DISSENTING OPINION ON DENIAL OF REHEARING
[Filed Oct. 28, 1992]
POWERS, Justice,dissenting.
I dissent from the overruling of the ap-pellees’ motions for rehearing. An appel-lee requests that I give the reasons upon *607which I would affirm the trial-court judgment. I believe it a justifiable request,
SCOPE OF REVIEW
The trial-court sanction order resulted in a judgment dismissing Fletcher’s cause of action. Fletcher contends on appeal that the dismissal sanction was (1) an abuse of discretion (2) depriving her of due process and due course of law under the federal and state constitutions. There is, however, no due process violation if Fletcher’s conduct justified a presumption that her claim lacked merit. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991). If the trial judge properly applied Texas Rule of Civil Procedure 215(2)(b) in Fletcher’s case, the necessary presumption arose. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinea, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982). Consequently, Fletcher’s constitutional claims depend entirely upon her abuse-of-discretion claim — a question of law based in this instance upon undisputed facts. Insurance Corp. v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Vaughn v. Texas Employment Comm’n, 792 S.W.2d 139, 142-43 (Tex.App.—Houston [1st Dist.] 1990, no writ).
I should point out two additional matters affecting our review. The trial judge’s choice of sanctions under Rule 215 is presumed to be valid; the burden lies upon Fletcher to bring us a record showing the contrary. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987). Nevertheless, Fletcher brings us a record without findings of fact or conclusions of law indicating the reasoning upon which the trial judge chose the dismissal sanction. In our consideration of the abuse-of-discretion claim, we must therefore view the evidence in a light most favorable to the trial court's choice and indulge every legal presumption in favor of it. Vaughn, 792 S.W.2d at 143. Fletcher must show that the trial court’s choice of sanctions cannot be supported by any legal theory raised by the evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 279 (Tex.1987). As indicated below, Fletcher has made no such showing in my opinion.
THE DUTY OF THE TRIAL JUDGE TO SUPPLY A STATEMENT THAT SHE CONSIDERED LESSER SANCTIONS
In support of Fletcher’s claim that the trial court abused its discretion, she complains that the trial judge did not supply a statement in the record that she considered lesser sanctions before choosing that of dismissal. Fletcher contends TransAmeri-can imposed upon trial judges the legal duty to supply such a statement. Trans-American did not impose a legal duty of that character; rather, it expressly declined to do so by stating that the trial judge was not obliged to make written findings of fact demonstrating the mental process by which the judge reached its choice of sanctions. TransAmerican, 811 S.W.2d at 919 n.9. The opinion also rejected the notion by necessary implication because the decision in TransAmerican does not rest upon what the record in the case failed to show; rather, the decision rests upon what the record did show. The record “established” affirmatively “that the severe sanctions the district court imposed against TransAmeri-can were manifestly unjust.” Trans-American, 811 S.W.2d at 919 (emphasis added).
In any case, the record in Fletcher’s case shows affirmatively that the trial judge did consider lesser sanctions before imposing finally the sanction of dismissal. Fletcher urged expressly in her motion for new trial several alternative sanctions short of dismissal. She argued forcefully for these in the subsequent hearing. The trial judge’s order overruling the motion for rehearing declared expressly that she had considered the motion for new trial and Fletcher’s argument in that connection. The meaning and effect of this order are that the trial judge considered and rejected the propriety of a lesser sanction. See 4 Roy W. McDonald, Texas Civil Practice in District and County Courts § 17.10.1, at 90-91 (Frank W. Elliott ed., rev. ed. 1982).
*608For these reasons I would overrule Fletcher’s contention that the trial judge abused her discretion by omitting to supply a record statement that she considered a lesser sanction before imposing that of dismissal.
THE REQUIREMENT OF A JUST SANCTION
Fletcher argues, in effect, that the trial court abused its discretion because the dismissal sanction was unjust in light of what TransAmerican required before that sanction might be imposed.
A sanction must be “just.” Tex.R.Civ.P. 215(2)(b); TransAmerican, 811 S.W.2d at 917. This statement means several things: (1) “a direct relationship [must exist] between the offensive conduct and the sanction imposed”; (2) the chosen sanction “must not be excessive”; (3) the sanction must result from a “reasoned analysis of the purposes sanctions serve and the means of accomplishing those purposes”; and (4) if the dismissal sanction will amount (as in Fletcher’s case) to an adjudication of the offender’s claim without a trial, the offender’s conduct must amount to “flagrant bad faith.” TransAmerican, 811 S.W.2d at 917, n.6, 918.
There can be no question that there exists a direct relationship between Fletcher’s offensive conduct and the sanction imposed. This leaves for discussion the interwoven issues of whether the dismissal sanction was excessive, whether it resulted from a reasoned analysis of the purposes served, and whether it was based on Fletcher’s “flagrant bad faith.” I turn first to the question of “flagrant bad faith.” Lying under oath is “bad faith” by definition.
The TransAmerican opinion adopted the flagrant bad-faith requirement from the decision in National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642-43, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976). See TransAmerican, 811 S.W.2d at 918. In National Hockey League the Supreme Court sustained the trial court’s finding of flagrant bad faith where the offending party failed to obey an order to answer an opposing party’s written interrogatories for a period of seventeen months. If a mere omission of that character constitutes flagrant bad faith, for the purposes served by the discovery sanctions, the trial court in Fletcher’s case could reasonably conclude that her affirmative conduct, amounting to an element of perjury, constituted flagrant bad faith. See Vaughn, 792 S.W.2d at 142-43.
Was the dismissal sanction arrived at by a reasoned analysis of the purposes served by the discovery sanctions and their accomplishment? The purposes to be served by the discovery sanctions are three: (1) securing compliance with the rules of discovery; (2) punishing parties who violate the discovery rules; and (3) deterring others from such violations. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1987). As stated above, we have not been provided findings of fact and conclusions of law. I am left then to ascertain whether such an analysis may fairly be inferred from the evidence on any legal theory. Point Lookout West, Inc., 742 S.W.2d at 279.
Fletcher makes three basic arguments for holding that the dismissal sanction was excessive and, therefore, could not be the product of a reasoned analysis.
I.
Fletcher contends first that Rule 215 did not apply to her case at all because her conduct did not come within that rule. She reasons that her lying about her educational attainments did not constitute a hindrance to discovery; rather, she merely supplied false evidence in advance of trial which might furnish a topic for cross examination at the trial itself. I disagree entirely. Fletcher’s contention amounts to an invocation of the discredited and rejected notion of a “sporting theory of justice” that has no place in our legal system.
Merely to state the purpose of the discovery rules demonstrates that Fletcher’s conduct came within the rules. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. *609495, 507, 67 S.Ct. 385, 391, 91 L.Ed. 451 (1947) (emphasis added). The discovery rules “have modified the trial-by-battle techniques of the common law by procedures which seek to make litigation not merely a battle of wits between opposing counsel, each intent upon concealing as long as possible his power, but rather a genuine effort to arrive at the actually disputed issue by a mutual disclosure of strength before trial.” 2 Roy W. McDonald, Texas Civil Practice in District and County Courts § 10.02, at 420 (Frank W. Elliott ed., rev. ed. 1982) (emphasis added). The discovery rules were intended to be “[effective pretrial procedures which clear away the tangle of unfounded claims and defenses and non-essential collateral disputes, and reveal the actual force of the position of each litigant [and] are likely in the long run to produce a fairer disposition of litigation.” Id. (emphasis added). The discovery rules have the purpose of establishing a “comprehensive system for the pretrial discovery of the evidentiary facts ... and the pretrial development of evidence to be used at the trial thereof.” Id. at 421 (emphasis added). There can be little dispute that discovery answers are required to be under oath in order to effectuate these purposes and inhibit the supplying of false evidence.
Fletcher hindered discovery and failed to comply with a proper discovery request because she did not supply true information about her educational attainments, a material matter. That she lied in the process demonstrated unequivocally her bad faith in the matter, and it also established favorable, but false, information that would bolster her case on damages and perhaps credibility while misleading any fact finder, the trial court, and any appellate court. Her fabricated “evidence” inflated the strength of her case over its true strength. She created rather than cleared away an unfounded claim. I would hold her conduct fell squarely within Rule 215.
II.
Fletcher argues next that her fabrication of evidence occasioned no harm to her opponents in litigation because they ultimately learned the truth from their own investigations; and when they confronted Fletcher with the truth, in a third discovery attempt, she freely admitted lying and freely admitted the truth of what her opponents had learned.
I believe it correct to say that prejudice to opposing parties is a proper consideration bearing on the justness of the sanction chosen by the trial court. But it is not the only factor to be considered in that regard; it must be considered and weighed in conjunction with all the relevant factors bearing upon what is necessary to achieve the purposes of deterrence and punishment, after the purpose of compliance passed from the case by Fletcher’s admitting the truth. I will discuss this matter below in conjunction with Fletcher’s third argument.
III.
Fletcher argues finally that the sanction of dismissal does not further any of the three purposes of discovery sanctions. I disagree entirely, believing the purposes of deterrence and punishment are essential to be effectuated in the present case and that the trial judge could reasonably conclude in light of all of the relevant factors that no sanction short of dismissal would accomplish them. Certainly, her conclusion is not shown by this appellate record to be a manifest abuse of discretion, as was the case in TransAmerican.
Had the trial court merely foreclosed Fletcher’s recovery of a part of her damages, which Fletcher suggests as a possible “available” sanction that was more proportionate to her conduct, I believe that result would only encourage lying under oath by other litigants and convert serious legal proceedings into a costly game unworthy of any legal system: “What may I risk lying about without losing too much if I’m caught?” There is no deterrent at all and no punishment of Fletcher’s conduct under such a proposed sanction. That sanction would only encourage other litigants to take calculated risks because Fletcher lost only what she chose to put at risk by her *610lying. This hardly comports with any rational idea of a “penalty.” Fletcher would not sustain a penalty if she lost only what she put at risk, and no more. It is not a penalty to lose what one chances in a gamble. It is simply a “bet.”
It is, of course, possible that Fletcher would afterwards be truthful in giving evidence in the course of the litigation, having suffered only a lesser sanction. But other parties in other lawsuits will take it as an invitation to gamble on extending their evidence beyond the truth, after balancing the risks of having their deceit discovered. Shall this be the practice in our legal system? If so, we have resurrected the “sporting theory of justice” that we thought buried by the discovery rules. Simultaneously we have degraded our legal system to an extent that it is not worthy of public reliance in serious matters.
The effect upon the courts weighs heaviest of all the relevant factors in my view. It is a factor that must be considered extremely important in assessing whether the trial judge abused her discretion in choosing the sanction she did.1 I do not see how a court system can operate at all except on a premise that the system actually works based upon .truthful evidence and an assumption that witnesses who are sworn to be truthful in their evidence habitually and routinely are. Fletcher attempted to trade to her advantage upon that very assumption while slitting its throat in secret. I cannot hold that dismissal of her lawsuit, for such conduct, was a manifestly improper application of Rule 215(b)(2).
In the absence of findings of fact and conclusions of law, I would affirm the trial-court judgment on the legal theory given above. I therefore dissent from the majority decision overruling the appellees’ motions for rehearing.
. "Weakened confidence in our parliament would be formidable, but confidence destroyed in courts of justice would be taking out the linch-pin.” John, Viscount Morely, Notes on Politics and History (1913).