H.B. Zachry Company v. Honorable Charles A. Gonzalez

Per Curiam In this original mandamus proceeding, H.B. Zachry Company seeks to compel the Honorable Charles Gonzalez to set
aside his order excluding witnesses pursuant to rule 215(5) of the Texas Rules of Civil Procedure. The witnesses were excluded
because they were not fully identified in answer to interrogatories of the defendant, Bristol Metals, Inc., more than thirty
days before the date of trial as required by rule 166b(6). TEX. R. CIV. P. 166b(6). Since the ruling, Judge Gonzalez removed
the trial setting to a date more than thirty days from the date of the trial from which the witnesses were excluded.1 Because the trial setting was removed, we conclude that Zachry must be permitted an opportunity to timely supplement answers
in accordance with the rules governing discovery in a civil lawsuit. The automatic exclusion of the evidence and/or witnesses
from the trial provided by rule 215(5) does not continue beyond the resetting of the trial date where the date set is more
than thirty days from the date of the original trial date. For the exclusion to remain beyond such a reset, the trial court's
ruling enforcing the exclusion must be based upon some other sanctionable conduct of the party. The record in this proceeding
demonstrates that the court's ruling is based solely upon the automatic exclusion of the evidence called for in the rule.2