 We considered counsel’s overall course of conduct as well as his
expressed intent and held that subversion of random assignment procedures is “an abuse of the
judicial process” that “if tolerated, breeds disrespect for and threatens the integrity of our judicial
system.”65 Bennett involved rules that did not specifically prohibit the attorney’s conduct, but the
attorney’s filings exhibited a pattern giving rise to an inference of improper motive, which he
admitted.
We have had few occasions to consider conduct sanctionable only under a court’s inherent
authority, and when we have done so, we have not explicitly articulated bad faith as a predicate
finding. But we have used equivalent language;66 we have not upheld a sanction where bad faith
conduct was lacking; and we have observed that the severity of the sanction imposed turns on the
62
Id.
63
Id.
64
Id. at 40.
65
Id.
66
See, e.g., Bennett, 960 S.W.2d at 40 (stating courts have inherent authority to sanction attorneys who “abuse
[] the judicial process” and citing Lawrence v. Kohl, 853 S.W.2d 697, 700 (Tex. App.—Houston [1st Dist.] 1993, no
writ), and Kutch v. Del Mar College, 831 S.W.2d 506, 509-10 (Tex. App.—Corpus Christi 1992, no writ), for the
proposition that “trial courts have the power to sanction parties for bad faith abuse of the judicial process not covered
by rule or statute” (emphasis added)); id. (noting the egregious conduct at issue there would “if tolerated, breed[]
disrespect for and threaten[] the integrity of our judicial system”); see also Abuse, OXFORD AMERICAN DICTIONARY &
THESAURUS (3d ed. 2010) (“use something to bad effect or for a bad purpose”); Abuse, WEBSTER’S SECOND NEW
UNIVERSITY DICTIONARY 69 (1984) (“to use wrongly or improperly”).
24
degree of bad faith.67 Today’s concurring opinion agrees that bad faith is a prerequisite to a
sanctions award, but only for certain sanctions, like attorney’s fees, and not other types of sanctions,
like requiring hours of legal-ethics education.68 The distinction the concurrence makes lacks clarity
and provides no guidance to trial courts.69 More significantly, it ignores decades of jurisprudence
that has ably guided Texas courts,70 is derived from a misreading of the Supreme Court’s opinion
67
See Altesse Healthcare Sols. v. Wilson, 540 S.W.3d 570, 575-76 (Tex. 2018) (“extreme sanctions” like
death-penalty sanctions require flagrant bad faith).
68
Post at 6-7.
69
In urging bad faith is required only for some sanctions and not others, the concurrence cites three cases as
allowing courts to invoke inherent authority to impose sanctions based only on “significant interference” with core
judicial functions. Post at 8-9. Two of those cases do not so hold, see infra n. 70, but more problematically, the
concurrence never says whether that is the standard and, if so, how that standard is satisfied on this record. Indeed, the
concurrence does not identify any standard as guiding invocation of a court’s inherent authority to sanction parties and
counsel. The concurrence studiously avoids the issue, but as the highest civil court in the state, we have a duty to
establish standards and settle the law, not unsettle the law and leave the applicable standards in doubt.
70
See supra n.50. With the weight of authority decidedly in opposition, the concurrence’s contrary view rests
on a single unpublished case with flawed reasoning that has not been followed by any other court, including its own.
Post at 9 (citing In re J.V.G., No. 09-06-015CV, 2007 WL 2011019 (Tex. App.—Beaumont July 12, 2007, no pet.)
(mem. op.)). But see Wythe II Corp. v. Stone, 342 S.W.3d 96, 113 (Tex. App.—Beaumont 2011, pet. denied) (observing
inherent authority to sanction exists “to the extent necessary to deter, alleviate, and counteract bad faith abuse of the
judicial process”). The opinion in J.V.G. states that bad faith is but one basis for imposing sanctions and holds sanctions
were proper there for a pattern of conduct that “significantly interfered with” a core judicial function. Id. at *5-8. But
all of the cases J.V.G. relied on treated “significant interference” as a required component of a bad-faith finding, not as
an alternative standard. See In re K.A.R., 171 S.W.3d 705, 712 n.3, 714-15 (Tex. App.—Houston [14th Dist.] 2005, no
pet.) (observing bad-faith conduct findings were unchallenged and conduct significantly interfered with core judicial
functions); Kings Park Apts., Ltd. v. Nat’l Union Fire Ins. Co., 101 S.W.3d 525, 541 (Tex. App.—Houston [1st Dist.]
2003, pet. denied) (evidence that a party instructed a paralegal to steal documents from the judge’s chambers authorized
sanctions under the trial court’s inherent authority); Roberts v. Rose, 37 S.W.3d 31 (Tex. App.—San Antonio 2000, no
pet.) (“Roberts’s deliberate acts of bad faith throughout his representation” were evidence of bad faith that supported
the imposition of sanctions against him).
The concurrence also misstates the holdings in Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.—Austin
2002, no pet.), and McWhorter v. Sheller, 993 S.W.2d 781, 789 (Tex. App.—Houston [14th Dist.] 1999, pet. denied),
as rejecting bad faith as the guiding standard. But both Kennedy and McWhorter hold only that sanctions not authorized
by rule or statute cannot stand without a finding and evidence of significant interference with core judicial functions,
an issue raised here that we do not reach. Notably, both courts relied on Kutch v. Del Mar College, which articulates
the standard as requiring both bad faith and significant interference. 831 S.W.2d 506, 509-10 (Tex. App.—Corpus
Christi 1992, no writ) (“We hold Texas courts have inherent power to sanction for bad faith conduct during litigation.”).
More to the point, the Austin and Houston courts of appeals have long articulated the standard for inherent-authority
sanctions as requiring bad faith. See supra n.50.
25
in Chambers v. NASCO, Inc.,71 and inverts the analysis by looking to the particular sanction imposed
to determine whether conduct is sanctionable in the first instance.72 But whether counsel should
71
The concurrence misconstrues Chambers v. NASCO, Inc., 501 U.S. 32 (1991), as requiring bad faith to
support inherent-authority sanctions only when the court chooses attorney’s fees as the particular sanction. Post at 6.
Of course, it is true the Supreme Court required bad faith to support an award of attorney’s fees as a sanction, because
bad faith is necessary whenever a court invokes inherent authority to impose any sanction. Roadway Exp., Inc. v. Piper,
447 U.S. 752, 767 (1980). But Chambers actually involves the analytically obverse issue—whether attorney’s fees could
ever be imposed as a sanction in light of the American Rule’s restriction on fee shifting. Chambers, 501 U.S. at 45, 51;
see Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (allowing trial courts to award attorney’s fees
“under the guise of ‘inherent authority’ would constitute a judicial end-run around the statutory fee-shifting scheme”).
The Court held attorney’s fees could indeed be awarded as a sanction under a court’s inherent authority, id. at 51, 57,
and more recently has clarified that such an award is limited to only those fees causally related to the bad faith conduct.
Goodyear Tire & Rubber Co. v. Heager, 137 S. Ct. 1178, 1184 (2017) (a federal court’s inherent authority to award
attorney’s fees as a sanction for bad-faith conduct is limited to the fees the innocent party incurred solely because of the
misconduct). So, while trial courts do not have inherent authority to award attorney’s fees when not provided by contract
or statute, courts have inherent authority to impose sanctions for bad-faith conduct and those sanctions can include
attorney’s fees incurred because of the misconduct.
The Supreme Court cases the concurrence cites are not inconsistent with our holding today. Post at 6-7. Those
cases affirm that courts possess inherent authority to enforce their lawful mandates by contempt, manage their dockets,
and dismiss with prejudice cases involving deliberate and undue delay. See Young v. U.S. ex rel Vuitton et Fils S.A., 481
U.S. 787, 796 (1987) (criminal contempt power); Illinois v. Allen, 397 U.S. 337, 343 (1970) (criminal contempt power);
Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962) (docket management and dismissal with prejudice). Contempt
requires willful disobedience—engaging in specifically and definitely prohibited conduct. See Lee v. State, 799 S.W.2d
750, 753 (Tex. Crim. App. 1990) (“Because it is the disobedience of the inherent authority of the court that is at issue,
it follows that a court, before exercising its contempt powers, must have provided the person it seeks to punish with
specific and definite notice of those acts which he may or may not perform without the risk of being held in contempt.”);
accord, e.g., Allen, 397 U.S. at 353 (holding a defendant can be excluded from trial for stubbornly defiant, contumacious,
and disruptive behavior after being warned by the judge to cease and desist). Here, the trial court neither exercised its
contempt power nor could on this record. What is more, this case involves inherent authority to sanction, not the court’s
inherent authority to manage a docket. As to the former, Link, which involved dismissal with prejudice as a sanction
for deliberate dilatory conduct, accords with our analysis. See Link, 370 U.S. at 630-32 (“[I]t could reasonably be
inferred from [petitioner’s] absence [at a court-ordered hearing and] from the drawn-out history of the litigation that
petitioner had been deliberately proceeding in dilatory fashion.”). The concurrence’s citation to Anderson v. Dunn, 19
U.S. 204, 227 (1821), is confounding as that case involves inherent powers of Congress to compel attendance at
contempt proceedings, which is not even close to being the same issue.
72
Sanctioning counsel involves a two-step determination: “[1] whether the attorney has abused the judicial
process, and, [2] if so, what sanction would be appropriate.” In re Bennett, 960 S.W.2d 35, 39 (Tex. 1997) (quoting
Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 396 (1990))). The concurrence’s analysis puts the proverbial cart before
the horse, collapsing the second inquiry—what sanction is appropriate—onto the first—whether conduct is sanctionable
at all. This root flaw is most readily apparent in the discussion regarding sanctions for spoliation. Post at 5. Trial courts
have some discretion to fashion an appropriate remedy for discovery abuse, including spoliation, but whether spoliation
occurred at all depends on the existence of a duty to preserve evidence, which is a question of law. Brookshire Bros.,
Ltd. v. Aldridge, 428 S.W.3d 9, 14, 20 (Tex. 2014) (“[A] spoliation analysis involves a two-step judicial process: (1) the
trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the
court must assess an appropriate remedy . . . Upon a finding of spoliation, the trial court has broad discretion to impose
a remedy that, as with any discovery sanction, must be proportionate[.]”); Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d
718, 722 (Tex. 2003) (declining to consider whether a particular sanction for spoliation was justified because the
26
receive any sanction at all is a serious matter that impugns counsel’s professional judgment and
ethical standing. It must be treated as such.
Requiring a predicate finding of bad faith before imposing sanctions under the amorphous
and uniquely powerful inherent authority to sanction does not “handcuff[]” courts as the concurrence
says.73 Courts have many tools at their disposal under rules and statutes that are relatively specific
in defining the duties imposed and the conduct proscribed, many of which do not require bad faith
or its equivalent.74 But to wield inherent powers of intrinsic potency and unconstrained breadth
necessitates the restraint and caution the bad-faith predicate encapsulates.75
C. Brewer’s Conduct
In imposing sanctions on Brewer, the trial court took issue with certain aspects of the
telephone survey’s contents and execution and found Brewer’s courtroom demeanor disconcerting.
Though the survey Brewer commissioned is not without its faults, the evidence shows he undertook
reasonable efforts to secure a third-party industry professional to create a relatively balanced public
defendant had no duty to preserve the evidence in question, so no sanction was warranted in the first place). As to
remedies, “spoliation is essentially a particularized form of discovery abuse” that is sanctionable in accordance with Civil
Procedure Rule 215. Brookshire Bros., Ltd. v. Aldridge, 428 S.W.3d at 18, 21; see TEX. R. CIV. P. 215.2-.3 (sanctions
for discovery abuse include attorney’s fees and an order designating “facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party obtaining the order”).
73
Post at 2-3.
74
See supra n.2 & infra n.76.
75
By merely rubber stamping amorphous trial court “findings” that are neither facts nor conclusions of law, the
concurrence proves the point. See post at 9-10. Worse, the concurrence misapprehends the applicable standard of review
and fails to identify any guiding principles governing the trial court’s discretion. “In reviewing sanctions orders, the
appellate courts are not bound by a trial court’s findings of fact and conclusions of law; rather, appellate courts must
independently review the entire record to determine whether the trial court abused its discretion.” Am. Flood Research,
Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); see Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (a court
abuses its discretion if it acts without reference to guiding rules and principles). An opinion, no mater how genuinely
held, must nonetheless be supported by evidence and must adhere to guiding principles. The concurrence identifies
neither. If the concurrence is embracing “significant interference with a core judicial function” as an additional or
alternative standard, it is impossible to discern.
27
opinion survey for random administration. The record bears no direct, or even circumstantial,
evidence of bad faith.
Brewer did not disobey any court order, knowingly or otherwise. The trial court did not find
that Brewer violated any disciplinary rule, nor is there evidence Brewer knowingly violated any
disciplinary rule.76 Neither is there evidence that Brewer knew, or even had reason to believe, that
a randomly generated database of roughly seven percent of the county population would result in
any touch points connected to this case, let alone many. At worst, Brewer was lax in failing to
ensure the survey was not totally random by securing the exclusion of case-related individuals from
the survey database.77 Leaving the matter entirely in a third party’s hands could arguably constitute
gross negligence, as the trial court found, but it does not give rise to a reasonable inference of bad
faith. Reviewing the totality of the evidence leads us to conclude the trial court’s concerns about
the survey were reasonable, but the court’s finding of bad faith is factually unsupported.
76
The trial court’s referral of the matter to the Commission for Lawyer Discipline is one method available to
courts to help ensure ethical lapses are disciplined, when warranted, according to the processes, procedures, and
standards of review applicable to all attorneys. If a judge has knowledge of unethical conduct, the judge can, and indeed
must, refer the matter for disciplinary proceedings. See TEX. CODE JUD. CONDUCT, CANON 3(d)(2); TEX. DISCIPLINARY
RULES OF PROF’L CONDUCT R. 8.03(a); cf. CODE OF CONDUCT FOR U.S. JUDGES cmt. 3(B)(6); Comm’n for Lawyer
Discipline v. Cantu, 587 S.W.3d 779, 784 (Tex. 2019) (“The obligation to report attorney misconduct [to the State Bar]
applied doubly to Judge Isgur, who is not only a judge but a licensed Texas attorney.”); Remington Arms Co., Inc. v.
Caldwell, 850 S.W.2d 167, 172 (Tex. 1993) (“[T]he court itself is obligated to refer a lawyer to appropriate authorities
to answer for unprofessional conduct of which the judge is aware.”).
77
Ensuring removal of individuals directly connected to a case should be relatively straightforward, but
scrubbing a survey database of every person related to or affiliated with someone directly connected to a lawsuit may
be difficult, if not infeasible, particularly when businesses, governmental entities, and other organizations are involved.
Many names and surnames are common; relatives do not always share the same surname; relatives do not necessarily
share the same address; and many people can be reached at more than one telephone number.
28
1. Public Opinion Surveys
Pretrial surveys are a useful litigation tool “to conduct research, get reliable results (both
quantitative and qualitative), and create a winning trial strategy,” while also “saving the [law] firm
time, money, and resources in trial preparation.”78 In one form or another, surveys of the community
from which the jury will be summoned have been conducted for almost eighty years.79 Such surveys
have even been conducted without rebuke in high-profile cases such as the Boston Bomber case,80
the Oklahoma City bombing case,81 the Ted Bundy trial,82 and the Harrisburg-Seven trial.83
Attorneys frequently rely on community surveys in complex commercial litigation and obscenity
prosecutions,84 and many law review articles, practice treatises, and other reliable secondary sources
cite “public opinion surveys,” “community surveys,” and “opinion polls” as valid methods of
78
Richard H. Middleton, Jr., Competitive Pretrial Intelligence: Can Mock Trials and Focus Groups Be
Advanced?, 2002 ATLA-CLE 1361 (July 2002) (also noting that surveys were empirically tested and found to be more
reliable and cost-effective than mock trials and focus groups in pretrial research and preparation).
79
Cases from as early as the 1940s discuss the use of pretrial community surveys or public opinion research
to support litigants’ claims. See, e.g., Oneida, Ltd., v. Nat’l Silver Co., 25 N.Y.S.2d 271, 286 (N.Y. Sup. Ct. 1940)
(housewives surveyed using the litigants’ silverware patterns to determine whether one company had appropriated the
other’s design).
80
Motion for Change of Venue at 1, United States v. Tsarnaev, No-13-10200-GAO, 2014 WL 4823882, at *1
(D. Mass. Sept. 24, 2014).
81
See Christina Studebaker & Steven Penrod, Pretrial Publicity, the Media, the Law, and Common Sense, 3
PSYCHOL. PUB. POL’Y & L. 428, 450 (1997) (citing the trials of McVeigh and Nichols for employing “the use of a media
analysis and public opinion surveys quite well”).
82
Bundy v. Dugger, 850 F.2d 1402, 1425 (11th Cir. 1988) (refusing to presume prejudice where a pretrial public
opinion poll was conducted to determine community familiarity with serial killer Ted Bundy and opinions about his
guilt).
83
See Rachel Hartje, Comment, A Jury of Your Peers?: How Jury Consulting May Actually Help Trial Lawyers
Resolve Constitutional Limitations Imposed on the Selection of Juries, 41 CAL. W. L. REV. 479, 491-92 (2005).
84
See Gabriel M. Gelb & Betsy D. Gelb, Internet Surveys for Trademark Litigation: Ready or Not, Here They
Come, 97 TRADEMARK REP. 1073, 1086–87 (2007); see also Schering Corp. v. Pfizer Inc., 189 F.3d 218, 234 (2d Cir.
1999), as amended on reh’g (Sept. 29, 1999) (misrepresentation case dealing with pharmaceutical sales); Com. v.
Trainor, 374 N.E.2d 1216, 1220 (Mass. 1978) (obscenity prosecution).
29
determining the community’s attitude toward the parties, witnesses, or issues in a particular case.85
Examples of pretrial surveys are found in case law from almost every state and in the federal judicial
system. Such surveys are not inherently improper.
United States v. Collins is a case in point.86 Collins was an appeal from a federal judge’s
bribery conviction. Before the bribery case went to trial, the prosecutors commissioned a telephone
survey of 457 respondents from within the district, asking questions related to the impending trial
and specifically identifying the defendants by name.87 Notably, “after hearing a recitation of the
prosecution’s version of the evidence against the [judge and a co-defendant], those polled were
asked whether they thought the defendants were ‘definitely guilty, probably guilty, probably not
guilty, definitely not guilty or do you have no opinion in this case.’”88 A majority of the respondents
answered that the defendants were definitely or probably guilty.89
When the defendants learned about the survey, they reported it to the district court.90 The
court ordered the prosecution to turn over all polling material and, on review, determined the polling
issue was a “red herring” and “nothing had been done to compromise the integrity of jury
85
See, e.g., § 14:10: Jury Selection Based on Juror Profiles and Investigations, JURY SELECTION: THE LAW,
ART, AND SCIENCE OF SELECTING A JURY, Thompson Reuters (2018); Franklin Strier & Donna Shestowsky, Profiling
the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice and What, If Anything, to Do About
It, 1999 WIS. L. REV. 441, 444 (1999).
86
972 F.2d 1385 (5th Cir. 1992).
87
Id. at 1398 & n.18.
88
Id. at 1398 (footnote omitted).
89
Id.
90
Id.
30
selection.”91 The court declined to turn over the polling material to the defendants until after trial
and later denied their motion for a new trial. The court held the poll had not undermined the
integrity of the jury, noting none of the jurors who served on the jury had been contacted and the
matter had been adequately covered in voir dire questioning.92
On appeal, the defendants challenged the survey under various theories. The Fifth Circuit
held the survey did not violate the defendants’ due process rights in any respect.93 The appellate
court agreed with the district court that complaints about the poll were a red herring.94 The court
concluded that pretrial message testing did not give the government an unfair advantage at trial and
no fundamental unfairness ensued from the district court’s decision to withhold disclosing the
polling materials to the defendants until after the trial.95 The court affirmed the convictions, holding,
in relevant part, that the government’s commencement of a telephone survey did not violate the
defendants’ due process rights.96
As Collins demonstrates, pretrial telephone surveys in the district from which the jury pool
is drawn are not necessarily unfair or improper. But when zealously pursued without fidelity to rules
of professional ethics, community research activities—regardless of which side employs
them—have the potential to taint the jury pool and threaten the functioning of the judicial system.
91
Id.
92
Id.
93
Id. at 1398-99.
94
Id. at 1398.
95
Id. at 1399.
96
Id. at 1415.
31
Concerns about undisclosed and unsupervised survey activities in the course of pending litigation
are not unfounded, especially when a trial date is impending. Indeed, any type of community
outreach—whether it be surveys, overt media engagement, or web-based activities—has the
potential to impact the jury-selection process. A campaign of disinformation, in whatever form,
undermines the sanctity of the judicial process and is inimical to the constitutional promise of a fair
and impartial jury trial. It cannot be tolerated.
Lack of specific guidance on the form, content, and timing of community research in
connection with pending litigation suggests such endeavors should be undertaken with great caution
and a healthy dose of trepidation. When attitudinal research is conducted in the community from
which the venire will be empaneled, they can present fertile ground for mischief and misadventure
if adequate safeguards are lacking. A handful of federal courts in Texas have standing orders
acknowledging that litigation focus testing is routinely employed but can impact the jury-selection
process.97 The standing orders do not prohibit use of surveys as a litigation tool; rather, they
regulate the practice when it occurs in the county of suit.98 Collectively, the orders (1) require
pretrial notice of intent to conduct such a study; (2) require disclosure (to varying degrees) of the
methodology; (3) temporally limit proximity to trial; and (4) require in camera submission of each
participant’s name and address in advance of the pre-trial conference. No such order was in place
here.
97
The Honorable Ron Clark, E.D.T.X. Standing Order RC-47 (Aug. 11, 2010); The Honorable Rodney Gilstrap
and the Honorable Roy Payne, E.D.T.X. Standing Order Regarding Mock Juries (Feb. 3, 2012); The Honorable Robert
Schroeder, E.D.T.X. Standing Order Regarding Mock Juries (Jan. 15, 2016); Kacy Miller, A Primer on EDTX Jury
Research Rules, COURTROOMLOGIC CONSULTING (Mar. 2, 2017),
http://courtroomlogic.com/2017/03/02/edtx-jury-research-rules/.
98
See supra n.97.
32
Implementation of Brewer’s survey in Lubbock County was not perforce impermissible, but
it brought the survey’s imperfections into sharper focus. Nevertheless, considering the survey
process as a whole, we cannot agree the survey’s ostensible shortcomings create a reasonable
inference of bad faith. Evidence that the survey database and survey respondents were randomly
selected—without any input by Brewer or his staff—was unrefuted. And the record does not
support the allegation that anyone in particular was “targeted.” Nor is there evidence that the size
of the survey database suggested anything untoward. Genuine inaccuracies in the formulation of
litigation statements tested in Brewer’s quite lengthy survey are debatable, but any such defects were
isolated and few and far between. The survey reflects reasonable efforts to achieve a reasonable
degree of balance. Not perfect, but reasonable.99
The survey efforts bear other markers of good faith:
(1) Qualified Third-Party Experts.100 Brewer engaged an independent, internationally
recognized research organization to design and implement the survey.101 As a member of the
American Association for Public Opinion Research, Public Opinion Strategies was required to
follow industry standards that include prohibiting push polls. Brewer and his firm were privy to the
99
The parties present a false dichotomy between impermissible push polls and legitimate survey research. As
the testimony of the movants’ expert affirms, a survey could have aspects of both—neither all bad nor all good.
100
Cf. Tex. Aeronautics Comm’n v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex. 1970) (qualifications of the
researcher important in determining reliability of survey); Baumholser v. Amax Coal Co., 630 F.2d 550, 552-53 (7th Cir.
1980) (a survey conducted by “qualified experts” in market research and public opinion helps provide “a substantial
showing of reliability”); Sanchez v. Cegavske, 214 F. Supp. 3d 961, 970 (D. Nev. 2016) (“Generally, experts who design,
conduct, and analyze a survey should have extensive training in the social sciences which includes methods, sampling,
and statistics work.”); G. v. Hawaii, Dept. of Human Servs., 703 F. Supp. 2d 1112, 1125 (D. Haw. 2010) (“[T]he persons
conducting the survey must be experts[.]”) (quoting Pitts. Press Club v. U.S, 579 F.2d 751, 758 (3d Cir. 1978)).
101
Public Opinion Strategies has been an industry-recognized research firm for more than twenty years, has
conducted over 14,000 projects for scientific and political clients, and is headed by an individual with leadership
positions in ethics organizations governing public opinion research internationally.
33
survey questions and had an opportunity to provide input, but were screened off from critical aspects
by Public Opinion Strategies’ use of third-party vendors to create the survey database and conduct
the survey. This is consistent with industry practice and case law on pretrial surveying.102 Barring
red flags or other indicia of untrustworthiness—and the record here bears no evidence of either—one
can reasonably presume qualified third-party research professionals will perform their services in
accordance with industry standards.
(2) Proper Relevant Universe and Randomly Drawn Representative Sample.103 In
professional surveying research, the “relevant universe” refers to the universe of people most
relevant to the issue being studied.104 Defining the universe is a methodological choice designed to
ensure a statistically significant result. Ordinarily, a prudent litigant might avoid the county of suit
to avoid even the appearance of impropriety. But attitudinal studies conducted in other jurisdictions
might not produce an appropriately representative sample or a statistically valid result.
Carter and Brewer reasonably explained why Lubbock County was chosen for the pretrial
survey. The explosion, the moratoriums, the plaintiffs’ own survey efforts, and enhanced media
102
Tunnell v. Ford Motor Co., 330 F. Supp. 2d 707, 719-20 (W.D. Va. 2004) (blind surveys are preferred as
a method for avoiding bias where the interviewers and participants are “blind to the purpose and sponsorship of the
survey” and “attorneys are excluded from any part in conducting interviews and tabulating results”); Pitts. Press Club,
579 F.2d at 758 (surveys should be conducted “independently of the attorneys” and “the interviewers,” “[survey]
designers,” and “[survey] Respondents” should all be “unaware of the purposes of the survey or litigation”).
103
County of Kenosha v. C&S Mgmt., Inc., 588 N.W.2d 236, 253 (Wis. 1999) (examining relevant population);
Nat’l Football League Props., Inc. v. N.J. Giants, Inc., 637 F. Supp. 507, 513-14 (D.N.J. 1986) (analysis of survey began
with universe selected for the survey conducted).
104
For example, in trademark litigation, the relevant universe would be people in the market who would
purchase a product and be exposed to and confused by the competing product. See, e.g., Nat’l Football League Props.,
637 F. Supp. at 514 (survey properly conducted in a community of concentrated support for the Giants). In change of
venue cases, the relevant universe would be the community the party believes has been tainted or prejudiced in some
way. See, e.g., U.S. v. Rodriguez, 581 F.3d 775, 785 (8th Cir. 2009) (discussing several cases where public opinion polls
were introduced in change-of-venue motions based on community prejudice).
34
coverage took place in Lubbock County. Carter also explained that other jurisdictions may not be
as prone to significant lightning events as Lubbock County. Brewer and Carter provided specific
reasons why Lubbock County residents were uniquely situated to properly evaluate the impact of
media coverage on public opinion and test themes and messages that would resonate with the
relevant community. The record bears no evidence these reasons were false or otherwise pretextual.
As to sample size, no one has asserted that completing 300 surveys or assembling a survey
database of 20,000 was abnormal or improper.105 A representative sample is required to ensure
research results are not skewed, and the results here show a statistically acceptable margin of error.
While significantly overdrawing from a sample could suggest improper motives for conducting a
survey, there is no evidence that occurred here.
(3) Adherence To Generally Accepted Standards. The record lacks evidence that the sample,
questionnaire, and interviews were designed without adhering to generally accepted standards of
objective procedure and statistics in the research field. Brewer’s firm was not entirely hands off in
formulating the survey questions, but Carter’s input was limited and Brewer’s was minimal, and
neither participated in the survey administration process.106 The trial court observed that Brewer was
the customer who told the retailer what to do. But by engaging a third-party professional to design
and implement the survey, the retailer was subject to and constrained by professional guidelines and
ethical standards. The American Association for Public Opinion Research, the European Society
105
See U.S. v. Collins, 972 F.2d 1385 (5th Cir. 1992) (finding no adverse jury impact arising from a telephone
survey of 457 local respondents in connection with a high-profile criminal trial).
106
See Pitts. Press Club, 579 F.2d at 758 (“[T]he survey must be conducted independently of the attorneys
involved in the litigation.”); G. v. Hawaii, Dept. of Human Servs., 703 F. Supp. 2d 1112, 1125 (D. Haw. 2010) (same);
Sanchez, 214 F. Supp. 3d at 970 (articulating the reasons behind preference for attorneys and firms to remain separate
from the survey administration process).
35
for Opinion Marketing and Research, other organizations, and watchdog groups regularly publish
these guidelines.107 Absent evidence to the contrary, reputable researchers, like Public Opinion
Strategies, can reasonably be expected to adhere to these guidelines to maintain membership in
professional associations and to maintain credibility.
(4) Randomized Favorable and Unfavorable Message-Testing Questions. In several
important respects, Brewer’s survey resembles the survey in United States v. Collins—similarities
included survey size, situs, and message testing based on the surveyor’s point of view. But where
those surveys differ is even more notable. Unlike the Collins survey, Brewer’s survey included a
relatively balanced array of statements that favored and undermined his client’s litigation position.
The survey did not endorse either set of statements or represent them to be facts; it merely asked
respondents if the statements—whether favorable or unfavorable—were convincing. And most of
the message-testing questions were rotated to avoid order bias. Rotating questions is common in
professional public opinion research as a way to ensure unbiased results. This strategic choice
indicates an intent to solicit the respondent’s opinions rather than shape them.
On the other hand, (1) not all the adverse statements against other potentially responsible
parties were rotated, (2) some of the negative statements about Brewer’s clients were not as strongly
negative as negative statements about other parties and non-parties, (3) emphasis was used only in
a single question and that question was favorable to Titeflex, and (4) not all negative messages were
counterbalanced. For example, in various forms or fashions, the survey made reference to improper
installation of the piping at least thirteen times but included only one question suggesting CSST
107
See, e.g., AAPOR Code of Ethics, AMERICAN ASSOCIATION FOR PUBLIC OPINION RESEARCH (revised Nov.
2015), https://www.aapor.org/Standards-Ethics/AAPOR-Code-of-Ethics.aspx.
36
piping could fail even if properly installed. But in determining whether the survey was designed in
bad faith, it should be viewed holistically, not by isolating its parts. And, here, the whole is greater
than the sum of its parts.
On the record before the court, the trial court’s finding that Brewer designed and
implemented the survey in bad faith is unsupported. Even if some of the survey questions were
individually problematic, bad faith cannot be inferred merely from error;108 otherwise, it would cease
to function as a constraint on sanction power.109 Nor can conscious wrongdoing be inferred merely
from the fact that a message-testing survey was conducted proximate to trial without voluntary
disclosure when, unlike In re Bennett, no governing authority expressly or implicitly regulated those
aspects of the survey efforts.110 Improper motive might be reasonably inferred if the record bore
even slight evidence that SSI’s contacts with case-related individuals could not have occurred
randomly; or if Brewer engaged in a pattern or practice of similar conduct; or if the background
materials Carter provided to the survey company were so one-sided or unbalanced as to taint the
independence of the survey process; or if there were proof demonstrating pervasive falsity, rather
108
McWhorter v. Sheller, 993 S.W.2d 781, 789 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (reversing
sanctions imposed on attorney who taped telephone conversation with the court and opposing counsel, holding conduct
showed “at best, some degree of inexperience and negligence [but not] an intentional act made in bad faith”).
109
Kutch v. Del Mar Coll., 831 S.W.2d 506, 510 (Tex. App.—Corpus Christi 1992, no writ) (“The amorphous
nature of this power, and its potency, demands sparing use.”).
110
Collins, 972 F.2d at 1400 n.27 (government-commissioned community attitudes survey was not subject to
mandatory Brady disclosure because neither the poll nor its results were “evidence”); Primrose Operating Co., Inc. v.
Jones, 102 S.W.3d 188, 192 (Tex. App.—Amarillo 2003, pet. denied) (mock trial was conducted four days before case
was called for trial).
37
than incidental errors and statements based on disputed evidence. But inference stacked only on
other inferences is not sufficient to support a finding of bad faith.111
2. Courtroom Demeanor
The trial court’s letter ruling negatively references Brewer’s behavior at the sanctions
hearing in the following respects: (1) his “nonchalant and uncaring” demeanor, (2) “repeatedly
evasive” answers to questions, which resulted in the court “sustain[ing] multiple objections for
non-responsiveness,” and (3) his intransigence in defending himself on the basis that he acted
reasonably in hiring a third-party vendor to conduct a blind study. From this, the respondents infer
the trial court sanctioned Brewer not only because of the survey but also based on his courtroom
conduct, and they suggest the sanctions order can be upheld on that basis alone. Even if the former
is correct, the latter is not.
Trial courts are empowered to command respect and decorum in courtroom proceedings and
may exercise that authority by sanctioning members of the bar who are pugnacious and
indecorous.112 Attorneys are expected to comport themselves respectfully and professionally in their
interactions with the court, opposing counsel, the parties, and witnesses. Failure to do so can disrupt
proceedings, impair the efficient administration of justice, and impede the exercise of a trial court’s
core functions.113 But the record here does not reflect that Brewer’s behavior interfered with the
111
See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003).
112
See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).
113
See Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Cr. App. 1990) (core judicial functions include
hearing evidence, deciding issues of law or fact, and rendering final judgments); accord McWhorter v. Sheller, 993
S.W.2d 781, 788-89 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
38
administration of justice, detracted from the trial court’s dignity and integrity, or even prolonged the
hearing to any measurable degree.
Over the course of an entire day of questioning, the trial court sustained only four objections
to Brewer’s testimony on the basis of nonresponsiveness. In response to a fifth objection, the court
instructed him to listen and answer the question asked. And at a break, the court asked Brewer’s
counsel to “please visit with [his] client about answering the question that’s asked.” After the
court’s mild rebuke, Brewer toed the line, and the court sustained no further responsiveness
objections to his testimony.
Failure to appreciate the gravity of the matter, by displaying a “nonchalant and uncaring”
demeanor, might bear on the type of sanction necessary to deter, punish, or secure compliance. But
the record does not reflect that Brewer engaged in the type of contumacious, insolent, or
disrespectful behavior that rises to the level of sanctionable conduct in its own right.
Making groundless arguments in bad faith or for an improper purpose might warrant
sanctions, but arguments that are merely “unpersuasive” do not. Brewer’s defensive theories were
not so meritless that they could properly be characterized as “bad faith, unprofessional and
unethical.”
In sum, whether viewed separately or cumulatively, we hold that the sanctions order is not
sustainable based solely on Brewer’s attitude or courtroom behavior.
39
III. Conclusion
The survey Brewer commissioned was not a model of perfection, and its execution was not
flawless. Nearly everyone agrees, including Brewer, that he should have ensured the survey
database excluded witnesses, parties, and governmental officials directly connected with the
litigation. But these errors do not constitute bad faith when the survey and the circumstances of its
undertaking are viewed in totality. Brewer’s dismissive attitude and intermittent obstinance at the
sanctions hearing undoubtedly taxed the trial court’s patience and was relevant to what sanctions
should be imposed but did not itself justify the imposition of sanctions. We therefore reverse the
court of appeals’ judgment and vacate the sanctions order.
________________________________
Eva M. Guzman
Justice
OPINION DELIVERED: April 24, 2020
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