dissenting.
I respectfully disagree with both the presently designated majority opinion written by Justice Griffin and the concurring opinion by Justice Calvert. The order of November 12, 1958, involved the exercise of judicial discretion. This Court will not issue writs of mandamus to control or revise the exercise of discretion by trial courts in the performance of purely judicial as distinguished from ministerial acts. Iley v. Hughes, 158 Texas 362, 311 S.W. 2d 648, and cases therein cited. No clear right has been shown authorizing the granting of the writ of mandamus. Relators’ motion for leave to file petition for writ of mandamus, filed December 4, 1958 and later granted, states that this is a matter of great public concern. I do not agree that it is a matter of great public concern. Therefore, the case should take its regular course by appeal to the Court of Civil Appeals.
The relator, Kelley, after being assured by the trial court that he would be given an opportunity to file an application for writ of habeas corpus without having to go to jail, and only then, refused to obey the order of the court wherein he, Kelley, while testifying as a witness, was directed to deliver Relator Crane’s 1950 income tax return (copy) for inspection by respondents’ attorney. All of this occurred in open court in the course of a judicial proceeding and while Relator Kelley, the attorney for Relator Crane, was testifying as a witness. The record shows that prior to such refusal, the trial court had announced a course of procedure that would be followed during the hearing in the discovery proceedings. The court heard evidence as to the relevancy of the income tax returns for the years 1939-1949. The court ruled that such returns were not material, but, in accordance with his previous announcement that all documents excluded would be sealed and later examined by the appellate courts in case of appeal, the court ordered the 1939-1949 returns (copies) impounded. Now, had the trial court made the same ruling in regard to the 1950 returns, no doubt the court would have followed the same procedure. No doubt, the respondents would have perfected an appeal as to such adverse ruling, and the 1950 returns would have been opened for inspection by the appellate courts. Nothing is kept secret from the litigants in the course of a judicial proceeding. Therefore, the respondents would have ultimately had an opportunity to inspect the 1950 returns. Regardless of whether the trial court actually examined the 1950 returns or not, he did hear evidence at great length on the question of admissibility of the document, and then ruled that the 1950 return was material and ruled Mr. Kelley should *197deliver the returns for inspection. To issue a writ of mandamus will be setting a dangerous precedent. In the future, litigants will constantly attempt to halt the trial of cases and bring matters involving strictly judicial acts and rulings to this court by way of mandamus. This court has held repeatedly that it will not issue writs of mandamus to control or revise the exercise of discretion by trial courts in the performance of purely judicial as distinguished from ministerial acts.
This proceeding has been converted from a proceeding by writ of habeas corpus to a proceeding by way of writ of mandamus. Perhaps, strictly speaking, if this were a habeas corpus proceeding, the trial judge might be required to examine the returns before punishing Relator Kelley for an act of contempt in the court’s presence. It is my opinion, however, that it is immaterial whether the court inspects the instrument or not. But, should the writ of mandamus be .granted and the trial court inspects the instrument and then rules that it is admissible in its entirety, and Mr. Kelley still refuses to deliver the document, he, Kelley, would be guilty of contempt. Mandamus simply will not lie to correct a claimed erroneous ruling or order of the trial court where the order, as here, involved solely the exercise of judicial discretion. This is a court of law. We do not ordinarily pass upon, in the first instance, the question of admissibility of evidence. The trial court has carefully protected relators’ rights requiring a clear showing of materiality and relevancy prior to ordering that the 1950 return be produced for inspection. In a civil action, such as we have here, there can be no basis for the claim that the 1950 tax return (copy) is a privileged document. If relevant matters appear in the income tax returns, and the trial court in this instance has found that such is the case, then the respondents are entitled to see such returns and use same.
Judge Tunks’ gracious act in suspending the passing of sentence for contempt cannot amount to an abuse of discretion. He did not act through fraud, caprice, or by a purely arbitrary decision, and without reason.
Relators’ petition for writ of mandamus should be refused, or, in the alternative, the opinion of this Court should be limited to a holding that before sentence for contempt may be effectively carried out, the Court should inspect the instrument before making a final ruling.
Opinion delivered October 28, 1959.