dissenting.
I dissent. Submission on written motions is no substitute for an oral hearing when the trial court is considering death penalty sanctions. When a party requests a hearing on a motion for sanctions, the rules require that the trial court conduct a hearing. The procedure for imposing sanctions are limited by the rules and by constitutional due process. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 916 (1991); see also Braden v. Dow-ney, 811 S.W.2d 922, 922 (1991).
Before striking pleadings or rendering a default judgment, the court must give the party an opportunity to be heard. Sears, Roebuck & Co. v. Hollingsworth, 156 Tex. 176, 293 S.W.2d 639, 642 (1956); First Dallas Petroleum, Inc. v. Hawkins, 121 S.W.2d 640, 648 (Tex.App. — Dallas 1987, no writ); Plodzik v. Owens-Coming Fiberglas Corp., 549 S.W.2d 52, 54 (Tex.App. — Waco 1977, no writ); see also Brighton Square Pub., Inc. v. Nelson, 795 S.W.2d 29, 31 (Tex.App. — Houston [1st Dist.] 1990, no writ). In Brighton, we said that the hearing may be waived, but an appellate court will not assume it was waived simply because the defendant did not ask for a hearing. Id. In Brighton, we reversed because of the lack of a hearing on sanctions.
The majority holds that the local rules of the Harris County district courts permit a motion to be submitted in writing if the party does not file both a written response and a request for a hearing. The local rules are effective only to the extent that they do not conflict or limit the rules of procedure. Rule 3a of the Texas Rules of Civil Procedure states:
Each [court] may make and amend the rules governing practice before such courts, provided:
(1) that any proposed rule or amendment shall not be inconsistent with these rules....
Tex.R.Judic.Admin. 10 states:
The local rules adopted by the courts of each county shall conform to all provisions of state and administrative region rules.
A local rule that permits a motion for sanctions to be considered without a hearing, particularly when the party asks for a hearing, violates the clear language of Tex. R.Civ.P. 215(2)(b)(5).