Mechanism 09
Death-penalty discovery sanctions
When can a Texas court strike pleadings for discovery abuse?
Rarely, and only on a record built for it. A sanction must bear a direct relationship to the offensive conduct — visited on the true offender, not the client for the lawyer’s conduct or the reverse — and it must not be excessive. Merits-preclusive sanctions require flagrant bad faith or callous disregard, and lesser sanctions must ordinarily be tested first.
By John P. Henry · Tex. R. Civ. P. 215; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) · Reviewed 2026-08-02
The authority
[T]he sanctions the trial court imposes must relate directly to the abuse found … the punishment should fit the crime … [and] a sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes.TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)
Tex. R. Civ. P. 215; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991)
When it applies
The party that will not answer, will not appear, will not produce, and has already been ordered to. Also, from the other side, the sanction order that went too far and is the strongest issue on appeal.
How it is proved up
- Build the record of lesser sanctions before you ask for the ultimate one. The court must ordinarily test lesser sanctions and explain on the record why they would not promote compliance — and an order that does not is reversed.
- Establish who is responsible. If the conduct is counsel’s, say so and ask for a sanction that lands there; a party punished for its lawyer’s conduct is the classic reversal.
- Show the relationship between the abuse and the relief. Striking a defence has to connect to the discovery that was withheld about that defence.
- Ask for findings. A sanctions order with findings survives review far better than one without.
- If you are defending, the absence of that record is the appeal. Most reversals are about process rather than about whether the conduct was bad.
What defeats it
- A record with no lesser sanctions tried and no explanation of why they would not work.
- A sanction visited on the wrong person.
- Conduct that is careless rather than in flagrant bad faith or callous disregard.
- A sanction that is disproportionate to what was withheld.
Where I have used it
Included because it is the most-sought and least-granted remedy in Texas discovery practice, and because the two-part test explains almost every reversal. A litigant who understands the process requirement asks for something achievable instead.
Questions
What is the TransAmerican test for discovery sanctions?
A direct relationship between the offensive conduct and the sanction, so that the sanction is visited on the true offender; and that the sanction not be excessive — no more severe than necessary to satisfy its legitimate purposes.
Can a Texas court strike a party's pleadings for discovery abuse?
Yes, but merits-preclusive sanctions are reserved for flagrant bad faith or callous disregard of the responsibilities of discovery, and the court must ordinarily test lesser sanctions first.
Can a client be sanctioned for its lawyer's discovery conduct?
Only where the record shows the party is responsible. TransAmerican requires the sanction to be visited on the offender, and courts must determine whether the fault lies with the party, the attorney, or both.