*1 Andres, Arlington, petitioner. for A.E. SIMPSON, al., Relators, Nell et Taylor, Albright, A. L.
Thomas Walter Austin, respondents. for CANALES, Adolph Judge Hon. of the PER CURIAM. 298th District Court of Dallas Inc., by Fabrique, This is a lawsuit Texas, County, Respondent. lease,
assignee in a of lessee’s interest Corman, lessor, against for Jack No. C-9256.
wrongful withholding possession Supreme of Texas. against Corman counterclaimed leasehold. Fabrique Fabrique for back rent. Both April 1991. partial summary for and Corman moved Fabrique’s defen- judgment. offensive and allegations on its
sive theories based wrongfully Corman had interfered
that Fabrique’s possession of the lease- summary judg-
hold. Corman moved for grounds
ment on the that the evidence he a matter law that
showed as wrong- did
entitled to back rent and he Fabrique’s
fully possession interfere with premises. granted partial summary
The trial court rent,
judgment for Corman for back Fabrique damages its
against on claims rendered trial court Corman. hearing attorney judgment
final after appeals
fees. The court reversed
remanded. S.W.2d summary principal judgment
Fabrique’s Fabrique’s is from attor-
proof an affidavit Corman had
ney, on one occasion trespass Fabrique if
threatened sue premises, and a letter from
entered the he attorney in which states on
Corman’s wrong- that Corman had behalf
Corman’s possession premises
fully withheld Fabrique. The letter from Corman’s pre-
attorney some evidence which would is summary of Cor- judgment
clude favor
man, appeals correctly the court trial court for
remanded the case deny Accordingly we proceedings.
further application for writ of error.
petitioner’s question of expressly reserve the
We litigation by a landlord
whether a threat posses- the tenant’s an interference with cause of give rise
sion sufficient to damages.
action *2 Cooper, Thompson, Brent Cowles &
R. Weber, Weber, Dallas, Mehaffey O.J. & Beaumont, Timothy Kelley, Kelley & E. A.P.C., Zaremski, Bates, Dallas, Miles J. Lehr, Ill., Chicago, Arnstein & Don Martin- Martinson, son, Fanning, Harper B. & Dale Tillery, Tillery, Edwards Charles T. Fra- & zier, Jr., Dallas, Thompson, Cowles & relators. Price, Viehman, Strasburger
J. Karl & Dallas, Stagner, Stagner Stag- David M. & Sherman, Cox, Jr., ner, Thomas L. James Walker, Arter, Witts, Terry Wm. Hadden & Jacobson, Thompson Knight, L. & Mark A. Calhoun, Calhoun, Spillman Gump, & Sta- Newton, Jones, Bell, cy, G. Bell Charles & Smith, Smith, Smith, Scott Smith & Henderson, Hughes, Jr., Hughes Vester T. Luce, Dallas, respondent. & OPINION HECHT, Justice. original proceeding
In this mandamus we the authority consider of a trial court under of the Texas Rules of Civil Proce- appoint supervise pre- dure to Joining in a case. plaintiff petition for mandamus wrongful in a several defendants respondent pending death case before the follow, district court. For reasons that we that the court has conclude district exceed- authority, ed its and therefore we condi- grant tionally mandamus. writ of I proceeding out of a arises lawsuit pending in the 298th District Court of Dal- County, brought Simpson Nell las damages wrongful for the death of recover eight-page Simpson’s peti- her husband.1 alleges lung her died of tion husband exposure cancer caused toxic chemi- designed, present products cals various by eighteen or marketed manufactured estate, This action is No. Nell band’s her and her husband’s twin Cause 88-16085-M. herself, statutory Simpson suing daughters, behalf of hus- and all beneficiaries. her named modify defendants.2 Several of defen- Plaintiff moved the trial court to obligation dants have filed cross-actions one order to relieve her of the pay master, special another. for half the fees asserting by affidavit that she lacked the Six months after suit was filed the trial financial do The day resources to so. after following unrequest- court issued the order filed, plaintiff’s special motion was by any party: ed appointed by the trial court directed *3 reviewing pleading The Court after the instructing letter to all counsel of record herein, and motions on file finds that scheduling them to attend a conference there is a need for a assist master to the request had which he set without the supervise to pre-trial Court and all dis- any party apparently any and without covery in this Cause. prompting by trial The the court. letter is, therefore, It Gary ORDERED that also stated: Sibley, Esq., appointed special is as mas- $10,000 deposited The Court has ordered pre-trial ter discovery, to oversee conduct in trust to cover master fees incurred in hearings rulings and writing make on paid this case. The amount is to be pre-trial discovery all the $5,000 by each Plaintiffs Defen- above-styled Spe- and numbered cause. bring your dants. Please a check for Gary Sibley, Esq. cial shall Master pro payable client’s rata share made to compensated per at rate the of $175.00 “Simpson v. PPG Master Trust Account” hour, paid (½) by to be one-half the Plain- stamped, well ten self-addressed (½) tiffs and one-half in equal by shares envelopes. Billings all Defendants. shall be sub- special The master’s statement that the every payable mitted two weeks and are parties court had the to make a ordered immediately parties upon receipt. the $10,000 incorrect; deposit simply Any objections rulings to the Master’s record does reflect the trial court not that shall filed within ten directing ever issued such an order. (10) days signing rulings of said parties present payment to their checks for Master, they shall be waived. sum, acting entirely of this the master was Special The Master shall have all the upon his own. powers authorized Rule 171 of the defendants, joined by One of the later TRCP, in addition to those set forth here- others, objection as- several then filed an in, fully carry out the intent of to this serting special of a appointment that the order. unnecessary. master was unauthorized and may provoked What the trial court to urged objecting defendants that issue this order unclear is record justify complexity the case did not acknowledge before us. The that appointment, not autho- that the court was discovery requests numerous were made require pay the mas- rized to eight after the suit commenced that fees, the court itself had ter’s requiring hearing discovery motions were discovery duty on matters. to hear and rule litiga- filed in the first ten months of the activity hearing plaintiff’s tion. is more motion and While this than At a might only one defendant many objection, be found in it is certain- defendants’ object ly extraordinary. appoint- not does not record stated that did repre- All reflect that court heard of ment of the master. defendants hearing opposed plain- issuing ap- these motions before its order sented at required special request that she not be pointing master. tiff’s defendants, eighteen joined The other nine are: Whittaker 2. Of the nine have Inc. defendants Simpson petitioning for relief: Corporation; International, Corporation; mandamus The Dexter Mameco Inc.; Lilly Coatings, Co.; Amchem Prod- Inc.; Industrial Vi- The B.F. Goodrich ucts, Inc.; Company; Blair Carroll Jones Paint Carbide; nylex Corporation; Owens- Union Inc.; DeSoto, Company; E.I. Du Pont de Nem- Corning Fiberglas Corporation; United Resin (Inc.); Corporation; ours NCH PPG In- & Co. Adhesives, Inc.; and Vulcan Materials Co. dustries, Inc.; Coatings Company, Specialty any part given pay During powers the master’s fees. all allowed a Master hearing the trial court stated: Chancery by Tex.R.Civ.P. 177.
Well, IS, THEREFORE, let the be—so reflect in Order IT ORDERED that future, appointed pur- the Master is objections appointment Defendants’ suant Rule 171 of Texas Rules of Gary a Master are overruled and that Procedure, matters, Civil Sibley appointed Master they complex, not because are but be- given powers all conferred on such numerous, they so doc- Tex.R.Civ.P. 171. The Master numerous, up uments are so and take so shall compensated the rate time, much of the Court’s the Court does per $175.00 hour. trust account shall efficiently not have the time to handle be established Master in a federal- the administration Court’s busi- ly banking insured institution in Dallas ness, appointing and therefore is a Mas- County, Texas. initial assessment pre-trial ter to aid the *4 paid be par- to the trust account case, in and the Order paid ties shall per month $200.00 stands. Plaintiffs and each $550.00 Following hearing, trial court is- September Defendants no later than finding, an sued amended order somewhat 1989. Additional assessments shall be contrary just quoted, to the statement paid by the Defendants when the trust issues complex, in the case were and $3,000.00 account balance in or less. The modifying payments to be made to the Master shall submit statements to master. The order amended states: prior Court for services rendered to with- Court, reviewing The plead- after drawing may funds and withdraw funds ings and file Motions on herein and lis- due, every during two weeks tening argument to the and evidence litigation. course of The Master’s fees counsel, finds that this shall be taxed as costs of court or involving eighteen case defendants directed court. against alleged which the Plaintiff has any IT IS FURTHER ORDERED that product various toxic tort liability objections rulings Master’s shall action, causes of began some of which in (10) days filed with the Court within ten 1964 and continued thereafter. The is- signing ruling by of the said the Mas- complex. sues multitudinous and ter, any objection shall be waived. The Defendants filed have counter-claims Plaintiff motion in filed a the court alleged one another and have appeals petition file a leave to for writ various defenses to affirmative Plain- directing of mandamus the trial court tiffs’ action. Defendants have been appeals vacate The de- this order. court discovery requests served with and have nied the of the motion. Nine defendants alleged objections. each numerous in appeals filed their motion the court of complex Because of the nature of the requesting appeals relief. the same The pre-trial case and the numerous issues to motion, court denied their also. Plaintiff of, disposed good the Court finds that and these defendants then filed in this appointment exists for the of a joint petition Court a motion leave Chancery provisions Master in under the relief, granted. for mandamus which we of Tex.R.Civ.P. and that the in- expense proceedings creased before II offsetting Master in will result bene- through to the the state fits “The courts of Texas have had occa- complexities reduction in the of trial and develop body sion to an extensive of law pre-trial proceedings. 3 R. McDonald, respect to masters.” Gary Sibley The Court finds that is a in Texas PRACTICE DistRict Coun- Civil ty 10.17.1, (F. Texas, at 28 Elliott rev. citizen the State of is not an § Courts Moore, 1983); The Masters attorney any see also Use or related of the Courts, appointed 53 Tex.B.J. Chancery Master in Texas should be however, jurisdictions, power Other As the Chancellor’s increased un- English especially Tudors, reign courts and the feder- der the so did the country, very al courts in this had masters’. supra, See W. Holdsworth, experience 409-16, King considerable with the use of Henry 419-23. VIII formal- begin by office, court masters. We ex- appointing therefore ized the twelve masters amining experience their applying chancery, before and that number remained tra- our own this case. law ditional for centuries. The number of their
clerks, deputies members, staff and other however, grow. continued to Id. at 416-23. The their largely masters derived chancery per- office of master —a from the inherent of the Chancellor designated to son hear certain matters re- time, rather than from statute. judicial among ferred officer—is involvement of the conduct law, oldest institutions of the common hav- equity litigation common law some ing England by into introduced England pervasive. Id. Manning, Normans. See United States systematic use masters in chan- (W.D.La.1963) F.Supp. cery never functioned well. The reasons Wisdom, C.J., (opinion by three-judge for a principal complex, are numerous and but court); Ball, Master, 77L.Q. them, among perhaps, system is that the role master Rev. due to fact suffered abuses that mas- to, chancery may is similar have been charged paid ters were out of fees for work patterned after, judex early that of the *5 supra, done. 1 Holdsworth, at 424-45. law, private person ap Roman who was Separate charged fees for all work were pointed by praetor with the consent issued, by done the master —for each writ action, the to a cause of to hear and held, made, pretrial hearing copy each each dispute. id.; decide the 1 W. Holds See report It prepared. and thus be- each History English (7th A worth, 418 Law deputy hooved his to involve a master or rev., 1966); reprinted ed. Dic Black’s Law deeply himself in each matter as as he tionary (6th 1990). 840 ed. pretrial proceedings draw could and out England, in In late masters medieval long possible.3 as As Holdsworth de- chancery called clerks in chan- —earlier scribes: cery primarily used to assist —were in related Sir Bramston tale John growing his Chancellor exercise of Autobiography perhaps his the best jurisdiction equity over matters in and of these abuses illustration the effects issued some common law actions. Masters upon ordinary litigant. tells us He writs, witnesses, disputes, examined heard during grandmother his that the civil war reported findings and their back to the begun Chancery in to recover had suit 1 supra, Chancellor. See W. Holdsworth, which she was entitled. some tithes to 418-19; Ball, at supra, at 332-35. Masters died, he the action. She and continued not to for the Chancellor were substitute cost, dispute £4. “It The in was amount Silberman, but to aid him. Masters See £4, £200 at least.” to recover that Magistrates, II: The and Part American 1297, Although n. at similar abuses could 1322 Id. 428.4 Analogue, 50 N.Y.U.L.Rev. among the common law courts for (1975). be found 149 concrete instance of the effects of this 3. "Another device utilized to in- As a deliberately system costs earnings let us take the bill of in case was that of crease their Clarendon, delaying proceedings charging Morgan which was ana- and then v. Lord Kaufman, lysed by special Masters Mr. Winter in his evidence before fee for acceleration.” 53, begun Chancery case 50 Colum.L.Rev. This had in the Federal Courts: commission. practice proceeding. "heral- still n. 4 was called in and in 1824 was 452 Ball, up dry". supra, at 338. bills to that date The of cost whole £3,719 Deducting 2d. 19s. amounted duties, £3,590 stamp 18s. lOd. examples it amounted 4. This is Holds- one of several relates, office were expenses alone The of the master’s of which is: worth another
807
reasons,
in
in
magistrates
country
similar
effects of
abuses
and similar offi
cers of state courts. See
Mas
chancery
courts
Silberman,
seem to
worse.5 Id. at 424-28.
repeated
Magistrates
Despite
ters
Part
English
and
I: The
kings
parliaments
efforts of
to correct
Model,
Ball,
(1975);
50 N.Y.U.L.Rev. 1070
abuses,
they persisted
such
into the
Queen’s
well
supra, at
347-55; Diamond,
century
nineteenth
until the
of masters
use
Master,
Bench
L.Q.Rev.
chancery
was
statute
in
reformed
1852.6
B
When the Court of
Act was
experience
American courts with
passed
“proceedings
before the
chancery
closely
masters in
has
resembled
great
Masters
... were attended with
de-
experience
English
courts. Ameri-
lay
expense
expedient
and it
courts,
following
English
can colonial
their
their business should
be transacted
precursors,
used masters
ex-
chancery
under
the more
immediate direction
tensively,
did later
state and federal
Judges
Ball,
control
of the court.”
Authority
See
Brazil,
supra, at 342. This Act and other nine-
courts.
Refer
Discovery
Special
Tasks
Masters:
century
statutory
teenth
were
reforms
Existing
of mas- Limitations
Sources
at
circumscribing
aimed
Rule,
Need
a New Federal
eliminating
ters
in their use
abuses
W.
BRA-
Managing
preserving
ZIL,
helpful
while
their
functions.
Rice,
G. Hazard & P.
Com-
plex Litigation: A Practical Guide to the
part
Masters
remain an established
op Special
(1983);
Use
Masters
English
system,
court
in a different
but
supra,
Silberman,
at
N.Y.U.L.Rev.
setting. They
longer paid
no
fees
supra
1321-22; Kaufman,
n.
at 452.
assessed
are sala-
but
masters,
using
when
employees
They
ried
of courts.
have been
rule,
provided
by statute
was often con-
made into a
judiciary, heavily
lower level
upon
pow-
sidered to be based
pretrial
inherent
proceedings
involved
and work-
supra,
of a court. See
Brazil,
364-68;
ing closely
er
judges
preparing cases
Peterson,
parte
is com- Ex
disposition.
final
Their
function
U.S.
*6
parable
many
547,
respects
543,
(1920).7
federal court
to
5.Ct.
As the role of these
only
complicat-
masters —sometimes
made
when the issues
ed;
referred to as auditors or commissioners—
jury,
actions to be tried without a
century,
in the
increased
nineteenth
so did
save matters of account
of diffi-
Brazil,
procedure.
dissatisfaction with the
computation
damages,
cult
of
a reference
supra,
beginning
at 339-40. At the
of the
only upon
showing
be
shall made
a
century,
present
of
use
of
criticism.
exceptional
some
requires
condition
it.8
courts,
federal
as distinct
Heeding
spirit
of Rule
the federal
complaints
equity procedure
about
began
courts
sparing-
use masters
First,
generally,
problems.
focused on two
Brazil,
ly.
supra,
See
at 343. The United
although every reference of a matter to a
Supreme
States
confirmed
Court
this inter-
necessarily
delegation
involves
pretation
53(b)in
Buy
of Rule
La
v. Howes
judicial authority,
judge
some
“a
who want-
Co.,
Leather
U.S.
77 S.Ct.
ed
making
to could leave the real decision
(1957).
case,
L.Ed.2d 290
In that
the dis-
Second,
master.” See id. at 339.
trict court had
two
consolidated
antitrust
appreciably
the use of masters
“add[s]
parties anticipated
actions for trial that the
length
litigation. Litigants
cost
eighty-
would last six weeks. There were
should not
burdened with the costs of
plaintiffs
case,
seven
in one
six in the oth-
referring
judge might
which the
er, and six
Because
defendants
each.
easily
and determine for
hear
himself.”
complexity
the estimated
Id.; see 9 C.
&A.
Millee,
Federal
WRIGHT
length
trial,
congested
and the
776-77,
court’s
§
Practice & Procedure
docket,
2603, at
the court referred the cases to a
§
merits,
trial on the
over the
criticism,
response
the United
objection
parties.
applications
On
of all
Supreme
equi-
States
Court in 1912 revised
mandamus,
appeals
writ of
the court of
Brazil,
ty procedure in the federal courts.
directed the district court
its or-
to vacate
supra,
among the
at 341-45. Included
re-
master,
referring
der
cases
hold-
following
forms was
limitation
ing
“exceptional
that no
condition” within
use
masters: “Save in matters
ac-
meaning
53(b)
present.
Rule
count, a
reference to master shall be the
Supreme
affirmed. The Court
rule,
exception, not the
and shall be made
congested
court calendar
reasoned that
only upon showing
exceptional
that some
exceptional
not
an
condition under
could
requires
condition
it.” Rule
Rules of
rule,
references to masters would
or
Equity
Practice for
Courts of
exception.
become the rule rather than
States,
226 U.S.
United
reasoned,
Furthermore, the
the com-
court
purpose
was to authorize
plexity of issues in a case could
“primarily,
the use masters
if not exclu-
condition,
very
cases
sively, to render well-focused assistance
*7
of an ex-
issues”, Brazil, supra,
343, which most needed the attention
specific
at
with
perienced
judge
always
would
be re-
delay, expense
judicial
avoid
these
in
Neither of
insulation from direct
ferred
masters.
involvement
trial,
factors,
length
proceedings which had marked
broader
nor
estimated
concluded,
Twenty-six
past.
together,
in the
the Court
use
masters
nor all three
justify-
years
when the Federal Rules of Civil
condition
later
constituted an
limitation,
adopted,
Buy,
La
352
ing
Procedure were
to a master.
reference
refinements,
259,
some
was included
at
Without at-
with
at
77 S.Ct.
315.
U.S.
53(b),
provides
pertinent
excep-
now
tempting
Rule
which
would be an
to define what
53(b),
part:
Rule
the Court
tional condition under
use of masters is
admonished
A
shall be the
reference to master
“[t]he
specif-
judges
performance
in the
‘to aid
exception
the rule.
In actions to
and not
duties,
they may
ic
arise
judicial
shall
by
jury,
a reference
be tried
to add the
only change
Since
words,
53(b)
"and
portion quoted
promulgated
difficult
was
computation
1938,
1966,
53-9
Federal
damages".
Practice
See 5AJ.
¶
53.01[1],
Moore &J.
[3]
&
[7],
Lucas,
at 53-8
Moore’s
progress of a
2135-37. Such referrals now
... and not to dis-
go
only
cause/
Buy,
court.” La
place the
256,
352 U.S. at
magistrates
pow-
masters but to
whose
supra, at 315-64. Some sug- recent cases gest 53(b) that if Rule apply does to refer- discovery matters, rals of requirements jurisprudence regarding Texas rule, read strictly in Buy, La in chancery is much more limited than that Silberman, relaxed. See Adjuncts Judicial England and the federal courts of this Revisited: The Ad Hoc Proliferation of country. The use of specialized auditors —
Procedure, 137 U.Pa.L.Rev. 2136 n. masters—in involving cases accounts was Legislature. authorized the first Act Since La Buy, appears there approved 13, 1846, May Leg., 1st § growing been a among trend 389-90, federal 1846 Tex.Gen.Laws 2 H. Gam- pretrial courts to refer See id. at matters. op (1898), 1695-96 mel, Laws Texas theory underlying 9. The expanded use of Delay: A Nation- Court Efforts To Reduce Pretrial magistrates referrals to (Rand masters and is that Inventory 34-35 Institute for Civil Jus- al matters, delegating pretrial thus judge 1981) (use "parajudicials”); free tice Lawyers Con- to devote more time to trials and the decision of Litigation Cost ference Task Force on Reduction of issues, substantive expediting disposition thus Delay: A.B.A. Delay. Defeating Jud.Admin.Div., Kaufman, See, cases. e.g., n. Developing supra at 464. Implementing Delay Reduc- is, theory Whether this (1986) is correct—that (advocating whether use of Program tion removing judges pretrial proceedings judicial adjuncts actu as a short term solution to a ally expedites disposition Rice, backlog); till cases—is a mat Hazard & Management Judicial legitimate, continuing ter of man, debate. See Silber the Pre-trial Process in Process in Massive 2136-37, 2137-78; supra, U.Pa.L.Rev. Litigation: Special Managers, Masters as Case Posner, Coping (1982); Kaufman, with the Caseload: A Com 1982 Am.B.Found.Res.J. cf. ment on Masters, Magistrates 137 U.Pa.L. Delay The Judicial Crisis: Court and the Para- *8 (1989). 145, McGovern, (1970); 2215 judge, See also 54 Judicature 148 Brookings Rev. Institu 3, (1989); Higginbotham, 28 Approach Managing a Toward Functional Justice for All tion. for Bureaucracy (1986); Litigation, Carcinoma 53 Complex the Federal Ju 440 U.Chi.L.Rev. — the of Robel, (1980); Moore, diciary, 31 Ala.L.Rev. 261 Case The Use Masters in in Texas of Serón, (1990); Judging: Courts, Adaptations load and Judicial 53 Tex.B.J. 442 Mag- to Case and 3, 15-16, 36; Schwarzer, load, 1990 B.Y.U.L.Rev. istrates and the Work the Federal Courts: of Managing Role, Litigation: Labor, Judge's Civil the Trial 69 Judicature 353 New Division of 61 Judicature 400 attempt Compare We do not to resolve this issue but note Case Manage only magis- that the effectiveness of masters and Court Management States ment and in United Dis pretrial proceedings 1977 District in trates simply cannot be taken Court Courts, Center, trict Fed.Jud. (S. Study Project ed.); given. 60-62 Flanders P. as a Ebener, 810 earlier,
formerly
years
2292
never
Tex.Rev.Civ.Stat.Ann. art.
three
has
perti-
It
in
(repealed by
substantively
of
Proced
amended.
states
Texas Rules
Civil
ure).10
part:
nent
authorizing ap
The first statute
pointment
powers
of masters with broader
may,
The court
in
required
a
enacted in 1887 and
good
was
in
appoint
for
a master
chan-
receivership
appointed
every
be
in
cery,
power
shall
have such
as
who
...
2, 1887,
approved Apr.
Act
20th
chancery
case.
of
in a
of
the master
has
court
R.S.,
131,
10, 1887
Leg.,
ch.
Tex.Gen.
equity.
§
op
119, 121,
Laws
9 H.
Gammel,
Tex
Laws
only
171
of the lan-
Rule
shares not
much
(1898), formerly
919
Tex.Rev.Civ. guage
as
purpose
of
53 but its
as
federal rule
(repealed by
art. 2320
Texas
Stat.Ann.
permits
it
to
used
well:
masters
be
but
Procedure).11
latter
Rules of Civil
only in
to
limited circumstances so as
avoid
not, however, prohibit appoint
did
statute
experience
abuses that centuries of
the
ments of
in other cases.
Ben
masters
San
broader, system-
proven accompany a
County Drainage
ito
Dist.
Cameron
requires
use.
172
of
appointment
atic
Rule
Bank,
S.W.
Guaranty
Farmers’
State
investigation
an auditor
when “an
of
(Tex.Civ.App.
Antonio
ap-
of
examination
vouchers
— San
accounts or
ref’d).
fact,
In
were
writ
masters
justice
necessary
purpose of
pears
for the
e.g. Trigg v.
used in other contexts. See
parties”.
the
between
(Tex.1891)(investigation
Trigg, 18
S.W.
and circum
both confers
in
spouses
of
of
divorce
property claims
a
appoint
to
Al
power
scribes
masters.
master). Thus, in Tex
referred to a
action
though
federal
have not resolved
the
courts
jurisdictions,
as
in
American
as
other
ap
to
they
power
retain inherent
whether
chancery
in
appoint
to
masters
apart from Rule
we hold
point masters
part
in
least
appears to have been based
authority for
is the exclusive
that Rule 171
upon
power of the court. See
the inherent
courts.
of masters
our state
appointment
Appeals, 755
Mays v.
also
Fifth
of
otherwise,
important purposes
Were
(Tex.1988
J.,
Spears,
con
S.W.2d
by the rule on
imposed
restrictions
curring).
appoint masters would be
power to
authorizing
experience
masters
counsel
the statutes
thwarted. Centuries
adoption
repealed by
except
limited
and auditors were
the use masters
172, respectively, of the
therefore conclude that
of Rules 171 and
circumstances. We
master,
to
unless autho
every
Procedure. Rule
referral
Texas Rules of Civil
53(b)
to
Fed-
rized
statute or consented
patterned after Rule
Procedure,
Rule 171.12
adopted
parties,
comply
must
Rules of Civil
eral
court,
suit,
be
“[WJhenever,
quired
shall
under
appear to
him the
it shall
accounts,
court,
or
as a
investigation of
and have such
orders of the
the court that
necessary,
equity."
chancery
of vouchers is
has in
court
examination
purposes
master of
parties,
justice
between
appoint an
auditors
shall
auditor
court
assigned
may
12.Among
be
the matters that
parties, and to
the accounts between
state
magistrates created
statute are
court,
report
as soon
thereof
make
matters, Tex.Gov't
following:
family law
shall,
be,
report
may
under
and the
so made
54.001-.018;
in cer-
criminal matters
§§
Code
court,
given
in evidence
direction
(Jefferson
counties,
id.
54.201-.206
§§
tain
however,
impeached
jury, subject,
(Dallas County),
County),
§§ 54.-
54.301-.313
§§
party,
shall
court
from either
evidence
(El
(Tarrant County),
54.731-.763
§§
651-.663
compensation to
audi-
such
reasonable
award
tors,
(Lubbock
County),
Coun-
54.871-.884
§§
Paso
be allowed and taxed
which shall
(Bexar County);
juvenile
ty), §§ 54.901-.913
costs,
by the successful
be recovered
bill
party,
counties, id.
54.401-.414
§§
certain
matters in
cases.”
other
(Harris
(Wichita County),
Coun-
54.681-.700
§§
(Bexar County); civil and
ty), §§ 54.921-.939
shall,
appoint-
every
case
11. “The court
54.301-.313;
County, id. §§
in Dallas
receiver,
tax matters
qualifying, ap-
his
also after
ment
matters, Tex.Alco.Bev.Code
other
various
chancery,
point
who shall
(license
certain coun-
applications in
State,
attorney
61.31
§
not an
citizen
cases),
(IV-D
ties),
action,
14.82-.85
§§
either
*9
party
nor related to
Tex.Fam.Code
either
(deten-
Safety
Code §§ 81.165-.168
Tex.Health &
perform
re-
all of
duties
party, who shall
B
does not and cannot
from
follow
the fact
that our trial courts
busy
they
ap
We now consider whether the
—as
certainly
they
are—that
do not have time
pointment of a
this case was
Rather,
complex
to hear
cases.
Buy
as La
authorized
Rule 171 of the Texas Rules
observed,
very
these are the
cases which
Procedure.13
appointment
Civil
of a
supervision
most need and benefit from the
master lies within the sound discretion of
experienced
judge.
of an
trial
the trial court and should not be reversed
except for a clear abuse of that discretion.
“exceptional cases/good
cause” cri-
Moore,
Texas Bank & Trust Co. v.
susceptible
terion of Rule 171 is not
(Tex.1980);
S.W.2d
Mann v. precise definition. As hard as it is to deter-
Mann,
(Tex.1980).
607 S.W.2d
appointment
mine whether the
of a master
case,
given
meets the standard in a
it is
note at the
We
outset that this is
virtually impossible to make that determi-
appointment
not a case which the
nation for future cases. As federal Rule
parties.
consent of the
long
It has
53(b) states, reference to a master is not
recognized
premised
that a reference
on
the rule in most cases. The criterion of
parties
subject
consent
is not
Rule
explanation
171 necessitates a valid
imposed
the same strictures as one
by the
deviating
from this rule.
Kimberly
Arms,
court. See
129 U.S.
(1889);
9 S.Ct.
covery MAUZY, J., to conducted in the case to the in result concurs is master. This blanket reference much opinion. justify more difficult to than the reference MAUZY, Justice, concurring. Indeed, single it would of a issue. majority’s I Under concur result.
truly exceptional case
re-
which warranted
case,
ap-
of this
the trial court’s
facts
discovery
of all
to a master.
ferral
special
pointment of a
master
a clear
Assuming
problems
already
have
that
abuse
discretion.
La
v. Howes
Buy
See
discovery
case to warrant
arisen
this
Co.,
Leather
U.S.
S.Ct.
master, although the
reference
record
to
L.Ed.2d 290
assumption,
is
support
does not
this
there
nothing in
record
reflect
this
to
however,
majority’s
I
un
object,
to
discovery
justify
future conduct of
will
su-
necessary discourse
the historical role
than
pervision by a master
rather
special
masters. This Court’s role is not
showing,
such a
court. Absent
v.
legal
Reagan
author
treatises. Cf.
pay by
simply
been ordered
(Tex.1991)(Hecht,
Vaughn,
We not upon resources of
dens the limited time and courts, unsympathetic. trial nor are we
our 171, however, masters cannot
Under Rule “in appointed except good before us cause”. record that there is not shows [*] that this case matters to master. [*] good [*] not [*] exceptional, [*] refer [*] all The STATE Haron STEPHENS, Appellant, Texas, Appellee. No. 914-88. appointment of a court’s trial clear abuse of this case was a Texas, Appeals of Court of Criminal require parties to re To discretion. En Banc. complaint appeal would be serve their 2,May relief from the deny any effective them en They are therefore court’s order. 30, 1991. Rehearing Overruled Jan. Buy, La by mandamus. See to relief titled 254-55, at 312-13. U.S. 77 S.Ct. respondent to va Accordingly, direct we master Cause appointing the order
cate judgment. of costs in the final award parties argue court exceed- that the trial 14. The case, disposition do we pay of our ordering view them his ed argument. prior address this time or at fees in advance master’s