Should CELIOUS =
BARNER, III=20
fail to provide the above discovery as ORDERED by this court on =
the date=20
and at the time specified, the pleadings of CELIOUS BARNER III =
will be=20
stricken and judgment will be granted in favor of JUANITA J. =
BARNER,=20
together with all attorney=E2=80=99s fees for which let execution=20
issue.
=
Relator=20
petitioned for writ of mandamus, asserting that the trial court =
abused its=20
discretion because it is impossible for him to comply with an =
order that=20
requires performance in the past. The real party in interest =
argues that=20
the motion to compel was initially granted by an associate judge =
at a=20
hearing on May 11, 2007, and entered onto the court=E2=80=99s =
docket sheet. The=20
real party in interest alleges that the signing of the order after =
its=20
entry on the docket sheet was a purely ministerial act and that =
the=20
operative date of the order was May 11, 2007.
Standard of =
Review
=
Mandamus=20
will issue only to correct a clear abuse of discretion or the =
violation of=20
a duty imposed by law only where there is no adequate remedy by =
appeal.=20
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). The writ =
of=20
mandamus will not lie to correct merely an erroneous or voidable =
order,=20
but will lie to correct one which the trial court has no power to =
render.=20
U.S. Fire Ins. Co. v. Millard, 838 S.W.2d 935, 938 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1992, orig. proceeding); =
Urbish v. 127th=20
Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex.1986). If the =
trial=20
court=E2=80=99s order was one within its discretionary power, the =
relator must=20
show that it is a clear abuse of discretion. Id. In =
general, as=20
long as the court has jurisdiction of the parties and the subject =
matter=20
and does not act outside its capacity as a court, the order is not =
void.=20
See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. =
2003). Errors other =
than lack of=20
jurisdiction, such as =E2=80=9Ca court=E2=80=99s action contrary =
to a statute or statutory=20
equivalent,=E2=80=9D merely render the order voidable so that it =
may be corrected=20
through the ordinary appellate process or other proper =
proceedings.=20
Id.
=
For=20
an order to be effective, it must be entered of record in writing =
or in=20
open court, transcribed by the court reporter. In re Bill Heard =
Chevrolet, 209 S.W.3d 311, 314=E2=80=9315 (Tex. =
App.=E2=80=94Houston [1st Dist.] 2006,=20
orig. proceeding). Docket-sheet entries form no part of the =
court=E2=80=99s=20
record, nor are they a substitute for that record. Id.=20
Discussion
=
The=20
relator asserts that the order in question is void for =
impossibility of=20
performance. Because the court has subject-matter jurisdiction and =
jurisdiction over the parties, the order is not void. See =
Reiss,=20
118 S.W.3d at 443. Therefore, we will grant mandamus in this case =
only if=20
the court=E2=80=99s order was a clear abuse of =
discretion.
=
The=20
real party in interest asserts that it was not a clear abuse of =
discretion=20
because the order was effective on May 11,2007, when the associate =
judge=20
orally rendered his decision and an an notation was made on the =
docket=20
sheet. The=20
docket-sheet entry from May 11, 2007 is no substitute for the =
court=E2=80=99s=20
record. See Bill Heard Chevrolet, 209 S.W.3d at =
314=E2=80=9315. The appendix =
before us does=20
not show that the order was made on May 11. We have no =
reporter=E2=80=99s record=20
or written order that shows an operative date of May 11.=20
=
Instead,=20
the trial court ordered sanctions contingent upon =
relator=E2=80=99s failure to=20
produce certain forms of discovery =E2=80=9Cas ORDERED by this =
court on the date=20
and at the time specified,=E2=80=9D when such date and time =
occurred in the past.=20
We hold that the court abused its discretion by ordering relator =
to=20
provide discovery answers in the past, which is an =
impossibility. See=20
Walker, 827 S.W.2d at 839.
Conclusion
=
We=20
conditionally grant the petition for writ of mandamus, and we =
direct the=20
trial court to vacate its June 20, 2007 =E2=80=9COrder on Motion =
to Compel=20
Discovery and Sanctions.=E2=80=9D We are confident that the trial =
court will=20
promptly comply, and our writ will issue only if it does=20
not.
=
&=
nbsp; &n=
bsp; &nb=
sp; Elsa=20
Alcala
=
&=
nbsp; &n=
bsp; &nb=
sp; Justice
Panel consists of =
Chief=20
Justice Radack, and Justices Alcala and=20
=
Bland.