concurring and dissenting.
I join Justice Chavez in his concurring and dissenting opinion, but I would also dissent from the majority opinion for the reasons stated below:
Mark A. Cantu has filed several actions in Cameron and Hidalgo counties, as well as appeals to this Court, in a continuing effort to have set aside the underlying judgment rendered against him, in favor of Juan Lopez Butrón and Luis Enrique Cortinas Villareal (collectively as “Butrón”), and also to prevent the collection of the judgment, and preserve the monies in the registry of the district court, while he pursues his legal remedies against said judgment. Cantu has asserted in each instance that the underlying judgment, rendered in the 138th District Court in Cameron County, Texas, was the result of a wrongful conspiracy, fraud, and was based in whole or in part on perjured testimony.
Among the actions filed by Cantu was an equitable bill of review in the 138th District Court, wherein Cantu sought to set aside the judgment altogether. Summary judgment was rendered against Cantu, in favor of Bu-trón, in that action. An appeal of that summary judgment is presently before this court, and as of this date has not been ruled upon. Without expressing an opinion as to the merits of Cantu’s claim in that appeal, it is clear to this judge that the matter could be remanded to the trial court, and, quite possibly, ultimately result in the vacation of the underlying judgment. Cantu contends that he is entitled to enjoin collection of the underlying judgment until he has exhausted the legal remedies available to challenge that judgment.
Notwithstanding Cantu’s position, on September 26, 1997, a panel of this Court of which I was not a part issued an order “enjoining respondent Mark A Cantu and Roxanne Cantu, their agents, attorneys or anyone acting on their behalf, from filing any additional lawsuit or asking for any additional relief in any pending action, whether in law or in equity, that would impede or prevent the collection of the final judgment rendered by the 138th District Court.”
I have serious reservations about categorically enjoining a party from exercising any and all legal avenues for attacking a judgment and protecting his or her rights, when the exercise of such avenues are provided for by law. Without considering the merits of Cantu’s bill of review petition currently pending in this Court, I am reluctant to hold Mark Cantu in contempt for seeking to prevent allocation of assets while the rights thereto are still being challenged through legitimate means. Notwithstanding my concerns regarding the propriety of this Court’s prior order, I am bound by it, and am now charged, along with my fellow justices, with the task of protecting its enforcement, and in so doing, protecting the jurisdiction of this Court. I agree with the majority that some of Mark Cantu’s actions subsequent to this Court’s order of September 26, 1997, were prohibited, and therefore, he should be held in contempt of Court. I disagree with the majority, however, to the extent that it finds Cantu’s actions constitute vexatious and harassing litigation.
I join Justice Chavez in concluding that Cantu should not be confined for his conduct, and I would recommend that any sentence against Cantu be suspended.
FEDERICO G. HINOJOSA A not participating.