Christine E. Reule v. M & T Mortgage, M & T Bank Bayview Loan Servicing, LLC, Bayview Financial Trading Group, LP, Bayview Financial LP and Hughs, Watters, Askanase, LLP

Affirmed and Majority, Concurring, and Dissenting Opinions filed October
29, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00502-CV

CHRISTINE E. REULE, Appellant
V.
M & T MORTGAGE, M & T BANK, BAYVIEW LOAN SERVICING, LLC,
BAYVIEW FINANCIAL TRADING GROUP, LP, BAYVIEW FINANCIAL
LP, HUGHS, WATTERS, ASKANASE, LLP, CAROLYN TAYLOR,
AUDREY LEWIS, JEFF LEVA, SANDY DASIGENIS, AND RLZ
INVESTMENTS, INC., Appellees

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2008-75636

DISSENTING OPINION
How are courts to determine appropriate and just sanctions against a litigant
who claims to be disabled and says the conduct being sanctioned is the product of a
disability? This thorny issue is a question of first impression in Texas. The panel
is divided. Though the majority argues the litigant’s disabilities should play no
role in the sanctions determination, the court disposes of the issue by finding
briefing waiver.1 Under a merits analysis, even assuming the sanctioned conduct
in this case was not disability-related, but willful and deliberate such that sanctions
were warranted, the particular sanction imposed—writing rote sentences by
hand—is demeaning and excessive, thus inappropriate for any litigant. For this
reason, the trial court’s sanction should not stand.2

Appellant Christine Reule asserts that the trial court abused its discretion in
imposing sanctions against her for trial conduct. Her principal complaint is that
the sanctions are inappropriate and unjust in light of her disabilities. Though
Reule’s appellate briefing on the point is imperfect, it is sufficient under a liberal
construction for this court to reach the merits of the sanctions issue. 3 And, doing

1
We must construe appellate briefs reasonably, yet liberally, so that the right to appellate
review is not lost by waiver. See Tex. R. App. P. 38.1(f); Perry v. Cohen, 272 S.W.3d 585, 587
(Tex. 2008) (per curiam). Because finding briefing waiver is a discretionary call, when a point is
not well-briefed, the deficiency might preclude appellate review and it might not. See Statewide
Hydraulics, Inc. v. EZ Mgmt. GP, LLC, No. 14-13-01049, 2015 WL 167160, at *7 (Tex. App.—
Houston [14th Dist.] Jan. 13, 2015, no pet.) (mem. op.) (presuming the brief challenged the
critical findings when no findings specified in legal or factual sufficiency challenge because a
point must be treated as covering every subsidiary question that is fairly included); Elaazami v.
Lawler Foods, Ltd., No. 14-11-00120-CV, 2012 WL 376687, at *6 (Tex. App.—Houston [14th
Dist.] Feb. 7, 2012, no pet.). Depending on context and circumstances, the appellate court can
choose to find a point waived or it can choose to find that the briefing, though flawed, is
sufficient under a liberal construction to reach the merits. See Statewide Hydraulics, Inc., 2015
WL 167160, at *7; Elaazami, 2012 WL 376687, at *6 (noting that appellate courts have
discretion to determine whether a point of error is waived on appeal due to inadequate briefing).
In this case, the court should choose a merits disposition.
2
The majority misreads how the dissent would rule on the sanctions issue. See ante at p.
25. The disposition under this dissenting opinion is not to reverse and remand “because the trial
judge might not have had the knowledge or expertise to determine whether Reule’s sanctionable
conduct was disability-related,” as the majority asserts, see ante at p. 25, but rather because the
handwriting sanction is an inappropriate punishment for any litigant, as other courts have held.
See Williams v. Tulane Univ. Med. Ctr., 588 So.2d 782, 783 (La. Ct. App. 1991); see also Parker
v. Progressive Ins. Co., 720 So.2d 408, 412 (La. Ct. App. 1998) (citing Williams for the
proposition that sanctions may not be demeaning).
3
Reule asserted in her brief that the trial court abused its discretion by sanctioning her
2
so would model the Supreme Court of Texas’s practice of construing points
liberally “to obtain a just, fair and equitable adjudication of the rights of the
litigants.”4 Under a merits analysis, the court should reverse the trial court’s
sanctions order and remand the sanctions issue to the trial court for further
consideration. Because the court instead affirms the sanctions, I respectfully
dissent.

FACTUAL BACKGROUND

Appellee/defendant Bayview Loan Servicing, LLC filed a motion for
sanctions seeking to recover attorney’s fees against Reule for litigation conduct
that occurred during the parties’ six-day trial. Following a hearing on Bayview’s
motion for sanctions, the trial court ordered Reule to pay monetary sanctions or
submit to the trial court “a written statement in her own handwriting that states
100 times that, ‘I will not waste the time of the Court, opposing counsel, jurors or
court personnel.”5

Bayview based its request for sanctions on Reule’s “delays throughout the
trial.” Reule defended against the sanctions, stating, among other things, that she
has a profound disability and identifying three distinct neurologically-based
learning disabilities. Reule explained that she has dyslexia, Attention Deficit

because she was sick and disabled. One reason Reule was sanctioned was because she was
disorganized and inefficient during trial. In her appellate brief, Reule explains that the cause was
her disabilities. Reule relies on the appropriate legal standard—abuse-of-discretion—and argues
that in this situation there was no good cause to impose sanctions against her. And, she asserts
the sanctions are excessive. Given the context and circumstances, this court should opt to
dispose of the sanctions issue on the merits. See Statewide Hydraulics, 2015 WL 167160, at *7;
Elaazami, 2012 WL 376687, at *6.
4
Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (noting “it is our
practice to construe liberally points of error in order to obtain a just, fair and equitable
adjudication of the rights of the litigants”).
5
Emphasis added.

3
Hyperactivity Disorder (ADHD), and a processing disability. Reule argued that
the sanctions were not warranted because she “didn’t do anything deliberately.”

The hearing on the sanctions motion was brief. Reule, who had not before
identified her dyslexia or ADHD, pointed to these and other disabilities as an
explanation for the conduct. The trial judge did not respond to Reule’s disabilities
explanation other than to state the monetary sanction was a conservative amount.
The trial court signed an order for Reule to pay $900 in monetary sanctions, later
amending the order to include the handwriting option as a means to avoid payment
of the monetary sanctions. No party or counsel requested the handwriting
sanction. Reule objected to the sanctions order.

SANCTIONS ANALYSIS

An appellate court reviews the imposition of sanctions for an abuse of
discretion.6 The test is whether the trial court acted without reference to guiding
rules and principles because its ruling was arbitrary or unreasonable.7

Sanctions may be imposed for a variety of reasons—to enforce compliance
with the relevant rules, to punish violators, to compensate the aggrieved party
forced to incur costs to respond to baseless pleadings, or to deter other litigants
from similar misconduct.8 The Supreme Court of Texas has cited factors helpful in

6
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); Corea v. Bilek,
362 S.W.3d 820, 824 (Tex. App.—Amarillo 2012, no pet.)(abuse-of-discretion standard of
review applies to actions for sanctions under the trial court’s inherent powers); see In re S.M.V.,
287 S.W.3d 435, 442 (Tex. App.—Dallas, no pet.).
7
Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004) (quoting Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).
8
Mann v. Kendall Home Builders Constr. Partners I., Ltd., 464 S.W.3d 84, 91 (Tex.
App.—Houston [14th Dist.] 2015, no pet.).

4
guiding the process of determining a penalty for sanctionable behavior.9 The
factors include the offender’s good or bad faith, the degree of willfulness or
negligence involved in the offense, and the offender’s knowledge or experience.
In determining whether the trial court abused its discretion, a reviewing court is to
conduct a two-part inquiry to ensure that the sanctions are appropriate and just.10
First, there must be a direct relationship between the improper conduct and the
sanction imposed.11 Second, courts must ensure that less severe sanctions would
not have been sufficient to promote compliance.12 No Texas case addresses how
these general principles apply in the context of a disabled litigant who claims the
sanctioned conduct was not deliberate or willful but disability-related. The first
step in the general analysis, though, focuses on the blameworthiness of the litigant,
a consideration that goes to the core of the issue presented.

Bayview’s counsel described the delays for which Reule was sanctioned as
due in part to Reule’s lack of organization and inefficiency in dealing with
documents. He explained how counsel had to take breaks so that Reule could
gather her exhibits, and he complained that she took too long with them, describing
how she “sat there and went page by page.” The case involved more than fifty
exhibits, over 600 pages of documentary evidence. The print on many of the
documents is in small font and single spaced, with dense paragraphs. The time
Reule spent working with documents delayed the trial. Throughout the
proceeding, the judge as well as defense counsel, endured tedious interruptions and
down-time, at one point taking a nearly two-and-a-half hour break during direct

9
Low v. Henry, 221 S.W.3d 609, 620 n. 5 (Tex. 2007).
10
See Am. Flood Research, Inc., 192 S.W.3d at 583.
11
Id.
12
See id.

5
examination so that Reule could compile needed exhibits.13 Defense counsel
concluded that the trial judge “may have been fed up” and sent the jury home
because Reule was “unable to proceed with her case even though it was in the
middle of her examination.” In its sanctions motion, Bayview asserted that Reule
wasted nine hours due to her lack of organization. At the sanctions hearing,
Bayview’s counsel estimated that Reule probably made “a two to three day trial
into a six day trial.”

According to Reule, disorganization and inability to review documents
efficiently are an inherent part of being dyslexic and having ADHD and processing
problems. At the sanctions hearing, no one contested Reule’s disabilities.14

The fact pattern in today’s case is unusual in that the sanctioned litigant does
not dispute the trial conduct for which she was sanctioned nor does she take the
position that she did not understand what was expected of her at trial. Her defense
is rooted in a professed lack of capacity to do what was required. The issue before
the trial court and now before this court is whether the sanctioned trial conduct is
the product of the litigant’s disabilities rather than willful and deliberate behavior.
The main point of departure between the majority and the dissent is how to make
that determination.

The Thorny Problem of Sanctioning Individuals with Disabilities

Is a litigant’s disability a relevant consideration in a sanctions analysis? If

13
At times during the course of the litigation, Reule made remarks that showed a lack of
respect for the trial court. But these remarks were neither the grounds for the sanctions motion
nor the basis for the sanctions order.
14
On appeal, the majority questions Reule’s disabilities, but the movant for sanctions did
not dispute them. The record shows Reule receives social security disability benefits, though it
is unclear whether these benefits are for the ADHD, dyslexia, learning disabilities, processing
disabilities, fibromyalgia, some combination of these disabilities, or for something else.

6
so, what is the test for determining if the sanctioned conduct is disability-related?
What is the test for determining whether a litigant is truly disabled? How is the
trial court to determine the effect of a disability on a litigant’s conduct? If
sanctions are warranted, what must the trial court do to ensure the sanction is
appropriate and just in light of the litigant’s disability? These and other issues
surround the thorny problem of sanctioning individuals with disabilities.
The majority suggests that the trial judge could and did make the
determination of whether the sanctioned conduct is disability-related based on
Reule’s litigation conduct as a whole.15 This approach is problematic. What if the
trial judge does not have the knowledge or expertise to determine whether the
sanctioned conduct is disability-related?

The majority’s approach might work in some cases, but not in all. As
factfinder, the trial judge must discern between defiance and inability. Consider,
for example, the litigant who fails to rise when the judge enters the courtroom. Is
the litigant acting in defiance of proper courtroom demeanor? Or, is the litigant
physically unable to perform the task? A judge must know the difference before
imposing sanctions. Sometimes it is easy to tell. A wheelchair, for example,
provides a visible and familiar sign of a litigant’s physical disability. The
wheelchair instantly alerts the judge that the litigant’s failure to rise is not an act of
defiance or disrespect, but an inability to do so due to a physical disability. Not all
disabilities are so obvious.

When a litigant’s disability is not apparent, discerning between oppositional
behavior and inability is harder. A disability is sometimes masked by a seemingly
normal exterior, and that sometimes causes observers to draw the wrong inferences

15
See ante at p.26.

7
about a litigant’s behavior. The challenge for the trial judge is to discern between
oppositional behavior and disability. For instance, consider the inferences a court
might draw if a litigant who suffered from Tourette’s Syndrome punctuated his
trial testimony with inappropriate outbursts that included vocal and vulgar slurs
seemingly directed to the judge, opposing counsel, or jurors. On the surface, the
behavior is outrageous, offensive, and utterly inappropriate. But, the analysis
would surely change if the litigant disclosed that he suffered from a neurological
disorder characterized by involuntary tics and vocalizations and often the
compulsive utterance of obscenities.16

A trial judge ignorant of the disability and its unusual manifestations might
hold such a disruptive litigant in contempt of court for foul language and
unacceptable conduct. Yet, despite appearances, the litigant’s inappropriate
outbursts would be the product of a disability, not oppositional behavior, defiance,
or disrespect. Sanctioning such a litigant for uncontrollable outbursts would be
every bit as wrong as sanctioning a paraplegic litigant for failing to rise when the
judge entered the courtroom. Disabilities are no less real because they are
invisible.

General Sanctions Principles Applied to the Disabled Litigant
General principles from sanctions jurisprudence suggest that if a court is
considering imposing sanctions on a litigant alleging a disability, the court first
must consider whether the litigant’s behavior is the product of defiance, which is
sanctionable, or the product of disability, which is not. 17 If the court determines

16
NEW OXFORD AMERICAN DICTIONARY 1831 (3d ed. 2010). The above hypothetical
illustration is not to be read substantively as support for the nature or properties of Tourette’s
Syndrome. The example is provided to illustrate the point, not for the technical accuracy of the
description or application.
17
See generally Am. Flood Research Inc., 192 S.W.3d at 583 (holding that a trial court
8
that the litigant is acting willfully and deliberately, the court then must consider if
the sanction contemplated is appropriate and just in light of the litigant’s
disability.18 The legal standard recognizes the key difference between knowing
what is expected and having the capacity to do it. Echoing this legal standard,
Reule asserted that her actions were not deliberate. At the sanctions hearing, Reule
defended against the sanctions motion by telling the trial court that she had “a
profound disability that she was trying to deal with.” She mentioned three learning
disabilities at the hearing. Responding to the complaints about the additional time
it took her to work with the exhibits, Reule stated, “I’m dyslexic and I have a
processing disability.” Reule was attempting to explain how she was overwhelmed
with the stress from the trial when she stopped mid-sentence because she noticed
the trial judge already was signing a sanctions order. She had not yet finished her
explanation.

The record does not reflect how dyslexia, ADHD, or learning and processing
disabilities impact an individual’s ability to read and review documents efficiently
or how these disabilities might have impacted Reule’s organizational failures and
inefficiencies at trial. Yet, not all of the sanctioned shortcomings raise the same
level of concern. It is one thing to sanction a disabled litigant for chronic tardiness
to court. (There is no problem with that; everyone needs to be on time.) But, it is
quite another to sanction a dyslexic individual for not reading documents fast
enough during trial.19

The sanctions motion and hearing dealt exclusively with Reule’s behavior at

imposing sanctions is obligated to ensure that the sanctions are appropriate and just).
18
Id.
19
The trial court did not allocate the sanctions among Reule’s various failures.

9
trial. The majority’s litigation-conduct-as-a-whole approach to resolving the
sanctions issue does not take into account the nature of the disabilities or the nexus,
if any, between the disabilities and the sanctioned conduct, subjects that are
typically beyond the knowledge of judges. Suppose in the Tourette’s Syndrome
hypothetical, the trial judge, knowing nothing about the disability, had followed
the majority’s litigation-as-a-whole model and concluded that the litigant had
conducted himself properly for years without incident and so the obscenity-laced
trial testimony must not have been disability-related. Or, suppose the record
reflected that the litigant had testified in that offensive manner at every hearing in
the case, spurring the judge to conclude the conduct was a matter of habit and not
disability. Drawing inferences in this context can be unfair to individuals with
disabilities, especially if they are pro se litigants who lack the financial means or
legal know-how to make a showing that might persuade the court otherwise.

The majority’s hostility to the notion that Reule’s disabilities played any role
in the sanctioned conduct exemplifies the problem inherent in judges, unaided by
medical expertise, drawing inferences and making judgments about disabilities
based only on observations. In this context, judges do not know what they do not
know.

The majority makes observations about how Reule conducted herself over
the course of the litigation and suggests that her pattern of conduct alone is enough
to decide that sanctions are warranted, without regard to her disabilities. Given the
technical subject matter (neurologically-based disabilities), more is needed to
decide if there is a disability nexus. The undeniable reality is that judges typically
will not know enough about a given disability or its manifestations to make a
sound determination. This lack of knowledge also may prove problematic in
deciding the appropriate sanction, should the court conclude that the litigant (or

10
lawyer) is disabled but the conduct is not the product of the disability.

A trial court imposing sanctions must ensure that the sanctions are
appropriate and just.20 A sanction that may be appropriate and just in one
circumstance can be inappropriate and unjust in another. As part of the trial
court’s duty to impose only appropriate and just sanctions, the trial court has an
affirmative obligation to see that the sanction it chooses is appropriate and just
based on the circumstances presented to the court. No matter how bad the
litigation misconduct might be, it would be wrong to sanction a disabled litigant by
ordering the litigant to do an activity that strikes at the heart of the litigant’s
disability. Without a proper understanding of the disability, a judge might select a
medically inappropriate sanction out of ignorance or oversight and unwittingly
subject the disabled litigant to idiosyncratic difficulties (including physical pain)
that would not be a problem for a litigant who did not have that disability. If a
judge were to make such a selection, the sting of the disability-striking sanction
would hardly be dulled because the judge did not intend the result.

The selection of unconventional sanctions for disabled litigants presents
risks. The problem and potential abuse of discretion rests not in the judge’s failure
to know the particulars of the litigant’s ailments and their manifestations, but in the
judge’s meting out the unconventional sanction without first finding out how it
might affect the sanctioned individual given the disabilities disclosed.

When a judge imposes sanctions on a disabled litigant (or lawyer), what is
required to determine the potential impact of the sanction on the disabled
individual? Where do the burdens and presumptions fall? The disabled litigant is
in the best position to know the likely impact of the sanction, but if the burden to

20
Am. Flood Research Inc., 192 S.W.3d at 583.

11
show why the sanction is inappropriate falls on the disabled litigant, the costs
associated with making the showing would render the task impossible, or at least
unfeasible, for many disabled litigants, especially the self-represented and indigent
ones.

The Need for a More Tailored Legal Framework

While the existing sanctions factors provide a broad framework for guiding
courts in making sanctions determinations, our jurisprudence would benefit from a
more tailored legal framework, and perhaps special rules and procedures, for
navigating the difficult issues that arise in sanctioning litigants and lawyers who
allege disabilities. Ideally, these would take into account the individual’s
particular disabilities, provide practical tools for all trial participants to better
manage litigation expectations, and give the trial court a better framework to
analyze the various issues before sanctioning disabled litigants or lawyers who
increase system costs and burden system resources. Concerns about litigants like
Reule taxing our legal system, championed in the concurring opinion, are
important, yet there are also other, equally compelling considerations that impact
large populations of disabled individuals.

Litigants (and lawyers) with disabilities must overcome challenges their
courtroom counterparts might never experience. Sometimes it takes disabled
individuals longer to complete litigation tasks. Punishing them for causing
disability-related delays is not the answer. If an individual lacks the capacity to
change the behavior because of a disability, sanctions will not deter the unwanted
conduct. In addressing the problem, courts must strike a balance between the
special requirements of the disabled individual, the needs of other litigants, and the
everyday demands of busy court dockets. And, judges must do so in a way that is

12
compatible with the administration of justice.

Our legal system is best served when judges and lawyers make allowances
for individuals with special needs. In today’s case, both the trial court and
opposing counsel granted Reule extensions on pretrial deadlines. When the exhibit-
numbering requirements proved too challenging for Reule, the trial court modified
them. When Reule was unable to locate exhibits during trial, the trial court and
opposing counsel provided copies. When Reule needed to make changes to her
exhibit list, they helped. Had Reule disclosed her dyslexia, ADHD, and other
learning disabilities at some point before trial rather than waiting until the
sanctions hearing, the trial court would have been better equipped to plan the
proceeding and manage expectations. Reule could have made the trial court aware
of how her disabilities were likely to affect her ability to perform at trial, giving the
court an opportunity to address and perhaps minimize the difficulties before trial
commenced. Still, under existing guidelines, Reule’s failure to disclose her
disabilities before trial, or to request accommodations, does not preclude her from
raising them in defense of a sanctions motion.21

A pro se disabled litigant overwhelmed by the magnitude of trial preparation
can make a legal proceeding especially vexing for skilled professionals whose
experience and training, if matched on the other side, would bring things to a
speedier conclusion. As this case illustrates, a single litigant’s lack of
organization, attention, and agility can make a trial an irksome experience for all
other participants. There is no denying that people with disabilities can slow
things down—some do not move as quickly, some do not see or hear as clearly,
and some do not read as easily. Yet, how we treat disabled individuals who appear
21
See Tex. R. App. P. 33.1 (stating that to preserve error for appeal, party must make
timely and sufficiently specific objection in trial court). See also TransAmerican Natural Gas
Corp. v. Powell, 811 S.W.2d 913, 917–18 (Tex. 1991).

13
in our courtrooms says much about what we value in our legal system.

There is no question that making allowances for individuals with special
needs often produces inefficiencies and annoyances. But, at what point does our
drive to get rid of these vexations yield to higher objectives? Though disability-
related delays and inefficiencies sometimes mean increased attorney’s fees for one
side or the other, at what point do these costs become part of the inherent costs of a
justice system that is open to all? The existing sanctions guidelines and factors are
helpful in analyzing the issues, but they do not adequately address the thorny
problem of sanctioning the disabled litigant.

We need a legal standard that both recognizes the special needs of
individuals with disabilities and fosters litigation efficiency. The standard needs to
be a workable one that will root out imposters and adequately protect the truly
disabled, especially the indigent disabled. In a world where access to justice is
becoming increasingly challenging for the poor, the numbers of indigent disabled
in our courtrooms is sure to grow. There is a clear and compelling need for
disabled litigants to be able to make disability showings in a reliable yet practical
way. Resources are scarce. Proof is costly. And, fairness is paramount. Even
though the outcome of this appeal does not turn on the thorny issue of sanctioning
the disabled litigant,22 it is important to raise these concerns and ask the hard
questions so that we can address the challenges. The legal standard that ultimately

22
The majority’s conclusion that this dissent turns on the disability issue is puzzling. See
ante at p. 25. The outcome under this dissent rests solely on the impropriety of the handwriting
sanction under existing law rather than on the disability issue or the application of any new rule
or procedure to address it. Because the sanctions order can and should be reversed on the basis
that the handwriting sanction is demeaning, excessive, and inappropriate, disposition of the issue
does not require the fashioning today of a new legal framework that appropriately balances the
needs of disabled litigants with the demands of the justice system. This part of the dissent
functions much like a concurring opinion, the purpose of which is to raise awareness of an
emerging issue and highlight the jurisprudential considerations that surround it.

14
develops will reach far beyond today’s case.

On this record, we have nothing that tells us whether the sanctioned trial
behavior is disability-related. Nor does the record reveal whether the trial court
properly considered the possibility that Reule’s disabilities contributed to the
delays for which she was sanctioned. But, even assuming that the trial court
rightly determined that the sanctioned conduct was willful and deliberate rather
than disability-related, the trial court’s imposition of sanctions still constitutes an
abuse of discretion because the handwriting sanction was neither appropriate nor
just.23

Handwriting Rote Sentences: A Foul Choice for Litigation Sanctions

Reule argues the sanctions are excessive. To determine whether sanctions
are excessive, a reviewing court necessarily must consider the particular sanction
imposed.24

The aim of sanctions is to deter, punish, and compensate, not to shame or
humiliate. It is wrong to order a litigant—disabled or not—to do a demeaning
activity as a sanction for litigation misconduct.25 As other courts have observed,
handwriting sanctions are not only demeaning, but also pointless.26 They serve no
valid purpose.27 Traditional sanctions, such as those provided in the Texas Rules

23
See Am. Flood Research, Inc., 192 S.W.3d at 583.
24
See Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996); White v. Zhou Pei, 452 S.W.3d
527, 545–46 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
25
Williams, 588 So.2d at 783 (holding that sanctioning of the plaintiff’s attorney to write
50 times legibly, in his own handwriting, provisions of Louisiana law, was not appropriate,
setting aside sanction, and remanding for assessment of appropriate sanction); see also Parker,
720 So.2d at 412 (citing Williams for the proposition that sanctions may not be demeaning).
26
Williams, 588 So.2d at 783 (noting that handwriting sanctions are demeaning and serve
no utilitarian purpose).
27
Id.

15
of Civil Procedure (or otherwise recognized by the Supreme Court of Texas)
achieve deterrence, punishment, and compensation objectives while also
preserving the dignity of the sanctioned individual and promoting public
confidence in the fairness of our justice system.

Ordering a litigant to pay monetary sanctions or else perform a demeaning
activity is not within a judge’s discretion.28 In exercising its power to sanction, a
court should not make the sanctioned litigant choose between losing dollars and
losing dignity. For some litigants, it is a false choice.
Reule is indigent.29 When the sanctioned litigant has no money, the
monetary alternative is meaningless. Thus, the trial court’s order imposing
sanctions on Reule is no less an abuse because the handwriting option is presented
as an alternative to the monetary sanctions. If anything, heaping costs and
attorney’s fees on an indigent litigant while offering the demeaning chore as a
coercive substitute for payment exacerbates rather than lessens the abuse of
discretion. And, the sanction undermines equal application of the law. Non-
monetary, non-demeaning alternatives are available. Sanctions that belittle and
debase, whether ordered outright or as an alternative, are excessive, inappropriate,

28
Reule complains in her appellate briefing that the sanctions are excessive and that the
trial court abused its discretion in imposing them. The majority asserts that Reule did not argue
the handwriting alternative was an abuse of discretion. But, appellate courts are to treat an issue
or point as covering every subsidiary question that is fairly included in the issue or point.
Weingarten Realty Investors v. Harris Cnty. Appraisal Dist., 93 S.W.3d 280, 284 (Tex. App.—
Houston [14th Dist.] 2002, no pet.). Reule’s issue requires this court to determine whether the
trial court abused its discretion by issuing a sanction that included a handwriting alternative
because that is covered within Reule’s argument that the sanction is an abuse of discretion. See
id. The appropriate-and-just determination is the heart of the inquiry. See Am. Flood Research
Inc., 192 S.W.3d at 583.
29
Reule established her indigency in the trial court. The county did not dispute Reule’s
indigency status either in the trial court or on appeal. Though the trial court found Reule’s
indigency affidavit defective and ordered her to pay costs, Reule proved her indigency status and
this court allowed her to proceed without paying costs. See Tex. R. App. P. 20.1(f).

16
and unjust. They have no place in Texas courts.
CONCLUSION
When a trial judge deciding a sanctions motion stands at the intersection of
litigant-caused inefficiencies and that litigant’s disability, the judge ought not
impose sanctions unless and until the judge has fair assurance that the conduct is
not a product of the disability. A workable legal framework for making that
determination has yet to be developed and, as demonstrated today, the challenge is
to balance an assortment of considerations that may point in different directions in
all but the simplest case. In this appeal, nothing in the record suggests the trial
court considered the possibility that Reule’s disabilities contributed to the trial
behavior for which she was sanctioned. Only moments passed between Reule’s
identification of her disabilities and the trial court’s swift imposition of sanctions.
But, assuming that the trial court properly determined that the sanctioned conduct
was not disability-related and that sanctions were warranted, there is still reason to
reverse and remand the sanctions issue to the trial court: Texas law requires the
sanction to be appropriate and just, and the handwriting sanction is neither.30

/s/ Kem Thompson Frost
Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally (McCally, J.,
majority) (Boyce, J., concurring).

30
See Am. Flood Research, Inc., 192 S.W.3d at 583; Williams, 588 So.2d at 783.

17