*1 supra, at 393. The court NOT I THAT SHOULD “I REALIZE I Brown stated: UNTIL AFFIDAVIT THIS SIGN AND UNDERSTAND constitutionality READ set out HAVE The criteria WORD, AND SENTENCE the Supreme EACH Court is: by the U.S. I REALIZE IT. knowingly IN intelligently, PARAGRAPH and voluntarily, AF- THIS NOT SIGN I rights THAT SHOULD to notice and their waived [sic] IF RELINQUISHMENT OF legal FIDAVIT full awareness of hearing with MY IN ANY THOUGHT THERE IS consequences. I MIGHT SOMEDAY MIND THAT Id. that her motion Appellant concedes I RE- MY MIND. CHANGE SEEK TO allege supporting facts trial failed new I NOT SIGN THAT SHOULD ALIZE was obtained that the affidavit defense RELINQUISH- OF AFFIDAVIT THIS influence, overreaching fraud, or undue THINKING IF I AM NOT MENT Therefore, can no error there the like. ILLNESS, OF BECAUSE CLEARLY overruling appellant’s of court’s in the trial MEDICATION, MY EMOTIONAL trial. for new motion OTHER REASON. OR ANY STATE distinguish attempts Appellant IMPOR- I REALIZE HOW BECAUSE in that Brown Brown in her case from THE IS FOR THIS DECISION TANT attempt who did not a mother volved CHILD, I HAVE PUT MY FUTURE OF relinquishment until of revoke her affidavit LINE EVERY BESIDE MY INITIALS already decree had the termination after THAT IT SO PARAGRAPH OF THIS Appellant, on the other been entered. BE UNDERSTOOD ALWAYS WILL hand, appellee desire to re of her notified AFFIDA- THAT I READ THIS HAVE hearing took the termination voke before RELINQUISHMENT, UNDER- OF VIT does that this distinction place. We believe IT.” IT TO SIGN AND DESIRE STAND constitutionality the stat of affect the original). (emphasis See ANN. TEX.FAM.CODE ute. pa- of relinquishment We find that 1986). 16.03(c), (d) (Vernon Even consti § of citation rights and the waiver rental waived, and that rights can be tutional instrument, appellant one signed by were Ap in this case. appellant has done what of citation was irrev- and that the waiver overruled. point of error is pellant’s second appellant days. hold that ocable for 60 We is af- trial court judgment of the not, not, right did reinstate her could firmed. hearing signing day to notice of The trial court did not abuse this affidavit. refusing grant appellant

its discretion allege trial when she failed new intentional- prove that the affidavit was not voluntarily that she ly and executed and right appear. Ap- given up had not her ANTONIO, Appellant, CITY OF SAN point is overruled. pellant’s first of error error, appel point In her second of FULCHER, Appellee. fail assigns as error the trial court’s Thomas J.

lant trial, allegedly in viola grant a new ure 04-87-00324-CV. No. process rights and appellant’s due tion of Texas, Appeals Court Appellant in rights parent. as a natural Antonio. San the consti that she entitled under sists was terminating hearing tution to notice of the 30, 1988. March parental rights. her April Rehearing Denied by the very question addressed This Brown, Supreme Court in Texas type pre- constitutionality of this exact Brown, upheld. suit of citation waiver *2 Dlugosz, City Atty., Asst. An-

Paula San tonio, appellant. for Kahn, Kahn, Seely

Robert I. & San Anto- nio, appellee. for CADENA, C.J.,

Before DIAL, ESQUIVEL and JJ.

OPINION

DIAL, Justice. impression. The This is a case of first address is whether the TEX. issue we must sanction, prohibits which R.CIV.P. a presentation of evidence where discovery, applies in a supplement fails to plaintiff supple- situation where the fails requested information ment discoverable to his case. We hold is not favorable which apply that that the sanction does but committed here was harmless. error

FACTS compensation suit.

This is a workman’s Fulcher, police plaintiff, is a Thomas City of Anto- employed by the San officer 1985, (hereinafter he “City”). March nio injury left work on-the-job sustained an shortly He returned to work thereafter. 1986, of the January spending most injury In June previous year on leave. 1986, Accident Board the Texas Industrial his loss compensation for awarded Fulcher to the earnings. Fulcher did not consent in District Court on award and filed suit 28, July discovery, City sent

In the course of August request production Fulcher a 1986, 1982 for Fulcher’s which asked returns, among other through tax that he was response was items. Fulcher’s obtaining returns process those in the to the they be forwarded and that would trial, upon receipt. As of the date City mandated TEX.R.CIV.P. received the April City had not allowing testimony concerning Fulcher’s requested documents. moonlighting income after failed com- trial, con- At Fulcher offered evidence documentation of ply with cerning wages police his officer. lost as Fulcher To this contention that income. Next, to intro- it was Fulcher’s intention City made a sec- that the never maintains wages from other duce evidence of lost returns, nor filed a request for the tax ond occurred, however, sources. Before this *3 compel production, moved for motion to nor jury for lunch. Dur- the court excused the trial. Fulcher also main- sanctions before recess, the first ing the noon Fulcher for only sanction could tains that Rule of provided City copies the the time with records, apply to exclusion of the tax the The tax returns requested tax returns. allowing to the tax not Fulcher use and reported income that Fulcher had showed testimony to his was exact- records bolster police job his a other than as from sources ly Additionally, did. the trial court what officer, reported not all of but that had maintains that the trial court had Fulcher claiming the time of the income he was at in this and that no harm discretion matter City The then a motion to trial. dictated of in admission Fulcher’s testi- resulted the objecting to of reporter the court admission jury apparently did not mony because the i.e., “moonlighting,” job any evidence of any moonlighting income over consider and employment of outside his with activities reported on tax re- above what was the Antonio, City stating that the of San Fulch- reaching in turns its verdict. supplement discovery, er had failed to his 215(5), any and that under TEX.R.CIV.P. FOR ABUSE SANCTIONS DISCOVERY concerning moonlighting should evidence automatically Fulcher re- be excluded. 215(5) provides: TEX.R.CIV.P. sponded by stating City the had that ac- Supplementa- to 5. Failure Make quired concerning Fulcher’s information Discovery Response Compli- in tion of moonlighting through depositions income ance with Rule 166b. interrogatories. Fulcher admitted hav- supplement to sea- A who fails requested ing approximate- the tax returns response to a for sonably his ly days 60 but that the before trial said discovery paragraph 5 in accordance with produce failure to them was an “over- entitled to Rule 166b shall of sight.” City’s The trial court overruled the party was present evidence which the however, stating, objection, it was “in- that provide supplemen- duty under supplemented to not the defensible” have testimony the of response or to offer tal requested information sooner. person expert other an witness or presented Fulcher then evidence concern- knowledge matter having of discoverable ing moonlighting his income. Without required Rule the information when waiving objection, City its the cross-exam- concerning not been has 166b witness disputed Fulcher from the tax returns. disclosed, ined finds that unless the trial court trial, jury close of found that At the require admis- good sufficient cause wage average daily year in the Fulcher’s sion exists. injury, his immediately preceding good unless The sanction is automatic higher than the This amount was $147.39. v. & Co. cause is shown. E.F. Hutton average wage earned daily Fulcher $126.76 (Tex.1987); Youngblood, 741 S.W.2d 363 officer, police than the as a but lower I.S.D., 729 691, Dallas Gutierrez v. S.W.2d wage sought by average daily $158.38 Inc., H.E.B., Morrow v. (Tex.1987); 714 694 entered, Judgment based Fulcher. (Tex.1986). pur- The 297, 297-298 S.W.2d $51,787.40, finding, part and the on this compliance insure pose of the rule appeal this City perfected Court. rules, prevent needless discovery with the and, future vio- notably, most deter City’s delays, is the contention that trial It Aquama- by litigants. Downer v. impose the lations failing erred in auto- court 238, Inc., 242 Operators, rine preclusion sanction of of evidence matic 220

(Tex.1985); Kincaid, 215(5),1contrary Dis- Longley arguments to the appel- covery Discovery Sanctions appellee. my opinion lant and provi- Abuse, 163, (1986); 188 18 ST. MARY’S L.J. 215(2)(b) sions of Rule control because the the issue would vide dicts or rebuts the non-disclosed evidence.1 to his him in the non-disclosed tax returns. Since lighting should not have law in favor of the offending party under a if the issue in permitted to offer evidence which contra This would result fy mental to the If his applied if the concealed evidence is detri vation to the League Metropolitan Hockey him. He evidence concealed evidence which is valuable Effecting Discovery, rules). tion 15 ST. MARY’S L.J. 427 U.S. on a vital issue. (1976) (sanctions as deterrent under federal Barrow and to the Texas Rules The result of an that he earned more jury prescribed by (1984). supplemental opponent. opponent In the case before A concomitant sanction should be endeavors than was claimed or insufficient evidence situation duty finding may Henderson, offending party See 96 S.Ct. question offending party to disclose should not be thus be faced with a no permitted Fulcher to had had the burden of in The on also, Rule evidence which application a no evidence situation found as a matter of opponent. the burden average party is one on which the money in his moon National us, Civil 49 L.Ed.2d 747 failing the trial court Amendments of the use of is the of the sanc- daily or valuable Appellee’s response Procedure Club, Inc., Hockey to proof, proof. depri- wage testi pro by the trial had Appellee did not fail to found in Rule he had not failed to income tax returns inspection upon appellee did not ure to issue is “failure to regard among others the proper discovery requests ... in notice and Accordingly, be allowed. permitted reasons or objections except only to the extent that he makes is served shall serve a written RE- In this tion or other SPONSE which shall Rule thereafter If which the nothing categories ^[*] supplement discovery.” produce 167(l)(d) provides: comply party upon party to the failure case, appellant why complied would be ^[*] hearing, as comply with the begun. for the action is 215(2)(b) writing (Emphasis such with the the tax returns until after supplement. ... requested, requested ^[*] comply” in *4 items, pursuant was to proper following: fails to whom the discovery permitted. Appellee production make such orders the first Therefore, may, pending supplement. which state, discovery request. ^[*] as are served particular added). stating specific instead of “fail- action will be he shall and sanctions comply to Rule 167. provides: place, that REQUEST, # should not effect that REQUEST of certain just, the court appellee inspec- items, there Since ^[*] with are equated reported in tax (4)An to the income refusing to allow the diso- order returns, permitting desig- the error Fulcher’s oppose support or bedient testimony did not cause the rendition of an defenses, prohibiting claims or or nated improper judgment and was therefore introducing designated matters him from 81(b)(1). TEX.R.APP.P. harmless. added). (Emphasis in evidence. judgment is affirmed. sanctions, 215(2) in for- unlike those Rule 215(5), mandatory. not mer Rule are ESQUIVEL, Justice, concurring. im- Therefore, refusal the trial court’s upon a only by pose sanctions can be reversed my opinion, the issue raised this showing of discretion. appeal former Rule clear of an abuse not controlled January interpretation was amended effective 1. This is an of Rule which 1. Rule parameters. its We would therefore extends invite the Texas Supreme Court to consider amending the rule cover this situation. Fowler, 54, 56 v. Shannon dism’d). (Tex.App. Worth writ —Fort case, appellant was able

In the instant effectively cross-ex- use the tax returns in- appellee regarding moonlighting amine question were come. The tax returns hold I not introduced into evidence. would did abuse its discre- trial court that the impose refusing sanctions. tion in Accordingly, I concur in the result.

Hector and Saul TREVINO

Trevino, Appellants, GONZALEZ, Jr., Melquiades et al., Appellees. *5 No. 04-87-00149-CV. Texas, Appeals of Court of San Antonio. March 1988. Rehearing May Denied